By Emilia Sullivan

This election, New Zealanders will be given the opportunity to have their say on whether assisted suicide should be legalised. If the majority vote yes, those with a terminal illness and less than six months to live would be given the option to end their lives by way of voluntary euthanasia. Whether we should let people decide on their own deaths has been a question New Zealand courts have had trouble with before, so are we ready for the End of Life Choice Bill to pass? 

Seales v Attorney-General

When lawyer Lecretia Seales was diagnosed with a brain tumour in 2011, she wanted to live her life to the fullest before she could not anymore. She travelled to San Francisco, Bermuda, Buenos Aires and Morocco before the symptoms of her grade 2 oligoastrocytoma began to take a toll on her lifestyle. She was relegated to using a walking stick, and she could no longer drive nor dress herself without help. To her and her whānau, death was inevitable. In the words of Lecretia herself: “If my death is manageable I should be the one to manage it.”[1] 

Inspired by cases on the matter in Canada, she sought a declaration from the High Court that the Crimes Act did not prevent her receiving aid in dying from her doctor, and that her doctor would not be held criminally liable for assisting her. Seales sought to give the word ‘suicide’ an alternative definition according to s 6 of the Bill of Rights Act 1990. Her counsel’s argument outlined that there should be a distinction between the intentional self-inflicted deaths that we usually think of as being “suicide”, and the act of a terminally ill person of sound mind seeking to end their suffering in a dignified and controlled way. The claim failed. Justice Collins held that the law did not permit aid in dying, and it was not possible to interpret it as such.[2] While unable to grant the declarations sought by Seales, his Honour did agree that a change in law would possibly reduce the high suicide rate New Zealand has, while also saying that physician-assisted suicide would allow for terminally-ill New Zealanders to retain some form of autonomy or control over their lives.[3]

One of the main considerations in Seales v Attorney-General was whether palliative care was an adequate ‘remedy’ for those suffering with terminal illnesses. The Attorney-General’s argument was that palliative care was sufficiently effective for patients like Seales, stressing that palliative care teams work “exceptionally hard to address the emotional, physical, intellectual and spiritual issues associated with the dying process and are in most cases successful”. Affidavits in support of Seales outlined that palliative care would not necessarily provide relief from physical pain, and that it may not be able to address her psychological and emotional suffering. Seales’ principal oncologist stated that “[I]t is usually possible to secure good relief of symptoms such as pain and nausea and to suppress seizure activity. However, loss of physical and mental capacity, behavioural changes and psychological impacts can only be ameliorated to a minimal extent”.[4]

New Zealand’s Current Laws

New Zealand’s first criminal statute in 1893 largely took inspiration from the English common law at the time, thus inheriting the religious motivations behind many of the laws.[5] Human personality, according to Christian conceptions, endows the law with a theological significance, treating human life as ‘sacred’. Thus, any attempts to destroy it would amount to sacrilege. Though our crimes statute was refined in 1961, it largely took the same approach to suicide as the original, adopting many features of the ancient English common law.[6] Since 1893, the only substantive change New Zealand has made to its laws on suicide was the repeal of the provision that criminalised attempted suicide.

Section 63 of the Crimes Act 1961 states that a person cannot consent to their own death.[7] As the law currently sits, any physician who assisted in a patient’s death would be charged with aiding and abetting suicide under s 179 of the Crimes Act — a charge that holds a maximum sentence of three years.[8] However, regardless of the issue of physician-assisted suicide, s 179 will always be necessary to protect vulnerable people from being coerced or manipulated into involuntary self-killing. It is imperative that the legislature use its power to prevent the ending of human life from a social point of view by devoting resources to understanding and taking measures to prevent people from committing suicide. Suicide is undeniably tragic and leaves remarkable scars on one’s whānau and friends; however, in the case of Lecretia Seales, the inverse was true. Preventing her from taking her own life took a devastating toll on her loved ones who wished her to have the dignified repose and absence of suffering that she desired. Former Prime Minister Geoffrey Palmer went as far as to say that s 179 of the Crimes Act goes beyond what is necessary to “protect the interests to which it is directed and it impairs other interests, such as those of people in Lecretia's position.”[9]

The New Zealand Bill of Rights Act 1990 

Section 8 of New Zealand Bill of Rights Act 1990 states: “No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.”[10] It has been repeatedly debated whether assisted suicide is inconsistent with the key principles set out in s 8. In 2003, Attorney-General Margaret Wilson considered whether assisted dying would contravene s 8, specifically focusing on the word ‘deprived’. By adopting a definition of deprived meaning “to take without permission”, she affirmed that an individual who consented to their own death could waive their s 8 rights.[11] Further, it has been argued by the Seales family that by keeping a terminally ill person alive against their wishes, that would be a deprivation of one’s life and thus a breach of the Bill of Rights Act. 

The crux of s 8 is that any exception to the right to life established by law must also be consistent with “the principles of fundamental justice”. Collins J in Seales noted that it was an area of law that had not yet been determined in New Zealand, therefore it was up to then-Attorney-General Chris Finlayson to adopt principles from other jurisdictions in his interpretation of the bill, as per his section 7 obligation. Finlayson considered components laid out in the Canadian Supreme Court case of Carter v Canada (Attorney-General),[12] after which he concluded that, prima facie, the End of Life Choice Bill does not limit the right to not be deprived of life and is therefore consistent with the Bill of Rights Act.

The End of Life Choice Bill, championed by David Seymour, has overcome all necessary hurdles before New Zealand is given its say. The principles Lecretia Seales fought for until her last days are now up to public scrutiny. Whether we adopt the practices seen in many pioneering European countries is yet to be determined. While experts such as GPs, psychiatrists and lawyers have weighed in on the matter, ultimately it is up to us to cast our votes.

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Featured image source: Marcelo Leal from Unsplash

[1] Affidavit of Lecretia Seales, 9 April 2015 at [47]–[54]. 

[2] Seales v Attorney-General [2015] NZHC 1239 at [99].

[3] At [192].

[4] Matt Vickers Lecretia's choice: A story of love, death and the law (The Text Publishing Company, Melbourne, 2016).

[5] Criminal Code Act 1893, ss 71 (Consent to death), 172 (Aiding and abetting suicide) and 173 (Attempt to commit suicide).

[6] Crimes Act 1961, s 158

[7] s 63.

[8] s 179.

[9] G Palmer Law and Life (Occasional Paper No 21, New Zealand Centre for Public Law, Wellington, 2016)

[10] Bill of Rights Act 1990, s 8.

[11] Laing, Cameron. "Voluntary Euthanasia and the New Zealand Bill of Rights Act: A Critical Analysis of the Seales v Attorney-General Decision." (2015).

[12] Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the End of Life Choice Bill.