Thursday, 30 July 2015
The family of Lecretia Seales has decided not to appeal the High Court decision in the case of Seales v. Attorney General released to the public by Justice Collins last month on June 5th. Ms Seales passed away several hours after her family received the judgment from the High Court.
Through her High Court action Ms Seales aimed to achieve two things: an interpretation of the existing Crimes Act as written that would allow her doctor to assist her to die if she chose, without fear of prosecution, and failing that, a declaration that the Crimes Act was not consistent with her rights under the New Zealand Bill of Rights, prompting parliament to review and amend the law.
Ms Seales’ husband, Matt Vickers, said: “Although the ruling didn’t include a declaration of inconsistency, which we felt would have been appropriate, the findings in the judgment are firm enough that parliament is still obliged to look at the law. A number of facts in Lecretia’s case were settled and conceded in the judgment, and on the basis of these facts, and even in the absence of a declaration of inconsistency, parliament has a moral and democratic responsibility to review the issue.”
“Lecretia achieved a great deal with her case and won a huge amount of public support. She provided clarity around which areas existing law must change, and what needed to change, and provided facts and evidence that can be used to underpin an intelligent and informed debate. Her case also helped drive support for the petition presented by the Voluntary Euthanasia Society, which was successful in initiating a select committee inquiry on the issue. This is something that has never been achieved before in New Zealand political history. The New Zealanders that signed or supported that petition can be very proud of that achievement.”
“As Lecretia is no longer with us and would not benefit from a successful appeal, and as parliament has agreed to deeply engage with the topic of assisted dying through a select committee, we feel that parliament is finally fulfilling its representative function on the issue, an issue it has failed to engage with since 2005. As long as the committee performs their role intelligently, impartially, and evidentially, we feel that persisting with an appeal would likely hinder rather than help the select committee process, and would not achieve any further political outcome than what Lecretia and her case has already achieved.”
“We are grateful to Justice Collins for his hard work in achieving and delivering a judgment before Lecretia passed away, which was a monumental task given the breadth and controversy of the issues. Although we maintain that Justice Collins should have made a declaration of inconsistency in Lecretia’s favour, providing a strong prompt for parliament to act, they have nevertheless agreed to look at the issue. And although we feel an appeal would prove Lecretia right on a point of law – it is more important to us now to achieve legislative outcomes for the benefit of all New Zealanders than win an argument in the courts for someone who can sadly no longer benefit from a positive outcome.”
“The key facts in Lecretia’s case that the judge found in favour of, were:
Palliative care cannot address all suffering in all patients and there was a high risk it wouldn’t help Lecretia. There was risk that she would experience irremediable psychological and physical suffering before death.
Lecretia was not vulnerable or under coercion.
Lecretia’s autonomy must be respected and she must not be assumed, simply because of her condition, to be vulnerable, and that she was making a reasonable and rational request for assistance to die.
Lecretia, like many others, faced a cruel choice and was at risk of suicide and a foreshortened life because of the absence of assisted dying legislation. That others have taken their lives to avoid the symptoms of their illnesses is not in dispute, and research puts this as high as 5-8% of all suicides in New Zealand annually.
Lecretia’s right to life and dignity under BORA was engaged, but that the law’s intent, although consistent with the Crimes Act under Justice Collin’s interpretation, may now be out of step with society’s values and the wishes of the public.
Although professional associations may hold anti assisted-dying positions – at least one doctor (Lecretia’s GP) was willing to help Lecretia if free of fear of prosecution. Lecretia’s relationship with her GP preceded her illness and had existed for more than a decade – her GP was not selected for their views on assisted dying. The judge conceded the medical community is not unanimous in its opposition to assisted dying or on the ethics of the same, despite the published position statements of various professional associations, and that any published positions against assisted dying were not a barrier to parliament reviewing the law.
“The burden is now on the Health Select Committee to either recommend changing the law to allow competent adults who are enduring intolerable suffering to have assistance to end their lives. Alternatively, they must provide an evidence-based justification to maintain a status quo that denies rational adults their wish to have a death with dignity on their terms – a task we feel is difficult given the lack of strong research-based evidence provided by the Crown and the Care Alliance in Lecretia’s case to support that view.“
“Our view is that a position based on fear and speculation cannot form the basis of any justification the select committee presents: it must engage with and scrutinise the evidence, and it must acknowledge that the medical community is not in unanimous agreement on a law change, nor does it need to be. We also feel that both the committee and the government must take into account the consistent polling by multiple research organisations showing that New Zealanders overwhelming want the law changed, and not patronise or diminish the views of those New Zealanders, many of whom have watched loved ones suffer through absolute agony in the final stages of their lives, or take their own lives too early, despite the best intentions of palliative care. Nor can they dismiss the views of those New Zealanders who fear being faced with the same cruel choice as Lecretia faced and many others face, without access to the compassionate option that assisted dying legislation would provide.”