Lecretia failed - but she touched a nerve

Lecretia Seales died on the day the ruling was delivered, but her case has fuelled calls for a new look at right-to-die laws. Photo / Mark Mitchell

Lawyer's case gives impetus to drive for review of right-to-die law and raises issues Parliament should address.

The last court case I argued with Lecretia Seales when we worked together in Wellington concerned an application to the Minister of Education to grant a Polytechnic University status under the Education Act.

Although we won in the High Court, we then lost in the Court of Appeal, leaving the client with only the law reform option.

And so it now appears after Lecretia's case about her own situation - a matter for Parliament rather than the Courts.

Lecretia Seales

I am often approached by patients who want some novel or unorthodox treatment for a medical condition, but cannot persuade their doctor or hospital to prescribe or administer the treatment.

The patient has a range of rights in such cases, but all fall short of requiring a doctor to administer a specific treatment against the doctor's professional judgment.

Lecretia had found a doctor willing to administer a fatal drug to end her life, but the doctor wanted judicial assurance that it was legal.

Lecretia therefore asked the court to declare that a doctor would not commit a criminal offence of murder, manslaughter or assisting suicide under the Crimes Act for administering a fatal drug to end her life, or for providing Lecretia with such a drug for the purpose of enabling herself to do so.

This is different from cases where terminally ill patients bring about their own death by exercising their right under the Bill of Rights Act to refuse medical treatment.

The court noted that such cases are not suicide because death is caused by the illness, rather than any drug administered by the doctor, so a doctor who withdraws treatment in accordance with the patient's wish cannot be regarded as having assisted suicide.

Alternatively, Lecretia sought a declaration that the relevant provisions of the Crimes Act are inconsistent with the right not to be deprived of life and the right not to be subjected to cruel, degrading or disproportionately severe treatment affirmed by sections 8 and 9 of the NZ Bill of Rights Act 1990.

As the judge observed, it may seem counter-intuitive to invoke the right to life as grounds for legitimising an act which deliberately causes death. The right to life is usually thought of as protecting the sanctity of life.

The judge said the right to life was the most fundamental of all human rights. Moreover, the provisions of the Crimes Act dealing with the various forms of homicide reflect the same principle: that life is sacred and that it is wrong for one person to deliberately take the life of another, even by consent.

But these principles are not absolute. Section 8 of the Bill of Rights Act does not require the preservation of human life in every circumstance, and the courts have repeatedly confirmed that, for example, it is lawful for doctors to withdraw or withhold medical treatment where the treatment would be futile, knowing that the patient will die as a consequence.

But s8 expressly provides that the right to life can be limited only "on such grounds as are established by law and consistent with the principles of fundamental justice".

In Lecretia's case, the court found the right to life was engaged because Lecretia could be driven to take her own life prematurely for fear of being unable to do so without help at a later time when her condition deteriorated. But the judge declined the declarations because he found no inconsistency between the right to life and the homicide provisions of the Crimes Act.

While the Crimes Act provisions did limit the right to life in Lecretia's case, that limitation was not arbitrary or unlawful, nor did it breach the principles of fundamental justice, because the Crimes Act provisions are themselves concerned with protecting all life.

The judge found that he would be "departing from the constitutional role of judges in New Zealand if I were to issue the criminal law declarations sought by Ms Seales".

Section 9 of the Bill of Rights Act on cruel treatment didn't apply because Lecretia's suffering was not the result of her "treatment" but of her tumour.

Her case has clarified when a doctor may lawfully help end a patient's life (such as by administering morphine for purposes of pain relief, despite knowing there to be a risk of death), and the judge's view that the case raises complex legal, philosophical, moral and clinical issues, which should be addressed by Parliament.

Previous members' bills dealing with such issues have received little support, but Lecretia's case touched a nerve.

Part of her legacy is generating more momentum for review of whether the law on the "right to die" issue is correct than ever before.

• Mai Chen is a partner in Chen Palmer Public and Employment Law Specialists.