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A review of assisted dying found the law is generally working well but needs some improvements.
The Ministry of Health recommended allowing doctors to raise the option of assisted dying with their patients in some cases.
Government won’t make any changes, leaving any reform to the private member’s bill process.
A rule preventing doctors from raising assisted dying with their patients should be changed, the Ministry of Health says.
The removal of the so-called “gag clause” was one of 23 recommendations by the ministry after its review of the End of Life Choice Act.
Officials also recommended strengthening oversight of the law after the Herald revealed that two watchdogs had raised concerns about the gaps in the compliance process.
The ministry’s statutory review, presented to Parliament last week, said the law was generally working well and that there had been no wrongful deaths among the 978 people who had gone ahead with the procedure.
Among the areas it identified for improvement was a rule that said any discussion of assisted dying had to be initiated by the patient.
The rule was made out of concern a patient might feel pressured to consider assisted dying if it was suggested by a doctor. The ministry, however, said it was contrary to health consumer rights and was creating a significant barrier to access for some people.
“I cannot get my head around why your GP who’s in charge of palliative care, or oncologist — why no one is able to bring up or give information about this,” a family member of a patient who had an assisted death told the ministry during the review.
“Giving information is very different to recommending it. It seems so strange and weird it’s not allowed.”
Some individuals and groups wanted the rule to remain, including the Disability Rights Commissioner. The Australia and NZ Society of Palliative Medicine also said it should stay, saying it helped address the power imbalance between a doctor and patient and reduced any perception of coercion.
The ministry recommended that the law be amended so health practitioners could raise assisted dying — but only as part of discussions about a person’s treatment and end-of-life care options.
Assisted dying advocates applauded the proposal. End of Life Choice Society president Ann David said the “gag” on doctors had severely disadvantaged some groups, in particular elderly or poorer patients who did not have internet access, patients with limited health literacy or those too intimidated to ask their GP about it.
The ministry also recommended more powers for the End of Life Review Committee, which is tasked with ensuring each assisted death complied with the law.
It said the committee should be able to access a broader range of information and be able to raise any concerning cases with relevant authorities.
The Herald reported last month that two former members of the committee felt the oversight process was so inadequate they would not have known if someone had died wrongly.
One of those members, palliative care specialist Dr Jane Greville, said she was “very pleased” with the ministry’s proposals, which if adopted would ensure the committee could appropriately review assisted deaths and make the law safer for doctors and patients.
“It just has to get back to Parliament to make the change,” she said.
There is no guarantee that any of the ministry’s recommendations will be adopted. As part of the coalition deal, the governing parties have agreed that any changes to the law will be done through a member’s bill.
Act MP Todd Stephenson (middle) has drafted a bill which would change the eligibility criteria for assisted dying.
Act MP Todd Stephenson has drafted a member’s bill which focuses on one aspect of the law — a requirement that a patient have six months to live to get access to assisted dying.
The ministry noted that several people had raised this issue but that it was outside the scope of its review.
“Those six months are irrelevant,” one family member of a patient told the ministry in their submission. “The suffering became relevant in the last year or so. She couldn’t drive, couldn’t write anymore. A number of things were impossible. If there’s anything I believe, it’s that we should all be given the respect to determine our own time.”
Stephenson said he would consider re-drafting his bill to include some of the ministry’s recommendations, including the removal of the “gag clause”. He was also consulting with MPs on advance directives, which would allow patients to indicate their wishes about an assisted death before they lost competence.
Whether his bill is debated will come down to the lottery of the private member’s bill ballot. Member’s bills can also be debated if the sponsor gets the approval of 61 MPs outside Cabinet, which Stephenson said he would consider after speaking to colleagues.
The next review of the law will be in 2029.
Isaac Davison is an Auckland-based reporter who covers health issues. He joined the Herald in 2008 and has previously covered the environment, politics and social issues. He has covered assisted dying issues since the End of Life Choice Act was first drafted.
