Euthanasia argument ‘disingenuous’

Professor Stephen Penk

by PETER GRACE
It’s disingenuous of Lecretia Seales and her legal team to argue that a favourable court ruling in her application to allow a doctor to end her life will have no implications
for anyone else, says a university professor.

Professor Stephen Penk

Professor Stephen Penk


Stephen Penk, associate professor of law at Auckland University, talked about the Lecretia Seales case in Auckland on May 24, before the audience heard from United Kingdom lecturer
Dr Kevin Yuill about myths of assisted suicide.
Professor Penk, who is also assistant dean of the university’s Law Faculty, said one possible
outcome of the case — heard from May 25 to 27 in Wellington — is that the judge will say that this particular applicant may have a doctor to assist her to die when she chooses.
“How [would] we characterise that?” Professor Penk asked.
That anybody who’s 42-years-old, female and a lawyer with brain cancer can call on a doctor to assist her!
“It’s more likely that a later court would interpret it more widely and say anybody with brain cancer, … or anybody with a terminal illness” should have that right. “It’s disingenuous
or mischievous to say this case will have no implications for anybody else.”
The judge is being asked to declare a legal situation such that it is not one where somebody is seeking something to harm them, he said.
So they seek a clarification that the doctor involved will not be punished, despite the clear wording of the Crimes Act.
Professor Penk outlined several arguments Lecretia Seales’ team might make.
He expected her counsel would say that New Zealand should follow Canada in the Carter vs. Canada case, where the Canadian Supreme Court struck down a provision in the Criminal Code
of Canada such that mentally competent adults suffering intolerably and enduringly may have the right to a doctor’s help in dying.
Professor Penk said courts faced with new situations look for guidelines. “Our courts pay respect to the courts of other Commonwealth countries. So our judges will be inclined to look to the United Kingdom in particular, but also to Australia and the United States.
Particularly if their law is similar to ours.”
Her counsel are also likely to argue that not allowing her the right to end her life is to deprive her of life, and is to subject her to cruel and degrading treatment.
Under our Bill of Rights Act, the professor said, everyone has the right not to be deprived of life, except on grounds as are established by law are consistent with the principles of fundamental justice.
The Act also says they have the right not to be subject to torture or cruel or degrading treatment.
“Judges are told they have to look at the words, but also look at what lies behind the words.”
Would those sections really apply to Lecretia Seales?, Professor Penk asked. “I would think
it applies to the state torturing someone.”
However, he believed her counsel would argue that if she’s forced to prolong her life she will be subject to cruel or degrading treatment.
Her counsel’s final argument might be that section 179 of the Crimes Act doesn’t apply to his
client at all, because what she is seeking is not suicide at all, making an argument that this is not a decision made from distress, a broken heart, or depression, but one made consciously with a clear mind because of the final nature of her illness.
“So it may be that we have an argument over the meaning of what is suicide,” Professor Penk said.

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