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Physician-Assisted Suicide – New Zealand Woman On Hiding To Nothing With Legal Challenge

27/03/2015

A New Zealand woman, Lecretia Seales, is reportedly going to the High Court for a declaration that a doctor may lawfully assist her to commit suicide, if and when she so chooses. She is suffering from an inoperable and terminal brain tumour. She wishes to know that she will be able to choose her time and manner of death, with assistance from a physician, rather than having to succumb to death from the tumour itself.

I wrote about the subject of physician-assisted suicide back in 1997 and uploaded a copy of my analysis to this blog a couple of years ago. Here is the link. My conclusion was that for a doctor in New Zealand to actively and knowingly participate in a patient’s suicide – typically by prescribing and/or administering a lethal dose of some drug – would constitute the crime of assisting suicide contrary to section 179 of the Crimes Act 1961, punishable by up to 14 years’ imprisonment. Further, that the doctor’s actions in administering the life-ending substance could also support a charge of murder. As a matter of law, the doctor would be taken to have intended the natural consequences of that act – the cessation of life – and any additional or other ‘intent’ – to provide pain relief or other palliative care – would be relegated to motive, which is irrelevant to culpability for the crime of murder (or indeed any other). Such a motive, assuming it was seen to be compassionate or otherwise laudable, bears only on mitigation of the crime and has no exculpatory effect. ‘Double effect’ in administering life-ending medication may be ‘ethical’ in the view of the New Zealand Medical Association but it is not sanctioned by the country’s criminal law.

Nothing has changed in New Zealand’s criminal law on assisted suicide since I first addressed the subject some 18 years ago.

Ms Seales is herself a lawyer and will of course be cognizant with that law. But her application for declaratory relief in the High Court is, again reportedly, to rely on the New Zealand Bill of Rights Act 1990, section 9 of which is headed ‘Right not to be subjected to torture or cruel treatment’. The section’s wording is as follows:

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

A first observation that might be made is that medical treatments to address or alleviate the symptoms of a brain tumour are on the face of it far removed from interventions that section 9 is seemingly aimed at. A reading ejusdem generis would qualify the words ‘cruel, degrading, or disproportionately severe treatment or punishment’ as meaning something in the nature of torture. It is very hard to see that conventional medical treatment for a brain tumour should, or indeed can, be so characterised.

At any rate, Ms Seales has the specific right – in section 11 of the Bill of Rights Act – to ‘refuse to undergo any medical treatment’. So that, if she is unhappy with future endeavours by the medical profession to treat, or for that matter alleviate, worsening symptoms of her tumour, she may withdraw from such treatment. She may thus allow herself to die from the tumour. And of course she may actively end her own life without assistance from others – there is no law against that in New Zealand.

But what Ms Seales seeks from the High Court (it must be inferred, from the media reports) is a declaration that the criminal law – the crimes of assisting suicide and murder – denies her a right to die with dignity, afforded by the ingestion of a lethal substance administered by a duly-qualified physician when she no longer wishes to live.

Her pleadings in the case will no doubt seek to call in aid the very recently released judgement of the Canadian Supreme Court, in Carter versus Canada, in which the full court of nine judges unanimously declared that Canada’s crime of assisting suicide – in all material respects identical to the New Zealand crime (and indeed they have common origins) – infringed on the appellants’ rights under the Canadian Charter of Rights and was for that reason invalid.

Interested readers can read the full transcript of the Carter decision here.  Whilst there are factual similarities between those applicants for relief and Ms Seales, and whilst the reasoning of the Supreme Court may assist Ms Seales in also bringing her case under the ‘right to life’ section in the Bill of Rights Act (section 8 – though the right is to ‘not … be deprived of life’), at the end of the day the Canadian case has gone where a New Zealand court cannot go. The courts in Canada can, in effect, strike down as of no effect any provision in an Act of Parliament which is held to infringe a Charter right.

The short point is that the New Zealand Bill of Rights Act 1990 is but a pale imitation of the Canadian Charter and the United States Bill of Rights. The New Zealand courts can declare invalidity of administrative actions (including subordinate legislation) purportedly taken under a statutory provision, as being an infringement of the Bill of Rights Act, but they cannot impugn the statute itself. To paraphrase Jules in Pulp Fiction, that’s a right the judges in New Zealand don’t have.

So, whichever way one cuts it, Ms Seales is seemingly on a hiding to nothing with her approach to the courts for declaratory relief. She may well encounter a sympathetic judge who believes, or is persuaded, that physician-assisted suicide shouldn’t be a crime in New Zealand. The judgement may invite, indeed urge, the law-makers to reflect on the argument for such assistance but the reality surely is that the case has already been pleaded, widely in other forums, and Parliament has shown little, indeed virtually no, enthusiasm for change. So that the declaration which Ms Seales may succeed in getting from the High Court will just be another viewpoint – eminent doubtless – to be consigned to the legislative sidelines.

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