Amicus Curiae: The Elephant in the Debating Chamber - Debating Euthanasia After 'Seales'

Eugenia Woo, Leading Contributor

In the aftermath of the highly-publicised Seales v Attorney-General case, there has undoubtedly been a renewal of the discussion around end of life choices and their place in New Zealand’s future. Justice Collins' decision to not grant Lecretia Seales’ application for declarations stating that her physician was able to assist her in ending her life has reignited the debate around euthanasia, and a New Zealand Herald editorial has reiterated the difficulty of reconciling the various issues raised by the recent litigation.

Euthanasia and the controversy surrounding it has been brought the government's attention before. Between 1995 and 2012, the issue of changing the end of life choices available to New Zealanders primarily gained traction on multiple occasions, appearing as a private member’s bill before Parliament more than once. The 2012 bill, drafted by then Labour MP Maryan Street, aimed to make it legal for mentally competent sufferers of terminal illness to choose to die, and for assisting medical professionals or family members to be protected from liability. However, it did not come to pass, and the issue not been revisited through proposed legislation since then so far. There have also been cases before the common law courts; culminating in Seales’ application this year.

Public and media reactions to Justice Collins’ judgment have been varied, but there appears to be general consensus on the issues that surround the practicalities of voluntary euthanasia. Difficulties arise when attempting to pinpoint when exactly a doctor should be allowed to accede to the requests of a dying person. Seales’ application focused on the arrangement being made ahead of the patient’s need - but what happens when the actual process of euthanasia is about to be carried out? The Herald articulates that it is unlikely that doctors would carry out the process without ‘some form of consent from a conscious patient to act immediately’. If patients are no longer able to communicate, will medical professionals still be able to carry out their previous requests for euthanasia?

Doctors do not wish to act on previously expressed wishes of patients regarding matters such as organ donation without the consent of relatives at the time of death for a variety of reasons; including potential conflict between the deceased’s most recent wishes and those of their surviving relatives. As such, it seems unlikely that medical ethicists will find adequate justification for doctors to euthanize uncommunicative patients, even where they have previously given consent to their life being ended under those circumstances.

In a similar vein, the demarcation between the wishes of an uncommunicative patient’s family and adequate protection of said patient as a vulnerable individual can be difficult to enforce. It would make sense to not exert pressure on patients already suffering from terminal illness by allowing their family to ultimately dictate their end of life choice. However, excluding their input would place significantly more responsibility and potential legal liability on the assisting doctors and deprive the physician, who is therefore rendered the ultimate decision maker, of the counsel of those most likely to know the patient best. As mentioned in Justice Collins’ judgement, the balancing act between preserving individual autonomy and the need to protect the vulnerable in such scenarios is one that should be undertaken by Parliament; not by the common law courts. His Honour also noted that the option of assisted suicide itself may result in increased vulnerability for some patients should they be in circumstances where they are unduly pressured into it.

Ms Seales’ husband, Matt Vickers, remarked in the wake of her passing on the ‘overly-protective’ stance of the law around end of life choices, but also commented on what it would take for a law similar to Michael Laws’ Death with Dignity Bill 1996 to succeed. His observation that Parliament would have to work across party lines and consider compelling evidence from overseas to push such a bill to the select committee stage is an accurate one. While Justice Collins’ judgement expressed sympathy and a wish to accommodate Seales’ situation, it was clear that the hurdle to a ruling in favour of allowing physicians to assist in euthanasia was in fact Parliament’s strong stance.

This stance was identified by Justice Collins in interpreting the provisions of the Crimes Act 1961 in considering Ms Seales' application, that assisting terminally ill patients to end their lives is illegal. His Honour found that s 63 of the Act clearly provides that an individual cannot give legally effective consent to the intentional infliction of death on themselves. Certainly, the response to previous private member’s bills indicates the Legislature is content for that to remain the case for the time being.

What the ruling in Seales v Attorney-General has done, however, is raise much-needed awareness and public debate around this contentious issue. We can only wait to see if our government will follow in the footsteps of the UK and Canada in providing means by which those who wish to have autonomy over the end of their lives can do so.  This will require, first, that the government be prepared to run the risks of voter backlash always associated with even starting a discussion about such a contentious issue.

While the Prime Minister's recent statement indicated his personal support for assisted suicide, he made it clear that many in the his party are staunchly opposed to it, and that the issue of euthanasia is not something that will be actively pursued by the government. The Prime Minister stated that his preferred means of dealing with the issue is through a private member’s bill. However, keeping in mind the low probability of such a bill being drawn, it appears that New Zealand could be waiting quite some time for definitive legislation.

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