The End of Life Choice Act came into effect on 7th November. We asked experts from the Medical Protection Society (MPS) for medico-legal advice to share with our members. They have provided a good overview of the legislation, along with information which you as senior clinicians may need or want to know.
Overview of the EOLC Act
Homicide and aiding and abetting suicide are unlawful under the Crimes Act 1961. Notwithstanding this, from 7 November 2021 the EOLC Act will provide a process that, if followed, will allow ‘eligible’ people to choose to die and be assisted to die by a medical practitioner.
- Who is involved in the EOLC Act process?
- What is involved in the EOLC Act process?
- Who is eligible for a medically assisted death?
- What is the test for competence?
- Conscientious objection
- Assisted dying must not be initiated by a health practitioner
- Obligations if you are not a conscientious objector
- Medical Council position
- Where can I find out more?
Who is involved in the EOLC Act process?
- The patient — patients who meet the EOLC Act’s tests for competence and eligibility can have a medically assisted death.
- The attending medical practitioner (AMP) — any doctor can choose to be an AMP. The AMP is the doctor at the centre of the EOLC Act process who holds the main relationship with the patient in respect of the process; undertakes the initial assessment of eligibility; and works with the patient to complete an assisted death.
- Independent medical practitioners (IMP) — these are doctors who have been pre-approved to undertake the required second assessment of eligibility.
- Psychiatrists — these are pre-approved psychiatrists who can be asked to resolve any disagreements about competence.
- Replacement medical practitioners — these are pre-approved doctors who are happy to fulfil the role of AMP and to whom patients can be referred.
- Support and Consultation for End of Life in New Zealand Group (SCENZ) — this is a group of experts appointed by the Director-General of Health. Their functions include to maintain lists of independent medical practitioners, psychiatrists and replacement medical practitioners; refer patients to replacement medical practitioners; prepare standards of care; and provide advice and practical assistance.
- Registrar — this is a Ministry of Health employee tasked with collating information and checking that all the necessary forms have been properly completed before an assisted death can take place.
- Review Committee — this is a committee of two health practitioners and a medical ethicist, whose functions include considering (after the fact) reports on each assisted death that occurs under the EOLC Act.
What is involved in the EOLC Act process?
- A patient makes a request to their doctor for assistance with ending their life.
- If the doctor is happy and able to be involved, they become the AMP and assume obligations to counsel and inform the patient. (If the doctor cannot or does not wish to be involved, they can refer the patient to SCENZ. SCENZ will then refer the patient to a replacement medical practitioner.)
- If the patient decides following counselling to proceed, the AMP gives a formal first opinion about the patient’s competence and eligibility.
- If the AMP concludes the patient is eligible, SCENZ provides the name of an IMP to give a second competence and eligibility opinion. (Disagreements over competence can be resolved by SCENZ-recommended psychiatrist.)
- If the first and second opinions find the patient to be eligible and competent, the AMP will help them choose the time, place and method for an assisted death.
- The AMP is then responsible for prescribing the medication and overseeing its administration and the patient’s death. The patient must agree to receive the medication and must be competent at the time it is used. They cannot rely on an advance directive or an enduring power of attorney for personal care and welfare. A nurse practitioner may also prescribe and/or administer the medication under the AMP’s direction, although has no formal role in other parts of the process.
- At various stages the AMP is required to complete forms and witness the patient’s agreement. These forms are checked by the Registrar, who must give final approval before the medicine is administered.
- The whole process is expected to take approximately 2-4 weeks, but could be longer.
- After an assisted death the AMP has reporting obligations.
The process will be fully publicly funded by the Ministry of Health, with co-payments prohibited.
Who is eligible for a medically assisted death?
To be eligible for a medically assisted death, a patient must:
- be 18 years or older;
- be a New Zealand citizen or permanent resident;
- suffer from a terminal illness that is likely to end the patient’s life within 6 months;
- be in an advanced state of irreversible decline in physical capability;
- experience unbearable suffering that cannot be relieved in a manner that the patient considers tolerable; and
- be competent to make an informed decision about assisted dying.
What is the test for competence?
Under the EOLC Act, a patient is competent to make an informed decision about assisted dying if they:
- understand information about the nature of assisted dying that is relevant to the decision; and
- retain that information to the extent necessary to make the decision; and
- use or weigh that information as part of the process of making the decision; and
- communicate the decision in some way.
Patients must remain competent at each stage of the process, not just when the first and second opinions are given. If a patient loses competence before the medicine to effect an assisted death has been administered, the process must stop.
AMPs are required to do their best to ensure patients express their wishes about exercising the option of receiving assisted dying, free from pressure from any other person. If pressure is reasonably suspected, the AMP must stop the process; inform the patient they cannot continue; and inform the Registrar of the suspected pressure by submitting a form.
What do all doctors need to know?
A health practitioner is not under any obligation to assist any person who wishes to exercise the option of receiving assisted dying under this Act if the health practitioner has a conscientious objection to providing that assistance to the person.
However, if you do have a conscientious objection and a patient informs you that they wish to exercise the option of assisted dying, you must tell the patient:
- of the fact of your conscientious objection; and
- of the patient’s right to ask SCENZ for the name and contact details of a replacement medical practitioner.
Conscientious objection does not need to be all or nothing. You can be prepared to accept the role of AMP in some cases but not others.
Assisted dying must not be initiated by a health practitioner
A health practitioner who provides any health service to a person must not, in the course of providing that service:
- initiate any discussion with the person that, in substance, is about assisted dying under the EOLC Act; or
- make any suggestion to the person that, in substance, is a suggestion that the person exercise the option of receiving assisted dying under the EOLC Act.
This has implications for advance care planning, as doctors will need to avoid raising the topic of assisted dying while being alert to patients making a request to exercise that option.
Obligations if you are not a conscientious objector
Not being a conscientious objector does not mean you must accept the role of AMP if one of your patients informs you of their wish to exercise the option of receiving assisted dying. GP practices and hospices are not required to offer assisted dying as a service, however there is an expectation each DHB will have a policy to manage request made by patients. Further, the EOLC Act does not exclude the professional obligations of practitioners as set by the Medical Council. Doctors should only take steps under the EOLC Act if they have the competence to do so in accordance with their professional standards. If you do not wish to take on the role of AMP, patients should be advised how they can access assisted dying care. This could be by a clinical referral to a colleague, or by contacting SCENZ for the name of an replacement medical practitioner.
If you are an employee or contractor, you should check with your employer/principal as to whether the practice/DHB offers assisted dying as a service. It is expected most assisted deaths will occur in the community, at home. Hospital patients can make requests however, and there may be patients whose care needs to transfer to a hospital setting part-way through the EOLC Act process.
If you do wish to be the AMP for one of your patients, you should reach out to SCENZ for advice and assistance — including more information about how the service is funded and how to access that funding. For doctors who become the AMP for a patient, s 11 of the EOLC Act sets out your initial set of obligations. These include:
- Give a prognosis and information about assisted dying.
- Stay in touch with the patient.
- Ensure the patient understands their end-of-life care options.
- Ensure the patient knows they can change their mind.
- Encourage the patient to discuss their wish with others (but tell them they are not obliged to).
- Ensure the patient has had the opportunity to discuss their wish with whom they choose.
- Do your best (including by conferring with others) to ensure the patient expresses their wish free from pressure.
- Record the actions taken.
Medical Council position
The Medical Council has not adopted a specific standard for the EOLC Act process. It has however published an analysis of which existing standards may be relevant. It is recommended that doctors familiarise themselves with this guidance statement.
It is a good idea to think in advance about how you will respond if assisted dying is raised with you — how you will engage with the person; are you equipped to have a respectful and appropriate conversation; and how you will fulfill your obligations under the EOLC Act?
Identify in advance the approach your organisation has taken, and who you can refer to inside the organisation. DHBs are likely starting to adopt policies to implement the EOLC Act now, and there may be opportunities to provide feedback on draft policies. If you are the owner of a practice, consider trying to reach a consensus view with your partners about how you will approach the new law.
If you are not a conscientious objector, consider accessing the LearnOnline training offered by the Ministry of Health.
Where can I find out more?
The Ministry of Health website includes a range of detailed information about the implementation of the EOLC Act, the delivery of assisted dying, and the way the service will be funded. There are also resources for health practitioners, including guidance and training.
Dr Margaret Abercrombie, is Medicolegal Consultant at the Medical Protection Society (MPS) and Adam Holloway is a partner at Wotton Kearney.