Assisted Dying: The human rights debate

Assisted Dying: The human rights debate

March 3, 2016

The euthanasia issue has already been called the debate of the year.

The Human Rights Commission has made a submission to the Health Select Committee’s Investigation into End of Life Matters. This investigation resulted from a Petition submitted by Hon Maryan Street and 8,974 others requesting:

‘That the House of Representatives investigate fully public attitudes towards the introduction of legislation which would permit medically-assisted dying in the event of a terminal illness or an irreversible condition which makes life unbearable.’

In addition, a private members bill has been introduced to the ballot which seeks to legally authorise medical practitioners to assist a person with a terminal illness to die, under certain circumstances. The Petition and the Bill follow Lecretia Seales’ landmark case, in which she sought a declaration from the High Court that her general practitioner would not be committing a crime if she were to assist her to end her life if the pain and indignity caused by her terminal brain cancer became too much for her to bear. 

Lecretia’s claim had significant implications for human rights law in New Zealand, particularly the interpretation of the right to life and the right to protection from cruel or degrading treatment under the New Zealand Bill of Rights Act 1990 (BORA). Her claim also involved consideration of the fundamental human rights concepts of dignity and personal autonomy. The decision confirmed however, that any action taken by a physician to assist a terminally ill person to take his or her own life constitutes a serious criminal offence under the Crimes Act 1961, if the terminally ill person requests the intervention. 

Human dignity is a core human rights concept. But in NZ a free-standing right to dignity is not expressly provided for in the BORA or in other human rights legislation as it is in South Africa for example. 

Furthermore, the Canadian Charter of Rights includes the rights to liberty and security of the person, alongside the right to life. These concepts of personal autonomy are not explicitly provided for in the BORA’s expression of the right to life, which just states: 

“No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.” 

In its submission, the Commission recommends that the Committee consider whether the 

current form of BORA adequately engages the human rights issues that arise from end of life matters, namely those regarding the rights to dignity and personal autonomy.

The Commission’s view is that the right to not be arbitrarily deprived of life does not directly translate into an absolute prohibition on Parliament implementing a legislative framework that would permit terminally ill people to obtain assistance to end their lives. 

This position is subject to the provisos and safeguards as listed broadly here: 

  • Clear and sensible thresholds are necessary and an adult age of decision making of 18
  • Free of coercion or influence 
  • Appropriate medical evidence and perhaps a psychiatric screen 
  • Cooling off period 
  • Need for ongoing monitoring and independent review of the system 
  • Judicial/expert oversight 
  • Medical professionals can ‘opt out’ ‘conscientious objection’ provisions similar to the current abortion legislation. 

To read the Commission’s submission click here.

Dig Deeper:

You can read the rest of the March edition of the Turangawaewae newsletter here.

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