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Active Euthanasia: Understanding New Zealand’s End of Life Choice Act, 2019.

New Zealanders recently instituted a landmark decision on one of the most complicated social issues i.e. active euthanasia, a physician’s deliberate act, usually the administration of lethal drugs to end an incurably or terminally ill patient’s life. Despite being a hot topic with strong views on both the sides of the debate, about 65.2% of New Zealand's population voted in favor of the End of Life Choice Act becoming law during the voluntary euthanasia referendum. The End of Life Choice Act was passed by parliament in 2019 after years of heated parliamentary debate and a record number of public submissions. But there was a proviso that it would first be put to a referendum, only coming into force if more than 50% of voters ticked "yes". The "yes" verdict had been anticipated after polls suggested strong public support for the law, which was also backed by Prime Minister Jacinda Ardern and the opposition leader, Judith Collins.

After a swooping amount of 65.2% of the votes, the law will now allow terminally ill people with less than six months to live the opportunity to choose assisted dying if approved by two doctors. New Zeaaland will therefore join the Netherlands, Belgium, Luxembourg, Western Australia, Colombia and Canada in legalizing euthanasia.

To get access to assisted dying, a patient would need the approval of two doctors. A General Physician could refuse to take part, but must tell the patient they can ask for the name and details of a replacement doctor. The doctors must then carry out a number of checks - such as ensuring a person understands their other options and that they can change their mind at any time.

If either of the doctors had any concerns about the patient's competence to make a decision about ending their life, they would have to refer them to a psychiatrist for a third opinion. A person would not be able to write an advance directive that they want an assisted death at a later date. And if at any point a doctor suspects a person is being pressured, they would have to stop the process.

Once approved for the procedure, the patient would be able to choose the method of taking the lethal dose and whether they want to take it themselves or have a doctor administer it. They also choose a date for their death, and if they change their mind they can set a new date within a timeframe of six months.

To avoid the misuse of this Act, three new roles would be created to run the new euthanasia regime and provide oversight:

  1. A Support and Consultation for End of Life in New Zealand (SCENZ) Group would draw up a list of willing doctors and psychiatrists and would also prepare standards of care and advice on the medical and legal procedures.

  2. An End of Life Review Committee would check reports on assisted deaths to make sure they complied with the law, and flag any concerns to a Registrar.

  3. The Registrar would check that the processes required by the law had been followed, and would also be in charge of hearing complaints and referring them to the appropriate agency - such as the police or Health and Disability Commissioner.

However, India still remains among those countries where active euthanasia is a no-no. It is illegal and a crime under section 302 or at least section 304 IPC. What is ironical is that passive euthanasia is permissible i.e. withdrawing life-sustaining treatment from severely incompetent patients. As opposed to active killing, it is believed to be morally appropriate because it constitutes doing nothing. It is disease that does the dirty work, not the clinician. Yet this argument cannot wash away the foreseeable suffering of severely incompetent patients sometimes forced to die avoidably slow and distressing deaths.

What is moral or immoral has kept changing ever since the beginning of time, across societies. Morality and immorality are not in black and white. As much as we condense this concept and give it a more elaborate authority by implementing it in law, we might end up in a web of questions that would be urged to be decided on ‘perceived morality of the majority’. The point is that to push complex ideas into cubicles of morality is more like looking at the world through rose-colored glasses. Morality only gives us acknowledgements and justifications. We must not let public morality solely determine acts as good or bad, the Court must lay down a certain parameter of ‘legal morality’ in which rights and interests of people are balanced as much as possible.

There is no legally intelligible difference between deliberately “doing” (active) and “not doing or stopping to do” (passive) something that leads to death. Nor is there any articulate reason why “withdrawal” (as opposed to “withholding”) of current treatment isn’t an illegal “active” decision that hastens death from the underlying cause, much like a lethal injection that also accelerates imminent death. The distinction may unjustly deny a recognized fundamental right to those who need assistance to access it. 

It is true that in appropriate circumstances, clinicians who starve severely incompetent patients to death are not deemed by law to have killed them actively, even if they begin the process by the removal of feeding tubes. The legal fiction that such starvation is not active killing is no more than judicial farce of the euthanasia that is actually occurring.

Clinicians should be encouraged to recognize the moral reality behind withdrawing life-sustaining treatment from severely incompetent patients: they are already killing their patients, whatever they may feel to the contrary. The law and professional guidance should be changed to enable them to do so more quickly, more humanely and without guilt. That is exactly what New Zealand has done.

The caregiver's burden is huge and cuts across various domains such as financial, emotional, time, physical, mental and social. Coupled with the States inefficiency, apathy and no investment on health is mockery of the ‘Right to life’.

Fear of criminal liability by relatives and medical doctors ultimately leads to the suffering and the undignified death of the patient. The meeting point between bio-ethics and law does not lie on a straight course, and these complex issues cannot be addressed without the legalization and regulation of active euthanasia.

The question is not whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment.

Due to the advancement of modern medical technology pertaining to medical science and respiration, a situation has been created where the dying process of the patient is unnecessarily prolonged causing distress and agony to the patient. The lives of such patients are themselves of no further benefit to them due to the severity of their incompetence. Why should we make the patients endure needless actual or potential suffering?

As the Shakespeare very rightly put it in the apt words, I’d quote him:

“I would they were, that I might die at once,

For now they kill me with a living death.”

Written By: Ms. Marina Nasreen, Law Student at Jammu & Kashmir University, Legal Intern at S. Bhambri & Associates (Advocates), Delhi.

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