Jason Kim, Communications Co-Manager
Justice Collins of the High Court had an impossible choice to make. Standing before him was Lecretia Seales, whose sharp legal brain was becoming overridden with malignant brain tumours. Her suffering was becoming intolerable, and she asked the Court for a declaration that her physician would not be prosecuted if she helped Ms Seales end her life. Whilst expressing sympathy for her plight, Justice Collins was unable to justify going against Parliament’s clearly expressed intention that anybody assisting someone to end their life is committing a crime.
The decision predictably inflamed public reaction, with heated responses from those on either side of the debate. As a follow-up to our successful Symposium discussion earlier this year on “Miscarriages of Justice”, the EJP Outreach team decided that it was time for this debate to be brought into a public forum. Outreach Co-Managers Joy Guo and Maree Cassaidy and their volunteers arranged for Paul Rishworth QC (Crown counsel in the Seales case), David Dickinson (criminal lawyer), and Mary Panko of the Voluntary Euthanasia Society to speak at the University of Auckland and bring a more nuanced analysis of the issue than is typically seen in public discourse. Throughout the year, Outreach undertakes law reform projects such as bill submissions and legal research, as well as providing fundraising and active legal support to practitioners, organisations and community partners. Twice a year, Outreach also hosts intellectually stimulating symposia, providing a detailed research paper on the issue for the expert panellists to discuss. (You can read the full Symposium Paper here).
The discussion began with each of the panellists outlining their views on on the current position of medically assisted dying in New Zealand. Dr Panko was predictably in support of liberalising the law in this area, but noted that it was important to emphasise that her organisation does not support euthanasia in any circumstances. Rather, she supports only voluntary euthanasia, which is an important distinction. The VES supports the introduction of a law in New Zealand ‘The End of Life Option’ which would entitle adults, with a terminal illness or an irreversible condition that makes their life unbearable, to have the right to choose how and when to die and to have medical assistance to accomplish that. Mr Dickinson was also in favour of changing the law on end-of-life measures, but strongly believed that these changes should come from Parliament and no-one else.
For Mr Rishworth, his view was that the ethical and moral questions about assisted dying need to be considered separately from the legal question of whether the current law is consistent with the Bill of Rights. He noted that a right to life guaranteed by the law does not necessarily carry a corresponding “duty to live”. However, nor is there any right in the Bill of Rights Act that entitles a person to assistance in dying. As it stands, Mr Rishworth said he considered the bright line test that the current law supplies to be a “healthy thing”. It guards against pressure which might be exerted on those ailing – particularly those in expensive care facilities – who feel they are a burden on their families. However, he also believes that there is a role for prosecutorial and sentencing discretion in cases where assistance in dying is given to those who are truly in intolerable pain. The case of R v Purdy in the UK notes that there are a number of cases of assisting suicide each year in that country, but few prosecutions, indicating that some discretion is there exercised. Mr Dickinson confirmed that in New Zealand there have been cases where defendants were discharged without conviction. However, as with any exercise of discretion by public bodies, it is important to establish guidelines to ensure that the discretion is applied fairly, consistently and equitably.
Dr Panko didn’t believe that allowing medically assisted dying would be unduly coercive. Legislation proposed in the past (and implemented in other jurisdictions) generally includes a number of safeguards to ensure that genuine and free choice would be exercised. For instance in the Netherlands there are safeguards in place to prevent the practice of “doctor shopping” for medical practitioners who have a reputation for being more open to the procedure – each doctor may only perform three such procedures per year, so as to avoid there being only a narrow pool of available doctors. To use another example, a question from the floor asked how the panellists proposed to deal with those who have some kind of permanent disability (such as blindness or paraplegia) and decide to end their life because of their quality of life. Mr Rishworth agreed this was yet another set of circumstances which present difficult moral judgements to be made, and believes that allowing someone to end their life under such circumstances might send the wrong message: that society condones the death of those with such conditions. However Dr Panko clarified that disability is not a relevant criterion under the VESNZ’s proposed legislation. Those with disabilities would have to satisfy the same criteria as anyone else, whilst being afforded the same rights as those without such disabilities.
Mr Dickinson said that at its core, the issue comes down to respecting individual autonomy. Mr Rishworth took issue with framing the argument in such terms. Few suggest that the law should permit a person to have assistance in ending their life simply because that is their autonomous wish. For instance, if personal autonomy justifies voluntary euthanasia then should we allow people with depression to have the right to medically assisted dying? There must be some line drawn in the law where personal autonomy is not enough to justify ending a life, and Mr Rishworth generally thinks the current line under the law is about right.
Dr Panko naturally viewed it differently. The line should be drawn subjectively – that is, where an illness is causing suffering which is intolerable to that individual, then that is the appropriate threshold which justifies assisted dying. With that said, the VESNZ’s proposed guidelines for euthanasia would include safeguards to ensure that applicants are mentally competent to make the decision. This would appear to preclude those suffering from depression. Mr Dickinson agreed that the test should be subjective – it is inappropriate (and probably impossible) for an outsider to make a judgement call as to how much pain someone else is “really” in, and whether it is a sufficient amount so as to meet a legal test. The clearest structure would be to make it an “all or nothing” proposition: voluntary euthanasia should be available to those who wish to access it.
Mr Rishworth agreed that having a bright-line test under the law may lead to difficult outcomes for some people.. But he believes that not having a line at all would be unacceptable. Once the option of physician-assisted dying became available, there would be people who succumb to pressures and end their life unnecessarily, and who are thereby deprived of a period of their life. “There is, if not a sanctity, then an inviolability of life,” says Mr Rishworth. As a society, we are in agreement that suicide is an undesirable thing, and Mr Rishworth thinks that this is something we should hold on to. Dr Panko agrees – but she maintains that what the VESNZ is advocating for is not the right to commit suicide, but assisting those who are already dying to die a little more painlessly and with a little more dignity (if they so choose). She was especially forceful in pointing out that in other jurisdictions which have allowed physician assisted dying, there haven’t been any statistically significant increases in the frequency with which they have been carried out. She argues that the “slippery slope” objection therefore has no basis in empirical evidence. She did note that there were elements of the law in Belgium which we don’t want to see in New Zealand, but otherwise there is no sign of the slippery slope theory being borne out in jurisdictions with more robust legislation such as Oregon or the Netherlands, with studies showing no evidence of increased coercion.
Regardless of which side of the fence each of the panellists was sitting, none of them were very optimistic that change was forthcoming. The first obstacle (encountered by Justice Collins in the Seales case), is that given New Zealand’s constitutional arrangements it would not be possible nor appropriate for the Courts to change the law. This is in contrast to jurisdictions such as Canada, where their Supreme Court could make a finding that a prohibition was contrary to their Charter of Rights and Freedoms. As such any change would have to come from Parliament. However, Dr Panko says that in her experience talking to politicians across the political spectrum, the issue just does not appear to be a priority due to the fear of electoral backlash which is always present with such a divisive issue.
The euthanasia debate is one which always elicits intense and often emotive reactions from either side of the debate. This is likely because unlike other debates relating to public policy, this is one where there is no-one who can make claim to having the “right” answer. Aptly described as an “impossible choice” by Justice Collins in the Seales decision, it is a choice which comes down to intensely personal value judgements on what it means to be truly autonomous (and the rights and responsibilities which come with it), competing against the very primal human fear of death (and the desire to minimise its occurrence, no matter how noble the justification). For this reason, we did not set out to try and arrive at any kind of predetermined outcome, nor did we envision the discussion would persuade anyone to adopt any particular viewpoint. What we did hope to do, was to try and explore the numerous complexities which are present in this issue.
We would like to thank everyone who took the time to attend the symposium, and we hope that we were able to illustrate the difficult value judgements which we as a society face in respect of this issue. And of course thank you to all of our speakers, who provided an illuminating discussion on such a complex issue.
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