The End of Life Choice Act—a question for law or legislature

The fifth lecture in honour of Lecretia Seales delivered an unprecedented insight into the way New Zealand’s legal and parliamentary systems work when faced with moral decisions that affect all New Zealanders.

Delivered on the fifth anniversary of both the Seales v Attorney-General ruling and Lecretia’s death, the event also saw the launch of the End of Life Choice Act Referendum Society by Jessica Young, who completed her PhD on the views of the terminally ill on assisted dying.

Recorded remotely due to COVID-19 for the first time in its five-year history, speakers included Lecretia’s widower Mr Matt Vickers; Court of Appeal Justice David Collins, who heard and made the decision on the case; Mr Andrew Butler, Lecretia’s head lawyer; and Crown lawyers on the case Mr Mike Heron QC, and Professor Paul Rishworth QC.

Contributing from a law reform perspective were Members of Parliament Chris Bishop and Greg O’Connor, who were part of the select committee process; Associate Professor Māmari Stephens from Te Herenga Waka—Victoria University of Wellington, and Dr Jessica Young, CEO of the End of Life Choice Act Referendum Society. The group was chaired by Professor Geoff McLay from the Faculty of Law.

Mr Vickers spoke first, remembering Lecretia as a very private person who felt strongly enough to destroy her privacy in favour of the potential for law reform.

“New Zealand has never had such a sustained concentration on end-of-life issues as it did during Lecretia’s case,” notes Mr Vickers, “This is a good thing, no matter the outcome of the referendum. I can think of no better outcome than one where ‘Lecretia’s Choice’ is granted to everyone, by the people of the country that she loved.”

Professor McLay spoke next, reflecting briefly on his time working with Lecretia at the Law Commission. “She only mentioned her illness twice in the four-and-a-half-years we worked together. The second time was awkward, as she asked for my support for the Law Commission to conduct a review into the law of assisted dying. I said ‘no,’ and explained that I thought it was something politicians should be responsible for.”

He changed his mind about this later, as he thought this process towards law reform may have ironed out more issues for when the politicians took up the cause.

Mr Butler, who led the team from Russell McVeagh who worked pro bono to bring the case to court, then acknowledged his team and Lecretia’s family, before explaining the case.

“There were two things we were trying to prove in this case: firstly, that the current law allows for legal aid in dying; and if that failed, that the fact that the law did not allow for legal aid in dying was a breach of Lecretia’s human rights,” said Mr Butler.

Each of the lawyers who spoke, as well as Justice Collins, expressed what a privilege it was to be part of this case, which was brought to court as quickly as possible to ensure a ruling prior to Lecretia’s death—in the event, it was given one day before she passed away naturally.

Mr Butler expressed the power of narrative in the case, saying, “With litigation like this, it’s critical there is a person who you can focus on, through whom you can tell the story.”

He learned a lot in litigating this case, which started from an unusual point for cases of this type. “Here was an articulate person saying, ‘this is what I want as a possibility,’ rather than somebody defending themselves by saying ‘I did this because I saw my relative suffering.’”

The power of the argument was such that Mr Butler found his own beliefs challenged over the course of the case, as did many others on the case.

“The complexity of the evidence was wonderful, with 36 witnesses and 51 affidavits,” says Mr Heron, who was Solicitor-General at the time, leading the team for the Crown.

“What stood out for me in the preparation and hearing of this case was the importance of people as you travel through life,” he said.

Even during the case in 2015, Mr Heron noticed the interest that Ministers were taking in this case, particularly then-Prime Minister John Key, who was in favour of assisted dying of some sort.

Professor Rishworth had only just begun work for the Crown when this case arose. He considered the international case law in his work for the case, and asked himself “Is the question of euthanasia for the courts to decide, or is it for the Parliament to decide?”

He believes that the outcome of the case showed that the “complex legal, moral, philosophical, and clinical issues, can only be addressed by Parliament amending the Crimes Act.”

“Legislation is the right option, because it’s not a legal question.”

As he saw it, the pivotal moment in the Seales case was the Justice’s reading of Section 41 of the Crimes Act which allows somebody to prevent another’s suicide without checking whether it is done rationally by a terminally ill patient.

“I think Justice Collins’ instincts were right in recognising this as important. It comes down to what the assisted suicide prohibition is actually for,” said Professor Richworth.

“A legislative scheme is required to understand the vulnerable and the non-vulnerable.”

Justice Collins then spoke, stating firstly that he was determined the courts would do right by Lecretia by providing a decision before she passed away, “That was the best way we could honour her.”

He believes the courts were the appropriate forum to discuss this, for two reasons. “First, Lecretia’s case provided an opportunity for the law to be clarified, which was important in this case because there were a number of commentators making statements about what the provisions of the Crimes Act actually meant. I decided the presented statements were not correct,” said Justice Collins.

“It also provided the chance for society as a whole to reflect upon the complex issues that her case raised. It was thanks to Lecretia’s determination to have the issues raised in the way that she did that saw Parliament take up the baton,” he finished, also noting that the case didn’t go to the Court of Appeal as so many of its kind have, due to the professionalism of everybody involved.

Members of Parliament Mr Chris Bishop (National MP for Hutt South) and Mr Greg O’Connor (Labour MP for Ōhāriu) then appeared in conversation to speak about the select committee proceedings that saw the End of Life Bill proceed from private members’ bill to become an Act.

“For a long time it didn’t feel like the End of Life Act was going to get there,” began Mr Bishop, explaining the tension that arose within the Justice select committee as MP The Hon Maggie Barry and Hon Dr Nick Smith were placed on the committee after it began proceedings.

There were over 38,000 submissions for and against the End of Life Act proposal, and the MPs involved travelled around the country to receive around 4,000 oral submissions.

“The fault of the select committee was that while we had heard these submissions, at the end of the day, our vote wasn’t worth any more than any other MPs,” noted Mr O’Connor. Both speakers found this frustrating, as there was a clash between members of the select committee over its purpose.

“We weren’t allowed to debate the important parts of the bill, and the report we gave only dealt with the minor inconsequential parts of the bill,” he said.

Mr Bishop agreed, saying “It was an imperfect process, and it isn’t the way that other conscience bills have been treated,” referring to the Marriage Amendment Act, another moral issue which saw a similar process end with recommendations to the house which saw it move through Parliament smoothly.

Both Members agreed that the process, while not satisfying, did test New Zealand’s democracy at every level. However, Mr Bishop would like to have seen a special select committee set up for this, as it was for the Abortion Legislation Bill in 2019.

“The process was imperfect but we got there in the end, and there are valuable reflections to be had if this type of bill comes around again,” said Mr Bishop.

Associate Professor Māmari Stephens spoke next, saying she was interested in the case from a personal perspective as her mum was in her dying days at the same time as Lecretia.

“My mum used to say, ‘If I can’t have a drink or a smoke, what is the point. They may as well just pull the plug.’ But I couldn’t help wanting to defend the small life that she now had. I couldn’t help wanting to defend the dependant person that we in our society had become so afraid of,” said Associate Professor Stephens.

She watched the case closely, marvelling as Mr Butler did at the power of stories. “Tonight, I feel sadness for the many stories that were heard over the course of the passage of the Act, and the case. And sadness for the stories that haven’t yet been told.”

“I applaud the work that has been done. And I wonder also in the wake of COVID-19 about the stories of those who have had to pass way alone, without comfort,” said Associate Professor Stephens, speaking further about palliative care within New Zealand and how inaccessible Māori and Pasifika find it.

“The question that remains for me is, how do we go forth with the lack of resources that we have, and ensure that our lives are also lived well.”

After Ms Young launched the End of Life Choice Act Referendum Society, Professor McLay made some closing remarks, saying, “Good law reform is not about the law reform.

“My view of my job as Law Commissioner and Professor is not to expound my own view about what the law should be, it is about creating law that New Zealanders could live by.”

The video of this event is available below. If you wish to hear more from those who are directly affected by the Bill, check out the End of Life Choice Act Referendum Society’s website and Facebook page, and remember to vote in the referendum in September.

More than 2.9 million New Zealanders voted in the End of Life Choice Act referendum in October 2020, with 65.1 percent voting in favour of the Act. The referendum was the first time legislation around assisted dying was put to the public in New Zealand. The Act will come into effect in November 2021.