Landmark right to die trial begins

by Hannah Norton25 May 2015
The case of a NZ public law specialist who is fighting for her right to die starts today in Wellington’s High Court.

Lecretia Seales, 42, has asked the High Court for a declaratory judgement that would protect her doctor from prosecution if they were to assist her to die.

Her husband Matt Vickers said in a blog post yesterday Seales hoped to be in the courtroom for the beginning of the proceedings. 

“I have my doubts as to whether that will be possible.

“I am sure she will be there for part of the day at least, but as to when and for how long it’s a little hard to say,” he wrote.

Public law specialist Seales – who worked for Kensington Swan, Chen Palmer and the Department of Prime Minister and Cabinet – is dying of an inoperable brain tumour.

Seales, assisted by a legal team headed by Russell McVeagh, has asked the High Court for a declaratory judgement to the effect that it is not an offence under s179 of the Crimes Act for a doctor to provide her with “aid in dying”.

The crux of the argument lies in s9 of the New Zealand Bill of Rights Act – that she has a right “not to be subjected to cruel, degrading or disproportionately severe treatment” – in this case, letting her live.

Her story, widely reported across a number of media platforms, even prompted PM John Key to tell TVNZ’s Breakfast: “I actually think she makes a fair point.”

“Win or lose, we will achieve some certainty for Lecretia,” Vickers said.

“We will know whether she can lawfully choose not to suffer if things become unbearable, by requesting assistance from a physician to die, or whether she must suffer against her will to satisfy an interpretation of the law that entrenches its inadequacy for dealing with the nuances of cases like hers.

Her case has also prompted an article in the New Zealand Law Journal, due out next month, by University of Otago law professor Andrew Geddis and the executive director of the Disability Rights Legal Center in Los Angeles Kathryn Tucker.

The article analyses the legal issues involved in the Seales v Attorney General case, concluding there is a very strong case that existing New Zealand law does not preclude a doctor providing a mentally competent, terminally ill patient with the means to achieve a peaceful death.

The authors referred to Canadian case Carter v Canada, where the Supreme Court found that Canada’s effective prohibition on aid in dying breached the Canadian Charter of Rights and Freedoms.

“It seems almost certain that a New Zealand court, considering the Carter v Canada precedent, would find that a reading of s 179 that prevents Ms Seales access to aid in dying is inconsistent with the NZBORA,” the authors wrote.

Section 179 of the New Zealand’s Crimes Act stipulates that anyone who “incites, counsels, or procures any person to commit suicide”, or “aids or abets any person in the commission of suicide”, commits a criminal offence.

But the authors suggested the term “suicide” could be given an alternative legal meaning that does not apply to the end of life choices of mentally competent, terminally ill people.

There is “a world of difference between, say, a lovesick teenager who shoots himself and a terminally ill person seeking a death less brutal than that which they currently face”, they said.

The hearing is expected to take three days.