Where to next for aid in dying?

The Seales v Attorney General decision was a pretty comprehensive legal loss for proponents of aid in dying. But it is by no means the last word on the matter.

I've waited a few days to post on the outcome of the Seales v Attorney General decision, finding not only that the Crimes Act totally prohibits doctors from providing aid in dying to competent, terminally ill patients but that this prohibition also is consistent with our New Zealand Bill of Rights Act (NZBORA). I waited in order to try and get a little bit of perspective on the matter. Obviously I was very disappointed with the outcome - as I wrote here (and reiterated here at greater length), I thought there was a perfectly respectable legal avenue to permit Lecretia Seales the result she desired.

As it happens, Collins J disagreed. And that's OK. In the end, Collins J has to wear the robes as a judge and the reason we have judges is to give some certain settlement to contested legal issues just like this one. Which is not to say I think his honour is entirely right in what he said about the law in his judgment, for reasons I'll come to in a moment.

Before I do so, however, there are a couple of points in Collins J's judgment worth noting. First of all, while his honour found that the Crimes Act provisions clearly prohibit a doctor providing aid in dying and that its doing so is not inconsistent with the New Zealand Bill of Rights Act (more on this last bit in a moment), he also states:

In reaching this conclusion, I emphasise that I have applied a legal analysis. By focusing upon the law it may appear that I am indifferent to Ms Seales’ plight. Nothing could be further from the truth. I fully acknowledge that the consequences of the law against assisting suicide as it currently stands are extremely distressing for Ms Seales and that she is suffering because that law does not accommodate her right to dignity and personal autonomy. (at [192])

The problem Collins J faced when applying his "legal analysis" is that our law (and the NZBORA in particular) does not recognise and guarantee an individual's "dignity" and "personal autonomy" as stand-alone rights. Meaning that even though the Crimes Act prohibition on Ms Seales obtaining aid in dying is immoral - it treats her in a way that does not properly respect her basic right to dignity and personal autonomy - his honour believes that there is nothing a Judge can do about this fact under existing law.

Nevertheless, it's still an important point to note about the judgment. Collins J did not say that our law's total prohibition on aid in dying is a good thing for New Zealand to have. Rather, his honour found that it has bad consequences (at least in Lecretia Seales' case). It's just that his honour didn't feel he could do anything about that as a judge.

Instead, and this is the second point preliminary point, Collins J squarely laid the task of fixing the law's immoral effects at the door of Parliament:

Although Ms Seales has not obtained the outcomes she sought, she has selflessly provided a forum to clarify important aspects of New Zealand law. The complex legal, philosophical, moral and clinical issues raised by Ms Seales’ proceedings can only be addressed by Parliament passing legislation to amend the effect of the Crimes Act. I appreciate Parliament has shown little desire to engage in these issues. The three private members bills that have attempted to address the broad issues raised by Ms Seales’ proceeding gained little legislative traction. However, the fact that Parliament has not been willing to address the issues raised by Ms Seales’ proceeding does not provide me with a licence to depart from the constitutional role of Judges in New Zealand. (at [211])

That's a fairly safe, orthodox avenue to take. (Students of public law take note - parliamentary sovereignty rules, OK?) But underpinning it is a prompt; not only is it up to Parliament to change the law in this area as a matter of constitutional propriety, it really ought to "engage in these issues" to a more serous degree than it has to date.

With that out of the way, what do I think about Collins J's judgment from a legal standpoint. Well, there's a number of things I could take issue with in it - that's the nature of legal analysis - but I'll confine myself to one major gripe.

Back when I first wrote on this issue (and again when I returned to it here) I said this:

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 [to life] 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. The fact that Canada's highest court unanimously ruled that the model for our law has this meaning and effect is going to be so persuasive that a New Zealand court is near certain to do likewise.

The risk with climbing out onto limbs, of course, is that they can sometimes snap under you and dump you arse first onto the ground. Which is exactly what happened in Seales v Attorney General. Collins J found that despite the Canadian Supreme Court's conclusion (in a case called Carter v Canada), the prohibition on aid in dying in New Zealand does not infringe the right to life guaranteed by our NZBORA, s.8.

Because this outcome made a liar out of me, I'm going to spend a bit of time explaining why I think it's wrong. If you're not in the mood for somewhat lengthy legal analysis, you might want to skip down to the end of the post to see my thoughts on what Parliament ought to do about the issue now the court has ruled. Otherwise buckle in and enjoy the ride.

The NZBORA's right to life in Seales v Attorney General

Recall why Canada's Supreme Court found that a total prohibition on aid in dying breached the right to life as guaranteed in the Canadian Charter of Rights and Freedoms (which is, in turn, the model for our NZBORA). It did so because the effect of that prohibition was to cause some terminally ill people to end their lives sooner than they otherwise would choose to and it was not necessary to cause this outcome for competent, consenting terminally ill individuals in order to protect generally the lives of vulnerable members of society.

In Seales, Collins J accepted that a prohibition on aid in dying has the same potential consequences in New Zealand:

[T]he offence provisions of the Crimes Act ... may have the effect of forcing Ms Seales to take her own life prematurely, for fear that she will be incapable of doing so when her condition deteriorates further. Accordingly, the right to life provision of s 8 of the NZBORA is engaged in the circumstances of this case. (at [166])

However, his honour then went on to find that - unlike Canada - these consequences were not a breach of Lecretia Seales' right to life as she (and others who may end their lives early because of the prohibition on aid in dying) are being deprived of life "on such grounds as ... are consistent with the principles of fundamental justice."

How can this be, you might wonder. Canada and New Zealand, while not exact replicas of one another, are pretty close copies. So how can it be inconsistent with the principles of fundamental justice for Canada to prevent people like Ms Seales from receiving aid in dying, whilst it is consistent for New Zealand to do so? How can these principles vary so markedly between two very, very similar societies?

The answer Collins J gives is that while Canada has adopted laws against aiding people to commit suicide in order to protect only the vulnerable, New Zealand has such laws to protect the sanctity of all life. And so because New Zealand is more concerned than Canada is with stopping anyone from committing "suicide" - a term which Collins J found encompassed Lecretia Seales' decision to receive aid in dying - the principles of fundamental justice permits a law that has the incidental effect of causing people like Lecretia Seales to end their lives.

There are two things that strike me as deeply implausible about this claim. First of all, with respect, the reasons why Collins J distinguished New Zealand's alleged intent to stop all suicides from Canada's more limited intent just don't stack up. Both countries have exactly the same common law heritages. Both made the decision to decriminalise attempted suicide within a decade of each other (NZ in 1961, Canada in 1972). If you read Sopinka J.'s decision in Roderiquez v Canada and Collins J's decision in Seales, there's no appreciable difference at all between the legislative history to the issue in the two nations.

Collins J nevertheless points to two differences between Canada's Criminal Code and our Crimes Act that he says demonstrate our Parliament intended to maintain a broader policy of preserving the "sanctity of all life" even as it decriminalised attempted suicide. Section 180 creates a separate offence of participating in a suicide pact, while s.41 recognises a defence for anyone who uses "reasonable force" to prevent someone from committing suicide. Canada's Criminal Code does not contain such measures, meaning (says Collins J):

The purpose of s 179 of the Crimes Act [which prohibits aiding suicide] in the New Zealand context is broader than the equivalent law in Canada and is not confined to protecting the vulnerable in society. (at [132].)

I think this is plain wrong. For a start, the purpose of our s.180 is to lessen the potential punishment faced by those who take part in a suicide pact. In comparison, a person who does so in Canada (and survives, obviously) would face a charge of murder (if they kill the other person in the pact) or counseling, aiding or abetting a suicide (if the other person killed themselves). Both of these offences carry a far higher potential punishment than are applied in s.180. So, if anything, the lack of an equivalent to s.180 in Canada's law indicates that they are more concerned to prevent people from entering into such pacts and thus have a greater intent to protect the sanctity of all life.

Furthermore, it is true that, unlike NZ, Canada does not grant an express legislative defence to a person who uses reasonable force to stop someone from committing suicide. But that does not mean that there is no such defence in Canada - that Canadian law says you cannot lawfully take physical action to stop someone who intends suicide. Note that s.8(3) of the Canadian Criminal Code states:

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament ...

And under Canadian Criminal Law, there is a common law defence of "necessity". As the Supreme Court noted in R. v Goltz:

The doctrine exists as an excusing defence, operating in very limited circumstances, when conduct that would otherwise be illegal and sanctionable is excused and made unsanctionable because it is properly seen as the result of a "morally involuntary" decision, to do an act which in the eyes of society is thought to have positive social value outweighing the detrimental effect of the contravention.  It only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril, and where there are no reasonable legal alternatives to the conduct pursued.

The Supreme Court then gave a concrete example of how this defence applies:

For instance, one can imagine an elderly person, perhaps a grandfather, prohibited from driving for a sizeable accumulation of penalty points related to the infraction of "slow driving" ... .  If that person was required by medical emergency, no other means of transportation being available, to drive his grandson from a remote fishing hut beside a lake to a hospital in a nearby town, yet did so knowing he was prohibited from driving, he could be charged with violating s. 88 and would be subject to the minimum sentence of seven days in prison, even if it was his first conviction for such an offence.  Most reasonable persons would likely conceive that punishment as grossly disproportionate to the wrongdoing.  ... It seems virtually certain that a jury of peers would judge the actions of the prohibited driver in the foregoing example as meeting the requirements of this [necessity] defence.  In that case, the punishment meted out by s. 88(1)(c) would not be imposed.

So by the same token, a bystander who pulls someone off the rail of a bridge or a nurse who restrains a patient trying to cut his wrists would also enjoy the protection of this "necessity" defence against any possible charge of assault or similar - just as such a person in New Zealand can claim the protection of s.41 of the Crimes Act. Meaning that, in practice, there is no appreciable difference between how the law operates as between Canada and New Zealand. Which makes the claim that New Zealand's Crimes Act somehow has a broader purpose of protecting the sanctity of all life, while Canada's Criminal Code is concerned only with the lives of the vulnerable, very hard to sustain.

The second problem I have with Collins J's claim that New Zealand's allegedly wider purpose for the prohibition on aiding suicide makes the deprivation of life consistent with "the principles of fundamental justice" is that he completely ignores the warning laid out by the Canadian Supreme Court in Carter:

[D]efining the object of the prohibition on physician-assisted dying as the preservation of life has the potential to short-circuit the analysis [of whether life is being deprived consistently with the principles of fundamental justice]. In RJR‑MacDonald, this Court warned against stating the object of a law “too broadly” in the s.1 analysis, lest the resulting objective immunize the law from challenge under the Charter (para. 144). The same applies to assessing whether the principles of fundamental justice are breached under s.7. If the object of the prohibition is stated broadly as “the preservation of life”, it becomes difficult to say that the means used to further it are overbroad or grossly disproportionate.  The outcome is to this extent foreordained. (at [77].)

In other words, the State cannot just claim "we want to protect all life, end of story". The State has to show exactly what lives it wants to protect and why it wishes to do so - in particular, why if the State has said that a person's choice to end their life is no longer a matter of criminal concern should the State nevertheless be able to impose criminal law sanctions that have the effect of interfering with that choice? Because without the State providing such reasons for imposing the interference, the court is unable to meaningfully judge whether those reasons justify the consequence for someone in Lecretia Seales' position: she will die at a point in time sooner than she otherwise would if the interference did not occur.

As such, I would respectfully demur from Collins J's conclusion that the prohibition on aid in dying under New Zealand law is consistent with the NZBORA guaranteed right to life. I think my original claim - that the Supreme Court's reasoning in Carter is directly transferable into the New Zealand context - remains sound. So what then follows?

Well, in terms of the outcome of the case for Lecretia Seales, probably not much. It is true that had Collins J found that the Crimes Act prohibition on aid in dying was inconsistent with the NZBORA's right to life, then s.6 of that legislation would have become available as an interpretative tool. However, somewhat oddly, it appears that Collins J already took this provision into account when deciding that the Crimes Act could not possibly be interpreted to permit Lecretia Seales to receive aid in dying.

In undertaking the legislative analysis required in this part of my judgment, I have focused upon the text and purpose of the relevant provisions of the Crimes Act. ... Appreciating the common law from which the relevant sections are derived assists in understanding the meaning of those sections. I have also strived to interpret the Crimes Act in the context of contemporary circumstances, recognising that the meaning of legislation is not fixed in perpetuity and that the requirements of s 6 of the NZBORA mean legislation may have to be given an interpretation that was not envisaged at the time of its enactment. (at [88].)

Quite why his honour was looking at s.6 at all, given his finding that none of the rights in the NZBORA were limited by the Crimes Act provisions, is not clear. But it makes me think that there was pretty much nothing that could get Collins J to read the Crimes Act in the way Lecretia Seales was asking (i.e. permitting her to receive aid in dying). So his conclusion on the meaning of the law would not have been affected one way or the other by this issue.

Which means that the more important consequence of Collins J finding that the NZBORA right to life was limited by the Crimes Act prohibition on aid in dying would have been that it opened up the way for a possible declaration of inconsistency under the NZBORA. It is no slam-dunk that he would have issued such a ruling - the Crown was very much opposed to him doing so. But there would have been at least the chance that his honour would have gone beyond simply noting that as a moral matter the prohibition on aid in dying treats Ms Seales badly to saying that this treatment creates an inconsistency with the rights and freedoms that Parliament has legislatively guaranteed for all New Zealanders.

What now from Parliament?

That in turn may have given Collins J's judgment greater weight in the political debate that is now (and always was going to be) occurring. What can we say about how this has unfolded in the days since the High Court's ruling came down?

First of all, I think there's a majority appetite for changing the law (provided all the usual concerns about misuse and protection of the vulnerable can be met). Maybe it's just the elite chattering classes dominating, or maybe in the wake of Lecretia Seales' passing it's considered bad form to speak against, but there's been a lot more calls for amendment than keeping the status quo. That is true both from parliamentary voices and outside Parliament.

However, it's equally clear that neither Labour nor National want their fingerprints to be on any law change. I'm not sure how much of this is the specific issue of aid in dying, or how much is simply the fact that it's a contested social policy issue that has come too late to the party, but it seems clear both major parties have decided that they won't be the ones "responsible" for any law change. Meaning that it looks like it is up to David Seymour and his Act Party to actually get legislation into the ballot. And kudos to him for doing so - this is exactly the sort of reason why an Act Party (or equivalent) is needed in Parliament.

(Quick side note here. John Key's claim that "The Government would not sponsor a bill, because euthanasia was 'a conscience issue and the process needs to reflect that'" is plain wrong. In 2012, MPs had a conscience vote on the drinking age under the Government's Alcohol Reform Bill, while in 1961 the death penalty was abolished by a Government Bill on which there was a conscience vote. More relevant is the fact that the National Party's caucus is deeply divided and, as Key admits, "he doesn't think it would make it out of backroom discussion.")

And it really is legislation that is needed here. Sure, the much mooted option of a select committee inquiry will give people like me the opportunity to make long and detailed submissions and will produce a report (with inevitable minority views) recommending possible further steps. All of which will give the appearance of activity without any of the associated downsides of having to cast meaningful votes on the matter.