Catherine Marks and Colin Gavaghan write:
As the referendum on the End of Life Choice Act approaches, people naturally want to know – are the safeguards in the Act safe enough? As two lawyers (one practicing and one academic) with extensive expertise in this area, our answer to this question is a resounding and evidence-based ‘yes’.
Our analysis has found New Zealand’s assisted dying Act is one of the most rigorous in the world. It strongly mirrors legislation that is working well in countries similar to ours (culturally and in terms of medical practice), including Victoria and Western Australia, with some additional protections.
Reports commissioned by governments into the international experience, including recent comprehensive parliamentary reports from Australia, have all found the safeguards work well and that predictions of abuse or pressure on the vulnerable have simply not materialised. There has been no “slippery slope” – the laws have remained narrow and where there has been change, it has gone through a parliamentary process. As many reports emphasise, doctors are already trusted to assess depression, coercion and ambivalence in life and death situations.
Something people may be unaware of is that doctors involve have to be certain that an applicant is eligible at every step of the process. It isn’t something they do just once at the beginning or even twice at the beginning and end.
Second, there is extensive evidence – including a 100-year study of coronial records in New Zealand – showing people take their lives prematurely when assisted dying is not available (while they are still physically able).
I personally knew someone who killed themselves because euthanasia wasn’t available for them in the future.
In New Zealand’s Act, the eligibility criteria are very narrow. It is not enough to be terminally ill with fewer than six months to live. You must also be experiencing unbearable suffering that cannot be relieved by treatment that is tolerable to you and you must be in a state of advanced and irreversible physical decline. This means you must be very ill indeed and without prospect of recovery. You must also be at least 18 years old and assessed as competent to make a decision specifically about assisted dying.
And again the doctors involved must, at every stage, be assured you are eligible. If you are not, they face criminal penalties including jail for being involved.
New Zealand’s High Court analysed the Act following an application brought by Hospice NZ seeking various declarations on how the Act should be interpreted. The judgment emphasises the extent of safeguards set out in the Act, including in relation to assessment of any pressure. The process must be immediately stopped if a doctor or nurse at any time suspects pressure. Doctors are required to remind a person on multiple occasions they can stop the process at any time or defer. Importantly, doctors are skilled in detecting pressure and already do this in end of life decisions (for example to end life supporting treatment).
And again if a doctor or nurse continues despite suspecting pressure, they face criminal liability.
The extensive evidence we have analysed demonstrates beyond doubt in our view that New Zealand’s assisted dying law can be safely implemented. It is now over to New Zealanders to provide those facing an inevitable and intolerable death with choice and compassion at the end of their life.
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