SEALES v ATTORNEY-GENERAL [2015] NZHC 1239 [4 June 2015]
ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL 3.00PM ON 5 JUNE 2015. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2015-485-000235 [2015] NZHC 1239
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 Alliance K G Davenport QC with A H Brown and L M K E Almoayed for Voluntary Euthanasia Society of New Zealand (Incorporated) Judgment: 4 June 2015
JUDGMENT OF COLLINS J Summary of judgment
[1]
 
Ms Seales is dying from a brain tumour.
1
 She is 42 years old and may have only a short time to live.
2
 
1
 
The names of Ms Seales’ principal oncologist, another oncologist who has treated her and her
doctor have been suppressed. Affidavit of Ms
Seales’ principal oncologist, 2 April 2015 at [7]
-[8]; Ms Seales
’ principal oncologist has explained Ms Seales has “diffuse astrocytoma ... with elements of an oligodendroglioma. This combination is often abbreviated to ‘oligoastrocytoma’. Both astrocytoma … and oligodendroglioma … grow diffusely and infiltrate the brain”.
2
 
Second affidavit of Ms Seales’ principal oncologist, 22 May 2015 at [6]; Ms Seales can now
 
 [2]
 
Ms Seales wants to have the option of determining when she dies. To do this, Ms Seales would like her doctor to be able to either administer a fatal drug to Ms Seales, or provide Ms Seales with a fatal drug to enable Ms Seales to end her life  by herself. [3]
 
Ms Seales’ doctor is willing to take either of these steps, but will not do so
unless she can be assured she would be acting lawfully if she acceded to either of Ms
Seales’ requests.
 [4]
 
Ms Seales has sought two declarations concerning the meaning of two  provisions of the Crimes Act 1961 (the Crimes Act) to determine whether or not Ms
Seales’ doctor can lawfully accede to either of Ms Seales’ requests.
[5]
 
First, Ms Seales has sought a declaration that her doctor would not commit either murder or manslaughter under s 160(2)(a) and (3) of the Crimes Act if she
“administered aid in dying” to Ms Sea
les.
3
 
“Administered aid in dying” is defined in
the statement of claim to mean:
4
 
… 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.
[6]
 
Second, Ms Seales has sought a declaration that her doctor would not be assisting her to commit suicide, which is prohibited by s 179(b) of the Crimes Act, if
expect to live “no more than weeks or a short number of months”.
 
3
 
160 Culpable homicide
 ... (2) Homicide is culpable when it consists in the killing of any person
 – 
 (a)
By an unlawful act…
 ... (3) Except as provided in section 178 of this Act, culpable homicide is either murder or manslaughter. ...
4
 Amended Statement of Claim of L Seales, 20 April 2015 at [11] and annexure.
 
 
her doctor “facilitated aid in” Ms Seales’ dying.
5
 
“Facilitated aid in dying” is
defined in the statement of claim to mean:
6
 
… 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 refer to s 160(2)(a) and (3) and s 179(b) of the Crimes Act as “the offence  provisions of the Crimes Act”, and the declarations Ms Seales
 seeks relating to the
interpretation of those provisions as “the criminal law declarations”.
 [8]
 
The criminal law declarations sought by Ms Seales are:
7
 
(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; 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; 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.
[9]
 
I cannot declare that Ms Seales’ doctor would be acting lawfully if she
administered a fatal drug to Ms Seales within the terms sought. Nor can I declare
5
 
179 Aiding and abetting suicide
 Every one is liable to imprisonment for a term not exceeding 14 years who
 – 
 
…
 (b) Aids or abets any person in the commission of suicide.
6
 Amended Statement of Claim of L Seales, above n 4, at [11] and annexure.
7
 At [38].
View on Scribd
Back to document