By Jean Balchin 06/03/2018


I shall not abandon old age, if old age preserves me intact as regards the better part of myself; but if old age begins to shatter my mind, and to pull its various faculties to pieces, if it leaves me, not life, but only the breath of life, I shall rush out of a house that is crumbling and tottering.

I shall not avoid illness by seeking death, as long as the illness is curable and does not impede my soul. I shall not lay violent hands upon myself just because I am in pain; for death under such circumstances is defeat. But if I find out that the pain must always be endured, I shall depart, not because of the pain, but because it will be a hindrance to me as regards all my reasons for living.

–  Seneca, c. 3 BC-AD 65

In 2006, a microbiologist called Sean Davison gave his mother crushed morphine tablets at her request. Patricia Elizabeth Davison was 85 years old, and terminally ill. In 2011, her son was sentenced to five months’ home detention in Dunedin, after he pleaded guilty to a charge of “inciting and procuring” the attempted suicide of his mother. He was initially charged with attempting to murder his mother. But Justice Christine French, in the High Court at Dunedin, argued that it was her duty to uphold the sanctity of life and the case had to be regarded as serious.

She did, however, accept that Davison had acted out of compassion for his mother. Moreover, she recognised that his mother was strong willed and in control until the very end. Davison’s lawyer Roger Laybourn insisted that his client was motivated by love and compassion, and that he felt he had a moral obligation to acquiesce to his mother’s wishes. Evidence shown in court revealed that Davison was in a real dilemma, and gave a great deal of thought to the matter. He recounted how his mother had tried to starve herself to death, but had remained living after 33 days. Her constant pain and discomfort, coupled with her frequent requests for assistance with dying eventually wore him down. He gave her the water and tablets.

In an article published by the North Shore Times, Davison said:

“This trial was not about justice. It was about getting a conviction at all costs. I feel the law should be focused on humanity. About the sufferers, the people like my mother who are terminally ill and want to choose their time of death and the manner of their death. This suffering should not continue. In many ways this trial has put the law on trial. The law has been found guilty of inhumanity and injustice.”

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The issue of euthanasia is currently being fiercely debated in New Zealand.  The church circles in which my family and I move around are, for the most part, vehemently opposed to legalising euthanasia. It was only last Sunday the priest reminded the congregation that assisted dying is tantamount to murder, and that we’d all better get off our backsides and write to the Government in protest. Under David Seymour’s End of Life Choices Bill, physician-assisted dying may soon become legal in New Zealand for the terminally ill.

For some critics, deliberately ending a human life is wrong, plain and simple. Other people are worried that the legalisation of physician-assisted dying will lead society down the slippery slope, where the elderly and infirm are threatened, and where hastened death becomes a cheap and easy alternative to palliative care. In this article series, we’ll look at these views seriously, and with respect. But, with recourse to precedents in Oregon, Canada, and the Netherlands, we’ll also consider the values of liberty and autonomy, and the reasons for the legalisation of euthanasia in New Zealand.

Definitions

Before we continue further, let us specify what we mean by certain terms. Euthanasia refers to the intentional practice of ending life so as to relieve the pain and suffering of a person (Encyclopaedia Britannica). In contrast, suicide occurs when the person takes his or her own life without any assistance. Euthanasia may be classed as active or passive, and voluntary or non-voluntary. Active euthanasia occurs when a physician (or another person), deliberately does something (such as administering a lethal injection) that causes the patient to die.

Passive euthanasia occurs when the patient dies because a physician refrains from doing something necessary to keep the patient alive, or when they stop doing something that is keeping the patient alive. For example, a doctor might switch off a patient’s life-support machine, or disconnect a feeding tube. Alternatively, they might not carry out a life-extending operation or procedure, or refrain from giving the patient life-extending drugs. Later in this article series, we will discuss the moral distinction between active and passive euthanasia.

Advocates of euthanasia also like to draw a distinction between the terms assisted dying and assisted suicide, arguing that people suffering from a terminal illness are not necessarily choosing to die; rather, they already are dying. Assisted dying thus offers an individual with a terminal illness to have a say in the timing, location and nature of his death if he wants it.

Currently in New Zealand, active euthanasia is a criminal practice, while passive euthanasia is non-criminal. Voluntary euthanasia occurs at the request of the patient, while non-voluntary euthanasia does not – in fact, it often occurs in opposition to the patient’s desires. Throughout this article series, unless otherwise stipulated, euthanasia refers to physician-assisted dying, wherein a physician intentionally assists a patient, at this patient’s request, to painlessly terminate his or her life.

History of Euthanasia in New Zealand

Two attempts at passing legislation on legalised euthanasia have failed to get through Parliament in New Zealand. Under Section 179 of the New Zealand Crimes Act 1961, it is also illegal to “incite, procure or counsel” and “aid and abet suicide”, regardless of whether a suicide attempt is made or not. Section 179 covers both assisted suicide and true suicide, such as that caused by bullying (online or otherwise).

However, patients are able to refuse treatment if it may shorten their life. According to Right 7 of the Code of Health and Disability Services Consumers’ Rights, every consumer “may use an advance directive in accordance with the common law.” Moreover, every consumer “has the right to refuse services and to withdraw consent to services.” Unlike medical associations in Canada and the Netherlands, the New Zealand Medical Association opposes voluntary euthanasia and doctor-assisted suicide, maintaining that it is unethical regardless of whether the patient or relatives wishes to have it carried out.

The first attempt to allow for legal euthanasia in New Zealand occurred in 1995, when Michael Laws put forward the unsuccessful Death with Dignity Bill. Laws was prompted by the terminal illness of Cam Campion, a colleague in Law’s first term in Parliament. Aiming to legalise voluntary euthanasia, the Bill failed by 61 votes against, and 29 votes for.

After his wife died of cancer in 1984, Peter Brown, an MP for New Zealand First, introduced a Death with Dignity Bill in 2003. However, as before, the Bill was defeated, although this time by 59 to 58 votes. Then, on the 11th of March 2012, Maryan Street, a Labour Party list MP announced that she was forwarding another private members bill to the parliamentary ballot box to forward the debate. Street was prompted by the fact that she witnessed her mother and sister die from incurable illnesses. The proposed legislation is known as the End of Life Choices Bill, but by mid-July 2013, Street withdrew the private members bill. She apparently was worried that it might distract from other issues during the 2014 General Election campaign.

In the face of such previous failures, it might be tempting to argue that there’s no point in pushing for the current End of Life Choices Bill. However, the composition of Parliament has changed since 1996 and 2003, as have the views of New Zealand society on a number of issues. According to a recent Newshub poll, in fact, this Bill has 71% of the country’s support, with 19.5% against it and 9.5% unsure. It is narrower in scope than the previous bills, and includes a number of more thorough and specific safeguards against its abuse.

There are two main organisations lobbying for Euthanasia in New Zealand currently; the End of Life Choice Society of New Zealand, and the New Zealand chapter of Exit International. The main organisation opposing euthanasia in New Zealand is The Care Alliance, a coalition of various organisations that advocate for better conversations around dying and improved access to palliative care. The Care Alliance members include: Australian & New Zealand Society of Palliative Medicine, Christian Medical Fellowship, Euthanasia-Free NZ, Family First New Zealand, Hospice New Zealand, Lutherans for Life, New Zealand Health Professionals Alliance, Not Dead Yet Aotearoa, Pacific Leadership Forum, Palliative Care Nurses New Zealand, The Nathaniel Centre and The Salvation Army in New Zealand.

And now we come to the current Bill in question:

On the 6th of June 2015, ACT MP David Seymour confirmed that he was preparing a private members bill that would legalise medical aid in dying, after the Seales v Attorney-General case found that only Parliament had the ability to address assisted dying laws. Seymour’s private member’s bill was entered into the ballot on the 14th of October, 2015. It passed its first reading on the 13th of December 2017, with 76 votes in favour, and 44 opposed. The Bill is currently before a select committee, with public submissions being welcomed until Tuesday 6th March.

David Seymour. Wikimedia Commons.

Under said Bill, a person wishing to end their own life must meet all of the following criteria: be 18 or older, a New Zealand citizen or permanent resident, suffer from a terminal or grievous and irremediable illness, or be in an advanced state of irreversible decline, be in unbearable pain that can’t be helped by medication, and be of sound mind to give consent. If these criteria are met, the applicant must be assessed by two doctors.

So what’s going on in other countries?

Holland is a case study which has been used a lot over the course of this debate, both as a reason for and against euthanasia. Medically assisted euthanasia has been legal in the Netherlands since April, 2002. One-time Republican Presidential candidate Rick Santorum said in 2012 at the American Heartland Forum in Columbia, Missouri that

“They have voluntary euthanasia in the Netherlands but half of the people who are euthanised – ten percent of all deaths in the Netherlands – half of those people are euthanised involuntarily at hospitals because they are older and sick.”

It was one of the biggest media gaffs of his run.

American papers like  the Washington Post lambasted Santorum during fact checking exercises. They reported that the numbers were much lower, and that Santorum had been fabricating facts for political reasons. More importantly, papers in the Netherlands themselves expressed repeated surprise and shock at Santorum’s remarks.

Contrary to Santorum’s comments the guiding principle of euthanasia in the Netherlands is something referred to as “the criteria of due care.”

Flag of the Netherlands. Wikimedia Commons.

This means that patients need to make a voluntary and well-considered end-of-life request. Their case must have no reasonable alternatives, their suffering must be unbearable, they must be informed of their alternatives, and they must consult at least one independent physician. They then have the option of receiving end-of-life care from a physician. If the patient wants to self-administer then the consulting physician must be in the room with the patient, ready to help.

With that said, if the euthanasia procedure doesn’t meet the standards set out in the Termination of Life on Request and Assisted Suicide Act then it is still considered a criminal offence.  Minors on the other hand need parental assent in order for a procedure to be carried out. They must also meet all of the other criteria outlined above.

The procedure itself is painless. The patient is given sodium thiopental through an IV to induce a coma. Then pancuronium is administered to stop breathing. 10mg barbiturate potions can also be given to patients, but in 2003 there were 41 Dutch cases where the patient needed to be administered the first treatment steps as well.

By 2016 medically assisted deaths in the Netherlands accounted for 6,091 out of 148,997 deaths per year, or just about 4% of all deaths recorded that year.

And what about Canada?

Unlike Holland, assisted dying or euthanasia is new to Canada and to Canadians. In the last twenty-five years there have been two major challenges for a person’s right to die.

The first, Rodriguez v. British Columbia (AG) from 1993, failed in a 5-4 ruling. Sue Rodriguez, the plaintiff, had a degenerative neurological disorder called ALS. Rodriguez was diagnosed with the illness in August of 1991. She was given two to five years to live. At the time asking for an assisted death carried a 14-year prison sentence for the person. Until 2016 Criminal Code s. 241.b stated that anyone party to an assisted death could face up to 14-years in prison. 

Flag of Canada, Wikimedia Commons.

By the time the courts delivered their ruling Rodriguez was two years into her illness. Rodriguez took her own life after the ruling was made with the help of an anonymous doctor. Even then, the notes from Rodriguez v. British Columbia said that Criminal Law was,

“an ineffectual and inappropriate tool for dealing with suicide attempts.”

Twenty one years later Sophie Taylor and Lee Carter brought Carter v. Canada to the courts. Taylor had ALS just like Rodriguez. Carter suffered from spinal stenosis, which leads to irreversible spinal nerve damage.

In 2015 Taylor and Carter argued that denying them the right to die violated Section 7 of the Canadian Charter of Rights and Freedoms.

  1. 7 states that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

This passage hinges on the definition of fundamental justice. Is it just to deny an adult who has proven to be in full control of their facilities the right to die? Is it fair to imprison desperate family members who are trying to do right by their ill brothers, sisters, mothers and fathers? How much potential misuse could there be in a ‘for’ ruling? What can be done to curtail those risks?

People like Taylor and Carter, people who are of sound mind if not body, deserve the opportunity to decide how they deal with terminal illness, irreversible decline, or a grievous and irremediable medical condition. The Canadian courts ruled in favour of Carter and Taylor.

But, as with all complex things, they put into place safeguards – just as New Zealand will have to do if the End of Life Choice Bill passes successfully.  

By mid-2017 Bill C-14, Canada’s assisted dying legislation, had become law. It came with restrictions; the death must be reasonably foreseeable, meaning that the patient would need a sudden, almost completely impossible change of circumstance to survive. To cover other, non-terminal, but still life-long conditions like spinal stenosis, the courts Bill likewise define grievous and irremediable as:

  • A serious and incurable illness, disease or disability;
  • The person is in an advanced state of irreversible decline in capability;
  • The illness, disease, or disability or state of decline causes the person enduring physical or psychological suffering that is intolerable to them and that cannot be relieved in a manner that the person considers acceptable to them; and
  • The person’s natural death has become reasonably foreseeable due to all of their medical circumstances, without requiring that a prognosis has been made as to the length of time that they have remaining

According to Bill C-14 any medically assisted death can also not be made on the grounds of mental health issues or disability. Furthermore the process needs two independent witness to sign off on the process in addition to two healthcare professionals.

No one below the age of 18 is eligible. Those who are 18 or 19, depending on provincial laws, need to prove their “intellectual capacity and maturity” to the physicians or nurse practitioners involved in the active process. The ill party must also provide ongoing consent throughout the entire process, including up to the moment any end-of-life procedure is performed.

This remains the case even if the patient suffers from Alzheimer’s, or Dementia. To cap it off, the patient must be made aware of palliative care options before signing any documents detailing their decision to have a medically assisted death.

In Part Two of this article series, published tomorrow, we will be examining the various reasons for the legalisation of euthanasia in New Zealand.

This article series was written and researched with the help of Jack Lawson, a freelance copywriter who lives in Canada and writes on tech, medicine, and law. He graduated Carleton University’s internationally acclaimed journalism program in 2014. In his free time Jack volunteers with accelerator programs, plays horrible music, and works on his web-serial, Fiddler.