Is the NZ Euthanasia Law About to be Expanded?

A lengthy and rather curious article about advance care directives appeared in both the Listener and the NZ Herald last week.

An advance care directive is a legal document in which you detail what your preferred care options are should you find yourself seriously unwell or unable to communicate decisions about your care at some future point.

This Listener/NZ Herald article appears to be part of the communications strategy for a political campaign which is seeking to change NZ laws about advance care directives.

It begins by relating the story of Barbara, an older Kiwi woman who experienced a stroke, and, according to claims made in the article, her advance care directive was ignored and she was not allowed to die.

The problem is that we are only presented with one side of this story - which paints this incident in the worst possible light - even though the scant details provided about the medical decision making in this case seem to indicate it may have been more complicated.

For example, the article states that:

“The blood clot that caused the stroke was successfully removed, but blood flow did not recommence to the affected section of her brain.

What was less clear was the extent to which she would recover and once again enjoy her daily 10-15km bike rides, gardening and visits to friends in her neighbourhood.”

Reading between the lines, these sentences seem to indicate that the doctors were more confident than not that Barbara would make a good recovery.

This important detail, if accurate, would seem to be a sound justification for them not following her advance care directive, which only rejected life-saving treatment in the case of: “serious loss of mental or physical capacity … [where the] condition is unlikely to be reversible or [to] improve”.

Despite the romanticised fallacies of film and TV and popular modern folklore, these sorts of situations are not always black and white when it comes to outcomes and a prognosis. So, if the doctors believed that a good recovery was a very real possibility, it would seem they acted reasonably in this case.

(Also, note how the article associates quality of life with physical capacity and independence - a notion which reduces human dignity and worth to function and physical ability).

Serious questions about this incident…

Sadly, the story about Barbara’s final days (her subsequent death happened some time after the stroke incident) paints a tragic picture of an elderly woman, now separated from family in a care home, with reduced capacity after a stroke, who died without adequate palliative care.

One rather concerning aspect of this article is that it highlights how Barbara’s daughter actively suggested deliberately ending her own life to her mother:

“[Her daughter] canvassed Barbie’s options, including moving in with the family in Martinborough or entering a residential care facility. But she also raised another option. “I told her, ‘Your advance directive said that in a major change in life where you felt the quality was gone, you wanted care withdrawn. You still have that right,’” she says.”

The article then goes on to explain that this is exactly what Barbara went on to do:

“A couple of days later, now in a care home in Ashburton, Barbie stopped eating. Finding herself in the nightmare scenario she had wanted to avoid, she chose to make the decision she had expected to be made on her behalf as she was lying in Christchurch Hospital.

It took 58 days for Barbie to die. “She tried to stop taking fluids, but she had some kidney issues and it got too painful,” Duffy says.

“There was no pain relief. She got morphine in the last three or four days. She never lost her temper. She never seemed distressed. I think she was comfortable with her decision and wanted us to be comfortable with it, too.”

None of this sounds good or humane.

In fact, what Barbara’s daughter has revealed here doesn’t inspire a lot of confidence that this decision was made free from coercion and/or loneliness.

Enter David Seymour…

Immediately after Barbara’s story, David Seymour makes an appearance in the article, beating the drum for a law change regarding advance care directives.

He tries to insist that this new development is “not a right-to-die campaign”, despite the fact that advance care directives commonly pertain to the question of when doctors should stop treatment and allow death to take place.

Despite his protestations, this is actually the very epitome of a right-to-die issue.

His involvement also raises some serious red flags about the ultimate objectives of this new campaign.

We already know that Seymour wants a less restricted euthanasia law, and that the norm amongst pro-euthanasia lobby groups is to seek laws which allow advance care directives to also include euthanasia and assisted suicide.

In fact, one of the very things that anti-euthanasia campaigners warned about here in New Zealand prior to legalisation was the high likelihood that one of the first expansions of the practice of euthanasia here would be to allow it to be included in advance care directives.

Once the issue of advance care directive laws is on the table in Parliament, all bets are off as to how far they might go with this.

On top of that, now that we have turned euthanasia and assisted suicide into legally allowable ‘treatment’ options, it’s hard to see how continuing to ban them from being included as part of an advance care directive can even be maintained.

As Richard McLeod of Lawyers for Vulnerable New Zealanders argued time-and-time-again during the euthanasia debate; once you cross the Rubicon of legalising euthanasia there is no going back, and expansion becomes a guaranteed inevitability.

And this article does nothing to assuage our concern that euthanasia expansion is the likely outcome of this new campaign.

The questionable claims…

Firstly, consider these highly questionable claims in the article:

“The principles of informed consent and patient autonomy are fundamental to medical treatment, says Greg Martin, who runs the Ashburton-based law firm Arrowsmith Law.”

Yes, informed consent and patient autonomy are now very important principles of modern medicine, but it seems extremely doubtful they are “fundamental to medical treatment”.

If they are, then how could we justify treating babies, or unconscious people, or those who are incapable of giving consent for other reasons?

And how can there truly be autonomy and informed consent (and thus medical treatment) for any patient who doesn’t have the ability to fully intellectually comprehend the treatments being applied to them?

He then goes on to say:

“Western medicine and the ethics that medical professionals operate under are very much about the preservation of life… On the other side, you have a fundamental basis for civilised society, which is autonomy. While you are competent, you are the person who should make decisions for how you get treated.”

Firstly, it is not at all correct to suggest that Western medical ethics are focused almost exclusively on the preservation of life and little else, or that they are somehow opposed to patient autonomy and decision making.

Not only that, but it is almost certainly wrong to claim that autonomy is a fundamental basis for a civilised society.

We live in a civilised society, but that very same civilised society places all sorts of limits on our autonomy, and some of them are very serious.

This is because, contrary to what is being proposed here, it’s actually the exact opposite that is true. If we didn’t make it a fundamental imperative to impose restrictions on autonomy, we wouldn’t be able to form and maintain a truly civilised society.

Another false claim which appears in this article is this one:

“That requires clinicians to make hard calls on behalf of patients, including assessing their mental capacity and deciding whether to invoke the Enduring Power of Attorney status that can result in a medical team withholding treatment, resulting in the death of the patient.

That’s anathema to most medical professionals who have signed the Hippocratic oath. As American surgeon, writer and public health researcher Atul Gawande writes in Being Mortal, “Hospitals are designed to ensure survival at all costs.”

This is simply untrue - the Hippocratic tradition has never embraced a ‘survival at all costs’ ideology.

It has always made the important distinction between deliberate killing (which it rejects under the principle of ‘do no harm’), and allowing nature to take its course and allowing death to occur instead of harming someone by needlessly prolonging their life with burdensome or extraordinary treatments.

Rather ironically, one of the most common critiques levelled at modern hospitals is actually not that they operate under a survival-at-all-costs ethos. Instead, the modern hospital system is regularly accused of being a profit driven institution governed more by economic concerns than any desire to utilise valuable resources to keep patients alive as long as humanly possible.

Another story, which just raises even more questions…

Finally, the other major personal story that the article includes recounts the details of the stroke and subsequent death of journalist Wendyl Nissen’s elderly mother.

The mask seems to slip a bit here, and this section of the article appears to be saying the quiet part out loud (emphasis added):

“I no longer thought she might die, I hoped she might die,” writes Nissen, a journalist and broadcaster.”

And:

“My mother had her living will, which she had written more than a decade ago, and she told us over and over again that if she ever ended up what she termed a ‘vegetable’, to kill her and put her out of her misery,” Nissen writes.”

And this:

“I didn’t really like my mum. But the daughter in me cared for her. It’s a ­horrible thing to live with that. I did not save ­my parent from that humiliating, horrible three months,” she says.

“Am I angry that some doctors played god and decided to push mum off onto a care home to be kept alive, instead of letting her die as was her wish? Absolutely, I am furious,” she concludes in My Mother and Other Secrets.”

There is a troubling blurring of the lines in all of this, which leaves one wondering how much of this was genuinely wanted by her mother, and how much was actually Nissen’s own desired outcome FOR her mother.

This highlights one of the major problems with this sort of article - neither of the elderly women whose experiences are being relayed here are able to give their voice to these incidents.

We really don’t know for certain what all of this meant for them, or what their actual wishes were. Things could be exactly as related in the article, or, it’s equally possible they might have simply wanted other things instead of death - like community, better care, a sense of wanted-ness and worth.

Either outcome is not likely to be good…

At the end of the day, the outcome of this new political campaign is likely to include more than just some simple tinkering with the current laws pertaining to advance care directives.

It would seem more likely than not that this campaign will result in the expansion of our euthanasia laws to allow advance care directives to include assisted suicide and euthanasia.

If that comes to pass, this would pose a new and even more serious threat to our country than those that have already been created by legalising assisted suicide and euthanasia.

You see, once you place a request for euthanasia into a legally binding document like an advance care directive, you are now exposed to the risk of being deliberately killed without your consent based on how others subsequently choose to interpret and utilise that document.

Which is exactly what happened, just a few short years ago, to an elderly woman in the Netherlands, whose doctor and family decided that it was time for her to die, and then held her down and administered a lethal injection against her will.

Even more frighteningly, the Dutch courts subsequently cleared that doctor of any wrongdoing, declaring that: “the doctor did not have to verify her [the patient’s] wishes at the time of administering euthanasia.”

As far as the Dutch courts were concerned, that previous declaration in an advance care directive was considered good enough to kill a patient who subsequently refused to consent to being killed.

Even if an expansion of New Zealand’s euthanasia laws does not result from this new campaign, removing the current legal right of medical professionals to allow their clinical judgment to be the final arbiter of patient treatment would also be a bad outcome.

It’s not hard to see how any law that exposes doctors to the risk of punishment for acting according to clinical judgment, instead of treating an advance care directive like an infallible arbiter, will simply result in more patients being left to die even when this isn’t justified.

Surely very few doctors would be willing to risk legal punishment, or their very ability to practice medicine by going head-to-head with this proposed law change?

Instead, it seems more likely that they would ‘play it safe’ by unquestioningly carrying out whatever demands are contained in an advance care directive - even when they believe there is a good chance of survival and recovery for that patient.

The end result of this proposed law change would simply be the widespread practice of a new form of de-facto euthanasia-by-omission.