Legalwise News NZ Editor Caroline Tang interviewed Wellington-based human rights barrister Michael Bott, who has defended people’s rights for more than 16 years, about ACT MP David Seymour’s End of Life Choice Bill, which is at the Select Committee stage in Parliament. Mr Bott believes most New Zealanders, in today’s increasingly secular society, support the legalisation of euthanasia.
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Introduction
The End of Life Choice Bill gives people with a terminal illness or a grievous and irremediable medical condition the option of requesting assisted dying. The proposal has generated a huge public reaction: Tens of thousands of New Zealanders made submissions. Justice Committee MPs are touring the country to hear oral submissions. The hearings are scheduled to end in Christchurch in early September.
A stepped process
Michael Bott said the Bill’s proposed stepped process, where there is professional evaluation and interview, aimed to provide guidance and protection, given that the Bill has raised an issue that has been the subject of a number of court cases and media discussion for some years.
“There is a large amount of anecdotal evidence that life-ending interventions already occur in a number of terminal illness cases with a number of patients receiving high doses of pain relief, even though that may hasten the patient’s death. A similar situation may arise with patients presenting with protracted conditions from which there is no hope of recovery – where treatment is withdrawn, also resulting in the hastening of death,” he said.
“Currently, these actions often occur at a time when the patient is unable to communicate with treatment providers, and the patient is faced, for example in the case of dementia, with a prognosis of facing the last phase of life with the erosion of their perception of their personal dignity. In this sense, assisted dying may give the patient dignity that they would otherwise lose, until they reach the stage when a high dose of pain relief or treatment withdrawal hastens death.
“Against this backdrop, the establishing of a stepped process whereby people can make these choices, and professionals assess and review these choices, will hopefully lead to an environment where positive guidelines can be established to provide healthcare practitioners with certainty and protection as part of Good Medical Practice.”
Concerns for the vulnerable
But, Mr Bott acknowledged there were potential problems with the legalisation of euthanasia and the Bill. “One worry is that as society adjusts to accepting assisted dying, that some patients may feel pressured into ending their lives because of cost, or the perception of being a ‘burden’ to their families,” he said.
“Another concern could be, say in the case of an advanced directive, that where a patient while able to communicate, advises that in the event of reaching a certain stage of incapacity, that interventions such as assisted feeding be withdrawn, changes their mind and thus the end of life intervention may occur against their wishes at the time.
“In addition, the trigger for the Bill’s anticipated stepped process is when a person meets the definition of, ‘a person who is eligible for assisted dying’:
(4) Meaning of person who is eligible for assisted dying
In this Act, person who is eligible for assisted dying means a person who—
(a) is aged 18 years or over; and
(b) is—
(i) a person who has New Zealand citizenship as provided in the Citizenship Act 1977; or
(ii) a permanent resident as defined in section 4 of the Immigration Act 2009; and
(c) suffers from—
(i) a terminal illness that is likely to end his or her life within 35 months; or
(ii) a grievous and irremediable medical condition; and
(d) is in an advanced state of irreversible decline in capability; and
(e) experiences unbearable suffering that cannot be relieved in a manner that he or she considers tolerable; and
(f) has the ability to understand—
(i) the nature of assisted dying; and
(ii) the consequences for him or her of assisted dying.”
Mr Bott said the probable concern here was the entry of subjective or arbitrary criteria into the definition of what constituted, “Unbearable suffering that cannot be relieved in a manner that he or she considers tolerable”. “The scope for this to descend into overly broad criteria is live until it is addressed in guidelines,” he said.
Fearful of the past
Mr Bott said many New Zealanders also feared that the introduction of lawful assisted dying would hark back to dark times in world history. “Nazi Germany had an established programme of eugenics where the state decided who was worthy of life and those who should not be allowed to live. There exists a justified repugnance and horror at the fact that certain categories of individuals were were targeted for destruction under Nazi eugenics policies being labelled as living lives unworthy of life of of ‘lebensunwertes Leben’,” he said.
“Such people included prisoners, ‘degenerates’, dissidents, people with congenital cognitive and physical disabilities including people who were ‘feebleminded’, epileptic, schizophrenic, manic-depressive, cerebral palsy, muscular dystrophy, deaf, blind, homosexual, idle, insane, and the weak, for elimination from the chain of heredity.
“There is a concern for many people, that once we begin evaluation of what it means as to meet a categorisation of living a life which entitles them to qualify for assisted dying, that we as a society are potentially revisiting this dark period of human history.”[1]
Euthanasia-like case
Mr Bott once represented an incarcerated client who had chosen to protest in a way that endangered her life. “The prison inmate was on a hunger strike. As part of the process of her hunger strike, her thought processes began to deteriorate as her brain succumbed to the effect of malnutrition. Her doctor applied to transfer her to a psychiatric facility where he anticipated force-feeding her,” he said.
“I believed she was transferred unlawfully from the prison to the mental health facility. Further, that as she was involved in exercising her right to protest, and that the physical effects of a hunger-strike entail a decline in physical and mental health, that a power to detain someone in a psychiatric facility for force-feeding would effectively mean that no one would have the right to hunger strike. After a week of hearings, the High Court directed that the woman be sent back to prison. Judging by recent submissions to Parliament she is still alive today and is still active in the protest movement,” Mr Bott said.
Conclusion: Majority support
Mr Bott believes most New Zealanders would support the legalisation of euthanasia, but he argues that suitable protections must be in place to guard against misuse and ensure that vulnerable people are protected from being pressured to end their lives.
“As our society has become increasingly secular it is understandable that attitudes around euthanasia have changed. I think at this time most New Zealanders would support assisted dying – as would a majority of fellow lawyers – provided appropriate protections are put in place and healthcare professionals have the ability to opt out, without ramification if they object,” he said.
Barrister Michael Bott was called to the bar in 2002 having previously worked in the construction industry. Michael’s first case in Court was to seek a writ of Habeus Corpus for a prison inmate who was wrongly transferred to a psychiatric hospital following her hunger strike. From the start he has been fighting for the rights of those who need a heavy hitter. Ever since, Michael has been standing up for his clients, whether that is in the context of human rights matters, criminal law, parole proceedings or civil disputes. He fights for his clients without fear or favour.
From 2005 to 2012, Michael was a member of Blackstone Chambers, Wellington’s pre-eminent human right’s chambers. There, while working alongside Dr Tony Ellis, he participated in some of the leading Human Rights cases heard in our High Court and Court of Appeal. Michael has been a member of the New Zealand Council of Civil Liberties, and served at an executive level, for 11 years.
In 2012, Michael took the opportunity to move from Wellington City to Upper Hutt, and establish chambers within his community. Heretaunga Law was established, along with Stephen Iorns and Steve Taylor, with a view to standing up for the little guy whether they are in the Hutt Valley, Wellington, Auckland, or anywhere in the Country. Michael takes cases as diverse as high level commercial disputes, administrative law, jury trials, military court martials, and human rights cases ranging from the right to hunger strike to cycling in the nude. Contact Michael at michaelbott@xtra.co.nz
1: See: German Doctors and the Final Solution (New York Times 1986) https://www.nytimes.com/1986/09/21/magazine/german-doctors-and-the-final-solution.html
