A Legal and Voluntary End of Life Choice

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Elder Law, Trusts / Asset Planning

The End of Life Choice Act 2019 (“the Act”) will come into force in November 2021. To date it has been the subject of emotive support, criticism, and misinformation. The focus of this article is on the law as it presently stands.

The key points to note are:

  • Any decision you make about whether you want to use the Act’s processes, or not, cannot be made in advance.
  • A decision cannot be made for you by your family members, or medical staff. This means your wishes on using the processes outlined in the Act, or not, cannot be included in your will, or your advance medical directive / living will.
  • The Act cannot be used by people “wanting to turn off your life support” or make medical decisions for you when you cannot make them yourself.

In certain specific medical situations you will have the possibility of personally making your own choice to obtain medical assistance to take steps to end your life. This is a personal choice, which will be subject to personal moral and ethical beliefs. The Act passing into law does not make considering or using these processes compulsory.

The Act could apply in situations of terminal illness where there is a likely life expectancy of up to six months, and in other specified serious medical situations.

The Act does not apply to situations of disability, mental illness, or “advanced age”. The processes are only available to New Zealand citizens or permanent residents aged 18 years or over.

At the time any decision is made, you need to be the one making it, and you need to be competent to do so. This means a person with dementia or who is otherwise not competent, cannot use the processes in the Act.

A doctor cannot start a discussion about the Act, or about assisted dying. If you want to discuss these matters, or the medical processes, you need to raise these subjects with your doctor yourself. If you raise these matters with your doctor, the process is:

  1. the seriousness of your medical situation will be assessed;
  2. a second independent doctor must also independently certify that your wishes are your own, that you are competent to make such decision, and that you are not subject to coercion from others;
  3. if those two doctors cannot agree on your competence, a referral will be made to a psychiatrist.

If you change your mind, or if the doctors suspect you are being pressured into making decisions, no further action will be taken.

There is currently debate in the medical and political community about the nature of the frameworks that will need to be created to ensure that there are systems available to assist people who want to use the Act’s processes. The nature of the safeguards in place, and the extent of medical training for these issues, is also under discussion.

The Government and health sector have indicated that the required planning is underway, and that detailed guidance will be issued approximately one month before the Act comes into force. What form that guidance takes remains to be seen.

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