Is the devil in the detail when it comes to the End of Life Choice Act, asks Ross Johnston.
The End of Life Choice Act has me conflicted. I am in favour in theory, but when I recently got round to reading the Act itself and other related literature, I encountered what I considered to be a few significant potential problems.
Under the Act, I can go to my GP and request my "termination".
There is a good chance my GP may conscientiously object to being involved, as a lot of doctors do not seem to be in favour of the Act. Were that the case, I would be referred to another doctor known to be prepared to deal with such requests.
That doctor and a second independent colleague will have to read my file, examine and interview me.
After that, will they really know me, my family, my background, the nature of my being, my past and the philosophy that has hitherto underpinned my life?
They may well find that I am depressed and that condition is dominating my thinking or that I am confused by multiple medications. Can they ascertain to what degree these are influencing my decision-making?
Will they be able to ascertain whether I am being pressured into this decision by a family member? They will have to rely largely on the information I supply and perhaps, because I am depressed and have come to believe I am a burden on the family, I might not want to refer them to any family members.
While they are "encouraged" to try to confer with the family, I have to approve such contact. Under this Act I am not obliged to discuss my decision with anyone else or refer the doctors to anyone else. This could easily create a highly focused and exclusive "bubble" that does not necessarily have access to relevant information.
Actually, even my GP, someone much more familiar with me and my condition, may never have visited my home or know and understand the nature of my life. Yet my GP, with the assistance of another independent doctor and, if they are in doubt of my mental competence, a psychiatrist, may approve my requested demise. No-one else needs to be involved.
So what degree of certainty is demanded of the doctors involved?
They are charged in the Act to "do their best" to make sure that the request is in fact the desire of the individual. One "best" may bear no relation to another’s "best", the phrase being a remarkably flexible one, open to many interpretations. The lawyers will have a field day when/if a death gets a judicial review or disciplinary proceedings are initiated under the relevant Acts.
Shouldn’t a more diligent and profound process be involved, given that a life is at stake? Our courts demand a far greater degree of real evidence when dealing with people’s lives and in these cases one of the main witnesses will not be about to testify.
Given the significant nature of this decision, shouldn’t all the discussions and examinations be recorded on video and archived to ensure that due process is followed and all relevant interactions can be reviewed?
The police do when interviewing those suspected of crimes, and we allow traffic wardens to video their interactions with motorists — why couldn’t the doctors do the same?
It is true that under the Act the doctors involved need to record on paper the actions they have taken under Section 11 of the Act (the section relating to how they must check out the desires of the applicant) but, understandably, one would expect such notes to carefully "protect their backs". However, those notes will form the basis of any review after the fact.
We fund lawyers to represent the rights of a child in custody battles. Why can’t we have an agency that has specifically trained individuals whose task it is to ensure that due process is followed, all the appropriate individuals are visited and consulted and all other options exhausted.
At the moment, the Act requires the doctors involved to do a lot more than diagnose and prescribe. They need to be skilled social workers, excellent counsellors, be aware of all the other palliative care alternatives, have the wisdom of a high court judge, sift evidence like a 12-person jury and have the resilience, resolve and perhaps compassion to end someone else’s life. Does anyone really have this skill set?
For me, there’s another major issue. The way the Act is organised means that, if the paper work is in order, the whole process could be completed in a just a few days. That is unusual. Many other countries with similar Acts have a mandated "cooling off" period. In other words, once a decision is made, a specified period of time must pass before the decision is acted on. That ensures that the applicant has time to reflect on the decision that has been made. This Act has no such provision.
The End of Life Choice Act will not now be changed. If we vote "yes", this is the Act that will become law 12 months later. It might be amended in the future, though in other jurisdictions there has been a tendency for activists to request the loosening of the criteria for approval rather than for the process to be tightened.
In theory, I’m still in favour of individuals being able to end their lives under certain stringent conditions, with appropriate safeguards and where verifiable reviews are possible, but does this Act provide enough of them?
- Ross Johnston is a cogitator and sometime writer of Purakaunui.
