FAQ #9 | Can the End of Life Choice Act overcome the risks?
Our research has found that assisted dying legislation poses significant risks, and that no piece of legislation has been able to completely protect vulnerable people from the risk of wrongful death. The End of Life Choice Act contains no preventative measures that are significantly different from other jurisdictions that have evidence of wrongful death.
Will the Act ensure only those people who are suffering and at the end of life are eligible?
The eligibility criteria is broad and subjective, using vague language that is unable to provide any real protection.
Phrases like “an advanced state of irreversible decline in physical capability,” and “unbearable suffering that cannot be relieved in a manner that the person considers tolerable” are vague and subjective, without objective definitions in the Act. The wording of these qualifying phrases places a great deal of interpretive responsibility in the hands of the two medical professionals who are in charge of deciding if a person’s perception of their own experience counts as “advanced,” “irreversible,” “unbearable,” and “tolerable.” This allows for the meaning of these seemingly strict qualifying conditions to shift through individual interpretation to include people we want to protect from harm. As a result, a much broader group of people than we had initially imagined could be considered eligible for assisted dying.
Will requiring the input of a second, independent medical practitioner protect against the risks?
International experience has shown that requiring a second, independent medical opinion has proven an ineffective measure and, instead, results in selection bias, with a small number of medical practitioners working together to provide euthanasia and assisted suicide for a disproportionately larger number of patients. For example, in Oregon, at least one medical practitioner wrote up to 33 prescriptions out of the total 290 in 2019, and up to 35 of the total 249 in 2018.
Medical practitioners who have a conscientious objection or who are more questioning of the grounds for euthanasia and assisted suicide are also less likely to participate in this. As a result, a smaller number of medical practitioners who are in favour of assisted dying, and perhaps more generous in their considerations of which individual patients should qualify under the subjective eligibility criteria, may be involved in a disproportionately large number of assisted deaths. Moreover, the End of Life Choice Act does not require the medical practitioners to have expertise relevant to the patient’s condition, and instead can be any medical practitioner willing to participate in the process. Therefore, while the Act does require the opinion of two medical practitioners to determine whether someone is eligible for euthanasia or assisted suicide, this is unlikely to be an adequate measure to prevent wrongful deaths if the End of Life Choice Act meets real world practice in New Zealand.
Isn’t there a review committee to prevent these kinds of “loose interpretations” by doctors?
The SCENZ (Support and Consultation for End of Life New Zealand) Group and end of life review committee are supposed to detect abuses of the law through annual reports, provide advice on medical and legal procedures, and suggest replacement independent medical practitioners. In reality, however, international examples have shown that these groups are unable to prevent abuse and, by definition, a review comes too late for the patient that has died.
In the Netherlands, where legislation requires similar reporting committees, at least 23 percent of euthanasia deaths are not properly reported as required by law each year, while in the Flanders region of Belgium, where the majority of Belgian euthanasia deaths occur, about 50 percent of euthanasia deaths go unreported. Despite this lack of lawful reporting and the existence of review committees in the Netherlands, there has been only one prosecution of a Dutch doctor for abusing the law – they were later acquitted. In that example, the court did not believe a doctor was in breach of the law for first sedating a dementia patient, and then holding her down and euthanising her despite her saying that she no longer wanted to die. Each annual review reveals cases where the legality of the euthanasia is questionable, and yet, only one case has been prosecuted, and the courts have been unwilling to convict or provide any real punishment. If review committees were effective, there would have been many prosecutions of doctors, at the very least for flouting the reporting requirements of the law over the 18 years since euthanasia and assisted suicide was first introduced in the Netherlands.
As a result, the review committee and process is, at best, an ambulance at the bottom of the cliff and unable to provide sufficient protection. By their very nature they are unable to prevent abuse before it occurs, which is too late for the patient who suffered the abuse. In fact, former Dutch euthanasia review committee member and ethics Professor Theo Boer shifted from proponent of the legislation to outspoken critic after he found that “not even Review Committees, despite hard and conscientious work,” have been able to prevent improper euthanasia deaths.
Authorised by J. Abernethy, 49 Cape Horn Road, Hillsborough, Auckland 1041
 Oregon Public Health Division, Oregon’s Death with Dignity Act 2019 Data Summary; Oregon public Health Division, Oregon’s Death with Dignity Act 2018 Data Summary.
 End of Life Choice Act 2019, ss. 10 & 11.
 B Onwuteaka-Phililpsen, et al., “Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: a repeated cross-sectional survey,” (The Lancet, 2012), 908-915; T Smets, et al., “Reporting of euthanasia in medical practice in Flanders, Belgium: cross sectional analysis of reported and unreported cases,” (British Medical Journal, 2010), 341:5174.
 “Dutch doctor acquitted in landmark euthanasia case,” (The Guardian, 11 September 2019) https://www.theguardian.com/world/2019/sep/11/dutch-court-clears-doctor-in-landmark-euthanasia-trial, accessed 6/4/20.
 The woman had asked for and been deemed eligible for euthanasia prior to being taken into care. “Dutch euthanasia case: Doctor acted in interest or patient, court rules,” (BBC, 11 September 2019) https://www.bbc.com/news/world-europe-49660525, accessed 20/4/20.
 Regional Euthanasia Review Committees, “Annual Reports,” https://english.euthanasiecommissie.nl/the-committees/documents/publications/annual-reports/2002/annual-reports/annual-reports, accessed 20/4/20.
 Quoted in S Doughty, “Don’t make our mistake: as assisted suicide bill goes to Lords, Dutch watchdog who once backed euthanasia warns UK of ‘slippery slope’ to mass deaths,” (Daily Mail, 10 July 2014), https://www.dailymail.co.uk/news/article-2686711/Dont-make-mistake-As-assisted-suicide-bill-goes-Lords-Dutch-regulator-backed-euthanasia-warns-Britain-leads-mass-killing.html, accessed 15/04/20.