Can facilitated aid in dying be permitted by 'double effect'? Some reflections from a recent New Zealand case.

While the Doctrine of Double Effect (DDE) remains controversial in ethical circles, it continues to be recognised in common law courts. In 2015, the High Court of New Zealand became the latest to acknowledge the existence of the DDE, in a case that challenged the prohibition on physician assisted dying. In so doing, the possibility was raised that the DDE could potentially be used in an untraditional way to provide a prima facie justification of "facilitated aid in dying" (FAID) in some cases.In this article, we develop and offer justification for this line of reasoning. If it can be shown that FAID sometimes satisfies the conditions for DDE, this, we suggest, may have significant implications for the aid in dying debate, not only in New Zealand, but more widely. Even if all of the elements of the DDE are not met in such cases, though, we suggest that one of those elements - the doctor's intent in providing FAID - may not always be such as to attract moral blame or criminal culpability.

Aid in dying in New Zealand: Recent legal developments.

The issue of "aid in dying" (also called assisted suicide or euthanasia) in New Zealand is deeply contentious. However, until comparatively recently its legal status had not been conclusively determined. That changed in mid-2015 when the case of Seales v Attorney-General [2015] 3 NZLR 556; [2015] NZHC 1239 was heard by the High Court. This article considers the case against the background of existing legal regulation of the dying process. It critically analyses the reasoning in the decision and its potential consequences, as well as noting important factual findings made in the ruling. It concludes by drawing attention to contemporary parliamentary developments in relation to aid in dying, which have come about largely as a result of this case being heard.

The End of Life Choice Act: a proposed implementation and research agenda.

AIM: This article outlines the End of Life Choice Act 2019. It highlights some of the key implementation issues to ensure the system operates safely and equitably after the Act comes into force. It also identifies priorities for research to ensure issues are detected and provision of assisted dying (AD) is monitored. METHOD: We reviewed the End of Life Choice Act, assisted dying implementation literature and governmental reports. RESULTS: Effective system implementation depends on infrastructure, oversight and funding. In terms of service provision, we make recommendations about training for all health practitioners and providing practitioners; the nuances of discussing the "wish to hasten death"; conscientious objection; cultural safety for Maori; and minimising the complexity of delivering assisted dying practice. Structured research is needed to understand how the assisted dying system is operating. CONCLUSION: This article contributes by identifying core issues for practitioners, patients and policymakers. Implementation is an ongoing process that continues after the Act starts. Data are required to know whether access is equitable, who is choosing to make use of the law, whether providers are well informed and whether the safeguards are working as intended. The implications of how the Act is implemented are significant for patients, whanau, health professionals and society.

Assisted dying and evidence-based law-making: a critical analysis of an article's role in New Zealand's referendum.

AIM: To critically analyse the reliability of an article which claims to be evidence that the End of Life Choice Act 2019 provides a "potential hotspot for family, community and social discord that may not be easily remedied" should the legislation receive public support in New Zealand's September 2020 referendum. METHODS: The subject article was reviewed multiple times by all authors and critiqued against three criteria: a reliability pyramid developed to weigh evidence about assisted dying; principles that guide the conduct of social science research; and the use of reliable and current social science literature to support factual claims. RESULTS: The study being analysed involved a single interview and so is located at the second bottom row of the reliability pyramid. Its research design is also unable to support the broad findings that are asserted. Other flaws in method included findings being extended beyond the data, and failure to state appropriate limitations in the research method. Further, claims are made that are unsupported by the weight of reliable social science literature. CONCLUSION: The subject article is methodologically and factually flawed so is unreliable as evidence. It should not be considered in the assisted dying debates preceding the forthcoming referendum.

Doctors' rights to conscientiously object to refer patients to abortion service providers.

After five decades of restrictive laws, New Zealand is on the cusp of law reform that may result in abortion being treated as a health, rather than a criminal, matter. Given this possible liberalisation, a pressing issue is the way in which 'conscientious objection' (CO) will be accommodated within the new legislative landscape. In this context, CO constitutes a health provider refusing, on the grounds of personal conscience, to provide care that, although legal and potentially clinically appropriate, conflicts with their personal moral views. Currently, New Zealand law permits significant concessions for conscientious objectors. This paper argues that in the light of current reform, the justification for permitting CO should be revisited. It claims that even if it is conceded that some form of CO should be respected, a pragmatic compromise must be adopted so that both provider's and women's rights are sufficiently protected. We argue that the current legal situation in New Zealand is unbalanced, favouring the rights of providers at the expense of women's timely access to abortion care. At a minimum, providers with a CO should be required to ensure an indirect referral to another provider who is willing to refer the woman to abortion services.

A Tarasoff for Europe? A European Human Rights perspective on the duty to protect.

It has long been recognised by British courts that a psychiatrist can be permitted to depart from his/her duty of confidentiality, in order to issue a warning where a patient is deemed to present a real and serious threat to other parties. Until recently, however, it seemed that s/he would not be bound to give such a warning, or to take other steps to protect third parties. The approach adopted throughout much of the USA, and famously expounded in the Tarasoff judgment, appeared to have no relevance to British law. This article considers the possibility that the European Court of Human Rights' ruling in Osman v UK may be set to bring about a radical change in this respect, introducing something akin to the Tarasoff approach into the UK, and indeed throughout Europe. As well as the possible legal basis for such a duty, and the circumstances in which it would arise, it will consider how a psychiatrist might reconcile any such duty with other, more established, legal and ethical duties.

Use of preimplantation genetic diagnosis to produce tissue donors: an irreconcilable dichotomy?

In 2002, the Human Fertilisation and Embryology Authority (HFEA) published its decision in the case of Raj and Shahana Hashmi. The couple had sought to use preimplantation genetic diagnosis (PGD) to have a child that could be a viable donor for their son, Zain, who has thalassaemia. The HFEA decided that PGD could, in the present case, go ahead. Later in 2002, the HFEA reached the opposite decision in the superficially similar case of Michelle and Jayson Whitaker. This paper will present a critical overview of the decisions of the HFEA in these two cases, and of the opinions and discussions the HFEA published in support thereof. Although it is acknowledged that the two cases differ to some extent in their facts, it is argued that the difference upon which the HFEA relied is one without ethical significance.

Genes, blame and loss of control: is there a place in criminal law for a 'genetic defense'?

In 2002, Caspi and colleagues proposed that a specific gene by environment (GxE) interaction is related to antisocial tendencies. Since then, a substantial body of literature has examined the potential implications of such a correlation for the criminal justice system, and in particular, for the attribution of responsibility and blame that lies at the core of that system. It is probably accurate to say that the majority position among criminal theorists is that evidence of such a nature does not undermine or seriously challenge existing notions of responsibility, and could not constitute a full defense to a criminal charge - although it may have a role to play in sentencing. Less consideration, however, has been given to the role such evidence may play in so-called 'partial defenses' - those like diminished responsibility (DR), which serve not to exculpate the defendant entirely, but rather, to mitigate his responsibility for the criminal act. This paper aims to assess the most important feature of the Caspi Sudy - the low variant gene for the production of Monoamine Oxidase Acid A gene (MAOA-L) - and its possible role in a defense of DR. We argue that, following the approach of common law jurisdictions to analogous situations, there is no principled reason to exclude evidence of MAOA-L as a basis of DR.

Medical regulation of cognitive enhancement devices: some concerns.

The authors present a cogent and detailed case for altering the Medical Devices Directive to allow regulation of cognitive enhancement devices (CEDs). Protection against significant risk of harm, especially for the vulnerable, and promotion of benefit through informed use of CEDs are all good features of the proposal. However, the pre-market approval process has limitations, which we explore. We raise the possibility of 'risk compensation' in response to the introduction of safety measures, which could alter its effectiveness. The proposal alludes to use of 'formally trained practitioners,' which provide a further tier of regulation for CEDs within the proposal. We consider some positive and negative implications of this aspect of the proposal that might warrant further consideration.

Dangerous patients and duties to warn: a European human rights perspective.

The recent case of David Bradley, who shot and killed four members of his family after telling his doctor he 'wanted to kill someone', has raised the question of whether a healthcare professional could ever be held liable for failing to take steps to constrain a potentially dangerous patient. Until recently, it was considered that the United Kingdom courts would be reluctant to impose a duty to protect third parties. However, the European Court of Human Rights' decision in Osman v UK--while not directly concerning healthcare professionals--has opened the door for just such a duty. When this duty will arise, and how it can be discharged, remain challenging questions. Furthermore, healthcare professionals face the unenviable task of balancing competing duties, in which the rights--and safety--of their patients must also be borne in mind.