How to win a death with dignity

Choosing to end your life on your own terms in order to avoid an inevitable lingering death is not suicide. So giving someone the means to do so should not be a crime.

A few weeks ago I wrote this post about a decision of the Supreme Court of Canada regarding the issue of end of life choice. I asked readers to imagine this scenario: 

You are suffering from some nasty incurable disease that [will] kill you, but certainly will give you a future of pain, indignity and despair. What are your options?

Well, one option is to soldier on through the travails of the illness until death takes you at its own time. A perfectly honourable, maybe even "courageous" choice. But let's say you don't want to do that. You think a life under the disease is worse than no life at all. So you want to end your suffering and gain a death on your own terms and by your own choosing.

In that case you can refuse to eat, drink or accept medical help and let your body slowly shut down over several days of quite excruciating pain. Or, if you are still mobile and dexterous enough, you can fashion your own means of death with pills/plastic bags/etc and hope that you get it right and don't end up in a brain damaged coma instead. What you [can't] legally do, however, [is] get the help of another person to provide you with, or even apply, the means of your death. In particular, you [can't] (legally) get a health professional who agreed that you ought to be given release from your pain and suffering to help you do so.

Well, now we can put a name, face and real-world history to this hypothetical: Lecretia Seales. First in a Listener article and then in a lengthy interview with Radio NZ's Kathryn Ryan, Ms Seales has set out in starkly honest terms the limited future she faces and her reasons for wanting to be able to end her time on Earth at a moment and in a way of her own choosing. I won't try to summarise her situation or her thoughts - they deserve a full read by anyone wishing to understand her position.

The nub of that position is that she ought to have available to her assistance to end her life at a time that allows her to say goodbye to her loving family while she remains fully conscious. Not because she ultimately will end her life in this way - as Ms Seales says, “I’m not sure that I would actually exercise the right to die if I had it" - but because she should be free to do so if that is what she ultimately chooses. 

(Just to be clear - this is not an argument that any given doctor must provide Ms Seales with assistance to end her life if she asks them for it. Rather, it is a claim that if there is a doctor who is willing to provide that assistance, then Ms Seales ought to be able to receive it.)

The big problem for Ms Seales lies in this provision of the Crimes Act 1961:

179 Aiding and abetting suicide

Every one is liable to imprisonment for a term not exceeding 14 years who—

(a) incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or

(b) aids or abets any person in the commission of suicide.

So a doctor sympathetic to Ms Seales' predicament who (say) provided Ms Seales with a sufficient dosage of pentobarbital to self administer in order to end her life would risk prosecution and conviction under this section. And if convicted of aiding suicide, you can bet that the doctor also would face severe sanction from the Medical Council. So the threat of up to fourteen years imprisonment and potential loss of profession pretty much means no doctor is going to help Ms Seales, no matter how much they may agree with her position. Which then leaves her on her own.

Which is why Ms Seales is now going to court to seek clarity as to how this particular provision applies to her situation, as well as to that of any health professional who may wish to help her. I haven't seen her claim, but I think I can fairly confidently predict what it will say. And I think that there's a not insignificant chance that she may be successful with it.

(I should note that much of what follows has been shaped by discussions with Kathryn Tucker, a US academic and lawyer heavily involved in Aid in Dying litigation in the US who has been visiting New Zealand in recent weeks.)

Look back at section 179 again. It punishes anyone who "aids or abets any person in the commission of suicide". That seems to cover the case of a doctor who gives Ms Seales a lethal dose of pentobarbital or the like, so long as you read the word "suicide" to mean something like "the intentional taking of one's own life". But should we - or, rather, a court - do so?

First of all, consider what the New Zealand Bill of Rights Act (NZBORA) says about how all other pieces of legislation are to be interpreted:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

To simplify, this requires a two step approach. First, you have to decide whether the "ordinary" meaning of the Act you are looking at is "consistent" with the NZBORA. In other words, does an interpretation of section 179 of the Crimes Act that punishes a doctor who helps a terminally-ill intentionally end their own life, thereby preventing Ms Seales from receiving the assistance of any doctor who may wish to help her, unjustifiably limit any of the rights and freedoms contained in the NZBORA?

I won't too much spend much time on this point, because my previous post (on the Canadian case) talked about it. As I said there:

I'm going to go out on a (not very long) limb and say that if and when a New Zealand court were ever to look at this right in the context of New Zealand's criminal prohibition on "aid[ing] or abett[ing] any person in the commission of suicide", it also would conclude that this blanket prohibition unjustifiably limits an individual's right to life [as guaranteed in the NZBORA].

If this is correct, then it means that the "ordinary" meaning of section 197 is inconsistent with the NZBORA. Leading to the second required step - can that criminal prohibition be given an alternative meaning that is consistent with the NZBORA? Because where such a meaning can be given, then the courts must adopt it.

Well, what might such a meaning look like? It would be one that distinguishes between the sorts of intentional self-inflicted deaths we ordinarily think of as being "suicide" and the intentional self-inflicted death of a terminally ill person who is seeking (as in Ms Seales' case) to end her life at a time that allows her to say goodbye to her loving family while she remains fully conscious. Can these things then be distinguished from each other, and can that distinction be made to fit within the Crimes Act? 

On the first point, I think they can be distinguished relatively easily. As this "amicus brief" (evidence to the court) from the New Mexico Psychological Association states:

Suicide motivation arises from an emotional crisis which interferes with logic and planning. ... Suicidal patients tend to be severely depressed such that they are unable to contemplate a future without the intense emotional anguish from which they currently suffer. Such crises may derive from loss of a loved one, a business reversal, a personal humiliation, or any number of factors. The unifying response is a misplaced cognition that the situation will never improve; that there is no hope to right the ship. In suicidal patients, negative emotion narrows cognitive focus. ... The suicide motive is deeply irrational. The psychologist treating a suicidal patient seeks to restore reason and thus restore hope, as is reasonable for persons with a long life ahead of them.

By contrast, the problem confronting the terminally ill patient arises from an irreversible physical calamity. She or he is dying of an incurable disease. The recognition that there is no hope for future physical improvement is accurate, not irrational. To treat a mentally competent terminally ill patient who seeks access to [Aid in Dying] to avoid unbearable suffering as equivalent to a lovesick teenager or a homeowner losing the family home to foreclosure would be to completely misunderstand the psychological condition and the therapeutic role in each of those cases. It is for this reason that it is so offensive for those who have finally come to grips with their terminal condition, sometimes after a great deal of psychotherapy, and who thus seek access to [Aid in Dying], condescendingly to be told that they are demonstrating mental health pathology and that they are suicidal.

In other words, focusing on the similar outcome when considering whether a terminally ill patient who ends their life at their own time is "committing suicide" is to completely misunderstand what is going on. They are two quite different phenomena, undertaken for completely different reasons and under completely different circumstances. 

That then leads to the next issue. Even if terminally ill patients ending their own lives are not committing suicide, can the word "suicide" in the Crimes Act be read in a way that excludes them? Well, we may start off by asking why exactly Parliament has made aiding and abetting "suicide" a crime. Originally, it may have been because taking one's own life itself was seen as an unforgivable sin - up until 1961 it was a crime in itself to attempt suicide - and so helping anyone to do so was just as unforgivable. However, societal views of intentionally ending one's life have since shifted, in that we no longer regard trying to deliberately end your own life as being so morally abhorrent that it is deserving of criminal sanction.

Consequently, criminalising the aiding and abetting of suicide now must reflect a desire to protect those who are deeply vulnerable (for the sorts of reasons outlined in the above amicus brief) and so prone to take a deeply misguided action that cannot then be undone. If you do something to help or facilitate them in their disordered state, then you are committing a wrong that the State should sanction you for because you've helped them do something that no properly thinking person would want to do.

But, of course, those wishing to exercise end-of-life choices simply aren't vulnerable in this way. Their actions are an entirely rational response to a situation that cannot be remedied. And, so long as care is taken in ensuring the person genuinely has come to terms with their situation and the options available to her or him, how can we say that their choice is one that no properly thinking person could possibly make?

Therefore, interpreting "suicide" in section 179 as excluding the situation of those like Ms Seales is quite consistent with Parliament's purpose in seeking to prevent others from aiding and abetting the intentional ending of one's own life. A reading of "suicide" that excludes Ms Seales' situation also fits the rest of the Crimes Act better than does one that encompasses it. Look at section 41 of that legislation:

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide ... or in order to prevent any act being done which he or she believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.

Now, let's imagine that Ms Seales were to publicly announce that (like Brittany Maynard) she will be taking a lethal dose of drugs at a particular time on a particular day. Do we think that everyone in New Zealand should then have the right to "us[e] such force as may reasonably be necessary" to stop her from doing so - push into her house in order to restrain her from taking a fatal dose of pentobarbital, or the like? Because if you treat her choice as being a "suicide" under the Act, then they can.

Or, consider section 180, which criminalises "suicide pacts". Let's imagine a situation where a couple horrifyingly find themselves jointly in Ms Seales and Ms Maynard's situation and decide that rather than drift slowly into the terminal stages of their diseases, they wish to end their time together while they can recognise each other. So they lie down on a bed together with their favourite album playing and each take an assumedly fatal dose of drugs - but it fails to end the life of one member of the couple.

Should the survivor be considered guilty of a criminal offence under section 180(2), such that he or she could be imprisoned for up to five years? Because if you treat the couple's joint choice as being a "suicide" under the Act, then he or she is.

So, would a court go down this interpretative road? Well, they've performed somewhat similar interpretative moves before. In the case of Re AMM & KJO, the High Court accepted that the word "spouse" in the Adoption Act 1955 could be read to include "an unmarried couple in a long term de facto relationship". Note that it did so even though had you had asked the MPs who passed the Adoption Act "by 'spouse' do you mean unmarried persons?", they would have looked at you like you were completely mad. Yet the court was still prepared to depart from the "ordinary" meaning of the word because:

Although not the meaning that was intended at the time of enactment, it is a meaning that is consistent with the purposes of the Act, is not a strained meaning of “spouse”, and is workable within the other parts of the Act. It will have quite limited consequences beyond the area of adoption.

I'd suggest that if you change the word "spouse" to "suicide" and the word "adoption" to "Aid in Dying", I think you get pretty much the same outcome here.

Which leads to a final, big picture argument that I think needs to be confronted. It will, no doubt, be argued that this is no place for the courts and that it should be left to Parliament to make changes to the law in this area.

Two points on this claim. First of all, this is the courts business in that Parliament has specifically given it the task of interpreting and applying laws in ways that are consistent with our individual rights under the NZBORA. I don't know if a court ultimately will be brave enough to use that power in this case - but it is a perfectly respectable legal choice for it to make.

Second of all, I actually agree that Parliament ought to be changing the law here. We should have the End of Life Choice Bill before the House for debate and passage (after whatever amendments are needed to it). The majority of the New Zealand people are in favour of just such a change. This is a law we want.

But Labour shamefully decided that this measure was bad for Labour's brand and forced it out of the members ballot. And John Key won't match his personal support with a push to introduce the legislation as a government bill. 

So if our elected representatives won't take action to change the law and give us our rights at the end of our lives, then where else can we turn to but the courts?