The rights choiceby Rebecca Macfie
A Wellington woman’s legal bid for assisted dying is likely to force MPs to confront the issue.
"I do not want to die slowly, piece by piece. I do not want to waste away unconscious in a hospital bed. I do not want to die wracked with pain.”
The woman who uttered these words was Gloria Taylor, a British Columbian with motor neurone disease, a condition that would gradually deprive her of the ability to walk, chew, swallow, speak and – eventually – breathe. She knew the consequences of her diagnosis and declared she did not want to “live in a bedridden state, stripped of dignity and independence”.
Taylor wanted to have assistance to die when she felt her life was no longer worth living, and assurance that those who helped her to end her life would not be prosecuted. She believed this was her right under the Canadian Charter of Rights and Freedoms. Posthumously – she died of an infection in 2012 – she emphatically won that right in February this year, when the Supreme Court of Canada delivered a sweeping decision that declared aid in dying was a constitutional right for Canadians suffering serious and incurable diseases.
The unanimous decision of nine senior Canadian judges is now set to resonate through New Zealand’s law books, with 41-year-old brain cancer sufferer Lecretia Seales seeking a declaratory judgment from the High Court that would ensure her GP would not face criminal charges if she helped her to die.
A few weeks ago, Seales’ bid for court intervention would have seemed like a legal long shot. But the Canadian decision has produced an extraordinarily broad and robust legal canvas on which her lawyers will draw the argument that the legal prohibitions on assisting suicide or hastening death at a patient’s request are a breach of her human rights.
Among the key elements of the Canadian ruling, the court concluded that the prohibition on assisted dying:
• forces some people to take their own lives prematurely out of fear that their disease will render them incapable of doing so, therefore depriving them of their right to life. The law presented people with a “cruel choice” between committing suicide while still able, and putting up with intolerable suffering.
• infringes the liberty of people suffering from a “grievous and irremediable” illness by depriving them of the ability to make decisions concerning their “bodily integrity”.
• impinges on their security by leaving them to endure “intolerable suffering”.
The sanctity of life is a fundamental value, but it doesn’t require that all human life must be preserved at all costs, the court said in Carter v Canada (named for one of Taylor’s co-plaintiffs, Lee Carter, who helped her dying mother travel to Switzerland to die at a Dignitas clinic). “It is for this reason that the law has come to recognise that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect.”
In a rare move to underline the unanimity and strength of the decision, the ruling was issued in the name of “The Court”, rather than in the names of individual judges.
The decision upheld the findings of the original trial judge in the Supreme Court of British Columbia, who ruled on the basis of “copious evidence” that permitting assisted dying did not lead to the oft-cited “slippery slope” of abuse in which vulnerable, frail and disabled people would be pressured to die. Evidence from permissive regimes such as those in Oregon and the Netherlands showed that it was possible to design a system that protects vulnerable people. Nor did legalised assisted dying impede the development of palliative care. In some places that allowed assisted dying, palliative care improved. The evidence also showed doctors could detect if a patient was being coerced to die against their will.
The ruling concluded that people who meet certain criteria should be able to have physician assistance to die. They need to be “competent” adults, clearly consent to the hastening of death, and have a grievous and irremediable medical condition (a disease, illness or disability) that causes “intolerable” suffering.
SOLID LEGAL GROUNDS
The Canadian ruling will be front and centre of the legal arguments Seales’ lawyers make on her behalf in the High Court. New Zealand’s Bill of Rights Act guarantees the right to life, and the right not to be subjected to “cruel, degrading, or disproportionately severe treatment”. The facts of Seales’ condition are that she has an inoperable and advancing brain tumour that is progressively depriving her of the use of one side of her body. She and her husband have been told she may have only months to live. Confronted with the prospect of “great suffering”, she argues that she alone ought to have the right to determine when she has “reached the end of the road”.
The Crimes Act makes it unlawful for anyone to aid and abet suicide, punishable by 14 years in jail. A doctor who deliberately hastens the death of a patient – even if the person has made repeated and cogent requests to die and is suffering greatly – faces the risk of prosecution for culpable homicide.
Seales’ lawyers will argue that her illness, the prospect of intolerable suffering and her mental competence to make the decision entitle her under the Bill of Rights Act to seek help (either by being given a prescription of medication to enable her to commit suicide or by lethal injection by her doctor).
If the court accepts that Seales meets the criteria laid out in the Canadian decision and that decision is applicable in the New Zealand courts, her lawyers will argue it must therefore conclude that the Crimes Act can’t be invoked in her case because any act by her doctor to hasten death would not be unlawful. The Bill of Rights Act states that wherever a law can be given a meaning that is “consistent with the rights and freedoms” in the Act, “that meaning shall be preferred”.
If Seales dies before the case is finalised, it would be up to the court to decide whether to continue hearing the evidence and issue a ruling.
Constitutional law expert Andrew Geddis believes Seales’ legal team have “extremely solid legal grounds” on which to argue her case. “It’s not just built on emotion, it’s an actual legal issue to be resolved.” But a great deal hinges on how the court receives the plea for a ruling, and how the Crown, as respondent, argues its case.
Geddis says Seales – a respected lawyer who is a senior policy adviser with the Law Commission – is asking the courts to go to “the edge of what they feel comfortable doing, because you are asking them in essence to decide the law on what is a really contested social question”.
It won’t be lost on the court that New Zealand parliamentarians have repeatedly blocked attempts to change the law. Two private member’s bills that would have legalised assisted dying have been defeated at first reading in the past two decades, and late last year Labour leader Andrew Little told his MP Iain Lees-Galloway to remove the End of Life Choice Bill from the ballot. The bill was initially presented by former MP Maryan Street in 2012.
Geddis says the court may try to avoid ruling on Seales’ case; under the Declaratory Judgements Act 1908, it is at the discretion of the court to say, “I don’t have enough facts” or “It wouldn’t be appropriate”. He says the Crown’s first line of argument may be to say that the court should decline to rule, or alternatively that the Canadian decision doesn’t apply in New Zealand and that this country’s complete ban on assisted dying is justified under the Bill of Rights Act.
Attorney-General Chris Finlayson declined a request from the Listener to discuss the Crown’s response to Seales’ case.
SELECT COMMITTEE INQUIRY
When Seales decided late last year to tell her story to the Listener, her aim was to lend support to the End of Life Choice Bill, which was then still in the ballot. With the bill subsequently sidelined, her only option for pursuing reform has been to seek court intervention. And although her lawyers stress that any favourable ruling the court delivers would apply only to her and would not be precedent-setting, it would almost certainly encourage others in a similar situation to seek a court ruling.
Geddis says having the courts deciding on individual cases would quickly become “messy” and would force Parliament to act on the issue.
Street, who remains a vocal advocate for reform, describes Seales’ bid for a court ruling as “elegant”. “The courts can’t tell Parliament what to do, but if the courts do arrive at the conclusion she is seeking … it would be a brave 121 MPs who then decide to ignore it.”
The legal action also gives impetus to a planned bid by Lees-Galloway to have the issue put back on the political agenda. He told the Listener this week that Little has backed him to push for a select committee inquiry into assisted dying. This would follow the approach taken in Quebec in 2012, when a bipartisan select committee undertook a wide-ranging inquiry that resulted in a report backing assisted dying as part of end of life care. The law has been changed in Quebec as a result.
Lees-Galloway says this approach would enable New Zealanders to participate in a proper debate, supported by the resources of Parliament. The select committee would not need a bill to prompt such an inquiry. He says the best way to trigger it would be when a petition being circulated by the Voluntary Euthanasia Society is tabled. The petition asks Parliament to investigate public attitudes towards “medically assisted dying in the event of a terminal illness or an irreversible condition which makes life unbearable”.
One way or another, says Geddis, “Parliament needs to do its job, and it’s shocking that it hasn’t.”
The Canadian Supreme Court ruling on assisted dying is the most far-reaching judicial decision on the issue, but the law is developing rapidly in other jurisdictions too. US lawyer Kathryn Tucker, who has spent more than two decades advocating for people seeking the right to die, outlined the most significant developments during a recent lecture tour of New Zealand.
In New Mexico, the court ruled under the state’s constitution that “there is no right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying”.
In evidence, the New Mexico Psychological Association said there was a “clear difference between suicide and the choice of a competent, terminally ill patient for a peaceful death”. The ruling has been appealed.
The Montana Supreme Court ruled in 2009 that aid in dying was lawful under the state constitution, which guarantees citizens the right to dignity and privacy.
In Oregon, 1327 people have chosen assisted dying since it was legalised in 1997. The data shows most are highly educated and affluent, and 93% were enrolled in hospice care.
For more on Seales’ story and assisted dying, see “Dying wishes” from our January 17 issue at tinyurl.com/NZLchoice and “Live & let die” from our March 21 issue at tinyurl.com/NZLassisted.
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