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The challenge of "assisted dying"

Te Omanga Hospice Trust board member Michele McCreadie talks about the End of Life Choice Act referendum and the governance implications for palliative care organisations. 

By Institute of Directors
5 Oct 2020
Spiral staircases

When New Zealand goes to the polls in October voters will be asked to say yes or no in a referendum on the End of Life Choice Act.

If a simple majority say yes, the Act will make it legal for a terminally ill person to request “assisted dying” in New Zealand.

Doctor-assisted suicide is legally available in countries including Australia, US, Canada and the Netherlands.

The board of the Te Omanga Hospice Trust, a palliative care organisation in the Hutt Valley, has been grappling with what that might mean for its staff, its funding and its culture. That has meant leaving personal views at the door to focus on governance.

Close to the heart

Board member Michele McCreadie, an Associate of the IoD, says the referendum is a “big issue” for hospices.

“As a board, we have had a lot of discussion about it over time including presentations from clinicians,” McCreadie says.

“The End of Life Choice Act – and euthanasia – is something that people have quite strong personal views on. Trustees on our hospice board have had the dilemma of balancing their personal view with what is best for the organisation”.

The Te Omanga board did not canvass the personal views of directors, instead addressing the issue in governance terms – organisational strategy, culture and funding. McCreadie describes it as looking at what was best for the organisation and “how we could support the organisation through this whole process”.

“Balanced information was something we needed. Especially because people can be quite polarised on an issue like this between very pro and anti groups. We had to come to a balanced decision.”

A culture of care

One of the main issues the board considered was the effect on staff and overall morale if the Act comes into force. People involved in palliative care are committed to enabling people to have the best quality of life possible for as long as possible.

“So we had to be very conscious that whatever position the board came to needed to be communicated effectively and that we, as a board, needed to fully understand the position of the staff. There could be a damaging effect on staff morale if they felt they were not supported by their board.

“There was also the potential for the passage of the Act to impact Te Omanga’s relationship with funders and our community.”

Hospices are funded by District Health Boards (DHB) but rely on a high level of community support to fully deliver their services. Hospice New Zealand has received a judicial ruling that DHBs would continue to fund regardless of whether or not a hospice offered “assisted dying” services. But with strong views each way in the community, the impact on fundraising remains unclear.

“One of the many things we needed to consider was the impact on our local supporters. Te Omanga is a hospice the community feels a great ownership of. So we always consider the issue of how we work with our community and would not wish to adversely affect our relationship with them, nor our supporters.”

Te Omanga Trust board has decided to support the position of Hospice New Zealand “to neither hasten nor postpone death” and to increase funding for, and improve access to, first class palliative care services. But that may not be the end of the matter.

“They were really the big issues in terms of governance for us and if the End of Life Choice Act becomes law we will have to reassess our position. We will be subject to the law. We will need to have a new discussion on how we are going to manage that.”

The legal landscape

Hospice New Zealand has received a view from the High Court on how a positive vote for the End of Life Choice Act would impact medical practitioners (see the “Conscientious objection” below).

McCreadie says this has given palliative care organisation boards a sound basis on which to plan.

“Hospice New Zealand has done a lot of work in order to help hospices through. It is valuable having an advocacy body that has a level of independence from the organisations that are doing the doing.”

One of the key things the Court opinion identifies is the right of staff and organisations to conscientiously object.

“That’s not totally new to clinical staff – they may conscientiously object to, say, abortions, or family planning. So it’s not something new. There is probably a similar scenario here. But we would, according to what we understand, have a responsibility to provide patients and their whanau the choices available to them, including a choice to end life and, if they requested, refer them to someone who could provide that service even if our policy is not to offer that service.”

“I suspect that would be our policy but we would need to have further discussion and I can’t pre empt that outcome,” McCreadie says.

But first the public will have its say in the referendum.


Conscientious objection

In May 2020 the High Court clarified that no medical organisation would be obliged to offer euthanasia services under the End of Life Choice Act.

In Hospice New Zealand v Attorney General the court offered a view on how conscientious objection to the Act protected medical personal from being required to assist in a procedure they held a strong personal or clinical objection to.

It also found that medical organisations could legally decline to offer “assisted dying” services to patients if that was against the organisation’s ethos. The judgment was particularly important for New Zealand’s palliative care facilities, which exist to comfort those near the end of their life – but not to end life.

Further, the court found that District Health Boards cannot tie funding to the provision of euthanasia services.

Should the Act come into force, organisations that choose not to offer euthanasia services will need to put in place arrangements for protecting medical staff and honouring a patient’s legal right to request this.

The full decision in Hospice New Zealand v Attorney General is available on the High Court website.

The End of Life Choice Act

The End of Life Choice Act has been passed by Parliament but will not come into force unless it is endorsed at the referendum in October. Voters will be asked: Do you support the End of Life Choice Act 2019 coming into force?

The Act allows people in the advanced stages of a terminal illness to request “assisted dying” if they meet certain criteria including that they are:

  • aged 18 years or over
  • likely to die within six months
  • experiencing unbearable suffering
  • competent to make an informed decision.

The article is featured in the August/September issue of Boardroom magazine.