By Graham Adams *
No one could have predicted when David Seymour's End of Life Choice Bill was passed by Parliament last November that the referendum required to bring the legislation into force would be held against the backdrop of a deadly global pandemic.
Since then, the mounting tally of casualties around the world has thrust death and dying into mainstream discussion in a way little else has during most of our lifetimes. If death and dying were once - as the cliche has it - taboo subjects, they certainly aren't now.
For several months, we have witnessed scenes of overcrowded hospitals in Italy and Spain, body bags in New York, and the Prime Minister's warning of "tens of thousands" of deaths in New Zealand. In short, we have been forced to confront our own mortality.
That has meant uncomfortable discussions of topics usually left unspoken - including triage and how cancer patients, among others, might be denied access to our meagre supply of ventilators if hospitals were overwhelmed and doctors had to choose to treat only those with the best chance of surviving Covid-19.
The practice - and necessity - of triage has become a topic of intense debate. Many will have become suddenly aware during the pandemic that, in an emergency, doctors can decide whether you will get the opportunity to live, or die. Yet doctors are still not legally allowed to help you, at your request, to avoid the last stages of suffering from a disease such as cancer when you are already dying and you want to shave a few days or weeks off the end of your life.
How all this will affect the referendum result is anyone's guess but it is certainly not uncommon for cataclysmic events to spur progressive change. The massive contribution by women during the First World War, for instance, helped give women the right to vote across the Western world - including in Canada, Russia, Germany, Poland, Austria, the Netherlands and the United States.
Too late for changes
Supporters of assisted dying will hope very strongly that the pandemic will have boosted the groundswell for legislative change in New Zealand - pushing the usual high level of support even higher.
A majority of the public have consistently supported some form of assisted dying for decades. Jessica Young, a PhD candidate at Otago University, investigated New Zealanders' attitudes over 20 years to euthanasia and assisted dying. Her research showed that, on average, across all surveys in that time, 68.3 percent of people supported assisted dying and 14.9 percent opposed legislation, while 15.7 percent were neutral or unsure.
After attempts to legalise assisted dying through private member's bills failed in 1995 and 2003, last year Parliament finally reacted to this sustained public pressure and passed the End of Life Choice Bill sponsored by David Seymour - with the proviso that the legislation needed to be ratified by a binding referendum in order to come into force.
As a result of last November's vote, the End of Life Choice Bill became the End of Life Choice Act 2019. It is no longer a work in progress. The Act - passed by a majority of MPs 69-51 - is now in a form they consider safe and suitable to be put to the public for ratification.
It came as a surprise therefore to hear John Campbell on TVNZ's Breakfast last week ask Richard McLeod, a lawyer opposed to assisted dying, whether the "bill" could be "redrafted" to meet McLeod's objections.
McLeod rightly responded: "It's too late for that. New Zealanders are now being asked to vote [at the referendum] on a piece of legislation."
For anyone inquisitive about the Act's status during the interval between its passing in Parliament last November and the referendum in September, David Seymour sums it up like this: "To be perfectly correct, the End of Life Choice Act is a law. It has been signed by the Governor-General on behalf of the Queen, it has Royal Assent.
"However, all laws have a commencement clause. Some say 'upon receiving Royal Assent.' Others say 'x months after receiving royal assent' - usually if there is an implementation program to be put in place before the law can operate.
"This law has a particularly complex commencement clause that talks about the conditions under which the act 'comes into force' and that is dependent on a referendum result. So it is a law, but it will not come into force until such a time as a referendum is passed to say so."
Otago University law professor Andrew Geddis puts it this way: "The legislation is an Act of Parliament, but is not yet the law of New Zealand as it only enters into force upon a majority vote at the referendum (according to the Act's own terms)."
In short, it is a law but not yet the law.
In answer to Campbell's clumsy query about "redrafting" the "bill", the fact is that the bill Seymour originally lodged in the members' ballot five years ago has already been heavily redrafted to accommodate the many and varied objections of critics such as Richard McLeod - most of which centred on fears that the vulnerable needed to be better protected against coercion.
Before the bill was passed, some of its major clauses were dropped entirely and the Act - as it is now - restricts eligibility to adults who are dying with six months or less to live; have significant and ongoing decline in physical capability; are experiencing unbearable suffering that cannot be eased; and are capable of making an informed decision.
The Act explicitly rules out eligibility solely on the grounds of mental illness, disability or advanced age.
It is now less than three months before the referendum on 19 September when voters will be asked to simply answer "Yes" or No" to the question: "Do you support the End of Life Choice Act 2019 coming into force?"
Campaigning thwarted by Covid-19
Inevitably, the plans of those campaigning for and against assisted dying in a last-ditch attempt to sway voters to their side have been severely disrupted by the pandemic.
Euthanasia-Free NZ executive officer Renee Joubert has said Covid-19 has forced her organisation to not only cancel conferences and events but it has also hampered the ability to fundraise and enlist volunteers as financial hardship bites.
Mary Panko, president of the End of Life Choice Society, has experienced similar problems with fundraising and campaigning. She says her society had to "cancel all weekend markets where we had been distributing information about the Act and recruiting online supporters".
Furthermore, she said: "We had two speakers lined up - Dr Nick Carr, from Melbourne, who undertakes assisted dying, and Beverly (Bev) Young who is a retired palliative care supervisor from Brisbane. Dr Carr was going to be our primary speaker at our planned AGM in Wellington but, of course, this has now become a virtual event."
Nevertheless, the campaigning on both sides has begun in earnest with major media players - including RNZ, TVNZ and Mediaworks - giving increasing space and airtime to the topic.
Willingness to call out fake news is clearly going to be vital to a fair debate. During Richard McLeod's joust with palliative care expert Dr Libby Smales on Breakfast, he used a scenario of an imaginary Māori man - Mr Tamati, living in the Far North, "who has just been diagnosed with lung cancer" - to demonstrate how the legislation would be used.
McLeod: "So his doctor says to him: 'Mr Tamati, these are your options... There is a shortage of palliative care services in Northland - sorry about that - and Pharmac has just denied you Keytruda so we can't keep you alive for many years.
"Hey, but we've got this new option - it's called sticking a lethal injection in your arm! How does that sound - because after all, Mr Tamati, it's your life, your choice.'"
In response, Dr Smales, said: "It's not possible for a GP to raise the issue of choosing medical aid in dying - it has to come from the person themselves... I am not a lawyer... but actually, Richard, you are not telling the truth."
Fortunately, voters who are not familiar with the details of the bill can go directly to the government website that explains in clear and succinct language what the End of Life Choice Act 2019 entails, including who is eligible and who is not, and exactly how the process works.
So anyone unsure whether McLeod was telling the truth could check for themselves under the heading "Making Sure the Choice Is Freely Made". There they would read this unequivocal statement: "A health practitioner is not allowed to suggest that a person consider assisted dying when providing a health service to them."
In short, Dr Smales was right: The End of Life Choice Act specifically prohibits a doctor from suggesting assisted dying as an option; the request has to come from the patient.
The website's summary of what the Act requires for someone to be able to make an informed choice includes that they are able to "use or weigh up information about assisted dying when making their decision".
The advice is just as appropriate for voters - and the website is an excellent place to start.
*Graham Adams is a journalist, columnist and reviewer who has written for many of the country's media outlets including Metro, North & South, Noted, The Spinoff and Newsroom.