Euthanasia in New Zealand – expert views

Record numbers of suicides among elderly people and controversies such as the sentencing of academic Sean Davison for “counseling and procuring” the suicide of his terminally ill mother, Patricia, have re-ignited the debate over euthanasia.

Jump to updated comments from New Zealand experts.

Today Davison was sentenced for assisting his mother to commit suicide — a charge to which he pleaded guilty after initially being charged with attempted murder. The court was told that his mother’s body was riddled with cancer and that after starving herself for 35 days she begged her son to end her life. Davison crushed morphine tablets into her glass of water, told his mother what he’d done and offered it to her to drink. Davison received a sentence of 5 months home detention.

The continuing debate

This debate is already underway in Canada, where the Royal Society has published a 100-page review, in which it notes an increasingly aged population fails to adequately discuss advance-care planning, and that little research has been done on the views of ethnic minorities.

“The use of sedation as a modality of care at the end of life appears to be increasing …there is a pressing need for a set of national consensus guidelines,” said the report, which noted a significant majority of the Canadian population “appears to support a more permissive legislative framework for voluntary euthanasia and assisted suicide”.

You can read expert commentary on the Canadian report, collected by the SMC Canada, here.

Two previous attempts to pass “death with dignity” laws in New Zealand have failed.

Tonight (Thursday 24th November) Davison and Roger Laybourn — the lawyer who took Davison’s case — are expected to speak  with  Dr Philippa Malpas, a clinical ethicist who’s researching New Zealanders’ views on euthanasia, on TVNZ7’s Court Report.

According to New Zealand Voluntary Euthanasia spokeswoman Janet Mary Marsland, the debate on elective euthanasia has been re-opened.

“Our stand is that we agree with both Prime Minister John Key and Labour leader Phil Goff, who have both publicly stated that we need debate on the subject. It can’t be swept under the carpet any longer,” she told  TV One’s Breakfast programme.

She also questioned the concept of suicide and the elderly: “Suicide is when someone kills themselves prematurely when they could go on to live a productive life. Whereas what we may be looking at with elderly suicide is an end-of-life choice.”

She said the Government needed to look at legislation from around the world which allows physician-assisted suicide (PAS).

 

The SMC sought opinions on the Canadian research and euthanasia in general from New Zealand experts on ethics:

Prof Mark Henaghan, Dean at School of Law, University of Otago (abridged, read in full here):

“We’ve always had in our Bill of Rights the right to refuse treatment. It’s really the issue of suicide and voluntary euthanasia which we haven’t really debated here.

“Sean Davison’s just been sentenced to five months, but generally, people would sayhis mother was a classic case of a patient with longterm illness, a former doctor who understood what she was doing, and they would feel great sympathy. There’s not much difference, in some ways between that situation and switching off a life-support system when we’re just keeping someone alive even though its quite cruel to do it. We allow  switching off the life support — it’s called prolonging life unneccessarily. You could argue — though conceptually it is slightly different — that someone who has suffered a longterm incurable disease, they’re suffering pain, and they have  got no hope is a bit like a person on a life-support system. The only difference is that you’re not switching off the life suport – you’re giving them a pill or something to end their life. that’s quite different to allowing it at an earlier stage where a patient’s got more options.”

“It can be seen as a slippery slope, but the only way to control a slippery slope is to move very gradually — you make a small step. If no-one monitors it, the case can become much wider than intended : probably the classic example would be abortion. Court decisions lately have indicated that the grounds for abortion have become a lot wider than were intended at the beginning … maybe society now accepts that”.

“The area of advanced directives — where people say they don’t want resuscitation or extraordinary efforts to keep them alive on life-support — can be tricky to implement. You hope that is what they still want, but you don’t know what has happened since they set down their wishes. But people are advised to record their wishes: we have a reasonable handle on switching off life support or rejecting resuscitation.

“The one area where we don’t have anything — such as in the Sean Davison case — is the area of voluntary euthanasia, or assisted suicide. Its the one area where there is still a criminal offence and I think that’s the area we need to focus on. It’s a question of whether we see that as sufficiently different to switching off life support or whether we move quickly to a a much more liberal position based on autonomy, an individual’s choice. To say that so long as an individual makes a choice, a doctor should act on it: that’s quite a big leap. I don’t think society would be ready to make that leap quickly.

“There’s not a perfect answer. If you leave things as they are, you end up with the problem Mrs Davison faced, and that seems a little tough. The changing demographics of the NZ population — with an increase in the proportion of elderly — means that these issues should be discussed. Though I felt very sorry for Sean Davison, I think the court case has brought the issue to a head”.

“We do need to debate it — that’s something we haven’t done enough of. A mature society like ours should be able to debate these things in the cold light of day — it’s slightly less emotionally-charged than the abortion debate, but has similar implications”.

Professor Donald Evans,  Bioethics Centre, Otago University (abridged, read in full here):

“There is a great deal of difference between cases of withdrawing treatment and allowing a person to die on the one hand and deliberately administering substances or using other means to deliberately commission the death of a patient.

“More difficult are the cases where a clinician administers an agent which somewhat hastens the death of the patient but which is not administered for this purpose. Here the traditional doctrine of ‘double effect’ is invoked. It is not perfect but it is the best account of such cases possible. The contrast here is between, on the one hand, delivering a drug like diamorphine to relieve the otherwise intractable pain of a terminally ill patient. The drug has the side effect of depressing respiration and, in some cases, hastening death. The doctrine distinguishes between, on the one hand,  administering a drug as a pain killer with the unintended but known possibility of hastening death , and, on the other hand  administering a patient killer such as Potassium Chloride to produce cardiac arrest and thus kill the pain by killing the patient.  Thus though suffering is the trigger for such extreme treatments their proper application does not count as deliberate commissioning of death even the price of pain relief is a possible foreshortening of life.

“Doctors in my experience do not want the law to impose such a right on them. They are trained to save life and to relieve suffering. Of course they know well how to  end the life of a patient but this activity they do not regard as part of their professional calling. Indeed they are rightly concerned that bestowing such a right on them would be to oblige them to take a poisoned chalice (to use an unfortunate metaphor). They fear that the doctor/patient relationship would be fundamentally altered where the doctor might be seen as an agent of death. The elderly, the severely disabled, the seriously ill might be concerned that in times of scarce resources they might well be considered as usefully dispensable by the medical profession.

“There will always be a small number of practitioners who, with pressure groups, support such changes in the law. Where such changes have occurred, as in the Netherlands, the provision of good hospice care and the research into pain relief has been put on the backburner.

“Whilst one has great sympathy for individuals who have been placed in the invidious position of being on the receiving end of passionate requests from loved ones to assist them to die a change in the law to permit such actions would produce many more extremely worrying cases of disregard for the dignity of human beings.”

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In New Zealand, two leading Auckland University experts on ethics, Professor Glyn Owens and Associate Professor Rod MacLeod have already published a paper putting the opposing arguments for whether sometimes a case can be made for physician-assisted suicide.

Prof Owens said there was a perpetuation of the “doctor knows best” myth with patients being deprived of control over their own lives. Prof MacLeod said there was “never a case to be made for physician-assisted suicide in any human society”.

Professor Glynn Owens, Department of Psychology, Auckland University:

“There are difficulties in any legislation being able to cover all groups – with the best will in the world there will be people for whom euthanasia might be a desirable option but who fall outside the guidelines. In every country where research has been conducted (including NZ, where it is illegal, and the Netherlands, where it is legal) cases occur which fall outside the law.

“The (Canadian report) lacks a reference to the person being (terminally) ill, which raises many interesting questions.  Most countries where there has been some form of legislation have specifed as a requirement that the person concerned be suffering from a life-threatening illness; the Netherlands is a notable exception here, and indeed there has been at least one case of euthanasia being provided for a person with no significant physical health problems.  The question becomes one of whether “unbearable and irremediable suffering” is sufficient justification.

“I am unimpressed by ‘slippery slope’ arguments which are usually ill-formulated and defined, and which typically do not indicate the supposed underlying mechanisms.  It is no coincidence that philosophers refer to “The Slippery Slope Fallacy” and indeed one writer has tellingly noted that “once you start accepting slippery slope arguments you’re on a very slippery slope” .

“I think it’s extremely important that these issues be discussed in context, and that we recognise that what is appropriate in some countries may not be appropriate in others.  For example in some countries it is never going to be possible to provide high-quality end-of-life care for all citizens (this is one reason why the Northern Territory of Australia, with some very isolated small centres of population, was keen to permit the legalising of Physician-Assisted Suicide).  There is no doubt that the decision to end one’s life can be rational (our military history books are full of the stories of war heroes who are assumed to have made such decisions).

“Personally speaking, I would welcome the establishment of a similar working party in New Zealand to consider the issues in depth. Although I do not personally like the idea of euthanasia, I am certainly willing to consider the topic dispassionately”.

Associate Professor Rod MacLeod, Department of General Practice and Primary Health Care, Auckland University:

“In my view this (Canadian) document does not provide a balanced view at all. The information and comment about the effect and value of palliative care is minimised. Indeed some of the terminology used is confused in its thinking. Terminal sedation, in the glossary, has an ambiguous meaning and is not what I and the majority of my colleagues would understand as terminal sedation. Therefore comment about some aspects of this paper are guarded. Related to these comments therefore I must assume that the ‘expert’ advice given about palliative care may have been misleading or of a poor standard.

“It is true that palliative care in Canada is very different to what is available in New Zealand; in Canada, there are some excellent centres based primarily in hospitals but hospice availability for example is very limited in most areas.

“The commentary in favour of euthanasia and physician assisted suicide (PAS) based on a philosophical argument of respecting autonomy is flawed in my view. This is an entirely western view of ethics and for example, it is my understanding that autonomy (individual autonomy) is not the over-riding ethical principle in the Pacific people for example. Whilst one may argue for autonomy in this instance there are many other examples where autonomy is not the over-riding ethical principle – we are not ‘entitled’ to various sorts of health care intervention just because we want them. Similarly, no mention is made of the effect of expressing one’s autonomy on others (namely physicians).

“The discussion about suffering is similarly relatively lightweight. What is meant by suffering in this context? Does a teenager who has ended a relationship and feels that their life has no meaning (and may be ‘suffering’) therefore have the right to euthanasia? As a society we need to be absolutely clear about the nature and meaning of suffering before we start using it as an excuse for people’s lives being ended.

“I think there may also be a lack of proper investigation in aspects of the report, such as advanced directives. The report suggests that very few Canadians have completed advanced directives and yet recent research by Prof Donna Wilson and colleagues (including myself) has shown that in Alberta at least, 43.6 percent reported having completed one, another 42.1 percent indicating they were planning or intending to complete one.

“In New Zealand, we do have a developing programme for the completion of advanced care plans – this will enable NZers to have those conversations about end of life care that may not be happening now.

“Having headings such as ‘Potentially life-shortening symptom relief’ suggests a limited understanding of modern palliative care. Whilst it may be true that some patients are not receiving adequate symptom relief. Rather than adjusting the Criminal Code surely the answer to this is to educate practitioners more effectively. This is a major concern in this document. To me it seems to show a lack of understanding of what is actually possible with effective palliative care.

“In my view the report displays a relatively simplistic understanding of the complex issues that surround this topic. An example of this is that people requesting hastened death do not even have to have a terminal illness. This presents a significant contribution to the ‘slippery slope’ argument as it means that anyone can request that action which is surely a frightening possibility”.

“The impact of legalising euthanasia and PAS would be enormous on institutions and on individuals. How can this be accommodated within public hospitals for example? What effect will it have on the doctor patient relationship? This is built on trust, respect and compassion which may well be damaged if the patient thinks that the doctor may possibly be the one to end their life.

“If we are to have an on-going debate in New Zealand (and we almost certainly will) I sincerely hope that we will have a better informed one than is suggested by the contents of this document”.

Professor Donald Evans,  Bioethics Centre Otago University – full comment:

“There is a great deal of difference between cases of withdrawing treatment and allowing a person to die on the one hand and deliberately administering substances or using other means to deliberately commission the death of a patient. Granted there are various categories of the first kind of event some of which might be seen as commissioning death. For example the deliberate removal of life saving treatment from a critically ill patient when that treatment is not futile, and without the refusal of that treatment by the patient would be to intend the death of the patient. Such cases have occurred due to the intervention of carers suffering from Munchausen syndrome by proxy. However in many cases every day life prolonging treatments are withdrawn from patients by clinicians who have determined that continued treatment is futile and that further prolongation of life would amount to what has been traditionally described as ‘striving officiously to keep alive’.

“In the case of patients who are competent and who refuse life-saving treatment to prolong the treatment would constitute an assault. In New Zealand any competent patient is entitled to refuse any treatment. The cases of mature minors in interesting. The clinician has to make a judgement of whether the patient is  mature enough to understand the procedures, the need for them and the consequences of refusing them before an authentic refusal is possible. There is no chronological age in law below which this is deemed impossible but for such serious refusals greater care would be needed in the assessment of the competence of the patient the younger the patient is. Even then the clinician is not intending the death of the patient and is not commissioning it. Rather the condition from which the patient suffers is the cause of death and the doctor is not permitted to intervene. That is certainly not euthanasia.

“More difficult are the cases where a clinician administers an agent which somewhat hastens the death of the patient but which is not administered for this purpose. Here the traditional doctrine of ‘double effect’ is invoked. It is not perfect but it is the best account of such cases possible. The contrast here is between, on the one hand, delivering a drug like diamorphine to relieve the otherwise intractable pain of a terminally ill patient. The drug has the side effect of depressing respiration and, in some cases, hastening death. The doctrine distinguishes between, on the one hand,  administering a drug as a pain killer with the unintended but known possibility of hastening death , and, on the other hand  administering a patient killer such as Potassium Chloride to produce cardiac arrest and thus kill the pain by killing the patient.  Thus though suffering is the trigger for such extreme treatments their proper application does not count as deliberate commissioning of death even the price of pain relief is a possible foreshortening of life.

“I am very surprised to learn that the Canadian report does not address the experience of suffering as a putative reason for euthanasia (though as the above discussion shows I do not think that it constitutes a justification for it). Of course it might be that the authors of the Report only want to address the unambiguous cases of euthanasia. Your suggestion that they regard autonomy as the only relevant issue for the patient makes it appear that this is so. However while in cases of suicide death is as it were self-administered and might be  deliberate (i.e. not the result of a disturbed mind) there is all the difference in the world between this and cases where a person requests some other person the kill them. The other person might be a relative, as in some celebrated New Zealand cases) or the doctor.  In either kind of case this places an immense burden on the ‘other’. Indeed given the legal situation at the moment one might have certain negative moral views about the making of such a request.

“Doctors in my experience do not want the law to impose such a right on them. They are trained to save life and to relieve suffering. Of course they know well how to  end the life of a patient but this activity they do not regard as part of their professional calling. Indeed they are rightly concerned that bestowing such a right on them would be to oblige them to take a poisoned chalice (to use an unfortunate metaphor). They fear that the doctor/patient relationship would be fundamentally altered where the doctor might be seen as an agent of death. The elderly, the severely disabled, the seriously ill might be concerned that in times of scarce resources they might well be considered as usefully dispensable by the medical profession.

“Indeed the ‘slippery slope’ argument might apply to both the doctor’s role and to the patient’s outlook. The categories of cases to which doctors might be led to think that such interventions are justified will  doubtless become extended ( as they did in the Netherlands) once the green light to end life flashes. On the other hand patients who would never consider the possibility of choosing death in the present circumstances might well feel obliged to consider the possibility when such a solution to the problems they cause to families and health services become permissible.

“There will always be a small number of practitioners who, with pressure groups, support such changes in the law. Where such changes have occurred, as in the Netherlands, the provision of good hospice care and the research into pain relief has been put on the backburner.

“Whilst one has great sympathy for individuals who have been placed in the invidious position of being on the receiving end of passionate requests from loved ones to assist them to die a change in the law to permit such actions would produce many more extremely worrying cases of disregard for the dignity of human beings.”

 

Mark Henaghan, Dean at School of Law, University of Otago (full comments):

“We’ve always had in our Bill of Rights the right to refuse treatment. It’s really the issue of suicide and voluntary euthanasia which we haven’t really debated here.

“The Canadian report went further than I think we would go in this country on relying on autonomy, rather than a person suffering badly with an incurable illness.

“Sean Davison’s just been sentenced to five months, but generally, people would sayhis mother was a classic case of a patient with longterm illness, a former doctor who understood what she was doing, and they would feel great sympathy. There’s not much difference, in some ways between that situation and switching off a life-support system when we’re just keeping someone alive even though its quite cruel to do it. We allow  switching off the life support — it’s called prolonging life unneccessarily. You could argue — though conceptually it is slightly different — that someone who has suffered a longterm incurable disease, they’re suffering pain, and they have  got no hope is a bit like a person on a life-support system. The only difference is that you’re not switching off the life suport – you’re giving them a pill or something to end their life. that’s quite different to allowing it at an earlier stage where a patient’s got more options.”

“One reported case in the Netherlands where the person seeking assisted suicide had no physical illness illustrates a danger — I think our society would proceed reasonably cautiously.
You can define the circumstances quite specifically to a incurable disease, where a person is suffering great pain or the quality of life is so low …

“It can be seen as a slippery slope, but the only way to control a slippery slope is to move very gradually — you make a small step. If no-one monitors it, the case can become much wider than intended : probably the classic example would be abortion. Court decisions lately have indicated that the grounds for abortion have become a lot wider than were intended at the beginning … maybe society now accepts that”.

“The area of advanced directives — where people say they don’t want resuscitation or extraordinary efforts to keep them alive on life-support — can be tricky to implement. You hope that is what they still want, but you don’t know what has happened since they set down their wishes. But people are advised to record their wishes: we have a reasonable handle on switching off life support or rejecting resuscitation.

“The one area where we don’t have anything — such as in the Sean Davison case — is the area of voluntary euthanasia, or assisted suicide. Its the one area where there is still a criminal offence and I think that’s the area we need to focus on. It’s a question of whether we see that as sufficiently different to switching off life support or whether we move quickly to a a much more liberal position based on autonomy, an individual’s choice. To say that so long as an individual makes a choice, a doctor should act on it: that’s quite a big leap. I don’t think society would be ready to make that leap quickly.

“There’s not a perfect answer. If you leave things as they are, you end up with the problem Mrs Davison faced, and that seems a little tough. The changing demographics of the NZ population — with an increase in the proportion of elderly — means that these issues should be discussed. Though I felt very sorry for Sean Davison, I think the court case has brought the issue to a head”.

“We do need to debate it — that’s something we haven’t done enough of. A mature society like ours should be able to debate these things in the cold light of day — it’s slightly less emotionally-charged than the abortion debate, but has similar implications”.

“Mature minors are still subject to parents or judges over-riding their refusal to accept treatment, but at it’s a grey area that needs clarification: at 16 years they count as if they were adults, and if they refuse, they refuse. “If the issue is going to be life-ending, the courts have generally over-ridden the person, saying: ‘We’ll give them a chance for life’ .

“We haven’t had a direct case in New Zealand, but when one case went to court in the UK, the court over-rode the boy’s wishes, but when he came of legal age he refused to take the medication. Those cases are rare. In NZ we had a 14 year-old boy who didn’t want an eye operation — he’d had 15 before that — and the court force him to have it because the additional operation would be best for him in the longterm. “And we had the case of Tovia [Laufau], who died …he didn’t want to have cancer treatment. His parents who went along with his belief were charged with failing to provide the necessities of life.

“At the end of the day, the courts are the last resort, because you want people to make their own decisions in the own way. It seems bizarre, forcing people to have operations they don’t want — I’m glad not too many cases come to court. Legally there is ground for intervention at that age, but not once they’ve reached 16.

“Courts have allowed exceptions to the Bill of Rights Act for psychiatric patients who are ruled not competent — courts can overide an adult if they have lost rationality, such as a woman who refused a caesarian-section when she did not understand what was going on. Courts aren’t great at assessing competence — none of us are really —  but there is an argument that can be done when someone is refusing treatment in a life-threatening situation but doesn’t appear to  competent, but that’s rare.”