A High Court judge says hospices will not be forced to provide assisted dying services if New Zealanders vote to legalise voluntary euthanasia at this year's general election.
The decision by Justice Jillian Mallon, released today, also says aspects of the End of Life Choice Act are causing confusion among health providers and Kiwis generally.
Hospice New Zealand had asked the court to rule on several questions, including whether organisations can conscientiously object to providing assisted dying, before Kiwis are asked in September to decide on what side of this debate they stand.
It resulted in a two-day hearing last month in Wellington, where Hospice NZ said it considered the Act unclear on the following issues:
• Whether organisations such as hospices can exercise a right of "institutional" conscientious objection consistent with their core values without exposing its health practitioners to criminal prosecution.
• Whether, if an organisation exercised a conscientious objection consistent with its core values, Crown funding could be declined for the services it does provide.
• Whether the obligations on a health practitioner under the Act override the health practitioner's ethical, clinical or professional judgement and the practitioner's obligations under the code of Health and Disability Services Consumers' Rights.
• And whether a health practitioner could conscientiously object to assisting if he or she holds as a core value that they must not act contrary to their ethical, clinical or professional judgement or their obligations under the code.
Lawyers for the Attorney-General, however, argued the court should not issue declaratory orders and be cautious about its proper role in the constitutionally unique circumstances of the case.
In her judgment, Justice Mallon said she accepted if the court is able to clarify areas of confusion by interpreting the legislation, then it should do so even though there may be limits to their binding effect.
"However, I am not able to make the declarations in the form they are sought," she said, adding the questions posed for declaratory relief involved hypotheticals.
But the judge did make some statutory interpretations that are not fact-dependent.
The legislation states assistance will be provided by health practitioners and it will be an offence for a practitioner to wilfully fail to comply with any requirement on them under the Act.
But Justice Mallon said the Act does not require hospices or other organisations to provide assisted dying services.
"They are entitled to choose not to provide these services. This does not depend on a hospice or other organisation having a conscientious objection, although that may often be the reason."
Allowing hospices or other organisations not to offer assisted dying services is consistent with the right to freedom of conscience under the Bill of Rights, she added.
"Hospices or other organisations that choose not to offer assisted dying services may employ or engage health practitioners on the basis that these services are not provided by the hospices or organisations, but it will also be necessary to have arrangements for how health practitioners can comply with their objections under the End of Life Choice Act if a request is made of them by a person in the hospice or organisation's care."
The Act also does not exclude the professional obligations of health practitioners as set by the Medical Council and the Nursing Council, the judge said.
"Health practitioners required to take steps under the End of Life Choice Act may only do so if they have the competence to do so in accordance with their professional standards."
And the right to conscientiously object encompasses its usual meaning in medical practice, Justice Mallon said.
"It will encompass when a doctor or nurse holds a deeply felt belief that it is wrong for them to provide the assistance for personal, moral reasons, internal to them."
If the legislation comes into force, it will give people who have a terminal illness and meet certain other criteria the option of lawfully requesting medical assistance to end their lives.
Justice Mallon said the Act "is believed to be a unique constitutional situation in this country, if not the Commonwealth", after Parliament assigned the final step in the law-making function to the electorate via a binding, binary, referendum.
The End of Life Choice Act passed in Parliament by 69 votes to 51 last November.