Our liberal history can be briefly sketched out in two stages. Establishing a bundle of rights and then expanding them to include a wider range of people. In one sense, the right to assisted dying is a continuation of this movement and perhaps its final chapter.
In dark ages past people had few dimensions of freedom and little self-expression. Most people had one option for spiritual thinking with severe penalties for deviance. As for choice in sexuality, the electoral franchise, freedom of speech, unless you fitted in exactly the right box, forget it.
In my maiden speech to parliament, I borrowed heavily from AC Grayling’s excellent Towards the Light of Liberty where from the Inquisition to the Reformation through the abolition of slavery, the liberation of women and expansion of the franchise, the black civil rights movement and finally the LGBTI movement, the sphere of liberty was expanded and then eventually included all people.
The British Commonwealth has long been an important institution for advancing these liberties. The Treaty of Waitangi, which established ‘the same rights and duties as citizens of England’ for all New Zealanders, was an extraordinary document for colonial times marred by arrogance and violence by colonisers. Today, the Commonwealth Charter sets out an admirable set of values that would make the world a better place if only they were universally followed. They include access to health: voluntary euthanasia is merely consistent with this value.
The best marshalling of the evidence to date is by the Supreme Court of Canada. In Carter v Canada 2015 SCC 5 the Canadian Supreme Court ruled that the prohibition on Assisted Dying violated the Canadian Charter of Rights and Freedoms – specifically sections 7 (the right to “life, liberty, and security of the person) and 15(1) of the Charter (equality). In their ruling the judges required the Canadian Parliament to change its Criminal Code. In a unanimous decision the Court effectively gave Canadian adults who are mentally competent and suffering intolerably and enduringly the right to a doctor’s assistance in dying.
Until that ruling, it had been a crime in Canada to assist another person in ending their own life. As a result, observed the court,
people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
The Court noted that there are many jurisdictions that allow Assisted Dying without endangering those who do not wish to have the choice. Since it had last ruled on the question, eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana, and Colombia.
The process of legalisation began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. Colombia followed in 1997, after a decision of the constitutional court. The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009. Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.
New Zealand’s High Court made similar findings in Seales v Attorney General  NZHC 1239 but was ultimately prevented from ruling in favour of a change in the law. Ms Seales was a lawyer who had been diagnosed with a brain tumour in 2010. She received surgery and chemotherapy, but her condition continued to deteriorate. With the support of her family, she brought a challenge to the law in the High Court in 2015. She sought a declaration to the effect that the legislation that criminalised assisted suicide was inconsistent with the New Zealand Bill of Rights Act. Section 8 of the NZBORA is the right not to be deprived of life; it was argued on Ms Seales’ behalf that this implied a right to die with dignity. Section 9 contains the right not to be subjected to torture or cruel treatment. The court refused to grant the declarations.
The nature of New Zealand’s law means no court can supplant the role of Parliament. NZBORA is not a constitutional act that is superior to any other parliamentary law, so no court can force a law change. Some might interpret Collins J as expressing his frustration with this fact when he said:
The changes to the law sought by Ms Seales can only be made by Parliament. I would be trespassing on the role of Parliament and departing from the constitutional role of Judges in New Zealand if I were to issue the criminal law declarations sought by Ms Seales.
Of course there is a wide ranging debate on this issue but we can take a lot from these judgements by some of the best judges in the world who considered a wide range of evidence (Collins J considered 51 affidavits from 36 witnesses, some from inside New Zealand and others from outside the country, including jurisdictions that allow Assisted Dying). If we accept the considered rulings of these judges, then we have to accept the status quo is not acceptable and that it is possible to design a law based on choice.
I am not going to speculate what remaining objections motivate opponents of my bill. However, those who oppose Assisted Dying should pause to consider how they have benefited from 400 years of progress towards liberty and ask themselves what right they really have to deny choice to those suffering.
Published in partnership with Commonwealth Values Exchange UK