26 May 2015

'Court not place for right-to-die case'

5:48 pm on 26 May 2015

It is possible to imagine a New Zealand where the law enables terminally ill people to die with their doctor's help - but the court is not the place for that change to be made, Solicitor-General Michael Heron, QC, says.

Lecretia Seales on TVNZ Sunday programme.

Photo: TVNZ

Lecretia Seales is taking historic action in the High Court at Wellington, asking it to grant her wish for her doctor to be allowed to help her die without then being prosecuted for doing so.

Ms Seales, 42, has terminal brain cancer and 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' legal team has presented its argument during the past one-and-a-half days and the Crown is now presenting its case.

"It is, of course, possible to imagine a New Zealand where the law is as Ms Seales desires," Mr Heron said.

"This is not the place to determine such controversial issues, and the court should be very cautious in attempting to make declarations in this area."

Solicitor-General Michael Heron, QC

Photo: RNZ / Alexander Robertson

Parliament had considered legalising euthanasia and assisted dying three times in recent times, and each time decided against doing so.

The current law applied to all, Mr Heron said.

"Its purpose is to recognise and protect the sanctity of life.

In doing so it protected the vulnerable and, in fact, everyone was vulnerable, he said.

Ms Seales, who likely has only weeks to live and is confined to a wheelchair, has not made it to court today. Her husband, Matt Vickers, is there with family and friends, and the public gallery is once again packed with people both for and against euthanasia and assisted dying.

Her lead lawyer, Dr Andrew Butler, told the court Ms Seales was not seeking to commit suicide.

"Whatever suicide is, what Lecretia is doing is not suicide. What she is doing in her specific circumstances is the exercise of her Bill of Rights rights," he said.

The onus was on the Crown to show why it should limit what was a reasonable and justifiable request, saying the goals of the legislation to protect the vulnerable would still be achieved if her wish was granted.

Dr Butler said courts did not like blanket bans, and this was a blanket ban of the highest order.

"It says you, the individual, don't count. We don't care about you. We care about something else."

"Somehow the ends justify the means, somehow we can overlook an individual and their circumstances, and apply something not for the benefit of them but for the benefit of others."

Another of Ms Seales' lawyers, Chris Curran, earlier told the court assault and poisoning with intent were unlawful acts were offences under the Crimes Act.

However, it was difficult to see how a doctor changing a drip from a saline solution to a lethal substance - with the patient's consent - would constitute assault, he said. The same applied to writing a prescription for lethal drugs, which the patient would then take.

Mr Curran told the court a fundamental duty of the doctor-patient relationship was to act in the best

interests of the patient to alleviate suffering.

Ms Seales' doctor would be doing that if she helped her patient, "a confident and non-vulnerable person" to die, he said.

The doctor and patient both agreed as to the best course of action, and also believed it would prolong Ms Seales' life simply by "knowing she could exit at the time when her suffering became unendurable".

Lecretia Seales lawyer, Dr Andrew Butler.

Lecretia Seales' lawyer, Dr Andrew Butler. Photo: RNZ / Alexander Robertson

The action would be in Ms Seales' best interests as it would avoid her suffering, Mr Curran said.

Instead, she faces what she calls the "abject humiliation of incontinence", and feared people dealing with her most intimate bodily functions.

Ms Seales constantly worried about what lay ahead and was being degraded by having to choose between suicide and suffering in a way she considered unendurable.

She hated the idea she might have to take her own life, forcing her to die alone and leaving her loved ones to find her.

Ms Seales had said she wanted to be able to say goodbye and die with the "dignity and independence which respects the way I have always lived my life".

That was an intellectual life, yet the law as it stood treated her as a child, unable to make a decision for herself, Mr Curran said.

Ms Seales' team is expected to wrap up its case today before Solicitor-General Michael Heron, QC, presents the Crown's case as to why what Ms Seales is asking for is against the law.

Justice Collins may also ask for oral submissions from lawyers for the Voluntary Euthanasia Society, the Care Alliance and the Human Rights Commission during the three-day trial.

Get the new RNZ app

for ad-free news and current affairs