Bay of Plenty debates the End of Life Choice referendum

The public can vote on the End of Life Choice Act this election. Photo / File

On October 17, New Zealanders will decide in a binding referendum whether to make assisted dying for terminal patients legal. If successful, the End of Life Choice Act will take effect in 12 months yet the issue is fraught with debate. Kiri Gillespie speaks to those for and against the Act.

Tess Nesdale still remembers trying to comfort an elderly English woman drawing her last breaths before dying in terrible pain.

The "awful" memory is etched into Nesdale's mind nearly 10 years later.

It is partly why the retired nurse will vote yes to the End of Life Choice Act in a referendum on October 17. If successful, the Act will legally allow eligible New Zealanders assisted dying.

But Waipuna Hospice chief executive Richard Thurlow's vote will be no.

He believes the act is dangerous and flawed and he says he's not alone in his concerns.

The argument for

Tess Nesdale is resolute in her plans to vote yes because "it's important to me".

Nesdale has spent her most recent years working in aged care facilities for the "fragile" and others of not sound mind but this was not the inspiration behind her support for the act.

It was working as an agency nurse in England as the sole carer for an elderly woman, she said.

"Sometimes there's no family. Sometimes there's a daughter or a son or the whole family. You care for them until they die. That has influenced me."

Retired nurse Tess Nesdale says people shouldn't have to die in pain and suffering. Photo / George Novak

During the woman's last days her pain relief was not working but Nesdale was unable to offer anything else. The woman died two days later in agony, she said.

"I just thought 'this is awful' and I still remember it, it still makes a big impression on me and it was about 10 years ago.

"That's what keeps me going. Just because these people are in a minority - not a lot of people suffer badly. Why should these few suffer? These people are as worthy as anybody else. This is a situation where there is no way forward. They are going backwards and they are going to die so why make them suffer any more than they need to?"

She said she was positive about the Act and believed it was rigorous in its checks and balances that addressed people's concerns.

"There are very strict criteria."

Overall, the Act has more than 45 safeguards.

Advocates for the Act refer to polling that has shown up to 75 per cent support and a high threshold of criteria to be met.

"Nobody can knock it down now but the referendum."

The argument against:

Thurlow is no stranger to death.

The Waipuna Hospice boss has long steered the Tauranga palliative care centre but the prospect of assisted dying has him worried.

In June, Hospice NZ sought a Declaratory Judgement from the High Court to ensure the legislation included the ability for organisations such as a hospice, aged care facilities or GP practices to make a conscientious objection to performing assisted dying on their premises by their staff. Justice Jillian Mallon ruled in their favour.

This was an example of a lack of consideration given to the practical application of assisted dying, Thurlow said.

Waipuna Hospice chief executive Richard Thurlow says the End of Life Choice Act is flawed and dangerous. Photo / George Novak

Thurlow has since received praise and thanks from others in the health sector for the move.

"There is quite a strong feeling in the health care community about people wanting the option to opt out," he said.

"To be a doctor in this area when the whole focus is meant to be health and wellness; keeping someone as well as they can be for as long as they can be, and all of a sudden they are being asked to killed people?"

Thurlow said the majority of his staff were against the Act, with some nurses in "despair".

"It's unsettling and stark when you sit in the seat I sit in and have staff really panicked."

The prospect of assisted dying also flew in the face of the hospice ethos of encouraging people to live every moment.

"A lot of the stories we hear about suffering and pain is from a decade or two decades ago. Palliative care has changed a lot in the last few years."

Logical progression was a worry for him.

"You open that jar or bottle and the genie is out."

Coercion was another.

"It can be so subtle."

Thurlow said there was a risk of some patients who felt they were a burden on loved ones or carers feeling assisted dying would be better for others.

Thurlow believed the Act needed more attention before being considered as a potential law and hoped others would agree.

This is not the first time this issue has raised its head:

In 1995 National MP Michael Laws' Death with Dignity Bill and in 2003 NZ First MP Peter Brown's bill, by the same name, were voted out of Parliament. In 2012, The End of Life legislation was developed and put into Parliamentary ballot by former Labour MP Maryan

Street. However, it was not drawn before she left in 2014.

Street's Bill was reinvented and introduced to Parliament by Act Party leader David Seymour in 2017. In November 2019 it passed its final reading, becoming an Act. Now, it waits for the results of the binding referendum.

If successful, the Act will come into effect 12 months after final votes are announced.

Who is eligible?

To meet the criteria, a person must suffer from a terminal illness that's likely to end their life within six months, be 18 or over, a citizen or permanent resident of New Zealand, have significant and ongoing decline in physical capability, experience unbearable suffering that cannot be eased, and be able to make an informed decision about assisted dying.
These criteria must be agreed on by the person's doctor and an independent doctor. If either is unsure of the person's ability to make that decision, a psychiatrist will be needed.
Anyone living with mental illness, disability or advanced age will not be eligible.

How will it work?

A person must independently request assisted dying.
If eligible, a doctor will talk to the person about how and when they'd like to die. They have six months to use it.
Patients can choose how to have the drugs delivered and whether to trigger it themselves or have medical practitioner do it at a place of the patient's choosing, including at home.

Who oversees the Act?

The Act will be overseen by a Support and Consultation for End of Life in New Zealand Group, to be established by the director general of health. In addition to this, an End of Life Review Committee and Registrar will be appointed by the Health Minister.

More information

The End of Life Choice Act is one of two referenda being held on October 17. The other is on cannabis legalisation and control. For more information visit the official Government website on the referenda.