Opinion Piece by Grant Illingworth QC
The New Zealand public will shortly be asked to decide whether to give health workers the authority to assist terminally ill people to die. Many people, including now Sir Michael Cullen, think it’s a good idea to give people who are terminally ill a choice about how to end their lives.
As New Zealanders, we like the idea of having a choice. We also like the idea of showing compassion towards those who are suffering.
Rightly so; but the assisted dying referendum does not involve voting about an idea; it concerns a set of rules that have already been drafted and enacted by Parliament.
Those rules will come into force automatically if a majority vote in favour of them.
One of the basic requirements of a good statute is that it should build up a sequence of concepts that make logical sense and which, in combination, constitute a sound, consistent and coherent statutory scheme.
As with a good recipe, the instructions should all contribute harmoniously to a satisfactory outcome. But if the instructions are not clear, the chef will have only a recipe for confusion.
Before endorsing any set of legal rules, we should all be convinced that the proposal is watertight, especially in matters involving life and death.
Unfortunately, in this case the proposed law is not watertight.
While superficially attractive, it contains serious shortcomings that create unacceptable risks for vulnerable people.
The most glaring example is the lack of any meaningful safeguard against coercion in the Act. Every law student learns about situations in which vulnerable people are pressured into making decisions against their will or their better judgment.
Pressure of this kind has various legal labels including terms like “undue influence” and “economic duress.” In more colloquial language, we routinely talk about people being “bullied” into doing things they don’t really want to do.
Under the proposed law, doctors are required to encourage a person who seeks assisted dying to discuss their wish with others, such as family, friends, and counsellors.
But doctors must also ensure the person knows they are not obliged to discuss their wish with anyone.
Doctors must “do their best” to ensure that the person is expressing their wish free from pressure by conferring with other health practitioners who are in regular contact with the person and by conferring with members of the person’s family “approved” by the person.
But there may be no other health practitioners who are in regular contact with the person and, even if there are, they may know nothing about the family situation.
And the duty to confer with members of the family is expressly limited to people who are “approved” by the person.
If the person has been bullied into seeking assisted dying, the person is unlikely give their approval. These provisions provide no more than the illusion of safety.
An independent medical practitioner must read the person’s medical files, examine the person and reach an opinion about whether the person is eligible for assisted dying. But that practitioner is not required to make any form of assessment concerning possible coercion.
There is no requirement for any health professional, at any stage of the process, to ask the person who seeks assisted dying whether someone else has suggested that they make an assisted dying request and, if so, whether that other person has anything to gain from the outcome.
No-one has to ask the person whether he or she has been pressured to make the request or whether assisted dying is being sought in order to relieve or help family members.
These are questions that must be answered before it could be concluded that the decision to seek assisted dying has been made voluntarily, but no-one has been given the responsibility of asking those questions.
The proposed law provides that the assisted dying process must be stopped if, at any time, the health practitioners suspect, on reasonable grounds, that the person is not expressing their wish to receive assisted dying free from pressure from any other person.
But this does not amount to a requirement to exclude possible coercion in any proactive way. Importantly, the independent medical practitioner has been given no role to play in the assessment of voluntariness. Put simply, the proposed law does not require any meaningful form of coercion assessment.
Another serious problem will be created, too, if the proposed law comes into force. The Crimes Act provides that homicide is the killing of one human being by another.
Homicide may be either culpable or not culpable. Culpable homicide is either murder or manslaughter.
Homicide is culpable when it consists in the killing of any person by an unlawful act, but it may also be culpable where the offender causes the victim to take their own life as a result of threats, fear of violence, or deception.
If a bully only puts emotional pressure on a vulnerable person to commit suicide, the bully can’t be charged with murder or manslaughter, but the bully could be charged with aiding and abetting suicide. It’s a serious crime to counsel or procure any person to commit suicide, or to aid or abet any person in the commission of suicide.
It is also a crime to encourage another person to commit suicide, even if they don’t do it.
But what if the proposed law is voted into effect and a person accesses assisted dying as a result of being bullied? If the victim is wrongfully pressured into killing himself or herself, even with medical assistance, the bully could be prosecuted and imprisoned for up to 14 years, because the result would still be a form of suicide.
But if the bully were careful enough to pressure the victim into being killed by a doctor administering a lethal poison, it seems that no offence would be committed because the result would not be suicide, so no-one could be punished for the wrongful death.
This is an unacceptable outcome which has been overlooked in a piece of very shoddy legal drafting.