The Act puts a strong emphasis on the requirement that the right to receive medical assistance to end life must be an informed choice. It seeks to give eligible persons with terminal illnesses another option in addition to palliative care and other health care services.
Who is Eligible?
The Act provides strict criteria for who will be eligible, and all the criteria must be met. Referring to medical assistance to end life as “assisted dying” (which we will adopt here), a person must be:
- aged 18 years or over;
- a New Zealand citizen or permanent resident;
- suffering from a terminal illness that is likely to end the person’s life within 6 months;
- in an advanced state of irreversible decline in physical capability;
- experiencing unbearable suffering that cannot be relieved in a manner that the person considers tolerable; and
- competent to make an informed decision about assisted dying.
These criteria may only be assessed by a medical practitioner (a doctor registered with the Medical Council of New Zealand and who holds a practising certificate).
Who is not Eligible?
A person will not be eligible for assisted dying if the reason the person would like to receive assisted dying is because the person is:
- suffering from any form of mental disorder or mental illness;
- has any disability of any kind; or
- is of advanced age.
What is the Process for Confirming Eligibility?
The statutory process for confirming a person is eligible for assisted dying must be strictly complied with. A person can change their mind at any time during this process. A summary is provided below:
- Request for assisted dying: A person must inform a medical practitioner that they would like to exercise the option of receiving assisted dying. No medical practitioner can initiate the assisted dying process.
- Medical practitioner’s response: The medical practitioner must then follow the procedure set out under the Act, which includes:
- giving the person information about their prognosis (including as their terminal illness develops);
- explaining the irreversible nature of assisted dying and the impact of assisted dying to the person;
- ensuring that the person understands other options available and that they can decide at any time not to receive medication for assisted dying;
- encouraging the person to discuss their wish with others such as family, friends and counsellors and ensuring the person has had the opportunity to do so;
- ensuring that the person knows that they are not obliged to discuss their wish with anyone;
- doing their best to ensure the person expresses their wish free from pressure from any other person by conferring with other medical practitioners in contact with the person and any family members approved by the person; and
- recording all information and steps taken, in writing.
- First opinion: The medical practitioner must then decide if the person is eligible and competent to make an informed decision in accordance with the Act.
- Second opinion: Next, an independent medical practitioner must review the person’s request in accordance with the Act and reach their own opinion as to whether the person is eligible and competent to make an informed decision.
- Third opinion: If either or both of the first and second medical practitioners conclude that the person is eligible but not competent to make an informed decision, they must ask a psychiatrist for their opinion. The psychiatrist must then also follow the requirements under the Act to decide if the person is eligible and competent to make an informed decision.
- Outcome: If both medical practitioners (and the psychiatrist, if consulted) confirm that the person is eligible, then the person will be entitled to receive medical assistance to end their life. Should the person decide to proceed with assisted dying, there are strict directions given under the Act that medical and nurse practitioners must adhere to. If the person loses their competency to make an informed choice or appears to be coerced in any way, they will not be allowed to continue. A person can change their mind at any point in the process up until the point that the medication for assisted dying is administered.
Impact on Estate Planning
A common question we have received since the Act was passed is how it will fit in with existing and future Estate Planning arrangements, such as:
- Enduring Power Attorney in relation to personal care and welfare;
- Advance Directives; and
- Living wills.
Only the eligible person themself can exercise the option to request assisted dying. A nominated person under any of the above deeds (or any other legal document) may not seek assisted dying on any other person’s behalf. The Act is very clear on this point, and this serves to ensure that any directions, instructions, or powers given under any deed or document in respect of assisted dying under the Act will not be enforceable.
Insurance Policies & Contracts
The Act will not impact insurance policy claims or contracts. The Act expressly states that if a person dies as a result of assisted dying, then the person will be taken to have died as though assisted dying had not been provided, and as though they died from the terminal illness from which they suffered.
If you have any questions about this article, please get in touch with our Private Wealth Team or your usual contact at Hesketh Henry.
For more information about the Act, please refer to the Ministry of Health website here.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.