25 May 2015

Right to die court case starts today

8:09 am on 25 May 2015

A Wellington woman's fight to die with her doctor's help will this morning take its next step, with the start of a trial in the High Court at Wellington.

Lecretia Seales, 42, is taking historic legal action, asking the High Court for a ruling which would ensure her doctor would not be charged if she helps her to die.

Lecretia Seales

Lecretia Seales Photo: SUPPLIED

Her statement of claim argues if a doctor cannot lawfully help her die, then she will face a choice between taking her own life, or suffering a slow and painful death.

Ms Seales has terminal brain cancer and has been told she could die within 18 months.

She told Radio New Zealand she had a "fantastic life" and did not want to end it, but was worried about what would happen when she declined.

That decline has recently accelerated; the cancer has paralysed the left side of her body, and she is receiving palliative care rather than treatment to fight it.

Despite that, she plans to be in court this week to hear lawyer Andrew Butler fight her case, to argue for clarification of whether the Crimes Act prevents a doctor from helping her to die without then being charged themselves.

The second strand of their argument will be that a ban on assisted dying under the Crimes Act is contrary to Ms Seales' human rights under the Bill of Rights Act.

Ms Seales' husband, Matt Vickers, said in a blog post the case would not be a forum for a broad debate about end-of-life choice, "as much as some parties would like it to be".

"It is going to be about her, and her alone. She doesn't have the luxury of time for politicians to make up their mind about the issue, and they certainly don't appear to be in any hurry to have a conversation about it," he said.

"So Lecretia is doing what's right for her, and taking the only action available to her, to get the answers she needs about the Crimes Act when viewed through the lens of the New Zealand Bill of Rights."

However, Ms Seales recognised she was bringing the issues to the fore by taking the case.

"We hope that by going public about the case we get people thinking about what they would want if they were in Lecretia's situation."

The case will be a judge-alone trial before Justice Collins, who last month agreed three interested parties - the Human Rights Commission, pro-euthanasia group the Voluntary Euthanasia Society and anti-euthanasia group Care Alliance - could submit limited evidence on the case.

Care Alliance spokesperson Matthew Jansen said Ms Seales had found herself in a "wrenching situation" and deserved compassion. However, the case was not just about her.

"The issues that she is raising in her claim affect all New Zealanders, so it's something that we all need to consider, and consider all the aspects of the case," Mr Jansen said.

"If you actually look at what she's asking for, she's saying that a competent adult with a terminal illness should be allowed to have physician assistance in killing herself.

"Now 'competent adult terminal illness' is going to affect nearly all of us at some stage, now or in the future, so it does cover everyone."

The Care Alliance believed euthanasia and assisted dying were unnecessary, because New Zealand had some of the best palliative care in the world, which enabled people to have a "good death".

It also believed it was dangerous, as it put at risk some of the most vulnerable groups of society, such as the disabled, the elderly, and young people with mental health issues, Mr Jansen said.

Voluntary Euthanasia Society president Dr Jack Havill agreed the case was about more than just one individual and would inevitably become at least a precedent for Parliament to consider the facts further.

It therefore had wider ramifications than just for Ms Seales, he said.

"We fully support Lecretia Seales' application but it is wider than her, in the sense that it's far more important than her individual case.

"She's very important. We're working with her to support her as much as possible and we've provided various evidence for her application but it is wider than her, the whole issue."

The society had been advocating in support of assisted dying and euthanasia since 1978, "and probably know far more about it than any other group", Dr Havill said.

Human Rights Commission (HRC) lawyer Matthew Palmer, QC, said its primary statutory function was to advocate and promote human rights; this was a case which raised human rights issues, and it would offer an independent and neutral position for the court in the light of the strong views.

The outcome of the case would set a precedent which others would seek to challenge, and the court therefore needed to be mindful of wider public policy, Dr Palmer said.

The case starts today and is expected to run for at least three days.