In 2020 a referendum was held to determine whether the End of Life Choice Act 2019 (the Act) would come into force in New Zealand.

Hospice New Zealand (Hospice), a provider of palliative care to people nearing or at the end of life, has as its core value to neither hasten nor postpone death. As an organisation Hospice was opposed to the Act and sought declarations from the High Court to clarify the Act’s meaning and effect prior to the referendum. Hospice was concerned that its right, and that of its staff, to exercise a conscientious objection was unclear under the Act. Hospice sought clarification for itself, its members, anyone involved in its services and the public in general so everyone could fully engage in the debate leading up to the referendum.

Should the court answer Hospice’s questions?

The court confirmed that it had jurisdiction to grant declaratory relief, but it was at the court’s discretion whether to make the orders sought. The court said that the “importance of the subject, and the constitutionally unique process for deciding whether the [Act] will come into force” meant that the court should at least consider whether there were questions of statutory interpretation that the court could properly answer.

Issues

Hospice sought declarations on several topics raising issues about institutional rights, the impact of a conscientious objection on future funding of palliative care, the treatment of potentially competing obligations on health practitioners, and defining the scope of conscientious objection. The court considered all the issues in detail but ultimately was unwilling to grant the declarations in the form requested by Hospice. To do so required the court to answer hypothetical questions which it considered were better left to specific cases where decisions could be made on the facts.

Despite this, the court was prepared to clarify the Act where possible and in doing so provided insight into the meaning of conscience and conscientious objection under the Act on two key topics:

• Whether institutions may exercise a right of institutional conscientious objection without exposing its health practitioners to criminal prosecution;
• Whether a health practitioner holding a core value that they must act in accordance with the Code of Health and Disability Services Consumers' Rights (the Code) can conscientiously object for that reason.

Clarification of a right to institutional conscientious objection

This topic involved whether an institution could hold a conscientious objection and provide ‘euthanasia-free’ services. If it did so, would this conflict with a health practitioner’s obligations to take steps under the Act to discuss, advise and make the arrangements for administering lethal medication upon receiving a request from an eligible person?

Hospice referred to s13 of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides “everyone has the right to freedom of thought, conscience, religion and belief” and s29 NZBORA which affirms that right for all legal persons so far as is practicable.

The court said that an organisation may have an “entrenched moral ethos” and should have the benefit of the right to freedom of conscience contained in the NZBORA so far as practicable.

The court confirmed Hospice was not required to provide euthanasia or assisted suicide under the Act. Thus it was entitled to exclude these services and this was not dependent on a conscientious objection, although the court recognised that may ultimately be the reason. The court said allowing organisations to exclude services under the Act is consistent with the right to freedom of conscience under s13 NZBORA.

In response to Hospice’s concern that providing a ‘euthanasia-free’ service would place its health practitioners in conflict with their statutory obligations, the court indicated the Act was clear. The Act placed obligations on health practitioners, and it was the practitioner who was required to decide if they had a conscientious objection. If the practitioner did not have a conscientious objection, the terms of employment or engagement could not prevent them from carrying out their obligations under the Act. Organisations providing ‘euthanasia-free’ services would need to take care to ensure contractual arrangements recognise the practitioner’s right to decide if they have a conscientious objection. However, the court thought that organisations and health practitioners should be able to establish arrangements to avoid conflict between them.

The court concluded its discussion on this topic by stating that the health practitioner’s right of conscientious objection is a cornerstone of the Act and if in future a question of statutory interpretation arises the court would look to interpret the legislation consistent with parliament’s intention that no-one be required to do anything to which they are opposed on conscience grounds.

Clarification of values establishing a conscientious objection

Under this topic, Hospice argued that a wider than usual meaning of what constitutes a conscientious objection is required because in the context of the Act the right to freedom of conscience under s13 NZBORA and the right to not be deprived of life under s8 NZBORA required it. Hospice argued that under the Act the right to conscientious objection ought to arise where the health practitioner holds a core value to act according to their “ethical, clinical or professional judgement or their obligations under the code”.

The court commenced its assessment of this issue by considering the usual meaning of conscientious objection in medical practice.

According to the sources before the court, a conscientious objection occurs when personal beliefs or values conflict with an otherwise legal or medically legitimate treatment option. The court noted that there is a difference between clinical judgment and a conscientious objection, the latter involving a medical practitioner’s personal values.

The court next referred to academic commentary that emphasised the personal, individual nature of conscience. An academic from the United Kingdom, Stephen Smith says “[c]onscience claims are about my moral choice and decisions, not what I necessarily think others are required to do.” Smith’s explanation refers to conscience as an internal mental process which does not link conscience to specific religious or cultural values. A person makes their own choice to behave in a certain way or not based on their view of the “rightness or wrongness” of things.

The court noted that the closest academic commentary to the Hospice argument came from Robert Card’s A New Theory of Conscientious Objection in Medicine. Card says that many doctors and nurses view their practice of medicine as part of their identity and “… because their core moral values are also part of their self-constitution, their moral values are thereby imported into their practice.” On this argument, conscience must inform medical practice. The court went on to say that although clinical judgment is different from conscience, in some circumstances clinical judgment may potentially influence a doctor’s conscience. In some instances, this may extend to a practitioner holding a blanket conscientious objection on an issue, such as being opposed to assisting anyone to die on grounds of conscience.

Ultimately the court did not consider it was appropriate to expand the definition or comprehensively interpret the meaning of the right to a conscientious objection under the Act. It concluded that the right to conscientiously object will include its usual meaning in medical practice and “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.”

Hospice New Zealand v Attorney-General [2020] NZHC 1356

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