Regulating Clinician Speech in Assisted Dying: Using a Sledgehammer To Crack a Nut?

Since the enactment of End of Life Choice Act 2019, people suffering from terminal illness who meet specific statutory criteria have the right to request and receive assisted dying (AD) in New Zealand. However, unlike ordinary health care law that is premised upon the right of patients to receive relevant information regarding health care and treatment options, the Act expressly prohibits health practitioners from initiating any discussion with a person that is, in substance, about AD. This far-reaching provision abrogates the general ethical, professional and legal duty to inform patients regarding health care and treatment options. This well-established duty, which is grounded in the right of individuals to make autonomous decisions, arises from both the common law as well as New Zealand's foremost expression of patient rights promulgated under the Health and Disability Commissioner Act 2004 (the Code of Health and Disability Services Consumers' Rights). Intended as a safeguard, the prohibition is based on a perceived risk that presenting AD as an available choice may unduly influence some terminally ill patients to exercise the option of AD. While potentially well intentioned, the prohibition is far from benign. It has been criticised as hindering appropriate clinical and therapeutic communication and imposing barriers to good medical care. Ironically, the prohibition potentially risks not only contributing to inequitable access to AD, it may also increase the risk of premature death for some terminally ill individuals. This paper explores an additional criticism not previously considered in the literature, which is that the prohibition is inconsistent with section 14 of the New Zealand Bill of Rights Act 1990. Section 14 establishes the right to 'freedom of expression, including the freedom to seek, receive, and impart information', which directly engages the rights of both clinician and patients in the health care context. After establishing that the prohibition cannot be demonstrably justified in a free and democratic society, this article concludes by considering two potential solutions: repeal of the prohibition completely, or alternatively, introducing a less demanding option that better achieves the objective of protecting vulnerable patients experiencing terminal illness. It favours the latter. [ABSTRACT FROM AUTHOR]