Seales v Attorney-General
[2015] NZHC 1210
•2 June 2015
ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL
3.00PM ON 4 JUNE 2015.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-000235 [2015] NZHC 1210
UNDER The Declaratory Judgments Act 1908 and
the New Zealand Bill of Rights Act 1990
BETWEEN
LECRETIA SEALES Plaintiff
AND
ATTORNEY-GENERAL Defendant
Hearing: 25-27 May 2015 Counsel:
A S Butler with C J Curran, C M Marks, M L Campbell and E J Watt for Plaintiff
Mr M Heron QC, Solicitor-General with P T Rishworth QC, E J Devine and Y Moinfar for Defendant
M S R Palmer QC and J S Hancock for Human Rights
Commission
V E Casey and M S Smith for Care AllianceK G Davenport QC with A H Brown and L M K E Almoayed for Voluntary Euthanasia Society of New Zealand (Incorporated)
Judgment:
2 June 2015
INTERIM JUDGMENT OF COLLINS J
[1] Ms Seales is dying from a brain tumour. Sadly, her health has deteriorated further since the hearing concluded on 27 May 2015, and it is possible she may die very soon.
[2] I am issuing this interim judgment with the consent of the parties before
Ms Seales passes away.
SEALES v ATTORNEY-GENERAL [2015] NZHC 1210 [2 June 2015]
[3] Ms Seales has sought two declarations relating to the meaning of two sections of the Crimes Act 1961 (the criminal law declarations).
[4] The two criminal law declarations sought by Ms Seales are:
(1) In circumstances where the Court is satisfied that the plaintiff is a competent adult who:
(i) clearly consents to the administered aid in dying;1 and
(ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness, administered aid in dying is not unlawful under section 160 of the Crimes Act.
(2) In circumstances where the Court is satisfied that the plaintiff is a competent adult who:
(i) clearly consents to the facilitated aid in dying;2 and
(ii) has a grievous and terminal illness that causes enduring suffering that is intolerable to her in the circumstances of her illness, facilitated aid in dying is not prohibited by section
179 of the Crimes Act.
[5] For the reasons which I will explain in my substantive judgment, Ms Seales’ doctor would be at risk of being prosecuted under s 160(2)(a) of the Crimes Act for either murder or manslaughter if she, or a person acting under her supervision, administered a fatal drug to Ms Seales intending to cause Ms Seales’ death. This decision has been reached after considering the relevant provisions of the New Zealand Bill of Rights Act 1990 (the NZBORA).
[6] I therefore cannot issue the declaration sought by Ms Seales in relation to s 160(2)(a) of the Crimes Act.
1 … the administration by a medical practitioner, or a person acting under the general supervision of a medical practitioner in the context of a patient/physician relationship, of medication or other treatment that brings about the death of a patient who:
(1) being competent to do so, clearly consents to the administration of that aid; and
(2) is suffering from a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.
2 … a medical practitioner, or a person acting under the supervision of a medical practitioner in the context of a patient/physician relationship, making available to a patient the means by which the patient may bring about his or her own death where the patient:
(1) being competent to do so, clearly consents to the provision of that aid; and
(2) is suffering from a grievous and terminal illness that causes enduring suffering that is intolerable to the individual in the circumstances of his or her illness.
[7] I have also concluded that Ms Seales’ doctor would be at risk of being prosecuted under s 179(b) of the Crimes Act if she made available to Ms Seales a fatal drug knowing Ms Seales would use that drug to end her own life and if Ms Seales died as a consequence of taking that drug. I will explain the reasons for this conclusion in my substantive judgment. This decision has been reached after considering the relevant provisions of the NZBORA.
[8] I therefore cannot issue the declaration sought by Ms Seales in relation to s 179(b) of the Crimes Act.
[9] In my substantive judgment I will explain that only Parliament can change the Crimes Act to achieve the results sought by Ms Seales.
[10] I am continuing to try to deliver my substantive judgment as quickly as I can.
[11] This judgment is embargoed until 3.00 pm on 4 June 2015.
D B Collins J
Solicitors:
Russell McVeagh, Wellington for Plaintiff
Crown Law Office, Wellington for Defendant
Human Rights Commission, Auckland
McLeod and Associates, Auckland for Care AllianceToni Brown Law, Tauranga for Voluntary Euthanasia Society of New Zealand Inc
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