Four years on and assisted dying is no longer hypothetical for aged care providers. With the number of assisted deaths increasing, and a significant proportion being carried out in aged care facilities, providers are increasingly receiving requests from residents.

If there aren't clear policies in place this can lead to uncertainty, staff feeling unsupported, inconsistent outcomes and potential breaches of residents' rights. With the first review of the End of Life Choice Act 2019 (the Act) published at the end of 2024, we know that the Ministry of Health thinks the aged care sector should be more involved in facilitating assisted dying but amendments to the Act aren't in this Government's plan.

The stats

The Act requires annual reports to the Minister on assisted dying, which provide regular insights into who is requesting assisted dying and where it's taking place. The table below shows some key figures from these reports.

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* The 2022 report covered the period from the Act coming into force until the end of the financial year. Numbers in brackets extrapolate this data to provide an estimated number if assisted dying had been available and accessed at the same rate for the entire 21/22 financial year.

From these reports we can see that over 65s have consistently made up the majority of applicants (approximately 59% of applicants being 65-84 and a further 19% being 85+) and the average age of applicants appears to be gradually increasing. We can also see a rapid increase in both the number of assisted deaths carried out and the percentage of assisted deaths taking place in aged care facilities, which resulted in almost three times as many assisted deaths occurring in aged care facilities in the 24/25 year compared with previous years.

Given the advanced age and high care needs of many people seeking assisted dying, it's not surprising that people are increasingly choosing to receive assisted dying in an aged care facility. Although the total number of assisted deaths in aged care facilities remains low relative to the total number of care beds, if the current trends continue then all aged care providers will be faced with a resident applying for assisted dying sooner or later.

The review

The Act also required that the Ministry of Health review the Act within three years of it coming into force and at least every five years thereafter. The first review was completed in 2024 and resulted in 25 recommendations for improvements to the Act. Among these recommendations was a recommendation that would require aged care facilities to allow assisted dying services to be provided to permanent residents on site. Care facilities would not need to actively offer and provide the assisted dying services themselves but would need to allow other practitioners to access the care facility for the purpose of carrying out assessments and delivering assisted dying services. Care facilities would also be required to have an assisted dying policy.

Other recommendations included:

• Clarifying that conscientious objectors are required to provide information to another practitioner for the purpose of an assessment under the Act when requested but cannot be required to perform any functions of the attending or independent medical practitioner, or be present at the time of administration
• Allowing health practitioners to raise the option of assisted dying as part of a discussion about treatment and end-of-life care options, e.g. during advance care planning
• Allowing nurse practitioners to assess eligibility and administer assisted dying services

If these recommendations became law then assisted dying would become a part of all aged care services regardless of an organisation's values, whether that is by directly offering assisted dying services through staff nurse practitioners or simply making the option available to residents through external providers.

The Government has not made any moves to act on the recommendations made in the review, however, an ACT MP has lodged a member's bill which, if passed, would adopt all recommendations made by the Ministry of Health. The bill would also go further than the recommendations, providing that aged care providers could not terminate a resident's admission agreement or refuse to admit a potential resident because that person may want to receive assisted dying services.

The impact

As a members' bill, the End of Life Choice Amendment Bill won't be considered by Parliament unless it gets the support of at least 61 non-executive MPs (currently only supported by 6) or is drawn from the biscuit tin. With an election this year and limited support for the Bill, it seems legislative change is unlikely in the near future.

However, the annual reports show that applications for assisted dying are increasing, and with close to 80% of applications being made by people aged over 65 years aged care residents are likely overepresented in the applications being made. This is demonstrated in the high proportion of assisted deaths taking place in aged care facilities relative to the proportion of adults living in aged care. From the reports it seems likely that aged care providers will continue to see an increase in applications and assisted deaths by residents.

Where do you stand?

Currently providers do have a choice as to whether they offer assisted dying services as set out in the decision of Hospice New Zealand v Attorney General. The Act does not require an organisation to include assisted dying in the services it offers. This means that a provider can choose to exclude assisted dying services from the services it offers as long as staff are still able to comply with their obligations under the Act and the Code of Health and Disability Consumers' Rights.

Regardless of your organisation's position on assisted dying, you should have a policy in place which supports compliance with the Act, including clear guidance on how staff should respond to requests for information and reinforcing the right of all staff members to conscientiously object.

How can we help?

Whether your organisation chooses to facilitate assisted dying services on site or not, having a clear policy and guidance to support staff is essential. We can assist with drafting a clear and concise policy that reflects your organisation's values and supports staff to feel confident responding to residents' questions if and when they are asked.