By Harshaa Prasad
The Public Policy Club was thrilled to host David Seymour (MP) and Dr Jane Silloway Smith last Friday for a debate on Seymour’s End of Life Choice Bill (click to read). If passed, the Act will legalise euthanasia for those who meet its requirements, thereby overturning legislation — namely the Crimes Act 1961 — that codifies assisted suicide as a crime.
Dr Jane Silloway Smith
Dr Jane Silloway Smith is the Director of Every Life, a research unit that intends to encourage a research-based approach to policy issues that are core to human life. Jane is an experienced public policy researcher, with a focus on social justice and bioethics. She has her PhD in History from Northwestern University, Chicago and a Bachelor of Arts in History and Political Science from the University of Georgia.
David Seymour is the Member of Parliament representing the Epsom Electorate and introduced the End of Life Choice Bill. He is also the leader of the ACT Party, a libertarian party. He was first elected in 2014 and identifies as an economic conservative and social liberal. David is a UoA alumnus, graduating with a degree in Electrical Engineering and Philosophy.
The debate was gripping. It was sensitive at times and blunt, even controversial, at others. It centred on a couple of key issues, which I am aiming to deconstruct in this piece. To begin, I have written a summary of what the Bill (as it currently stands) considers eligibility. Clauses that were points of debate between Seymour and Dr Smith are highlighted.
I WHO IS ELIGIBLE FOR EUTHANASIA?
Eligibility for euthanasia would be determined through the following process:
- A person tells their doctor that they wish to have the option of assisted death.
- The doctor must initiate several conversations with the patient and other family, friends or counsellors if the patient wishes. The topic of the conversations go to the nature of the procedure, the patient’s condition and their options. Most importantly, it ensures that the wish is freely made without external pressure.
- The doctor must determine that they are eligible (see below).
- A second, independent, doctor must also confirm eligibility. A specialist psychiatrist or psychologist can also make a third assessment.
- The person is eligible – doctors can confirm and begin the assisted dying process.
The Bill would codify several requirements, all of which must be met before the patient is illegible for euthanasia. This is checked by at least two, independent, doctors.
- They must be over 18 and a New Zealand citizen/resident.
- They must suffer from EITHER –
- a terminal illness that is likely to end their life in the next six months; OR
- a grievous and immediate medical condition.
- They must be in ‘an advanced state of irreversible decline in capability’. This means that the illness has caused significant loss of ability to live a full life which cannot be regained through treatment.
- They must experience unbearable suffering that cannot be relieved in a tolerable way
- They must have the ability to understand the nature of assisted dying, and its consequences. It would essentially codify the importance of the patient giving fully-informed consent to the procedure of euthanasia.
The next part of this analysis looks at the content of the speakers’ argument.
II WHAT DID THE SPEAKERS STAND FOR?
The speakers were undoubtedly united in their wish to see a better and safer New Zealand. However, they disagreed on what role the Bill would play in doing so.
Dr Jane Silloway Smith
In Dr Smith’s view, the Bill goes beyond what the law should be. The law is created to protect everyone indiscriminately, but the Bill offers certain people the opportunity to end their lives legally. Dr Smith was concerned that the Bill doesn’t sufficiently safeguard against coercion and mental illness which would cause unnecessary deaths. She was also concerned about the effect the Bill would have on disabled people. What were disabled lives worth in New Zealand? Why was it okay for Parliament-passed legislation to back the killing of the most vulnerable in our society?
The status quo, said Seymour, is messy and unacceptable. New Zealand needs a law change to minimise the damage caused by current ambiguous and inconsistent practice. He contends that this Bill gives a choice to those who want it and leaves those who want nothing to with it alone. The Bill has measures in place to ensure that only those who meet its strict requirements get euthanised. Seymour wants to help those few whose suffering cannot be alleviated by medicine, and who want to die a respectable death on their terms.
I identified three key issues over the course of the debate: free will and coercion, the impact on people with disabilities, and the role of law in society. They are deconstructed below.
III KEY ISSUES
A FREE WILL AND COERCION
Why is this important?
Freely-consented death is one of the absolute requirements for a Bill wanting to legalise euthanasia. Even setting aside the democratic foundations of such a requirement, it’s important to safeguard against any external party that might interfere with the fundamental right to life (or, as it was presented in Seales v Attorney-General, the right to die).
Dr Smith’s view
One of Dr Smith’s biggest issues with the End of Life Choice Bill is that it does not provide adequate safeguards against coercion. She argued that the sick and elderly may feel pressured into opting for euthanasia to feel less of a burden on their family and carers. In Oregon, for example, where euthanasia has been legalised, 55% of people indicated that this was a reason that they chose euthanasia. She stressed that people inevitably slip through the cracks; people who did not intend to die get euthanised. In the Netherlands, there are five reported cases of this nature. Dr Smith stated that every life was important and that Parliament should not pass a Bill if some people will inevitably lose their life involuntarily. To hit home this argument, she referred to the abolishment of the death penalty – one death is one too many.
Seymour responded that his Bill did have adequate safeguards – euthanasia would only operate on the freely given consent of the person asking for it. The Bill prompts the two doctors to approach friends and family to identify any signs of coercion. He attempted to dismiss Dr Smith’s arguments example by pointing out that the system in Oregon has been a ‘tick-all-that-apply’ system, where people tick everything that they can; this would greatly skew the actual impact that coercion has on people who are euthanised.
Analysis of the issue
This part of the debate could have more impact if the speakers provided examples of what coercion and free-will look like. A question by one student later recognised that it’s difficult to say what free will is; it’s difficult to move beyond the realities that people are highly influenced by friends and family. Dr Smith reinforced this by pointing to the Bill’s subjective standards – doctors are not autonomous beings and will be hard pressed to know for certain what is going on in a person’s life. Having read the Bill myself, it appears that much of the process is governed by the two independent doctors. The onus is greater on Seymour, as the MP supporting this Bill, to help set groundwork on how coercion will be mitigated. Further development with this Bill will hopefully elaborate more on how exactly set guidelines can tackle the issue of coercion. As is often the case with the law, time develops stronger guidelines (all being well, it will be positive development), but it’s important to establish a framework from which this growth happens.
B THE IMPACT ON PEOPLE WITH DISABILITIES
Why is this important?
There is undoubtedly a question of how people with a disability in New Zealand will be affected if this Bill passes. Both speakers had different approaches to this issue.
Seymour argues that the Bill does not affect people who are merely disabled, period. The Bill requires that the person is in ‘an advanced state of irreversible decline in capability’. It may or may not apply to disabled people – it only will if they meet this requirement. This requirement, along with all of the others, must be met before euthanasia is offered as an option legally.
Dr Smith’s view
Dr Smith argues that it’s hard to control the application of the Bill (then Act) on the ground. Many people with a disability are in a state of irreversible decline. It’s unjust, she said, to allow doctors to offer people differing advice if they are disabled and in need of help as compared to if they want to die and are healthy. Indeed, there is a New Zealand Herald article that discusses how it may have a negative impact on services for disabled people, services that are already inadequate. She further points out the Bill is modelled on the Canadian Act which legalises euthanasia. The courts have interpreted this in a way which includes disability, even though Parliament did not intend this. The same consequences, she argued, were sure to happen in New Zealand.
Analysis of the issue
The issue is an important one, but it’s hard to predict what the Bill’s effect will be on disability practice and perceptions in New Zealand. Dr Smith cited a book which discusses the effect of legalisation in the Netherlands. People in the Netherlands now have a harsher view of disabled people because they should be taking the ‘option out’ now that they have it. This is a pretty grim picture, and there’s a similar story in Oregon too. However, as Seymour pointed out, countries have different cultures. In Canada, for example, the taboo around death has been lifted, and people are more open when discussing death. It can mean that people aren’t forced to suffer in silence; patients who meet the Bill’s criteria have access to legal mechanisms through which they can get help, or if need be, end their life. Openness would hopefully work to reduce the number of deaths that happen without express consent. Seymour is hopeful that it will strengthen the doctor-patient relationship if the patient initiates the process (where the status quo is doctor-lead). Additionally, despite being modelled on the Canadian Act, it might be far-fetched to say that the courts in New Zealand will go against the express intention of Parliament. The problem here, of course, is that it is doctors that will be making these decisions rather than the courts (as much as Sir Geoffrey Palmer may wish otherwise). I am concerned that the debate, or indeed the Bill itself, has not necessarily prepared for any backlash on people with a disability. Seymour dismissed the Disability Commissioner’s report on his Bill which says that it doesn’t contain sufficient safeguards to protect people with a disability. However, collaboration and serious discussion need to take place. Seymour has said that he is willing to discuss matters with the Disability Commissioner – it will be interesting to hear what the results of this exchange will be.
C THE ROLE OF LAW IN SOCIETY
Why is this important?
This question was brought up at the introduction and the conclusion of the debate. Because the Bill proposes to regulate such a fundamental part of one’s life (even objectively speaking, one’s death is of great significance), it’s important to look at whether the law should be able to have this reach. Both parties naturally had different opinions on the role of law in this regard.
Dr Smith’s view
The role of law seemed to underlie a lot of Dr Smith’s argument. The law is not made to legalise euthanasia for a few people legally – it is not a ‘precision tool’. The Bill (then Act) will inevitably isolate some people, namely the vulnerable. Instead of getting care where they need it, they are given the tools and legal approval to end their lives. The law is made to help and serve everyone – it should not legalise death for those who need help the most.
Seymour did not respond as much to the idea of exclusionist law but did say that the Bill protects the free will of people in certain circumstances who wanted the right to die. The current law was not suitable – it allowed ad hoc assisted death if doctors were willing, or suicide where there was no option to relieve the pain. His point is reflected in the Bill: it can interpreted to legally assist those who can no longer find any assistance in medicine. Furthermore, the fact that it has passed the section 7 report by the Attorney-General means that everything in the Bill has been deemed to be rights-compliant (per the New Zealand Bill of Rights Act 1990). It’s particularly significant because it the Attorney-General (the chief law officer of the Crown) has officially declared it to be consistent even with section 8 – the right not to be deprived of life.
Analysis of the issue
The law is always evolving – it’s hard to say what the approach will be to euthanasia in the future. A change in the law is probably necessary to get a concrete change in the way that people who are seriously suffering can live out the end of their lives. For such an important issue, legalisation is a better step than uncertainty and fear. However, while it’s fine to loathe the status quo, it’s also important to ensure that any changes will be thorough and well-researched. Whatever the role of the law may be, it will undoubtedly change the way people see and treat different groups in society.
The Bill is currently at the Select Committee hearing stage. Regardless of whether or not this Bill becomes an Act, it will, and already has, prompted conversations about what New Zealand’s stance should be on euthanasia. Personally, I hope to see more guidelines and specificity around the backlash and potentially negative impacts of the Bill, particularly on people with disabilities or those who may feel coerced into choosing euthanasia. Ultimately, some change is required, and both parties acknowledged this. Dr Smith thinks changes should take the form of more support for people who feel the need to turn to death. It will take time and money, but is more beneficial than simply legalising death. Seymour feels that legislating the right of people to choose their death is the way to go. The way I see it, one shouldn’t necessarily happen without the other. I think we do need an acknowledgement that some people truly cannot be helped by our current system who will freely consent to death on their terms. This choice should be made on the background of medical, psychological and emotional support. Everyone dies – can New Zealand change the way we approach death?
A big thank you to our speakers, Dr Jane Silloway Smith and David Seymour.
The Public Policy Club is a non-partisan club at the University of Auckland that aims to encourage, educate and involve students from all backgrounds in the education and development of political knowledge. The views and opinions expressed in this article are those of the author and do not necessarily reflect those of PPC.