David Farrar: The six month rule

An excellent article in the NZ Herald on the review of the End of Life Choice Act:

She met most of the criteria, Johns said. The requirements include having a terminal illness, being in an advanced state of irreversible decline, experiencing unbearable suffering that cannot be relieved to a tolerable level, and being competent enough to give informed consent. There are also extra safeguards in the law: patients cannot apply purely on the basis of a mental illness, disability, or age.

But Smith failed a key test. Her two assessing doctors could not say with confidence that she was likely to die within six months. Her application was declined.

“She was clearly disappointed,” Johns said. “And what happened after that was totally predictable – she had a terrible time.” Smith became more agitated and afraid. Her memory faded, she struggled to digest food, and she had to wear nappies for incontinence. She needed 24-hour nursing care and was placed in the Te Hopai care facility in Newtown. Her pain was unrelenting.

Smith died in Wellington Regional Hospital in October 2022. It was almost exactly six months since her assisted dying application was turned down.

I was quite involved in the campaign to get the law passed. The six month rule was a compromise to get the numbers to pass it. It would have failed without it. The Greens were bound by a policy pushed by some of their disabled members who thought the bill was devaluing disabled lives and could be used to pressure disabled people to end their lives. This was not the case as you actually had to be suffering from an irremediable condition and in grievous suffering. But better a law that allowed choice for some, than no law that allowed choice for none. And the compromise got the bill through (along with another compromise with NZ First for a referendum to get them on board).

A future law change (presumably a conscience vote in Parliament) would at a minimum need the Greens to change their policy. But even if that happens the current Parliament is more conservative than the 2017 – 2020 Parliament so I wouldn’t rate the chances of a law change as high.

When a doctor says a patient is going to die in two weeks, they are almost always right. Similarly, doctors can accurately predict that a person will die in 12 months around 70% of the time.

Between those two points is a window of uncertainty, where predicting time of death is much more difficult.

“Our law falls right in the middle of that range,” said Dr Gary Payinda, an emergency medicine specialist in Whangarei who provides assisted dying services on his days off.

Payinda said in his experience, a large number of applicants who failed the six-month test reapplied one or two months later when their health had deteriorated further. At this point, they were usually “gravely disabled” and unlikely to live for long enough to go through the application process again.

“So it’s a Goldilocks problem,” Payinda said. “These poor patients are either too healthy or too sick to qualify for assisted dying. And I’ve seen this play out time and time again.”

He is pushing for the requirement to be extended to 12 months.

I’d personally favour having no time limit at all (it should just be based on if it is incurable and the level of suffering), but even extending the time limit from six to 12 months would be beneficial.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.