Lecretia Seales case: Euthanasia might not be for right reasons - Crown

  • 26/05/2015

The lawyer for a terminally-ill woman seeking the right to die has accused the Crown of scaremongering.

In the first case of its kind in New Zealand, which began before Justice David Collins at the Wellington High Court on Monday, 42-year-old terminally-ill woman Lecretia Seales is seeking the right for her doctor to end her life, should her condition worsen.

They also argue the Crimes Act, which makes aiding and abetting suicide illegal, is inconsistent with Section 9 of the Bill of Rights - the right to not be subject to cruel or degrading treatment.

In addressing Justice Collins this afternoon, Ms Seales' lawyer Andrew Butler said Solicitor-General Michael Heron QC's example of UK doctor Harold Shipman, known as Dr Death, found guilty of murdering 15 patients as a reason for not allowing assisted-suicide.

He also used examples of botched lethal injections in the US.

There was no reason to say services which should be available shouldn't be just because of one professional's mistake, Mr Butler says.

If that were true, a number of hospitals, including Christchurch Hospital, in New Zealand would be shut down.

Trust is needed in the doctor-patient relationship for the GP to know which drugs would be needed and what to prescribe, he says.

Mr Butler criticised the Crown's suggestion the decision on the issue should be left to Parliament, rather than the courtroom.

He said each time a Bill had been introduced it was voted down, and the timing of them was "random" because they're pulled out of a ballot.

"We cannot allow the Crown to say 'leave it to Parliament' when there is no prospect of a debate occurring and there have never been select committee hearings on the topic," he says.

He believes the court has jurisdiction to decide the case and politicians are still free to reach a different view.

Case would 'legalise euthanasia'

Earlier today, anti-euthanasia group Care Alliance said allowing assisted suicide would essentially legalise euthanasia for everyone, not just Ms Seales.

The group's lawyer Victoria Casey said what the case seeks to achieve is "inappropriate and dangerous" and the court should not be used to determine medical ethics.

The World Medical Association and the New Zealand Medical Association believe euthanasia is unethical and is "fundamentally different" to other end-of-life practices, Ms Casey says.

While the focus of this case is Ms Seales' personal circumstances, it shouldn't be used as a "cloak" to address the issue generally.

Allowing it would be a "small step over a cliff" and essentially make it legal for everyone.

"The declaration that is being sought will legalise euthanasia and assisted suicide effectively on demand for all New Zealanders either now, if they are terminally-ill, or later," Ms Casey says.

"The declarations will apply to the disabled, will apply to the elderly and the frail, will apply to the mentally ill, will apply effectively to almost the whole of society."

Ms Casey says Ms Seales is asking the court to overturn the decision on euthanasia despite it being rejected by Parliament twice, with a third Bill withdrawn because of lack of support.

However, the Voluntary Euthanasia Society doesn't believe a decision in Ms Seales' favour would allow for euthanasia generally, but is rather about her being entitled to the treatment she is seeking.

In its submission to the court, the group says a doctor providing a prescription a patient can take later isn't aiding, abetting, procuring or counselling suicide.

Kate Davenport QC, who is acting for the group, says they are rather "recognising the autonomous request of a competent patient for medication which will end their suffering".

They go on to say the right to life in the Bill of Rights should include a person's right to self-determination in their choice to live or die in the context of avoiding suffering and indignity.  

Quality of life should also be a consideration.

"If an individual's quality of life is unbearable due to that individual's suffering from untreatable and intolerable pain, the state should protect that individual's right to be shown compassion from a physician by assistance in the dying process."

Section 9 of the Bill of Rights, the right to not be subject to cruel or degrading treatment, is directly relevant to Ms Seales, Ms Davenport says.  

"The degrading treatment in Ms Seales' case is the suffering and indignity she faces in the final stages of her disease."

Euthanasia might not be for right reasons - Crown

Earlier today, Crown lawyer Prof Paul Rishworth QC about overseas cases and the implications Ms Seales' case might have in New Zealand.

He says there will be people around New Zealand who are in "circumstances where their life is deprived and although they've brought themselves within the demonstration of not being vulnerable, their motivation is to relieve the burden they feel they are upon others or to reduce financial impact of the cost of their care so as to leave an inheritance for a granddaughter or a grandson".

Allowing the physician-assisted suicide could also pave the way for numerous similar court cases should Ms Seales win her case, Prof Rishworth says.

He also expected more people to go to court challenging the Bill of Rights.

"If the Bill of Rights allowed freestanding challenges to all law without the need for there to be some kind of interpretive issue to resolve, then we'd have cases like this much more frequently than we do with a lot of resource and time being put into the assembly of evidence to defend the right to consistency of legislation in the abstract."

The public gallery was again filled with supporters of Ms Seales for the third day straight. Ms Seales made an appearance during the afternoon session of today's hearing, but was absent during the morning.

Ms Seales, who most recently worked as a policy advisor for the Law Commission, was diagnosed with an inoperable brain tumour in 2011 and has been given months, if not weeks to live.

The left side of her body has been left paralysed by the aggressive cancer and she has continued to deteriorate.

She wants the option for physician-assisted suicide to choose the time and means of her death should her quality of life deteriorate to a point where she no longer enjoys living. She did not want her family to see her suffer.

Her GP, who has name suppression, wants to know they won't be prosecuted if they do help Ms Seales commit suicide.

Ms Seales' legal team has argued giving her the choice to die would avoid unnecessary suffering and allow her to end her life on her own terms if her condition became "intolerable".

The case seeks to clarify whether assisted suicide or euthanasia is already allowed in the Crimes Act if interpreted in the right way, which Ms Seales' team argues.

The Act states aiding or abetting suicide is illegal and carries a maximum term of 14 years' imprisonment – something the Crown says applies to everyone.

It is inappropriate for the Court to be considering the "controversial" issue and should be left to Parliament, the Crown says.

Prof Rishworth says autonomy and right to life have traditionally been linked to liberty and security rights, which are not in the Bill of Rights.

Justice Collins has reserved his decision.

He thanked Ms Seales for bringing the case to court, saying it is important to how medicine and law is conducted in New Zealand.

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