LawNews - Issue 3

NEWS Feb 18, 2022 Issue 3

Inside ■ AML/CFT

Dealing with onsite inspections P08-09

■ ASSISTED DYING

How the new law is working P10-11

Occupy Wellington

adls.org.nz

HOW DID IT COME TO THIS?

Contents 03-05 PROTEST TRESPASS POLICE

Occupy Wellington: is the state incapable of asserting its authority?

06 RANSOMEWARE INSURANCE RISK

The legal and financial impact of slack cybersecurity

08-09 MONEYLAUNDERING TERRORISM FINANCE

12-13

Key tips for passing an onsite AML/CFT inspection

07

FEATURED CPD

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

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14 CPD IN BRIEF

ADLS’ iconic Chancery Chambers building in downtown Auckland is now on the market

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: MARTY MELVILLE / Contributor / Getty Images

02

Feb 18 2022

Photo: NurPhoto / Getty Images

Issue 3

OPINION/CRIMINAL LAW/CONSTITUTIONAL LAW

Occupy Wellington: no adults in the room The Policing Act 2008 makes it clear that operational policing decisions can be made only by serving police officers.

Politicians are barred from any direct role in determining what must be done, or when, to preserve public order

Chris Trotter A screen-writer would be proud to dream up a muddle to match the mess outside this nation’s Parliament. The mud and the straw.

Barry Manilow bellowing across the windswept forecourt. A wildeyed Speaker of the House, glaring balefully at the bedraggled masses shrieking beneath his balcony. Police officers without a clue. Blocked streets and closed businesses. The Supreme Court ‘working from home’. Omicron’s exponential curve reaching for the sky.

‘What blighted dystopia is this?’ the screen-writer’s friends would demand to know. The answer: New Zealand, February 2022.

What is happening here? Why has, at the time of writing, this ‘Freedom Convoy’ occupation of Central Wellington not been brought to a close? New Zealanders are looking at their screens in disbelief – and growing anger – at a state which seems utterly incapable of asserting its authority.

What is the Prime Minister doing? Why hasn’t she called in the Army to clear away the protesters’ vehicles? Where are the riot squads of yesteryear, with their visored helmets and PR-24 long batons? Why isn’t anybody doing anything?

It’s a scary question and some of the answers are scarier still.

Shocked and alarmed by outbreaks of disorder and riot in most of New Zealand’s major cities in 1932, the hungriest year of the ‘Hungry Thirties’, New Zealand’s Parliament passed the Public Safety Conservation Act. Politicians in search of a big stick to put about now had exactly what they’d been looking for.

It was this Act that National’s first Prime Minister, Sid Holland, reached for when he believed it was time to put the Watersiders Union and their militant union allies in their place in 1951. By

advising the Governor-General to declare a state of emergency and then equipping himself with a draconian set of emergency regulations, Holland took on, and faced down, the Watersiders’ challenge.

It is the folk memory of Holland’s big stick that largely informs New Zealanders’ understanding of not only what the state can do when challenged but also what it should do. When people say ‘call out the army’ they are asking their own government to do no more than Sid Holland’s.

The other memory, buried deep in New Zealand’s collective unconscious, is that getting tough is the right thing for a government to do. All the heroic war stories of militant 51-ers couldn’t obscure the fact that Holland had sought the electorate’s retrospective validation for his state of emergency, and got it. In the snap election of 1951, National secured its highest ever share of the popular vote – 54%.

Thirty-five years after the waterfront dispute, seasoned trade unionists were still instilling the great lesson of 1951 in a new generation of militant firebrands: “You cannot take on the state and win.”

In 2022, however, a better question might be: “Has the state still got the will – and the means – to win?

Certainly, it can no longer call upon the Public Safety Conservation Act 1932. David Lange’s crusading Attorney-General, Geoffrey Palmer, fulfilled a long-standing Labour promise to the battlers of 1951 to repeal the Act. The state’s biggest and most effective ‘bit of stick’ was no longer there for a government in extremis to ‘put about’.

Earlier this week, the very same Geoffrey Palmer told veteran political journalist, Richard Harman that the Freedom Convoy encampment in Parliament grounds may well constitute an unlawful assembly. “It occurs to me this may have […] turned into an unlawful assembly under the Crimes Act because these people have been there when they’ve been told to go, they’ve been given trespass notices, a lot of them, and [120 of them have] been arrested.”

Palmer had more to say: “[I]t seems to me that it would be possible to use more force. But, on the other hand, the ministers would be very reluctant to give orders to the police to […] use more force when […] it is probably an operational matter.”

Where the buck stops And there, as Shakespeare might say, is the rub. The Policing Act 2008 makes it clear that operational policing decisions can be made only by serving police officers. Politicians are barred from any direct role in determining what must be done, or when, to preserve public order.

Ultimately, the protection of the state and its citizens is a

Continued on page 04 03

Taking a hard line against potential political threats to public order and security is now the very last thing the NZ Police want to do

04

Continued from page 03 matter for the Commissioner of Police and his senior commanders.

When, and how, to use more force against the Freedom Convoy occupiers is Andrew Coster’s decision. The buck stops on his desk.

(last used with astounding success at Waco, Texas), started broadcasting loud music and covid-19 announcements over the parliamentary sound-system.

Hardly able to believe their luck, the occupiers started singing along with Barry Manilow and beeping their illegally-parked carhorns. To the rest of New Zealand, looking on, there appeared to be no adults left in the room at all.

And that is where ‘we may have a problem, Houston’.

Legal powers For the past 14 years, the New Zealand Police have been living in the shadow of the debacle that was Operation Eight. Their Taking stock, as the occupation clocked-up its first week, what do attempt to bring to justice persons believed to be engaged in we have? terrorist training exercises in the Urewera Ranges culminated in First up, there’s the matter of obstructing a public way, an armed, masked and armoured police officers descending like the offence under the Summary Offences Act 1981. Then we have wrath of God upon the tiny Bay of Plenty village of repeated instances of common assault upon Ruatoki. It turned into a legal and public relations passers-by wearing masks and even of threatening We have nightmare. to kill/do grievous bodily harm to politicians and repeated The highly successful campaign waged journalists, an offence under s 306 of the Crimes instances against the Police by left-wing lawyers, journalists Act 1961. and activists left its upper echelons politically Obviously, there is the collective refusal to obey of common traumatised. Taking a hard line against potential a trespass order but, for good measure, we should assault upon political threats to public order and security is now probably include the offences of obstructing the passers-by the very last thing the NZ Police want to do. police and unlawful assembly. Given the presence of Hence the extraordinary scenes of Thursday 10 a number of children in the occupiers’ encampment, wearing February when around 100 constables, unhelmeted, there may also be grounds for charging masks and lacking effective PPE and wearing light summer participating parents under s 152 (b) of the Crimes even of shirts under their bulky stab-vests, were ordered Act for failing ‘to take reasonable steps to protect threatening to move on scores of unvaccinated protesters who [their] child from injury’. were only too happy to fight back.

One wonders, apropos of the occupiers’ stated to kill/do The ‘force multipliers’ on display in other intentions, whether the MPs who voted to repeal grievous jurisdictions – pepper-spray, long-batons, tear-gas those sections of the Crimes Act relating to treason, bodily harm and water-cannon – were nowhere in evidence. sedition, making seditious utterances, rioting and The constables’ commander, Superintendent to politicians affray still believe they did the right thing.

Corrie Parnell, spoke of a ‘graduated response’, to How easy it is, in times of peace and and be followed by a ‘state of enforcement action’. But contentment, to dismiss as dangerous relics such journalists, 122 difficult and potentially hazardous arrests later, legal powers as the portentous ‘Reading of the Riot an offence the occupiers’ encampment remained intact and, to Act’, which permitted Her Majesty’s soldiers to fire the jeers and cat-calls of the crowd, the constables upon rioters who refused a lawful order to disperse. under s 306 were withdrawn.

And how easy it also is to forget that history is not of the Crimes linear, but circular. Peace and contentment all too In the days that followed, the situation in Act 1961 Parliament grounds deteriorated rapidly. Mostly, often prove to be fleeting blessings. this was due to the extremely inclement weather Certainly Sanjana Hattotuwa, a Sri Lankan conditions which rapidly turned Parliament’s once by birth, who monitors online extremism for the verdant lawns into a quagmire. In part, however, it was due to the University of Auckland’s Te Punaha Matatini’s Disinformation actions of the Speaker of the House of Representatives, Trevor Project, is a person with much to say about the speed with which a Mallard, the person legally responsible for the parliamentary country’s social tectonic plates, so vital in keeping its communities precinct and all who work within it. stable, can suddenly rupture, unleashing forces of enormous For reasons best left unexplored, Mallard decided to involve destructive power. He has seen this movie before, in the lethal civil himself directly in the confrontation with the occupiers. He ordered strife that engulfed his homeland, and he knows how it ends. the lawns’ sprinklers turned on. The occupiers responded by digging channels to drain away the water. Mallard brought out Continued on page 05 flood-lights and, taking a leaf from the FBI’s operational handbook

Feb 18 2022 Issue 3

Senior Lawyer We are looking for a Senior Lawyer with a minimum of 5 years’ PQE to join our team. This role is to take over the workload of a Director who is retiring.

Continued from page 04 Another person with an important message to impart is BBC journalist Gabriel Gatehouse, author of a seven-part series of podcasts entitled The Coming Storm. Gatehouse wanted to know what drove the Capitol insurrectionists of 6 January 2021 and undertakes a deep-dive into the origins and extraordinary motivational power of the fantastical Q-Anon conspiracy theory (many followers of which may be found in the Freedom Convoy encampment).

Gatehouse’s key discovery is the way in which reality is becoming increasingly fluid in the age of the internet: how social media has empowered people to immerse themselves in narratives carefully engineered to empower and motivate those whose lives have been disrupted by forces they neither understand nor control.

One of Gatehouse’s interviewees describes this phenomenon in terms of people being presented with a common cast of characters who are simultaneously acting out radically divergent plot-lines.

In one ‘movie’ Hilary Clinton is the heroine; in another the villain.

Millions of Americans believe Donald Trump conspired with the Russians to steal the 2016 presidential election. Millions more believe the 2020 election was stolen from Donald Trump by Joe Biden.

Translated to the New Zealand context, we have one movie in which Jacinda Ardern is the political heroine who carried New Zealand through the first year of the covid-19 pandemic and who continues to struggle every day to keep the team of five million safe. In another, Jacinda is the communist tyrant hellbent on stealing New Zealanders’ freedoms and destroying their livelihoods.

What we also have, however, is a movie in which acting to defend the state (and its citizens) is ringed around with all manner of caveats and doubts. A movie whose leading characters reject the uncomplicated solutions of the past as too brutal and divisive to employ – even against those seeking their destruction.

Alongside this movie runs another. It is full of super-heroes and monstrous, child-defiling villains, all of them locked in a life-anddeath struggle to control New Zealand’s future.

As is so often the case, humanity has passed this way before.

In the phantasmagorical years following the First World War, also a time of political volatility and pandemic, the Irish poet WB Yeats gave voice to the period’s almost unbearable tensions with these oft-quoted words: The best lack all conviction, while the worst Are full of passionate intensity. ■ Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the author of the Bowalley Road blog ■

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05

CYBERCRIME

Naivety makes NZ a soft target for cybercrime Experts warn that New Zealand is a soft target because we think of ourselves as outside the world’s main areas of commerce and criminal activity

Andrew Horne

Andrew Horne Cyber-attacks on businesses and other organisations are rising, as is the damage they cause. Cybercrime is now thought to have surpassed all other types of crime combined. In the past year alone, the Reserve Bank, the Waikato DHB, Air New Zealand’s SITA provider, NZ Post, Inland Revenue, MetService, Kiwibank and ANZ have all been the targets of cyber-attacks.

The most significant recent development has been the rise of ‘ransomware’ – software that infects a system and encrypts files which cannot be accessed until a ransom is paid for a decryption key. In most cases, ransomware gains access to systems through ‘phishing’ emails in which staff click on a fraudulent link.

A technical perspective Cybercrime is low risk for offenders because they operate remotely and remain anonymous. They usually steal data or deny access to it. They often demand ransoms and threaten to delete or release confidential data. Information about ransoms is difficult to find because most victims do not publicise them, although some insurers quietly admit they will pay ransoms where necessary.

Experts warn that New Zealand is a soft target because we think of ourselves as outside the world’s main areas of commerce and criminal activity. This means nothing in a cyber-connected world and our naivety makes us an easier target. The changing ways in which we work present new risks. Remote working results in increased access to systems through personal connections that are more difficult to monitor and secure. Organisations increasingly allow customers into their systems via shared portals and online logins. Experts advise that up-to-date software patches, identity verification, email security, multi-factor authentication and device security are all important. CERT NZ’s top 11 suggestions for cybersecurity are a good place to start.

Staff are weak links and must be trained and tested often so they do not fall victim to phishing or ‘trojan’ attacks. A managed EDR (endpoint detection and response) solution to protect devices is also critical, as this is a key risk of access to a network.

The legal impact A cyber-attack or security breach will inevitably require a legal response. The following legal issues often arise: ■ The victim suffers loss – money is stolen through payment diversion schemes or data is stolen or locked up so it cannot be accessed, and operations are affected.

■ The victim incurs liability to customers or other third parties 06

such as those whose confidential information is lost or released or whose money is transferred away.

■ Regulatory action by the Privacy Commissioner, the Financial Markets Authority or other regulators may result in defence costs, fines and penalties.

Organisations can take steps to protect themselves from legal risks. These include: ■ Before an attack, ensure you have sufficient visibility of your technical environment and have tools such as EDR already deployed.

■ Involve insurers. They will often have a pre-approved panel of IT specialists and lawyers who can help.

■ Take prompt steps with appropriate IT assistance to mitigate loss.

■ Make no admissions about the adequacy or otherwise of cybersecurity or any other matter.

The role of insurance Cyber-attacks usually result in insurance claims. These can be complex. Insurable losses may include the following: ■ the cost of paying ransoms; ■ costs of IT forensics and legal counsel; ■ customer claims; ■ network interruption losses – business interruption and loss of profit; and ■ security and privacy – regulatory actions, defence costs and fines.

These losses may result in claims under the following insurance policies: ■ Professional indemnity policies: for claims by those who suffer loss as a result of negligence that fails to prevent cybercrime.

Increasingly, professional indemnity insurers exclude cyber losses.

■ Cyber policies primarily cover losses to the insured’s own business and costs incurred in responding to the event, but they also usually cover some third-party liability.

■ Statutory liability policies may provide cover for fines, penalties and defence costs.

■ Crime policies may provide cover for losses caused by cybercrime.

Cyber-attacks are increasingly expensive for the insurance industry so insurers are asking more detailed questions of insureds and are becoming more selective.

What should managers do?

■ Be aware of key information assets and the risks to them.

■ Identify acceptable and unacceptable risks and plan resourcing accordingly.

■ Ensure sufficient resources are available to maintain and develop the necessary IT protections and provide ongoing training and testing.

■ Ensure reporting is non-technical and understandable. Ask questions about key risk mitigation strategies such as prompt patching, multi-factor authentication, back-ups and scanning.

■ Ensure a robust plan is in place to deal with incidents if they arise and test it regularly.

■ Ensure adequate insurance is in place. ■ Andrew Horne is a partner at MinterEllisonRuddWatts ■

Feb 18 2022 Issue 3

ADLS MEMBERS UPDATE

ADLS kicks off sale process for Chancery Chambers Chancery Chambers, ADLS’ heritage building in downtown Auckland, has gone on the market this week.

This follows a vote by members who last November gave the ADLS Council a strong mandate to sell the building. ADLS has owned and occupied Chancery Chambers since 1989.

The sale process is being managed by Whillans Realty Group. The building is for sale by tender, with tenders closing at 4pm on 17 March (unless sold prior).

ADLS President Marie Dyhrberg QC says feedback from members who voted in favour of the sale was that it should be completed as soon as possible. “It is imperative that we move quickly. We don’t know what the market’s going to do so let’s get on with it.”

Promises had been made to members “and we’re fulfilling them”, Dyhrberg says. “One was to curtail

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expenditure that would not be recovered and to have the resources to then seek out a fit-for-purpose premises that will suit the current and future needs of ADLS.” Chancery Chambers, built in 1924, comprises 3,580 square metres of lettable space, spread across eight levels overlooking Freyberg Square, in the centre of Auckland’s legal and financial district. It includes a 191-square-metre fully landscaped outdoor rooftop area, with adjoining meeting and function rooms. It sits on a 610-square-metre freehold site.

Previously, the site was the home of the first residential building in Auckland when Sir John Logan Campbell built Arcadia Cottage on the property in 1841. Arcadia Cottage was moved to Cornwall Park in 1920 and remains the oldest residential building in Auckland. ■

For property lawyers: Matariki is not yet a legal holiday Please note that Matariki has not been included in the definition of non-working day under clause 1.1(38) of the recently released ADLS/ REINZ Agreement for Sale & Purchase of Real Estate (Eleventh Edition) as the legislation embodying this has not yet been passed.

We wish to assure you that the ADLS Documents & Precedents Sub-Committee that recently reviewed the agreement did not overlook Matariki but, as all practitioners will be aware, it is important that the agreement reflects legislation that is in force.

Once the legislation has been passed, this will then be recognised in a new version of the eleventh edition of the agreement.

07

AML/CFT COMPLIANCE

Getting through an AML/CFT onsite inspection Sarah Kelly & Olivia Mason Businesses which are reporting entities under the Anti-Money Laundering (AML) and Countering Financing of Terrorism (CFT) Act 2009 may be visited by their AML/CFT supervisor and assessed on their AML/CFT compliance.

The following steps may help businesses prepare for such on-site inspections and avoid penalties for non-compliance.

Reporting entities A business is a reporting entity and has AML/CFT compliance obligations if it is a financial institution, casino, high-value goods dealer or a designated non-financial business or profession (eg, a law firm, accountancy firm, trust company, real estate agent) that carries out a captured activity in the ordinary course of business.

Onsite inspections are conducted by the reporting entity’s AML/CFT supervisor. Depending on the reporting entity, this will be the Department of Internal Affairs, the Reserve Bank of New Zealand or the Financial Markets Authority.

The purpose of an onsite inspection is to monitor a reporting entity’s level of compliance with AML/CFT obligations, assess the level of money-laundering and terrorist-financing risk within a reporting entity, assess the AML/CFT compliance culture within a reporting entity and test the effectiveness of the procedures, policies and controls contained in a reporting entity’s AML/CFT compliance program.

The supervisor will normally give a reporting entity a minimum of 12 weeks’ notice before conducting an onsite inspection. Supervisors will typically contact the reporting entity’s AML/CFT compliance officer (AMLCO) to confirm that the inspection time is suitable, having consideration for other concurrent reviews, availability of personnel and upcoming AML/ CFT audits.

08

The purpose of an onsite inspection is to monitor a reporting entity’s level of compliance with AML/CFT obligations and assess the level of moneylaundering and terrorist-financing risk

Failed inspections If a reporting entity fails to meet its AML/CFT obligations, the consequent action will depend on the severity and deliberateness of the non-compliance.

The supervisor may: ■ implement a remediation plan; ■ seek an enforceable undertaking; ■ issue a formal warning; ■ seek an injunction from the High Court; or ■ seek a pecuniary penalty from the High Court.

If a reporting entity fails to comply with AML/CFT obligations and does so knowingly or recklessly, the reporting entity may be criminally liable. It is therefore important that businesses be prepared for onsite inspections and understand what steps can be taken to ensure they are upholding their AML/CFT obligations.

Key tips Always be prepared ■ Regularly schedule testing and reviewing of the AML/CFT risk assessment and compliance program and the obligations, procedures, policies and controls contained in them. Avoid waiting until notice of an inspection before ensuring relevant obligations, procedures, policies and controls are up-to-date and working effectively.

Regular checks, testing and reviews can help a business stay on top of compliance.

■ Things to look out for are changes in personnel and law or regulation changes, and any areas where there may be gaps in compliance.

■ Recognise gaps in compliance and implement solutions. If any issues are discovered in regular reviews, they should be discussed with senior management and a remedial strategy put in place.

■ Consider enlisting third-party monitoring.

Depending on the nature and size of a business, it may be helpful to enlist an independent service provider who can review, assess and monitor

these obligations alongside the reporting entity’s AMLCO.

Upon notice of inspection ■ Be transparent and co-operative. It is beneficial to co-operate with the supervisor both prior to and during onsite inspections. A good track history of compliance and co-cooperativeness may be helpful if there is ever a circumstance of noncompliance and the issuing of penalties.

■ Provide pre-inspection information. After the supervisor has consulted with the AMLCO, a notification letter will be sent to the reporting entity confirming the onsite inspection dates and requesting any pre-inspection information required. This may include: ■ a structure and organisation chart of the reporting entity; ■ a copy of the AML/CFT compliance program, including details of all policies, procedures, systems and controls; ■ a copy of the risk assessment; ■ a copy of the most recent AML/CFT audit report; ■ customer due diligence information and documentation; ■ details on transaction monitoring; and ■ details of any unusual or suspicious activities.

Confirm details Confirm with the supervisor how the inspection will occur and who will be involved. This is important to ascertain discussion topics and information that can be used to brief employees and management about details of the inspection.

Prior to inspection ■ Ensure employees and senior management are briefed. After discussion topics have been

Continued on page 09

Feb 18 2022 Issue 3

Continued from page 08 ascertained from the supervisor, give employees and senior management information about how the onsite inspection will take place. As the point of contact between the reporting entity and the supervisor is usually the AMLCO, it is useful to reaffirm to employees and management who the AMLCO is and how to contact them.

■ Have an internal point of contact for any concerns.

There should be someone within the reporting entity with whom employees and management can speak regarding the onsite inspection. This is usually the AMLCO but, if someone else, employees and management should be told who this is and how to contact this person.

■ that communication between the reporting entity and the supervisor is limited to the AMLCO, including supplying any pre-inspection documents and information; ■ prohibiting covering up or destruction of documents; and ■ systems to manage legally privileged materials.

■ Keep records of communication, information, and documentation. As the point of contact between the supervisor and the reporting entity, the AMLCO may have additional document and communication guidelines to follow. This could include agreed document naming and systems to effectively manage information. It is also helpful to keep a record of conversations between the reporting entity and the supervisor alongside any information or documents provided.

Documentation and communication

During the inspection

■ Have document guidelines in place. An

■ Be prepared to elaborate. During their visit,

important part of monitoring AML/CFT compliance is documentation. It is therefore important to have document guidelines in place for all employees and management to follow. This may include:

the supervisor may ask for clarification on certain procedures, policies and controls.

■ Understand the powers of the supervisor. The supervisor may require any employee, officer

After more than 20 years at Keegan Alexander, Sean McAnally has commenced practice at the separate bar with FortyEight Shortland Barristers.

Sean accepts instructions in most areas of commercial litigation and in particular company and shareholder matters, insolvency, trusts and property and contractual disputes.

or agent to answer questions about documents or records, or to provide further information during the inspection. Reporting entities are required to answer these questions or provide such information unless it could incriminate a person or is privileged information.

The supervisor aims to provide a report on the onsite inspection within six weeks of the visit. This will cover the discussion topics and any breaches, deficiencies or recommendations to improve AML/ CFT compliance.

Being prepared for onsite inspections is imperative to avoid penalties and can ensure that AML/CFT obligations are being routinely checked, tested and updated. Conducting regular reviews, co-operating with the supervisor, maintaining informed personnel and organised documentation are essential preparation for onsite visits and sustaining AML/CFT compliance. ■ Sarah Kelly is a senior associate and Olivia Mason is a summer clerk at Dentons Kensington Swan ■

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ADLS events postponed ADLS has put a hold on events until the traffic light setting changes. We will update you with events we can hold as soon the position becomes clearer. Watch this space!

Ticket holders for cancelled or postponed events are being contacted by email.

Please contact events@adls.org.nz if you have any queries.

09

HEALTH

How our assisted dying law is working in practice Rod Vaughan Since the legislation came into effect last November, at least 32 people have used the provisions of our assisted dying law to end their lives.

Proponents of the End of Life Choice Act 2019 say it is working well though they have serious concerns about the conduct of some hospices and medical practices which, they claim, are actively obstructing the process by preventing their doctors from participating in it.

Hospice New Zealand has long been vocal in its opposition to the new law and refuses to offer assisted dying services. In 2020 it went to the High Court, seeking a declaration that would enable it to exercise an ‘institutional conscientious objection’ to assisted dying and offer a ‘euthanasia-free service’. The court declined to make the order; nonetheless, most members of Hospice New Zealand are refusing to offer assisted dying.

Ann David, acting president of End-of-Life Choice Society NZ, says 100 assisted deaths are expected by the end of this year.

“In all jurisdictions with assisted dying law, the numbers are low to begin with and then increase later as with all newly-launched health services,” she says.

“In time, we could expect to see assisted deaths rise to 2% of all deaths. Annual deaths in New Zealand are around 35,000 so 2% would be around 700 people. In the Netherlands and Belgium, where the eligibility criteria are broader than ours, assisted deaths are around 4% of all annual deaths.”

The New Zealand legislation enables people with a terminal illness that is likely to end their life within six months to seek medical assistance to die. To qualify, a person must be over 18, be a New Zealand citizen or permanent resident, be in an advanced state of irreversible decline in physical health, have unbearable suffering that can’t be relieved in any way that is tolerable to the person and be competent to make an informed decision.

David believes the Ministry of Health has done a good job of putting together all the necessary elements to roll out the service.

“There have been one or two operational issues that have now 10

They have the legal right not to provide end-of-life choices as described in the Act but to be obstructive seemed to me to be rather unnecessary and unkind

been rectified, such as letting an inquirer know right at the onset what the timeframes will be in order to set realistic expectations and smoothing out the online system of documentation for the medical practitioners.

“We’ve heard words of praise for the care advisers and peons of praise for the participating doctors. We’ve had contact from a couple of people who were deeply distressed to be declared ineligible and in one case we understand this is being further investigated.”

Ann David

Opting out David says the society’s only real concern is the way in which the concept of ‘conscientious objection’ has been applied.

Doctors and nurse practitioners can refuse requests on conscience grounds but must then put patients in contact with the Support and Consultation for End of Life in New Zealand (SCENZ) group, a statutory body established under the legislation.

David says her organisation fully supports the right of individual medical practitioners and individual medical personnel to decline to participate on grounds of conscience.

“However, we did not expect to see entire hospices opting out on grounds of ‘organisational conscientious objection’.

“This subordinates the conscience of the individual practitioner to the ‘conscience’ of the organisation which is a non-sentient, inanimate entity without power of thought or reason.

“We also did not expect to see the senior partner/s of some medical practices preventing their employed doctors from participating on grounds of their own conscientious objection.”

David says she knows of several hospice medical practitioners and health centre medical practitioners who would like to participate but fear losing their jobs.

“However, in spite of these obstacles, the assisted dying service is not currently short of doctors and nurse practitioners to undertake assessments and to administer the medication on the

Continued on page 11

Maryan Street

We’ve heard words of praise for the care advisers and peons of praise for the participating doctors

Feb 18 2022 Issue 3

Continued from page 10 final day, plus everything in between.

“Expected timeframes – four to six weeks unless death is imminent – are being met.”

She refutes claims that some people are choosing euthanasia because they can’t access palliative care in some parts of New Zealand to ease their suffering.

“This type of concern has been voiced for decades wherever assisted dying has been legalised but no evidence for it has ever been shown,” she says.

“In fact, quite the opposite. Overseas experience shows us that somewhere between 80% and 90% of assisted dying cases are receiving palliative care at the time they die and the palliative care services of those jurisdictions are on a par with our own.

“Having said that, the End-of-Life Choice Society fully supports palliative care. As with all other health services, we need more funding for it and for it to be more easily accessible in remote areas.

“There is always the possibility, of course, that some patients will prefer to die without palliative care. While nobody likes to suffer, a patient who is progressively and irreversibly losing bodily function, knowing what is yet to come and how their end will be, may feel there is nothing palliative care can offer to relieve their anticipated horror.

“They accept death and prefer it to come sooner rather than later. This, too, is a mindset,” she says.

Unique perspective Former Labour MP Maryan Street, who has campaigned for assisted dying legislation for the past decade, told LawNews she believes it is an important development in a caring and humane society – now even more than ever.

As the support person for a terminally ill male friend who is going through the process, Street has an intimate and unique perspective on how the new legislation is playing out.

“We talked about what the law required and he and his wife set about applying to the Support and Consultation for End of Life in New Zealand (SCENZ) Group for referral to a physician who was registered with them.

“Their first response from the Ministry of Justice came quickly after the Christmas break, which was very encouraging. The next response was a bit slower and needed some prodding, but still it came reasonably quickly.”

Street says her first task in the process was to take the couple to their first assessment appointment with the physician nominated for them by the Ministry of Justice.

“My friend was in respite care at the time at Mary Potter Hospice. They would not permit the consulting physician to visit him there and so we had to make more complicated and difficult arrangements to meet in consulting rooms elsewhere.

“Hospice NZ has always opposed the legislation, predominantly on religious grounds it seemed, but also because they somehow thought that palliative care and assisted dying were in competition with each other.

“I, and the myriad others who never saw them as mutually exclusive but complementary options and treatments for people at the end stages of a terminal illness, still resent the imposition of a particular theology,” she says.

“They have the legal right not to provide end-of-life choices as described in the Act but to be obstructive seemed to me to be rather unnecessary and unkind.

“They say that they respect the range of opinions and positions that exist on assisted dying but they draw a line between that and any facilitation of those opinions and positions.”

Street says not all palliative care physicians and nurses support the Hospice New Zealand position.

“They generally give high-quality care to dying patients, albeit not uniformly or consistently across Aotearoa – a matter of resourcing, not intention.

“But their jobs are important and meaningful to them and they must bow to some employer constraints. I do not blame them for that for a moment.”

Street says she picked up her dying friend and his wife from the hospice to see the consulting physician “under some other pretext because it was likely that some staff would not have let them out even to attend such an appointment. That consultation was impeccable. The physician allowed plenty of time for the appointment, so my friend and his wife were not rushed in the process.

“We were given information about the physician’s clinical background and were then taken through the criteria in the Act which I mentally ticked off as we went, knowing the legislation pretty intimately.

“I had reminded my friend that his wife and I could be asked to leave at any stage, as part of the consultation, and so we were in due course. Tick. This physician could not have been more legislation-compliant or patient-centred – just what was needed.

“The physician then had to consult with my friend’s GP and oncologist and those consultations occurred within a week, all coming back with approvals against the legislated criteria.

“The next step is the appointment with physician number two, as required under the Act. That is to happen shortly.”

Street says to date all the requirements and possibilities under the law have been exercised in her friend’s case with care and compassion by officials and physicians alike.

“My friend’s wishes have been paramount at every turn and I am very heartened by that. What I had hoped for, from the first draft of my version of the EOLC bill in 2012 until the practice of the final, more circumscribed version of the EOLC Act, seems to be coming to pass: law as it was meant to be enacted.” ■

The society’s only real concern is the way in which the concept of ‘conscientious objection’ has been applied

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Livestream 2 CPD hrs Wednesday 23 February 4pm – 6.15pm Presenters Paul Collins, barrister, Shortland Chambers; Philip Skelton QC, Bankside Chambers; Angela Parlane, managing director, Shine Lawyers NZ and Jonathan Woodhams, executive director, LPF Group Ltd

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FPA and TPA claims: an update Live Stream 2 CPD hrs Thursday 24 February 4pm – 6.15pm Presenters Bill Patterson, partner, Patterson Hopkins and Greg Kelly, principal, Greg Kelly Law Limited Chair Brian Carter, barrister, Bastion Chambers

Claims under the Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949 are commonplace. They can also be complex, with some involving multiple claimants and/or defendants and both Acts. Focussing on topical issues, emerging trends and key case law, this seminar will provide a valuable update for those working in this area of practice.

LIVESTREAM 12

Feb 18 2022 Issue 3

adls.org.nz/cpd

Drafting contracts in a digital world

Livestream 1.5 CPD hrs Tuesday 1 March 4pm – 5.30pm Presenters Arran Hunt, partner, Stace Hammond and Edwin Lim, partner, Hudson Gavin Martin

cpd@adls.org.nz

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Drafting contracts that take into account technology matters might not be frontof-mind but getting it wrong can have serious implications. With application to various areas of practice, this seminar will cover key terminology, boilerplate clauses, privacy and more.

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Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister and Nathan Tetzlaff, associate, Smith & Partners

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A practical guide to employment remedies REMEDIES EMPLOYMENT DISPUTES

Livestream 1.5 CPD hrs Tuesday 8 March 4pm – 5.30pm Presenters Simon Lapthorne, executive partner, Kiely Thompson Caisley; and Charlotte Parkhill, partner, Dentons Kensington Swan Chair Michelle Hall Collins, senior associate, Kiely Thompson Caisley

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LIVESTREAM 13

CPD IN BRIEF

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Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp

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LIVESTREAM

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Self-represented Litigants

Webinar 1.5 CPD hrs Wednesday 23 March 4pm – 5.30pm Presenters Brian Carter, barrister, Bastion Chambers; William Fotherby, principal, Meredith Connell and Joanna Trezise, senior solicitor, Russell McVeagh

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Examination-in-Chief and Re-Examination Workshop Saturday 26 March | Auckland Workshop | 4 CPD hours Visit adls.org.nz for more information.

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Feb 18 2022 Issue 3

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

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JAVIER Eric Cababa

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• Late of 543A Glenfield Road, Glenfield, Auckland • Registered nurse • Aged 56 / Died 21’12’21

• Late of 26A View Road, Hikurangi, Whangarei • Senior water services technician • Aged 50 / Died between 24’09’21 and 25’09’21

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STAFFORD Ethel Lois • Late of 1/3 Ipswich Place, Meadowbank, Auckland • Retired • Aged 83 / Died 17’01’22 WARD Nicholas Dudley • Late of Auckland • Aged 53 / Died 06’12’21

UNIQUE CHARACTER OFFICE An entire floor in a well-established and centrally located and truly unique character building is now available.

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We have a 117sq.m. open-plan office available to lease as a barrister’s chambers. The office has a sunny aspect, a separate meeting room and kitchen, and comes with a carpark – additional parking is available at the Wilson carpark which is directly across the road.

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Business For Sale

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All LINK Offices Are Licenced REA08

“You only get one chance to sell your business, so it makes sense to do it right.”

Feb 18 2022 Issue 3

Partnership opportunity

SOLICITOR

We are a successful general practice in Ellerslie and are seeking a Senior Family and Civil Litigation Solicitor who may have completed the Stepping Up Course or is already in practice and is interested in becoming a Partner.

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Please reply in the strictest confidence to: advertiser@adls.org.nz

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