Geddis on the Seales euthanasia case

and Kathryn Tucker have had an article published in the NZ Law Journal on the Seales case. They believe her case has a high chance of success. Some extracts:

Ms Seales’ application for a declaratory judgment makes much the same statutory scope argument that has been advanced in the United States. Her case turns upon the proper understanding of the Crimes Act 1961, s 179. It states that anyone who “incites, counsels, or procures any person to commit suicide”, or “aids or abets any person in the commission of suicide”, commits a criminal offence.

Whether those provisions cover the case of a doctor who supplies Ms Seales with aid in dying is the question. That is a matter of statutory interpretation. Key to that process is the New Zealand Bill of Rights Act 1990 (NZBORA), s 6: Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

To simplify, s 6 requires a two-step approach (R v Hansen [2007] NZSC 7; Rishworth “Human Rights” [2012] NZ L Rev 321 at 330-331). First, does an “ordinary” or “plain meaning” interpretation of s 179 that criminalises the conduct of a doctor who assists a competent, terminally ill patient to achieve a peaceful death via aid in dying unjustifiably limit any of the rights and freedoms contained in the NZBORA? If so, can the word “suicide” in s 179 be given an alternative meaning that is consistent with the NZBORA?

We need not spend too much time on the first point, as a recent unanimous decision of the Supreme Court of Canada, Carter v Canada (Attorney General) [2015] SCC 5, provides extremely strong persuasive authority that it does so. It found that:

The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable (at [57]).

This is a key point. The current ban on  actually leads to people killing themselves prematurely, as they have to do it while they can still do it unaided. This is not a theory – it is a fact. I know someone who did this. He may have lived another ten years, if he had the option of being able to have a physician assist his death at a time when his condition became intolerable.

In particular, drawing on the significant body of empirical data that has emerged from the Oregon “state laboratory”, the trial court found that when assisted dying is available there is no evidence of harm to patients or to vulnerable populations (Carter, at [25]).

Opponents will imagine up potential awful scenarios that could happen, such as the greedy child killing their parents off with a conniving doctor, to get their money early. But the reality is this has not happened in Oregon. No harm occurred to those vulnerable, instead those in suffering were given a way to have a peaceful end.

Although the Canadian Charter’s “supreme law” status ultimately was rejected in New Zealand, it still provides the model for our NZBORA. Unsurprisingly, therefore, the NZBORA s 8 guarantees each individual’s right to life in terms virtually identical to the Canadian Charter. Furthermore, as Ms Seales’ husband notes, the same issue of premature death arises here in New Zealand: “What Lecretia faces are the horns of a dilemma: kill herself now and rob herself, me and her family of precious moments together, or risk waiting until death takes her, which could be weeks or months of needless, potentially agonising suffering” (http://lecretia.org/onsuicide/).

And Lecretia should not be forced to make a choice between an early suicide or what could be months of agonising suffering.

Consequently, it seems almost certain that a New Zealand court, considering the Carter v Canada precedent, would find that a reading of s 179 that prevents Ms Seales access to aid in dying is inconsistent with the NZBORA

That is a strong statement.

This alternative meaning would distinguish between the sorts of intentional self-inflicted deaths we ordinarily think of as being “suicide” (the lovesick teen, the family breadwinner facing financial crisis, etc.) and the act of a competent, terminally ill person who is seeking (as in Ms Seales’ case) to choose a more peaceful death when brought to death’s door by the advance of disease and enduring unbearable suffering. Are these scenarios distinguishable from each other, and can that distinction be given effect under the specific wording of the Crimes Act?

I think that the two situations are very different. Not helping a depressed teenager kill themselves is very different to not helping someone who is facing an agonising death, from avoiding some suffering.

Choosing to suffer less before death arrives can be an entirely rational response to a horrific situation that cannot be remedied. No matter how fervently they may wish to live, their illness has robbed them of that option. The only question is how much suffering will be endured before death arrives. Suffering can be multifactorial, and indeed the experience in jurisdictions where aid in dying is openly available demonstrates this: those who choose aid in dying typically express that they do so because of the cumulative burden their illness imposes. These burdens may include: loss of ability to engage in activities which give life joy and meaning; progressive and inexorable loss of bodily function and integrity; increasing dependence on others for all personal care needs; pain that cannot be relieved; extreme fatigue; severe nausea and vomiting; acute shortness of breath and sensation of suffocation; open wounds with foul-smelling discharge. Choosing a less brutal death ought not be considered suicide.

I agree.

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