New Zealand Law Society - Lecture outlines means of changing law to assist death

Lecture outlines means of changing law to assist death

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The Rt Hon Sir Geoffrey Palmer QC has delivered the inaugural Lecretia Seales Memorial Lecture and has put forward a proposal for how the law could be changed to assist people to die where dying has become their preferred option to suffering.

The Lecretia Seales Memorial Lecture commemorates lawyer Lecretia Seales who died of cancer in 2015 after taking a case to the High Court which would have allowed her doctors to help her to die.

In his lecture at Parliament on 29 August 2016, entitled Law and Life, Sir Geoffrey considered the development of New Zealand criminal law on suicide. He concluded that suicide has been dealt with severely by the criminal law.

"The law recognises no gradations. It is a bright line legal rule and near absolute. Circumstances may come into consideration on penalty but not on the issue of criminality."

The question he asked, on behalf of Lecretia Seales, was whether a legislative case could be made out to change to the law so that it was lawful to allow the termination of life by a doctor at the request of the patient where there was compelling reason to do so.

"I am only exploring the proposition that life can be ended intentionally in order to relieve pain and suffering and what checks and balances may be required to prevent abuse. That is the law reform issue that flows from Lecretia's case. I am not here concerned to argue the case for a general right to die. In matters of this sort it is better to proceed with careful, small steps. The sanctity of life is a big principle and it has so been for a long time," he said.

"In simple terms the issues can be put this way: 'It is my life, no-one else's. I am free to end it when I am dying and the pain and suffering has become so intense that in accord with my own free will I want to end it all. Where I am suffering from a terminal illness, I am mentally competent and I fear a painful and undignified end I should be able to receive a prescription that enables me to exit gracefully so relieving my acute anxiety about the coming ordeal?' This makes clear the point of view Lecretia had. She was not wanting to commit suicide in the sense that most people who accomplish it do. She wanted to avoid what she regarded as a worse fate.

"That seems a reasonable thing for the law to allow if it can be done without danger to others and with sufficient safeguards against abuse. What is the public purpose to be achieved from prolonging such a life? There comes a point when the life is simply not worth living. For the State and its law to place obstacles in the way of such a person experiencing intolerable suffering appears to the person to be a cruel punishment imposed by the law.  But for what purpose? The values behind the law can relatively easily be protected and preserved. The bright line general rule in our law ought to admit of exceptions in such circumstances such as Lecretia's. Otherwise the law is disproportionate in its consequences and simply too wide."

Sir Geoffrey's proposal for a workable scheme in the New Zealand context was not found in any of the overseas laws he had examined.

"In the New Zealand context it could be useful to involve the Family Court as a means of ensuring that the standards of the new law are met and the public can be assured they have been met."

He said a simple and clear policy that arrives at an equitable accommodation of all the interests could have the following elements - while the existing criminal law would remain:

"An exception should be enacted in the Crimes Act to allow a person to be lawfully provided with medical assistance in dying where:

(a) the person is of at least 18 years of age and capable of making decisions;

(b) the person is a permanent resident of New Zealand;

(c) the person has consented in writing to receive such assistance before two independent witnesses;

(d) two medical practitioners have certified that the person has a grievous and incurable medical condition;

(e) the medical condition is causing enduring suffering that is intolerable to the person in his or her circumstances and condition;

(f) the facts have been reviewed by the Family Court and a Judge has certified that the criteria laid down in the law have been met; and

(g) there is a medical practitioner prepared to provide the assistance approved by the Court."

Such a proposal has the advantage of avoiding health professionals having to take responsibility for decisions about whether a person should be permitted to die, Sir Geoffrey says.

"Medical people have raised many issues concerning the ethical dilemmas they face in such situations. Making it a judicial decision obviates those difficulties."