Friday 22 May 2015

Legal issues at stake in Lecretia Seales’ court case probed

There is a very strong case that existing New Zealand law does not preclude a doctor providing a mentally competent, terminally ill patient with the means to achieve a peaceful death, according to a University of Otago law professor and a US lawyer well known for advocacy for such patients.

Otago’s Professor Andrew Geddis and Kathryn Tucker, the executive director of the Disability Rights Legal Center in Los Angeles, will publish an article on the legal issues involved in the Seales v Attorney General case in the June edition of the New Zealand Law Journal.

Lecretia Seales, a woman suffering from a terminal form of brain cancer, has asked the High Court for a declaratory judgment to the effect that it is not an offence under Section 179 of the Crimes Act for a doctor to provide her with “aid in dying”; medication that she may choose to ingest to achieve a peaceful death.

In their article, Professor Geddis and Ms Tucker examine precedents set in similar cases in North America. These include Carter v Canada in which the Canadian Supreme Court found that Canada’s effective prohibition on aid in dying breached the Canadian Charter of Rights and Freedoms, which is that country’s equivalent of the New Zealand Bill of Rights Act (NZBORA).

They write; “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”.

Section 179 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.

The pair suggests that the term “suicide” can be given an alternative legal meaning that does not apply to the end of life choices of mentally competent, terminally ill people. Such arguments successfully have been made in the United States and are the basis for a number of cases Tucker is currently litigating.

They say there is “a world of difference between, say, a lovesick teenager who shoots himself and a terminally ill person seeking a death less brutal than that which they currently face.”

“Handing a loaded gun to such a teenager constitutes a vile and criminal act; a doctor providing aid in dying to a patient seeking to suffer less does not.”

Concerns that permitting a doctor to provide Ms Seales with aid in dying will “open the floodgates” and threaten elderly, disabled or otherwise vulnerable patients are answered by the extensive experience that has now become available from jurisdictions including a number of US States, the Netherlands, Belgium, Switzerland and Colombia.

Ms Tucker and Professor Geddis say that as the Canadian Supreme Court expressly found in Carter, when assisted dying is available there is no evidence of harm to patients or to vulnerable populations.

The Seales v Attorney General case is set to begin in the High Court in Wellington on Monday.

A copy of the New Zealand Law Journal article that sets out the full legal arguments of Professor Geddis and Ms Tucker is available here [PDF link].

Ms Tucker works to protect and expand the rights of terminally ill patients, and recently spent time in New Zealand as a Fulbright Specialist at universities of Auckland, Otago and Canterbury.

As well as leading the Disability Rights Legal Center, she is also an Associate Professor at Loyola Law School, Los Angeles, teaching in the areas of law, medicine and ethics, with a focus on the end of life.

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