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The Nathaniel Centre Oral Submission to the Health Select Committee

Oral Submission to the Health Select Committee Inquiry into Ending One’s Life in NZ

The Nathaniel Centre – the NZ Catholic Bioethics Centre

Presenters: Dr John Kleinsman (Director) and Sue Buckley (Researcher)

Thank you for the opportunity to speak to you. We will speak to four main points this morning:

1. Choices are shaped by the context in which we live
2. The distinction between choice and autonomy
3. Applying the “precautionary principle”
4. The caring role of health professionals precludes their involvement in ending the lives of their patients

1. Choices are shaped by the context in which we live:

One of the arguments most commonly put forward in favour of assisted suicide or euthanasia (for the sake of brevity I will use the term ‘euthanasia’ to cover both practices from here on in even though the terms have a distinct meaning) is that such matters are best left to individuals to choose and it is not for others, including the State, to deny such a choice. Those who are opposed can exercise their choice not to use it and those who want it can exercise their choice. It is presented as a win-win situation.

While our written submission makes clear that we are strongly opposed to euthanasia for very pragmatic reasons, we are not opposed to people exercising choice. However, as a society, we routinely limit people’s choices for the sake of the common good. The key question is whether, with respect to euthanasia, there are sufficiently serious reasons to continue to do so. We say there are.

We believe the strongest arguments against granting individuals the right to choose euthanasia arise when we understand that all choices are made within a context and that context can be either empowering or disempowering. We all need to be cognisant of the following features which define the current NZ context:

- our inability to have open informed conversations about death and dying and what a good death looks like
- our healthcare systems and eldercare support systems are increasingly operating under growing resourcing pressures
- the inability of our laws and regulations to deal with steadily growing rates of elder abuse
- rising rates of mental illness, including depression, especially amongst the elderly
- the negative attitudes of many towards living with any sort of disability or dependence
- rates of suicide that are amongst the highest in the world and still rising, including elderly suicide
- the fact that as many as 2000 New Zealanders are in in psychogeriatric facilities and residential private hospitals without consent or protection - described recently as the newest frontier in illegal detentions in New Zealand
- inequitable access to quality palliative care
- varying levels of competence amongst GP’s in providing quality palliative care
- a changing demographic with growing numbers of elderly

- the increasing social isolation of the elderly and a growing sense amongst many that they are a burden and that society has no place for them
- increasing pressure on families and, simultaneously, a growing expectation that families and communities will carry more of the responsibility of supporting the elderly and dying.

All of which leads us to the conclusion that there has never been a more dangerous time in our country’s history to think about implementing an assisted suicide or euthanasia regime.

The combination of all of these factors create the conditions for a ‘perfect storm’ and has the potential to drive up demand for euthanasia to surprising levels, as has recently happened in Canada where the uptake is three times higher than anyone ever anticipated. While euthanasia may be instituted as a measure of last resort, it will not stay that way.

2.         The distinction between choice and autonomy:
When large numbers of our most vulnerable elderly and disabled citizens along with their families will, for financial or social reasons, find themselves in situations where they lack real choices, it is irresponsible and unjust to then provide them with the choice of prematurely ending their life.

We disagree strongly with the legal counsel for the Human Rights Commission who, just a few weeks ago, appeared before you and defined ‘autonomy’ as, quote, “the ability to make choices for oneself”, end quote. But choice can be conformity when people have little ability to determine the conditions of consent. Competent people can easily find themselves making understandable but terrible choices out of desperation – this is not autonomy. Autonomy arises only when we have a range of real choices and are free to choose.

A commitment to social justice demands firstly that we work to ensure that there is a coincidence between choices and autonomy, but, where that is not possible, or until it is possible, social justice also demands that we must withhold certain choices. 

In this case, because people’s lives are literally at stake and because there is no effective redress for wrongful death, we must err heavily on the side of caution.  In bioethics we use the term “precautionary principle”.

1. The Precautionary Principle:

The precautionary principle to risk management states that if an action or policy has a suspected risk of causing harm then, in the absence of empirical evidence that the action or policy is not harmful, the burden of proof that it is not harmful falls on those supporting the action or policy.

This means it is incumbent on proponents of change to provide indisputable evidence that any regulatory system would be sufficiently safe (and we have yet to have the conversation as to how many wrongful deaths we are willing to accept). In the absence of robust indisputable evidence, the precautionary principle means that even the possibility of significant risks would require that New Zealand should pull back from introducing euthanasia.

Whatever way you interpret the overseas data, even when you look at in the most positive light, it is impossible to conclude that the introduction of euthanasia would NOT lead to significant risks.

The patterns overseas are clear and include:

-          Year on year significant increases in the numbers accessing assisted suicide or euthanasia

-          Inability of regimes to enforce legal requirements

-          Broadening of the scope of eligibility

 

1. Leave health professionals out of euthanasia

Fourthly, we want to speak to the wording of the original VES petition and, specifically, the request to consider permitting “medically-assisted dying” in New Zealand. The desirability of providing euthanasia needs to be considered separately from the question about who the agents might be.

It is dangerous to assume that that euthanasia belongs within medicine and, besides, it is incorrect to think that we could only have a euthanasia regime if it involved health professionals as the agents.

From a bioethical perspective we argue that euthanasia is fundamentally incompatible with the very core of the medical and nursing professions.

Consider that we have faith in our justice system precisely because every person has two advocates – one who argues their guilt and one who argues their innocence. Just as we would never entertain abandoning that system and trusting one lawyer to represent both sides of the case, so we should never put health professionals in the position of representing the ‘life’ interests of their patients while also being the judges of their quality of life and the gatekeepers for accessing euthanasia. We would then in effect be asking doctors to be judge, jury and executioner.   

In promoting the idea that health professionals could readily take on this role, the NZ Nurses Organisation, the Human Rights Commission and others, including David Seymour and Maryan Street, have claimed that one of the safeguards for doctors and nurses who do not want to be involved would be a guaranteed right to conscientious objection. However, you need to know that the whole concept of medical conscientious objection is currently under serious threat around the world, including New Zealand. Doctors and nurses can no longer have faith in that right! As MP’s you can have no faith in that as a safeguard.

Conclusion:

The current law may not be perfect but it provides a clear bright line. Moving the bright line of prohibition would create far more problems than it would ever solve.  Apart from the intractable problems of consent and coercion, moving that bright line to some new position would merely create new ‘hard cases’ on the boundary. You would not be solving a problem, you would merely be shifting it.

Good governance involves, among other things, exercising ‘anticipatory governance’ – that is, evaluating the decisions that are made now with an eye to how they will play out in the future. We know from overseas jurisdictions that early safeguards or boundaries inevitably extend to include children, those with mental illness and disability and the elderly who are tired of life.

Succumbing to the ‘choice’ narrative that is dominant in New Zealand today and giving a green light for any form of assisted suicide or euthanasia regime, even a narrow one, will inevitably lead to the same expansions here – experience as well as logic dictates this. The safest way forward is to hold the current line.

Thank you. 

9 November 2016