Seales v Attorney-General

• Jurisdiction: New Zealand
• Judge: Collins J
• Judgment Date: 04 June 2015
• Neutral Citation: [2015] NZHC 1239
• Court: High Court
• Docket Number: CIV-2015-485-000235
• Date: 04 June 2015

Under the Declaratory Judgments Act 1908 and the New Zealand Bill of Rights Act 1990

Between

Lecretia Seales

Plaintiff

and

Attorney-General

Defendant

[2015] NZHC 1239

CIV-2015-485-000235

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Application by a terminally ill plaintiff for declarations that it would not be contrary to s160(2)(a) (homicide is culpable when it consists in the killing of any person…[b]y an unlawful act…) Crimes Act 1961 (CrA) for her doctor to administer a drug to assist her to die or to provide medication for her to taker her own life — in the alternative, application for a declaration that s179 CrA (aiding and abetting suicide) was not consistent s8 (right not to be deprived of life) and s9 (right not to be subjected … to cruel, degrading, or disproportionately severe treatment) New Zealand Bill of Rights Act 1990 (NZBORA) — whether the plaintiff's consent provided a lawful excuse — whether under s179 CrA, respect for personal autonomy prevailed over the sanctity of human life — whether the term “suicide” in s179 excluded “rational decisions to die” — whether the situation in the plaintiff's case was substantially similar to a person who declined to receive life sustaining medical services — whether s160 and s179 CrA were inconsistent with s8 and s9 NZBORA in the circumstances of the plaintiff's case — whether by depriving her of the opportunity to bring her suffering to an end, the State, through the offence provisions of the CrA, was subjecting the plaintiff to cruel, degrading or disproportionately severe treatment.

Counsel:

A S Butler with C J Curran, C M Marks, M L Campbell and E J Watt for Plaintiff

Mr M Heron QC, Solicitor-General with P T Rishworth QC, E J Devine and Y Moinfar for Defendant

M S R Palmer QC and J S Hancock for Human Rights Commission

V E Casey and M S Smith for Care Alliance

K G Davenport QC with A H Brown and L M K E Almoayed for Voluntary Euthanasia Society of New Zealand (Incorporated)

JUDGMENT OF Collins J

Summary of judgment

1 Ms Seales is dying from a brain tumour. 1 She is 42 years old and may have only a short time to live. 2

2 Ms Seales wants to have the option of determining when she dies. To do this, Ms Seales would like her doctor to be able to either administer a fatal drug to Ms Seales, or provide Ms Seales with a fatal drug to enable Ms Seales to end her life by herself.

3 Ms Seales' doctor is willing to take either of these steps, but will not do so unless she can be assured she would be acting lawfully if she acceded to either of Ms Seales' requests.

4 Ms Seales has sought two declarations concerning the meaning of two provisions of the Crimes Act 1961 (the Crimes Act) to determine whether or not Ms Seales' doctor can lawfully accede to either of Ms Seales' requests.

5 First, Ms Seales has sought a declaration that her doctor would not commit either murder or manslaughter under s 160(2)(a) and (3) of the Crimes Act if she “administered aid in dying” to Ms Seales. 3 “Administered aid in dying” is defined in the statement of claim to mean: 4

… the administration by a medical practitioner, or a person acting under the general supervision of a medical practitioner in the context of a patient/physician relationship, of medication or other treatment that brings about the death of a patient who:

• (1) being competent to do so, clearly consents to the administration of that aid; and

• (2) is suffering from a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.

6 Second, Ms Seales has sought a declaration that her doctor would not be assisting her to commit suicide, which is prohibited by s 179(b) of the Crimes Act, if

her doctor “facilitated aid in” Ms Seales' dying. 5 “Facilitated aid in dying” is defined in the statement of claim to mean: 6

… a medical practitioner, or a person acting under the supervision of a medical practitioner in the context of a patient/physician relationship, making available to a patient the means by which the patient may bring about his or her own death where the patient:

• (1) being competent to do so, clearly consents to the provision of that aid; and

• (2) is suffering from a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.

7 I refer to s 160(2)(a) and (3) and s 179(b) of the Crimes Act as “the offence provisions of the Crimes Act”, and the declarations Ms Seales seeks relating to the interpretation of those provisions as “the criminal law declarations”.

8 The criminal law declarations sought by Ms Seales are: 7

• (1) In circumstances where the Court is satisfied that the plaintiff is a competent adult who:

  • (i) clearly consents to the administered aid in dying; and

  • (ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness, administered aid in dying is not unlawful under section 160 of the Crimes Act.

• (2) In circumstances where the Court is satisfied that the plaintiff is a competent adult who:

  • (i) clearly consents to the facilitated aid in dying; and

  • (ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness, facilitated aid in dying is not prohibited by section 179 of the Crimes Act.

9 I cannot declare that Ms Seales' doctor would be acting lawfully if she administered a fatal drug to Ms Seales within the terms sought. Nor can I declare

that it would be lawful for Ms Seales' doctor to provide her with a fatal drug knowing that Ms Seales intended to use that drug to end her own life and did so. Because Ms Seales' health is rapidly deteriorating, I informed the parties of this aspect of my decision on 2 June 2015. 8

10 In the alternative, Ms Seales asks that I issue declarations that the offence provisions of the Crimes Act are not consistent with two rights guaranteed by the New Zealand Bill of Rights Act 1990 (the NZBORA). The rights in question are the “right not to be deprived of life” 9 and the right not to be “subjected … to cruel, degrading, or disproportionately severe treatment”. 10 I refer to the declarations relating to the application of ss 8 and 9 of the NZBORA as “the Bill of Rights declarations”.

11 The Bill of Rights declarations sought by Ms Seales are: 11

• (1) Section 160 of the Crimes Act is inconsistent with sections 8 and 9 of BORA, to the extent that administered aid in dying is unlawful under section 160 for a competent adult who:

  • (i) clearly consents to the administered aid in dying; and

  • (ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.

• (2) Section 179 of the Crimes Act is inconsistent with sections 8 and 9 of BORA, to the extent that it prohibits facilitated aid in dying for a competent adult who:

  • (i) clearly consents to the facilitated aid in dying; and

  • (ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.

12 I have decided that Ms Seales' right not to be deprived of life is engaged, but not breached in her case. I have also concluded that Ms Seales' right not to be subjected to cruel, degrading or disproportionately severe treatment is not engaged by her tragic circumstances. I have therefore concluded the relevant provisions of the Crimes Act are consistent with the rights and freedoms contained in the NZBORA.

13 The criminal law declarations sought by Ms Seales invite me to change the effect of the offence provisions of the Crimes Act. The changes to the law sought by Ms Seales can only be made by Parliament. I would be trespassing on the role of Parliament and departing from the constitutional role of Judges in New Zealand if I were to issue the criminal law declarations sought by Ms Seales.

14 This judgment has been delivered urgently so Ms Seales can be made aware of my decision while that is still possible.

15 I have had the benefit of considering evidence from 36 witnesses, who provided 51 affidavits. None were cross-examined. Many of the witnesses reflect the wide spectrum of views that exist in society about the merits of Ms Seales' case. For every proponent of Ms Seales' case, there is an equally forceful opponent.

16 Ms Seales' proceeding is one of many that have come before the courts in a number of jurisdictions in recent years, in which parties have tested the lawfulness of the role of doctors in bringing about the death of patients. Those cases tend to fall into three categories:

• (1) First, cases in which courts have held that it is lawful for doctors to withdraw futile medical services to patients in circumstances where it is known the patient will die without those services. 12

• (2) Second, cases in which it has been held that doctors cannot accede to requests to terminate the lives of competent patients who are not

  terminally ill, but nevertheless wish to die in order to alleviate their suffering. 13

• (3) Third, cases in which competent and terminally ill patients have sought the assistance of their doctors to end their lives in order to avoid intolerable deaths. 14

17 The common characteristic to all these cases is that Judges have been asked to determine complex legal issues, sometimes urgently, in a context in which philosophical, moral, ethical and clinical viewpoints are deeply divided. Ms Seales' tragic case is the epitome of this type of proceeding.

18 To assist in understanding this judgment I have divided it into three parts.

19 Part I explains the context to the decision I have had to make. It explains Ms...