The decision about the legality of assisted suicide is one best left to Parliament than the court, the Solicitor-General says.
The Crown has opened its case in the precedent-setting hearing brought about by terminally ill lawyer Lecretia Seales who wants her GP to legally be allowed to help her die.
Ms Seales, 42, was diagnosed with an inoperable brain tumour in 2011 and most recently worked as a policy advisor at the Law Commission.
The aggressive brain cancer has left her with her left side paralysed and she has continued to deteriorate.
Her condition means she is expected to die within months, if not weeks.
She says she did not want to get to a stage where she could no longer enjoy life or for her husband and family to see her suffer.
The public gallery and the jury box were again filled with family and supporters for the hearing before Justice David Collins, which is expected to finish tomorrow.
Ms Seales was not in court today, but sat in her wheelchair near the front of the court throughout parts of yesterday.
Her team has argued assisted suicide or euthanasia is already allowed in the Crimes Act if interpreted in the right way and can allow a doctor help a patient end their life or provide the medication to do it.
They are seeking the court to clarify the matter.
But Solicitor-General Michael Heron QC says any change to the act should to be debated in Parliament, which had been done several times unsuccessfully in the past.
"If New Zealand is to make it lawful it is for parliamentary process. They have not ignored this subject; they have considered it and declined to advance the legislation in at least three recent times," he says.
"[The courtroom] is not a place to determine such controversial issues. The court should be very cautious in making determinations in this area."
The case seeks to change the section of the Crimes Act that says it is illegal to aid or abet suicide. The charge has a maximum term of 14 years' imprisonment.
The Crown believes the current law applies to everyone.
"Its purpose is to recognise and protect sanctity of life and protect the vulnerable. We are all vulnerable at this stage of life."
The Labour Party's Maryan Street most recently had an End of Life Choice Bill, which would have legalised voluntary euthanasia, but it was withdrawn in 2013. It was picked up by fellow Labour MP Iain Lees-Galloway last year, but was again dropped.
Dying lawyer has 'more choices'
Mr Heron says Ms Seales has other options open to her despite what she claims.
Ms Seales' case revolves around whether it is lawful for her GP, who has name suppression, to help her die, while the Crown says it is clear there is a total ban.
"Allowing Lecretia to access those services will not undermine the goals of this legislation," her lawyer Andrew Butler says.
Ms Seales' legal team say a complete ban on assisted suicide is a breach of the New Zealand Bill of Rights, particularly the section 9 where "right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment".
Mr Butler says courts frown upon blanket bans in human rights law because it shows the system doesn't care about people.
"What a blanket ban does is says 'you the individual don't count, your individual circumstances are not relevant. We don't care about you. We care about something else'," Mr Butler says.
Mr Heron says if the Bill of Rights is applicable to the case, it isn't infringed on.
Despite arguments by Ms Seales' team about her options – either to commit suicide prematurely or continue to live and watch her family suffer – Mr Heron says there are other ways.
Mr Heron says there is publicly-funded medical care including palliative care which will "effectively remove physical pain and suffering".
Yesterday, Ms Seales' team argued palliative care wasn't the "antidote to all suffering", especially for their client who was fiercely independent.
"Painkillers would leave me hardly present in my own life," she says in an affidavit.
Mr Heron says the claim of Ms Seales' cruel treatment in not having a legal choice over the time and means of her death was more about "liberty" and "private life", which were "purposively omitted" in the New Zealand Bill of Rights.
"These concerns are entirely understandable, but the inability to elect assisted-death and being dependent on caregivers is not the same as being subjected to "cruel, degrading and disproportionately severe treatment."
Another of Ms Seales' legal team Chris Curran inherently disagreed with Mr Heron.
"Lecretia must depart from the philosophical debating chamber because it doesn't matter to her what other interests this might affect, when she harnesses section 9 she's worried about suffering and this is a form of suffering," he says.
"To the extent that it is fundamental breach of her autonomous choices, that is a major affront to the dignity which underpins the section 9 right."
While the Crown accepted a general right to dignity, it was not explicitly in the Bill of Rights so "it is not possible to rest any claim directly on a suggested right to dignity".
Mr Curran says the Crown's prohibition on suicide stops his client from accessing the available assistance therefore increases the chance of Ms Seales committing suicide prematurely.
But Mr Heron says there is "considerable doubt" a "rational decision to die" by terminally-ill people actually exists.
A number of commentators have said the desire to end life may be transient, depression and psychological symptoms may be difficult to identify in terminally-ill patients, and disease may impair decision-making.
There is no distinction in law about euthanasia and is treated as culpable homicide.
Mr Heron also argues the court doesn't have the jurisdiction to rule on whether the Bill of Rights and the Crimes Act are inconsistent.
Assisted-suicide would save secret, lonely death
Ms Seales' legal team spent yesterday making submissions and continued today, arguing physician-assisted suicide would not amount to a criminal offence as Justice Collins questioned and the Crown argued.
It depended on context, Mr Curran says.
For example, if someone were to change the fluid bag of a patient's IV drip, they could be charged with poisoning with intent.
"In the context of a therapeutic relationship, I say it is far from clear, unlikely, a doctor would be held to have administered with intent to cause grievous bodily harm any poison or noxious substance when acting in accordance with fundamental patient-doctor duty."
Mr Curran says there is already "active intervention" to help patients die without breaking the law, including the deactivation of cardiac devices such as pacemakers and withdrawal of treatment.
"It's an infliction in any language, but no one would prosecute a doctor where consent is given."
Allowing Ms Seales the choice to die before her quality of life deteriorates further means she would "avoid her suffering and end life on her own terms", argues Mr Curran.
Ms Seales wants to live as long as possible and has a doctor willing to help her die if the suffering becomes "intolerable".
It is "dehumanising" and devaluing Ms Seales by telling her to wait for her death while enduring suffering, and also having her explore ways of a "secret and "lonely" death with her family having to find her, says Mr Curran.
The hearing continues.
source: newshub archive