Lecretia Seales’ quest to be permitted aid in dying is both tragic and important. It raises myriad legal and ethical questions. I spent the first two days of the case in Wellington High Court, listening to her legal team present their arguments. (Full disclosure: I also presented an expert witness affidavit in support of her case.)
Much of her claim centres on the NZ Bill of Rights Act, as explained by my colleague Andrew Geddis here. But the case also involves some detailed consideration of some core criminal law concepts like intent and causation.
Lecretia’s claim refers to “aid in dying” – it avoids the question-begging term “assisted suicide”; whether what she wants the right to do constitutes “suicide’ is one of the points in dispute. This “aid in dying”, though, can take two forms. As described in her claim, “administered” aid in dying (AAID) involves the direct administration of a lethal drug by a doctor. “Facilitated” aid in dying (FAID) involves the provision of the lethal drug by that doctor, but requires the final step of taking that drug to be by Lecretia herself.
The concern with AAID is that it may form the basis for a charge of culpable homicide or even murder. For that to happen, s 160 of the Crimes Act requires that the doctor must have caused death by “an unlawful act”, which is now defined as “a breach of any Act, regulation, rule, or bylaw.”
What the “unlawful act” might be would depend on the form that the AAID took. If the doctor injected the patient with the lethal drug, the possibility has been discussed that this could constitute assault. But what if the doctor merely added the lethal agent to an IV drip that was already in place? It seems unlikely that this could be seen as the “application of force”. An alternative possibility would be “poisoning with intent to cause grievous bodily harm”.
Lecretia’s claim, though, is that, in circumstances like hers, the administration of a lethal drug does not constitute an “unlawful act” at all. This interpretation, she argues, is necessary to render the Crimes Act compliant with sections 8 and 9 of the BORA. If AAID in those circumstances does constitute an “unlawful act” for the purposes of s 160, then s 160 is inconsistent with the BORA.
What, then, of FAID? This would be dealt with under a different part of the Crimes Act. Although suicide is not a crime in New Zealand, s 179 makes it an offence to “aid or abet” someone to commit suicide. Providing someone with the means to commit suicide would violate that provision, if the assistant knew that suicide was being contemplated, and had the intent to assist.
Would providing someone like Lecretia with a lethal prescription be an offence under s 179? At first glance, the answer seems obvious. But there are two reasons why things may be more complicated.
First, an act can only amount to assisting suicide if what the other party does or attempts to do amounts to “suicide.” I can’t assist you to do X if you are actually doing Y. Part of Lecretia’s argument is that ending her life in such circumstances would not amount to “suicide” for the purposes of s 179.
This may seem like a curious claim – surely we all know what “suicide” means, and we don’t need smart-alec lawyers to tell us. The Crimes Act, though, doesn’t offer a definition of “suicide”, which means that it has been left up to New Zealand courts to do so. So, last year, we had the High Court decide that a prisoner on hunger strike was not attempting suicide.
The manner in which Pankhurst J explained that decision is a bit ambiguous. At one point, he seemed to be basing it on the fact that All Means All (that was actually the prisoner’s name!) did not want or intend to die as a result of the hunger strike, but instead, to force the authorities to concede to his numerous demands. But the judge also cited with approval Lord Goff’s judgment from Bland, where he said that a refusal of treatment could never amount to suicide.
Whether it makes sense that no-one can ever commit suicide by “omission” is an interesting question. It doesn’t seem obvious that starving oneself to death would differ in any of the important ways (intention, causation, etc) from taking a lethal overdose. What’s more, if true, it would raise the potentially troubling possibility that inciting someone to do so – say, by stopping eating or foregoing their insulin – would not violate s 179. But that’s a thought to pursue another time.
For Lecretia and her team, what’s relevant is that it is already accepted that “suicide” is a term that’s open to a degree of judicial interpretation. The question is whether the interpretation she seeks would require more judicial flexibility than Collins J feels able to adopt.
There is also overseas precedent for distinguishing “suicide” as commonly understood from the sort of rational life-ending decision that Lecretia might want to take. In the USA, the 9th Circuit appeal court has recognised “a strong argument that a decision by a terminally ill patient to hasten by medical means a death that is already in process, should not be classified as suicide.” So if Collins J is persuaded to accept this distinction, he would not be the first to do so.
The alternative claim regarding FAID is that, even if Lecretia’s final act would constitute “suicide” for the purposes of s 179, the doctor providing the lethal drug would lack the requisite intent to be guilty of “assisting” her.
Again, at first glance, this may seem unlikely. But on closer analysis, this seems to me the part of the claim that may have the highest likelihood of success. It’s already well established in many jurisdictions that a doctor who administers a palliative medication that she knows might hasten a patient’s death will not necessarily be deemed to have intended that death. Such a doctor will be able to rely on the so-called doctrine of double effect, the rule that seeks to distinguish outcomes that are truly intended from those which are merely foreseen side-effects.
Whether the DDE makes an important moral distinction, or constitutes a dishonest fudge, is a matter of great debate in bioethics and law. Nonetheless, it is a defence that has been accepted in English law (albeit less commonly and less clearly than is sometimes assumed). Its status in NZ law is a bit less clear, but if it is part of our law, then it may be thought to apply as much to the doctor in the FAID situation.
As we know from Oregon, where such assistance has been legal for many years, a substantial number (more than a third) of people provided with lethal prescriptions never actually go on to use them. Many of those patients speak of the reassurance and relief they gained from knowing that the option was available should their suffering ever become unbearable. A doctor providing such a prescription may sincerely hope that the patient would never have occasion to use it. She may be confident that the patient’s symptoms could be managed to a tolerable level. Her “primary purpose” may be to provide the patient with the relief of knowing that the option was there, should worst ever come to worst.
Following the rationale of double effect, such a doctor will not have “intended’ the patient’s suicide, even though she will surely have foreseen it as a real possibility. (though interestingly not, on these statistics, a “virtual certainty”, the standard usually required to infer intent from foresight.)
Suzanne Uniacke has suggested a “test of failure” to help distinguish truly intended outcomes from those that are merely foreseen. On this approach, we would ask how the doctor would feel if, having administered the analgesia, the patient actually lived. If the doctor would be pleased with that outcome, then we can say that she did not in fact intend the patient’s death. If not, if that was a disappointing outcome, then it becomes hard to argue that death was not at least part of what was intended.
The same test, I have argued, could be applied to FAID. Imagine the doctor provides her patient with a lethal prescription, hoping against hope that the patient never has to take it. As it happens, the patient is one of that 35% who dies without ever using the drug, but derives comfort from knowing that it was there. If the doctor would regard that as a good outcome, then – on Uniacke’s ”test of failure” – the patient’s suicide was not part of the doctor’s intention.
Is this approach to “intention” a bit artificial, or likely to encourage a degree of self-deception? Maybe. Maybe it would be more honest to deem everyone to have intended all of the foreseen consequences of their deliberate actions. But that doesn’t seem to be the approach that the courts favour in other end-of-life contexts.
That being so, then it does look like a strong case might exist for regarding at least some instances of such provision to lack the required mens rea for “assisting suicide.” Intriguingly, the Solicitor General seemed to accept this possibility when Collins J put it to him on Tuesday.
For Lecretia, of course, the main concern is that she is allowed a peaceful and dignified death. But however Collins J decides, it seems inevitable that the reasons for his decision will bear very close analysis.
 Uniacke, S. ‘The Doctrine of Double Effect.’ In Ashcroft R, Dawson A, Draper H, McMillan J, eds. Principles of Health Care Ethics (2nd ed.) Hoboken: Wiley 2007
 R v Tamatea (2003) 20 CRNZ 363. This case dealt with inciting and counselling suicide, which is dealt with in a different subsection, but it seems certain that similar elements would have to be present for aiding and abetting.