Choosing to end your life on your own terms in order to avoid an inevitable lingering death is not suicide. So giving someone the means to do so should not be a crime.

A few weeks ago I wrote this post about a decision of the Supreme Court of Canada regarding the issue of end of life choice. I asked readers to imagine this scenario: 

You are suffering from some nasty incurable disease that [will] kill you, but certainly will give you a future of pain, indignity and despair. What are your options?

Well, one option is to soldier on through the travails of the illness until death takes you at its own time. A perfectly honourable, maybe even "courageous" choice. But let's say you don't want to do that. You think a life under the disease is worse than no life at all. So you want to end your suffering and gain a death on your own terms and by your own choosing.

In that case you can refuse to eat, drink or accept medical help and let your body slowly shut down over several days of quite excruciating pain. Or, if you are still mobile and dexterous enough, you can fashion your own means of death with pills/plastic bags/etc and hope that you get it right and don't end up in a brain damaged coma instead. What you [can't] legally do, however, [is] get the help of another person to provide you with, or even apply, the means of your death. In particular, you [can't] (legally) get a health professional who agreed that you ought to be given release from your pain and suffering to help you do so.

Well, now we can put a name, face and real-world history to this hypothetical: Lecretia Seales. First in a Listener article and then in a lengthy interview with Radio NZ's Kathryn Ryan, Ms Seales has set out in starkly honest terms the limited future she faces and her reasons for wanting to be able to end her time on Earth at a moment and in a way of her own choosing. I won't try to summarise her situation or her thoughts - they deserve a full read by anyone wishing to understand her position.

The nub of that position is that she ought to have available to her assistance to end her life at a time that allows her to say goodbye to her loving family while she remains fully conscious. Not because she ultimately will end her life in this way - as Ms Seales says, “I’m not sure that I would actually exercise the right to die if I had it" - but because she should be free to do so if that is what she ultimately chooses. 

(Just to be clear - this is not an argument that any given doctor must provide Ms Seales with assistance to end her life if she asks them for it. Rather, it is a claim that if there is a doctor who is willing to provide that assistance, then Ms Seales ought to be able to receive it.)

The big problem for Ms Seales lies in this provision of the Crimes Act 1961:

179 Aiding and abetting suicide

Every one is liable to imprisonment for a term not exceeding 14 years who—

(a) incites, counsels, or procures any person to commit suicide, if that person commits or attempts to commit suicide in consequence thereof; or

(b) aids or abets any person in the commission of suicide.

So a doctor sympathetic to Ms Seales' predicament who (say) provided Ms Seales with a sufficient dosage of pentobarbital to self administer in order to end her life would risk prosecution and conviction under this section. And if convicted of aiding suicide, you can bet that the doctor also would face severe sanction from the Medical Council. So the threat of up to fourteen years imprisonment and potential loss of profession pretty much means no doctor is going to help Ms Seales, no matter how much they may agree with her position. Which then leaves her on her own.

Which is why Ms Seales is now going to court to seek clarity as to how this particular provision applies to her situation, as well as to that of any health professional who may wish to help her. I haven't seen her claim, but I think I can fairly confidently predict what it will say. And I think that there's a not insignificant chance that she may be successful with it.

(I should note that much of what follows has been shaped by discussions with Kathryn Tucker, a US academic and lawyer heavily involved in Aid in Dying litigation in the US who has been visiting New Zealand in recent weeks.)

Look back at section 179 again. It punishes anyone who "aids or abets any person in the commission of suicide". That seems to cover the case of a doctor who gives Ms Seales a lethal dose of pentobarbital or the like, so long as you read the word "suicide" to mean something like "the intentional taking of one's own life". But should we - or, rather, a court - do so?

First of all, consider what the New Zealand Bill of Rights Act (NZBORA) says about how all other pieces of legislation are to be interpreted:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

To simplify, this requires a two step approach. First, you have to decide whether the "ordinary" meaning of the Act you are looking at is "consistent" with the NZBORA. In other words, does an interpretation of section 179 of the Crimes Act that punishes a doctor who helps a terminally-ill intentionally end their own life, thereby preventing Ms Seales from receiving the assistance of any doctor who may wish to help her, unjustifiably limit any of the rights and freedoms contained in the NZBORA?

I won't too much spend much time on this point, because my previous post (on the Canadian case) talked about it. As I said there:

I'm going to go out on a (not very long) limb and say that if and when a New Zealand court were ever to look at this right in the context of New Zealand's criminal prohibition on "aid[ing] or abett[ing] any person in the commission of suicide", it also would conclude that this blanket prohibition unjustifiably limits an individual's right to life [as guaranteed in the NZBORA].

If this is correct, then it means that the "ordinary" meaning of section 197 is inconsistent with the NZBORA. Leading to the second required step - can that criminal prohibition be given an alternative meaning that is consistent with the NZBORA? Because where such a meaning can be given, then the courts must adopt it.

Well, what might such a meaning look like? It would be one that distinguishes between the sorts of intentional self-inflicted deaths we ordinarily think of as being "suicide" and the intentional self-inflicted death of a terminally ill person who is seeking (as in Ms Seales' case) to end her life at a time that allows her to say goodbye to her loving family while she remains fully conscious. Can these things then be distinguished from each other, and can that distinction be made to fit within the Crimes Act? 

On the first point, I think they can be distinguished relatively easily. As this "amicus brief" (evidence to the court) from the New Mexico Psychological Association states:

Suicide motivation arises from an emotional crisis which interferes with logic and planning. ... Suicidal patients tend to be severely depressed such that they are unable to contemplate a future without the intense emotional anguish from which they currently suffer. Such crises may derive from loss of a loved one, a business reversal, a personal humiliation, or any number of factors. The unifying response is a misplaced cognition that the situation will never improve; that there is no hope to right the ship. In suicidal patients, negative emotion narrows cognitive focus. ... The suicide motive is deeply irrational. The psychologist treating a suicidal patient seeks to restore reason and thus restore hope, as is reasonable for persons with a long life ahead of them.

By contrast, the problem confronting the terminally ill patient arises from an irreversible physical calamity. She or he is dying of an incurable disease. The recognition that there is no hope for future physical improvement is accurate, not irrational. To treat a mentally competent terminally ill patient who seeks access to [Aid in Dying] to avoid unbearable suffering as equivalent to a lovesick teenager or a homeowner losing the family home to foreclosure would be to completely misunderstand the psychological condition and the therapeutic role in each of those cases. It is for this reason that it is so offensive for those who have finally come to grips with their terminal condition, sometimes after a great deal of psychotherapy, and who thus seek access to [Aid in Dying], condescendingly to be told that they are demonstrating mental health pathology and that they are suicidal.

In other words, focusing on the similar outcome when considering whether a terminally ill patient who ends their life at their own time is "committing suicide" is to completely misunderstand what is going on. They are two quite different phenomena, undertaken for completely different reasons and under completely different circumstances. 

That then leads to the next issue. Even if terminally ill patients ending their own lives are not committing suicide, can the word "suicide" in the Crimes Act be read in a way that excludes them? Well, we may start off by asking why exactly Parliament has made aiding and abetting "suicide" a crime. Originally, it may have been because taking one's own life itself was seen as an unforgivable sin - up until 1961 it was a crime in itself to attempt suicide - and so helping anyone to do so was just as unforgivable. However, societal views of intentionally ending one's life have since shifted, in that we no longer regard trying to deliberately end your own life as being so morally abhorrent that it is deserving of criminal sanction.

Consequently, criminalising the aiding and abetting of suicide now must reflect a desire to protect those who are deeply vulnerable (for the sorts of reasons outlined in the above amicus brief) and so prone to take a deeply misguided action that cannot then be undone. If you do something to help or facilitate them in their disordered state, then you are committing a wrong that the State should sanction you for because you've helped them do something that no properly thinking person would want to do.

But, of course, those wishing to exercise end-of-life choices simply aren't vulnerable in this way. Their actions are an entirely rational response to a situation that cannot be remedied. And, so long as care is taken in ensuring the person genuinely has come to terms with their situation and the options available to her or him, how can we say that their choice is one that no properly thinking person could possibly make?

Therefore, interpreting "suicide" in section 179 as excluding the situation of those like Ms Seales is quite consistent with Parliament's purpose in seeking to prevent others from aiding and abetting the intentional ending of one's own life. A reading of "suicide" that excludes Ms Seales' situation also fits the rest of the Crimes Act better than does one that encompasses it. Look at section 41 of that legislation:

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide ... or in order to prevent any act being done which he or she believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.

Now, let's imagine that Ms Seales were to publicly announce that (like Brittany Maynard) she will be taking a lethal dose of drugs at a particular time on a particular day. Do we think that everyone in New Zealand should then have the right to "us[e] such force as may reasonably be necessary" to stop her from doing so - push into her house in order to restrain her from taking a fatal dose of pentobarbital, or the like? Because if you treat her choice as being a "suicide" under the Act, then they can.

Or, consider section 180, which criminalises "suicide pacts". Let's imagine a situation where a couple horrifyingly find themselves jointly in Ms Seales and Ms Maynard's situation and decide that rather than drift slowly into the terminal stages of their diseases, they wish to end their time together while they can recognise each other. So they lie down on a bed together with their favourite album playing and each take an assumedly fatal dose of drugs - but it fails to end the life of one member of the couple.

Should the survivor be considered guilty of a criminal offence under section 180(2), such that he or she could be imprisoned for up to five years? Because if you treat the couple's joint choice as being a "suicide" under the Act, then he or she is.

So, would a court go down this interpretative road? Well, they've performed somewhat similar interpretative moves before. In the case of Re AMM & KJO, the High Court accepted that the word "spouse" in the Adoption Act 1955 could be read to include "an unmarried couple in a long term de facto relationship". Note that it did so even though had you had asked the MPs who passed the Adoption Act "by 'spouse' do you mean unmarried persons?", they would have looked at you like you were completely mad. Yet the court was still prepared to depart from the "ordinary" meaning of the word because:

Although not the meaning that was intended at the time of enactment, it is a meaning that is consistent with the purposes of the Act, is not a strained meaning of “spouse”, and is workable within the other parts of the Act. It will have quite limited consequences beyond the area of adoption.

I'd suggest that if you change the word "spouse" to "suicide" and the word "adoption" to "Aid in Dying", I think you get pretty much the same outcome here.

Which leads to a final, big picture argument that I think needs to be confronted. It will, no doubt, be argued that this is no place for the courts and that it should be left to Parliament to make changes to the law in this area.

Two points on this claim. First of all, this is the courts business in that Parliament has specifically given it the task of interpreting and applying laws in ways that are consistent with our individual rights under the NZBORA. I don't know if a court ultimately will be brave enough to use that power in this case - but it is a perfectly respectable legal choice for it to make.

Second of all, I actually agree that Parliament ought to be changing the law here. We should have the End of Life Choice Bill before the House for debate and passage (after whatever amendments are needed to it). The majority of the New Zealand people are in favour of just such a change. This is a law we want.

But Labour shamefully decided that this measure was bad for Labour's brand and forced it out of the members ballot. And John Key won't match his personal support with a push to introduce the legislation as a government bill. 

So if our elected representatives won't take action to change the law and give us our rights at the end of our lives, then where else can we turn to but the courts?

Comments (25)

by Lee Churchman on March 22, 2015
Lee Churchman

The suicide motive is deeply irrational.

This seems to me to be unduly restrictive on the reasons one might have for committing suicide. It might fail in the case of Willy Loman, for example. All that the suicide need establish is that things would be better (according to some metric) if they no longer existed, and there are all sorts of ways that such a condition could be satisfied that aren't the vaguely hedonic ones that seem to underly that submission. Sometimes things might not get better, and in any case, one might not desire to take that risk.

Assuming that everyone who wants to commit suicide is irrational is unduly paternalistic and just seems to be fudging the definition of "rational" to suit a majority view of what is valuable – anti abortion activists sometimes use similar reasoning to argue that pregnancies should continue, and hardly anyone buys that. Yes, we should have laws that prevent laypersons aiding others to commit suicide, but I see no reason why people of sound mind should not be able to seek the assistance of willing physicians to do so.

Do we think that everyone in New Zealand should then have the right to "us[e] such force as may reasonably be necessary" to stop her from doing so - push into her house in order to restrain her from taking a fatal dose of pentobarbital, or the like? Because if you treat her choice as being a "suicide" under the Act, then they can. 

No, but nor should anyone be able to do the same to a non-terminally ill person of sound mind who wishes to end their life and who is doing so with the assistance of a medical professional.

Short version: I don't think you have sufficient grounds to redefine "suicide" in a way that will produce the result you want. Just make suicide legal.

by Andrew Geddis on March 22, 2015
Andrew Geddis

Lee,

Here's the problem. If one was to design a new regulatory framework from scratch, then yes ... you could very well argue that there is "no reason why people of sound mind should not be able to seek the assistance of willing physicians to do so." (Similar arguments were raised in the recent Gross v Switzerland case.)

But that's not the process in train here in NZ. Because our elected representatives are refusing to do their job and legislate on the issue, Ms Seales is having to go before a court and ask it to read an existing statutory provision in a novel way. That then restricts what can be argued in terms of a law change.

You can only ask a court to rule on the case before it (i.e. to say whether or not the law will apply to Ms Seales and any doctor who may wish to aid her). And the wider the interpretation you seek to achieve that end (i.e. the greater the class of people you say should not be regarded as "committing suicide" if they choose to end their own life), the harder you make it for the courts to agree to follow you down the path. So it's a question of winning what you can - it is a lot easier to get a Court to accept that the choice of a terminally ill person to end her life before it deteriorates completely is not "suicide" than it will be to get a Court to accept that Willy Loman ought to be able to get a pill from a doctor because his life hasn't lived up to the American Dream.

by Nick Gibbs on March 22, 2015
Nick Gibbs

You can only ask a court to rule on the case before it ....

But surely the court will have to consider precedent and the fact that any decision it makes could well lead to Willy Loman appearing before it and arguing that 

Willy Loman ought to be able to get a pill from a doctor because his life hasn't lived up to the American Dream.


by Andrew Geddis on March 22, 2015
Andrew Geddis

@Nick,

Sure - "slippery slope" argument. But there are slippery slopes everywhere in this area. For example, at present it is entirely legal for a doctor to give a consenting terminally ill patient a dose of morphine that the doctor knows will shorten the patient's remaining span of life as long as the purpose of giving that dose is "palliative" (i.e. to ease pain). Equally, it is not considered "suicide" for a terminally ill person to refuse all food/drink/treatment and thus intentionally end her or his own life (meaning that no person is legally entitled to intervene to stop them). Doesn't that then mean we're already on the way to a doctor giving aid in dying? And if you say "no - we can distinguish between hastening death for palliative reasons and giving Aid in Dying such that one does not lead to the other", then why can't we distinguish between giving Aid in Dying to some classes of people and not to others?

Point being ... yes, of course a court is going to care about the precedent effects of their decision. Which is why I'm certain that if a court found in Ms Seales' case, it would do so on the narrowest of grounds. So, for example, in the Re AMM & KJO case the High Court stated that whilst its decision allowed straight de facto couples to adopt (as "spouses"), that didn't necessarily mean that same sex de facto couples could do so ... that would be a future question for a future case on those particular facts.

by Colin Gavaghan on March 22, 2015
Colin Gavaghan

Lee: "Assuming that everyone who wants to commit suicide is irrational is unduly paternalistic and just seems to be fudging the definition of "rational" to suit a majority view of what is valuable"

I have a fair degree of sympathy for that view. One approach - suggested, I think, by UTAS's Margaret Otlowski - would be to operate on the basis of a rebuttable presumption that anyone attempting suicide is non-competent. Someone rushed into ED having taken an overdose would be treated (despite their legally recognised right to refuse treatment). Someone attempting to leap off a high building could still be restrained. But ... someone who makes a clear and consistent request for assistance, who is properly informed of prognosis and alternatives, and who is evaluated as being mentally competent - well, that person might well be in a very different position. 

Of course, Andrew may well be right regarding tactics, and the likelihood of persuading a court. In principle, though, I would favour an approach that focuses on the decision-making process, rather than the actual reasons for the decision. That would bring this into close alignment with how the law deals with 'passive' life-ending choices, which seems to me to be the right way to go.

by Lee Churchman on March 22, 2015
Lee Churchman

Doesn't that then mean we're already on the way to a doctor giving aid in dying? And if you say "no - we can distinguish between hastening death for palliative reasons and giving Aid in Dying such that one does not lead to the other", then why can't we distinguish between giving Aid in Dying to some classes of people and not to others?

There is no morally significant distinction between so-called "active" and "passive" versions of euthanasia (the late James Rachels wrote the standard paper on this decades ago). The usual response is to state that most "passive" euthanasia is justified as a case of the patient's right to refuse treatment rather than a right to die – a right to refuse treatment does not imply a right to demand it (i.e. "active" euthanasia). I'm not sure anything logically follows from this debate about the classes of people who would be entitled to euthanasia.

So it's a question of winning what you can - it is a lot easier to get a Court to accept that the choice of a terminally ill person to end her life before it deteriorates completely is not "suicide" than it will be to get a Court to accept that Willy Loman ought to be able to get a pill from a doctor because his life hasn't lived up to the American Dream.

Yes, it might be easier to get a court to agree to it, if our purpose is hoodwinking poor judges into getting what we want for other reasons, but as an argument, I don't think it is very good. Part of the problem is that defining "suicide" in such a restrictive way licences paternalism, whereas euthanasia is usually supposed to be justified on grounds of autonomy. It involves making just the sort of paternalistic decisions about quality of life that opponents of euthanasia dread. 

Correct me if I'm wrong, but Roe vs. Wade seems to be the poster child for attempts at legal manoeuvring in this manner, and it has created more problems than it solved. 


by Andrew Geddis on March 22, 2015
Andrew Geddis

Yes, it might be easier to get a court to agree to it, if our purpose is hoodwinking poor judges into getting what we want for other reasons...

That's an unfair characterisation. Judges are not well placed to craft complete and detailed rules of practice to govern the practice of Aid in Dying. And judges in New Zealand are not tasked with the sort of constitutional review jurisdiction that (say) judges in Canada and the US are given. So you are very much asking a judge to push the envelope of what they see to be "their job". Given that fact, asking them to take as minimalist an approach as possible is prudentially wise.

It's important to recognise that the question for the court in this case is not "what is the morally best rule to adopt in this area?" That's something Parliament can (and should) ask. Rather, it's "can this plaintiff be permitted to access Aid in Dying, given the existence of a legislative prohibition on 'aiding and abetting suicide'?" And because the Court is approaching this as a legal matter (which means it is only partially a moral one), you deploy the argument you need to win on that turf. Which may be a less than optimal outcome from a pure moral theory perspective, but then again judges aren't moral philosophers.

by Colin Gavaghan on March 22, 2015
Colin Gavaghan

Yes, the court is being asked to interpret a term that has thus far escaped legal definition. As such, they will hopefully take account of evolving public and professional understanding of that term. But they can only take it so far. As an English judge once put it in a very different context:

If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now.

There might be a reasonable prospect of convincing the court that societal and expert understandings of 'suicide' have evolved in such a way that certain life-ending choices no longer fit within that description, but the Willy Loman scenario is - for the time being at least - unlikely to be one of them.

That said, I would hope that the NZ court doesn't set the bar too high. In particular, I can't think of anything of legal significance that hangs on the applicant being terminally ill, as opposed to affected by some other incurable and intolerable condition. The amicus brief Andrew cited above would seem likely to apply to people like Tony Nicklinson as well.

by Andin on March 22, 2015
Andin

"Suicide motivation arises from an emotional crisis which interferes with logic and planning"

I dont know if its psychological associations in general or this one in particular.

But that is complete unadulterated bullshit.

Most people never meet someone who wants to take their own life, lucky them!

I have had the privilege of being in the company of a few. And their logic and planning circuits were functioning very well.  And often the problem was not them it was the circumstances in which they found themselves. Forgive me for feeling sympathy for them but IMO they deserved all the help they could extract from what is becoming an increasingly unfeeling world. when the letter of some ridiculous law is given higher value than what they had figured out for themselves in the calmest logical way it pays a compliment to their process of logical mentation.

 Its time, the useless august overblown bodies, who supposedly tell us what and how to think, pulled their heads out of their arses. And realised there are a lot of people in this world who can think more logically and realistically about their individual situation, that any expert in any field. Thank you very much

by Simon Connell on March 23, 2015
Simon Connell

It may be of interest that the courts have explored the meaning of "suicide' in the context of accident compensation legislation.

Wilfully self-inflicted injury and suicide still result in cover under the ACC scheme, but entitlements are limited. Section 119 of the ACC legislation (the Accident Compensation Act 2001) provides for limiting the entitlements paid in the case of:

(a) a personal injury that a claimant wilfully inflicts on himself or herself, or, with intent to injure himself or herself, causes to be inflicted upon himself or herself:
(b) the death of a claimant due to an injury inflicted in the circumstances described in paragraph (a):
(c) the death of a claimant due to suicide.


Entitlements are limited to treatment and services ancillary to treatment. That means a person who wilfully self-inflicts cannot receive, for example, weekly compensation for lost earnings or lump sum compensation for permanent impairment. The families of people who commit suicide cannot receive the ACC entitlements available in the case of an accidental death (funeral grant, lump sum survivor's grants, compensation for lost earnings.) There is a limited exception for when the wilfully self-inflicted injury or suicide is as a result of a mental injury. There has been lots of tweaking over the detail of this disentitlement provision over time (making the direct applicability of previous case law to the current act a tricky area, but that's not really the main point here.)


In Estate of Goodwin v ARCIC DC Palmerston North 71/99, 23 March 1999, the District Court considered at 7 that (emphasis original):


The meaning of suicide is the act or instance of killing oneself intentionally. It is axiomatic that if one's mental state is such that one cannot form that intention, a self-inflicted death cannot be regarded as a suicide.


In that case, the Court considered that, given the deceased's mental history, he lacked the necessary intent to establish the element of wilfulness needed to trigger disentitlement under the 1992 Act. This meant that his estate could receive a funeral grant.


The idea that only deliberate actions trigger disentitlement is also seen in A P v ACC 357/2004, where a claimant who attempted to hang himself and suffered cerebral hypoxia as a result was not disentitled because, while he attempted to cause himself injury, he did not intend that particular injury, and Big Glory Seafoods DC Auckland 90/98, 5 May 1998 where an employee who punched a freezer door in a show of bravado and injured himself was not disentitled. See Personal Injury in New Zealand at AP119.03.


The approach to suicide in Goodwin is almost the opposite of an interpretation which holds that suicide is undeliberate and impulsive. Of course, there's nothing wrong with the same word being given meanings in different contexts. An determination that a death was 'suicide' in the ACC context triggers disentitlement which is quite different from the consequences in the end of life context.


Look at the issue of assisted death in the ACC context raises another issue. On the face of it, assisted death may well be covered by the ACC scheme, either as 'personal injury caused by accident' or as 'treatment injury', particularly if there is an active element such as administration of an injection. Can the family of the deceased then receive ACC compensation? I can see two potential barriers. First, there are some suggestions in Allenby v H [2010] NZSC 33 that 'consent' might be imported into the cover provisions in exceptional circumstances (in that case, sex) - see [82], [93] but see [30]. Arguably, 'consent' to the death in the case of assisted death means there is no cover. Second, arguably assisted suicide triggers the disentitlement provisions discussed above. We might have a position where a physician is able to assist the death of a patient on the basis that it is not suicide, but then the ACC legislation says there are no entitlements because it is suicide. As I said, there's nothing wrong or unexpected about the same word meaning different things in different statutory contexts.

by Lee Churchman on March 23, 2015
Lee Churchman

@Colin

I have a fair degree of sympathy for that view. One approach - suggested, I think, by UTAS's Margaret Otlowski - would be to operate on the basis of a rebuttable presumption that anyone attempting suicide is non-competent.

That seems the obviously sensible view, given our lack of knowledge of individual circumstances and our general knowledge of suicide attempts. 

@Andrew

That's an unfair characterisation. Judges are not well placed to craft complete and detailed rules of practice to govern the practice of Aid in Dying. And judges in New Zealand are not tasked with the sort of constitutional review jurisdiction that (say) judges in Canada and the US are given. So you are very much asking a judge to push the envelope of what they see to be "their job".

Sorry, I should have been clearer. I think that the attempt to redefine "suicide" in this case would require a judge to be lexically challenged, given the common meaning of the term. It's an attempt to substitute popular beliefs about the attributes of suicides for the meaning of the term itself (secondary for primary connotation). The law seems to be pretty clear here once we clear out popular conceptions of the attributes that suicidal people have and focus on the actual meaning of the term.

I also don't think much of the argument that says that not allowing people to access assisted suicide is violating the right to life because it forces them to kill themselves earlier in order to avoid the unpleasant consequences of their illness. Imagine a scenario where the courts impose massive financial penalties on a person, which will result in them losing their family home, their business and all their savings. It so happens that the penalties are not transferable, so the person can avoid the forfeiture by killing themselves, and they in fact do so. Now, the courts in this case may have acted unfairly for all sorts of reasons, but I don't think it's reasonable to say that they violated this person's right to life. There are all sorts of cases like this, including an old acquaintance of mine who chose to commit suicide rather than face the shame of the sexual crime he had committed. 

by Andrew Geddis on March 23, 2015
Andrew Geddis

I think that the attempt to redefine "suicide" in this case would require a judge to be lexically challenged, given the common meaning of the term. ... The law seems to be pretty clear here once we clear out popular conceptions of the attributes that suicidal people have and focus on the actual meaning of the term.

But that's not how legal interpretation works! For example, what is the "common meaning" or "actual meaning" of "spouse"? Two people who are married, right? Well, in the context of the Adoption Act, it turns out the word meant married persons and de facto straight couples in long term, loving relationships who aren't married. Why? Because adopting that meaning of the word meant that the law did not infringe the rights of such couples, while remaining consistent with the overall intention of the legislature when enacting the law. The "common meaning" or "actual meaning" is thus just a starting point from which deviation may take place if necessary in order to achieve the law's ends. 

So if the category of "people who intentionally end their lives" can be broken into two classes - one that exhibit the sorts of psychological traits of "suicides" and another who exhibit the sorts of psychological traits of "end of life choosers" - then that opens the way to argue that it's only the former that the criminal law ought to be concerned with. Hence, it would be wrong to treat the latter category as being "suicides" in the context of this piece of legislation, as doing so is rights infringing, leads to undesirable outcomes in relation to other parts of the Act, and offends against the general principle that if Parliament is going to make some action a crime it must be specific and clear about what it is forbidding.

Now, I can imagine the objection. The two categories are not complete, or are overly reductionist, or are based on a falsity. Not all people who want to end their life are one of these two things - there's some people who are quite "rational" in wanting to die, but aren't facing an "end of life choice". To which the answer is ... that's not the problem for the Court in this case. It would be an issue for the legislature if passing new law on a blank slate. But here the task is to see if there is a way that the law can still do what it was intended to (stop people from doing things that may lead certain vulnerable individuals making a terrible and irrevocable mistake regarding their lives) while allowing space for others to access Aid in Dying. If this interpretation achieves that, then it works irrespective of its philosophical flaws. Because it's not the courts job to be philosophically tidy or even coherent. It's the courts job to interpret and apply the law to the case before it.

I also don't think much of the argument that says that not allowing people to access assisted suicide is violating the right to life because it forces them to kill themselves earlier in order to avoid the unpleasant consequences of their illness.

That's OK - what matters is that the 9 judges of the Canadian Supreme Court accepted it without demur, which is extremely persuasive authority for New Zealand judges to adopt the same interpretation here under our same-worded guaranteed right to life.

by Fentex on March 23, 2015
Fentex

"Suicide motivation arises from an emotional crisis which interferes with logic andplanning"

[snip]

...that is complete unadulterated bullshit.

I also thought that read a lot like an argument that presumed it's conclusion, but I guess for legal purposes questions of delineation and disputed fact will be deferred to registered professionals in the field.

by Lee Churchman on March 26, 2015
Lee Churchman

The "common meaning" or "actual meaning" is thus just a starting point from which deviation may take place if necessary in order to achieve the law's ends.  

Well, this also happens in ethics, but I wouldn’t conceptualise it that way. It’s common to pick out the morally relevant features of a concept by appeal to other concepts (or other laws in this case). Nevertheless, we can’t just do what we like or we might as well give in to Derrida and his ilk. I would also be inclined to think that the concept of a “spouse” is much easier to deal with than “suicide” – mainly because it’s difficult to make blanket claims about the mental states of people who attempt it (which is what I was objecting to above).

I think a thornier case for assisted suicide is one where you help someone sacrifice their life to help others. On the face of it, this doesn’t look like a suicide, but Willy Loman killing himself for the insurance money is also a case of killing oneself to help others. That sort of case creates conceptual problems for defining suicide, but it can’t be applied to the sort of cases in question here.

So if the category of "people who intentionally end their lives" can be broken into two classes - one that exhibit the sorts of psychological traits of "suicides" and another who exhibit the sorts of psychological traits of "end of life choosers" - then that opens the way to argue that it's only the former that the criminal law ought to be concerned with. Hence, it would be wrong to treat the latter category as being "suicides" in the context of this piece of legislation, as doing so is rights infringing, leads to undesirable outcomes in relation to other parts of the Act, and offends against the general principle that if Parliament is going to make some action a crime it must be specific and clear about what it is forbidding.

As I argued above, I do not think that this can be done in a neat enough way to make the case viable.  

Now, I can imagine the objection. The two categories are not complete, or are overly reductionist, or are based on a falsity. Not all people who want to end their life are one of these two things - there's some people who are quite "rational" in wanting to die, but aren't facing an "end of life choice". To which the answer is ... that's not the problem for the Court in this case. Because it's not the courts job to be philosophically tidy or even coherent. It's the courts job to interpret and apply the law to the case before it.

I guess I’m of the opinion that you can’t really do the latter without the former. So what’s happening here is a bad argument in the service of a good end. That’s fine, but we shouldn’t pretend it isn’t a bad argument, because it’s asking us to pretend that some actions are suicides, whilst some with the same relevant features are not. If it’s a good legal argument but not a good argument per se, then that tells us something very depressing about legal arguments.

That's OK - what matters is that the 9 judges of the Canadian Supreme Court accepted it without demur, which is extremely persuasive authority for New Zealand judges to adopt the same interpretation here under our same-worded guaranteed right to life. 

Sorry Andrew. IANAL, but that just tells me that there is either more to the story or that they were taken in by a very bad argument. Perhaps it's time for Plato's philosopher kings? ;-)

by Simon Connell on March 26, 2015
Simon Connell

Nevertheless, we can’t just do what we like or we might as well give in to Derrida and his ilk. I would also be inclined to think that the concept of a “spouse” is much easier to deal with than “suicide” – mainly because it’s difficult to make blanket claims about the mental states of people who attempt it (which is what I was objecting to above).


The role of a court in interpreting the Crimes Act is not to discover or determine the concept of suicide in some general sense. It's to decide the meaning of 'suicide' in the Crimes Act. That meaning might be different from how the word is used normally, in other statues or even in different places of the same piece of legislation. We might not have the power claimed by Humpty Dumpty to make words mean whatever we want. But a Court does, at least in the sense that a court's decision on the meaning of a particular word in a particular statute has the backing of the state. A court's decision doesn't necessarily have any impact outside the application of that particular statute though - ethicists and psychologists, for example, shouldn't feel bound to adopt the court's meaning, neither should they feel chastised if a court decides that a usage of a word they use means something else in a statute.

Legal interpretation can produce all sorts of unintuitive outcomes. The US Supreme Court recently considered whether a fish was a tangible object under 18 U. S. C. §1519. A majority thought not, essentially on the basis that the legislation in question was designed to respond to the Enron collapse and was really targeted at destruction of financial records.

by Andrew Geddis on March 26, 2015
Andrew Geddis

Sorry Andrew. IANAL, but that just tells me that there is either more to the story or that they were taken in by a very bad argument.

There's always more to the story. For example, the examples you give where some state action may cause someone to end their life sooner than they otherwise would (ruinous financial penalties, prospect of a conviction or life in jail, etc) may be said to conflict with "the right to life" simplicita ... but nevertheless be justified limitations on other grounds. The tendency under Bills of Rights (or, the Canadian/NZ varient thereof) is to give extremely generous and broad readings to the right, then do the heavy lifting when looking at whether limitations are "justified". 

 Also - the risk that state action may cause someone to choose to end their lives earlier than it otherwise would is something considered relevant to the interpretation and application of the law in other situations. See here, for instance (full judgment here).

by Colin Gavaghan on March 26, 2015
Colin Gavaghan

At least one NZ court has already been required to determine the legal limits of "suicide". In the All Means All case, the High Court was presented with the argument that a prisoner on hunger strike was engaged in a "suicidal" act. Panckhurst J decided that "It is not, I think, right to equate a hunger strike of the present kind with suicide by the use of a ligature or a sharp blade." 

Would everyone agree with that? I'm not sure. In that case, it seemed like the right decision, but it doesn't seem obviously true that no-one could ever starve themselves to death in circumstances that would constitute suicide. Indeed, the Court wasn't called upon to determine the precise limits of the suicide/not suicide boundary. It was enough to determine that the case before it was not suicide. 

by Lee Churchman on March 27, 2015
Lee Churchman

The role of a court in interpreting the Crimes Act is not to discover or determine the concept of suicide in some general sense. It's to decide the meaning of 'suicide' in the Crimes Act. That meaning might be different from how the word is used normally, in other statues or even in different places of the same piece of legislation. We might not have the power claimed by Humpty Dumpty to make words mean whatever we want. But a Court does, at least in the sense that a court's decision on the meaning of a particular word in a particular statute has the backing of the state

I've always thought that this was a poor argument for the following reason: what if we applied it to every single word that occurs in the Crimes Act such that we could not determine what any of the words meant by reference to any occurrence outside the Crimes Act? It might as well be written in Linear A, if that were the case. 

But in this case the legal meaning of term is in question, or at least the argumentative strategy described above assumes that it is. Now it is possible that it has already been precisely defined by some decision somewhere or some combination of decisions or some combination of decisions and material in the Crimes Act. However, that seems pretty unlikely, and so the courts face a somewhat open question. But if the current state of the law is not determinative of the meaning of the term, it does not follow that they ought to decide it means anything they like in defiance of common English usage. That would be a patently ridiculous position, and it is in part what is wrong with the argument above.

All that is a long winded way of saying that if the law doesn't precisely stipulate the meaning of a term, reasonable people are forced to look at common usage.

by Lee Churchman on March 27, 2015
Lee Churchman

The tendency under Bills of Rights (or, the Canadian/NZ varient thereof) is to give extremely generous and broad readings to the right, then do the heavy lifting when looking at whether limitations are "justified". 

In this case I think that the initial reading in this case is far too generous to be understood as referring to a right to life. It seems odd to say that a boss firing a worker who then commits suicide is violating someone's right to life, but is justified in firing them on other grounds. 

No time to elaborate...

by Lee Churchman on March 27, 2015
Lee Churchman

Sorry for the third post, but I should point out that in the article Professor Geddis is explicitly reaching beyond the Crimes Act in order to define "suicide" by referring to the amicus brief from the NMPA or beliefs similar to it. Hence, there's nothing wrong with me or others in this thread pointing out that their definition of "suicide" is not a good one.

by Simon Connell on March 27, 2015
Simon Connell

I've always thought that this was a poor argument...

"Argument" is not a word I'd really choose to describe the passage of mine quoted above. My aim was exposition not persuasion. That is, to explain how legal interpretation (as a distinct thing from other types of interpretation) works, to use Andrew's words.

You might think it desirable for courts to avoid defiance of common English usage when interpreting statutes, but they don't. Andrew's post takes as a given that courts will address the issue of the meaning of "suicide" in line with the way that courts usually interpret statues.

by Andrew Geddis on March 28, 2015
Andrew Geddis

But if the current state of the law is not determinative of the meaning of the term, it does not follow that they ought to decide it means anything they like in defiance of common English usage. That would be a patently ridiculous position, and it is in part what is wrong with the argument above.

The courts can't do what you suggest. They are bound by the text and purpose of the enactment. They cannot apply "strained" or "unnatural" meanings to the words . So "common usage" or "reasonable interpretations" do impose limits on what the courts may do. This is all bog-standard legal interpretation - believe it or not, lawyers have been thinking about and doing this stuff for centuries. That practice may seem a bit opaque from the outside, but that's because unless you are inside and engaged in the practice you don't really understand what is going on with it. The practice also may seem flawed or even "wrong" from a disciplinary perspective other than law, but that's pretty much irrelevant to the practice. Law does what law does - we're not philosophers or ethicists or anything other than lawyers.  

Now, the existence of these limits to (legal) interpretation might mean that in Ms Seales case a court cannot see its way clear to defining "suicide" in the Crimes Act as meaning anything other than "the deliberate ending of one's own life on a voluntary basis" (although as Colin notes, in the All Means All case, the High Court already has said that at least one form of deliberate ending of one's own life is not "suicide"). That's a very real possibility. A judge may think she or he can't use the word in the way sought.

However, even within the limits on legal interpretation we may still ask "is it really common English usage that a person who chooses to end their own life in order to avoid suffering at the end of a terminal illness has committed 'suicide'?" A moments internal reflection may make us pause to consider - would our response be the same if we heard an acquaintance had hung herself in her garage (for whatever reason) versus if we heard an acquaintance had taken a dose of phenobarbital prescribed by her doctor in order to end a painful and terminal illness? Equally, some 60-80% of the population (based on whatever poll you like to look at) don't view Ms Seales act (and similar) as being "suicide" - they distinguish her ending of life from other sorts of ending of life. In fact, one of the prime tactics being used in this area is to distinguish linguistically between Ms Seales situation and suicide precisely to allow this intuition to be expressed (hence the term "Aid in Dying", whilst opponents continue to insist on it being "doctor assisted suicide").

So it isn't actually clear that there is a current (as opposed to 1961, when the Act was written) "common English usage" to fall back on here - it looks to be just as contested a ground. Meaning that there may be sufficient ambiguity/stretch in the term to permit the sort of curial redrafting as occurred in Re AMM & KJO (the adoption case). And, as I argue in my post, there are good reasons why such reworking would better fit the purpose of the Act, would avoid undesirable consequences, and be better respective of the rights of the individuals involved. In which case, maybe a judge can be persuaded to be enough of a Humpty Dumpty to carve out an exception from the term "suicide" for people in Ms Seales' situation.

by Lee Churchman on March 30, 2015
Lee Churchman

You might think it desirable for courts to avoid defiance of common English usage when interpreting statutes, but they don't

That's not my point. My point is that courts cannot ultimately avoid common usage. You can of course define a term as you see fit, and you can also define it in terms of other terms which you have defined as you see fit. However, you can't do this ad infinitum without relying on ordinary English meanings in the end. 

I'm not saying that courts can't end up giving terms like "property" different meanings from ordinary usage – only that we can't see legal language as somehow hermetically sealed off from ordinary discourse or ordinary standards of rationality. 

by Lee Churchman on March 30, 2015
Lee Churchman

A moments internal reflection may make us pause to consider - would our response be the same if we heard an acquaintance had hung herself in her garage (for whatever reason) versus if we heard an acquaintance had taken a dose of phenobarbital prescribed by her doctor in order to end a painful and terminal illness? Equally, some 60-80% of the population (based on whatever poll you like to look at) don't view Ms Seales act (and similar) as being "suicide" - they distinguish her ending of life from other sorts of ending of life.

I don't think anyone is arguing that there aren't morally relevant differences between terminally ill patients ending their own lives with the assistance of physicians and other forms of intentional self destruction. So let's get that out of the way. 

Moreover, public opinion is of little use if we aren't asking the same people supplementary questions to test their consistency in use of terms. You would likely find that people were really distinguishing between "suicides they approved of" and "suicides they didn't approve of" (confusing descriptive and evaluative senses of a term). I've marked countless first year essays that make the same logical error (most often with the terms "art" and "argument"). Once it is pointed out to people, they tend to revise their beliefs.

I also note that the All Means All case isn't going to help here. The hunger strike was intended as a protest and Mr All (if that is his name) said himself that he didn't want to die. The judge said:

Suicide is an intentional killing of oneself. Death is the desired and intended end result 

Mr All Means All is undertaking a protest. Whether his cause is sensible or not is beside the point. His intention is to bring pressure to bear on the person who he believes is guilty of misconduct. Death is an unwanted end result of the means Mr All Means All has adopted, but it is certainly not his desire, nor his intention. 

Seems like common sense to me. It is possible for Mr All to stay alive and get what he wants – and he wants and is trying to accomplish that outcome – in a way that it is not possible for a cancer patient to stay alive and get what they want – and they want death. Hence, Mr All doesn't really want to die and the cancer patient does. 

So we return to the initial question. If you are going to make the common use distinction between "suicides" and "non-suicides" depend on the psychological state of the agent, in which category are you going to put  the elderly man who calmly decides that life without his wife is not worth living? Were you the judge, what would you say?

 

by Andrew Geddis on March 31, 2015
Andrew Geddis

I don't think anyone is arguing that there aren't morally relevant differences between terminally ill patients ending their own lives with the assistance of physicians and other forms of intentional self destruction. So let's get that out of the way.

Well, no. That's too glib. If there are morally relevant differences (involving the rights of the individuals at issue), then those differences ought to be recognised in our law. And if the courts can interpret the law to do so, then the courts must do it. So the starting point of the courts here isn't "what is the real/true/common meaning of 'suicide' and can we sneak Ms Seales case into it". Rather, it's "Ms Seales ought to be permitted to do what she wants here, and so we must find the law lets her do so unless the word 'suicide' leaves us with no other option but to prohibit it." That then opens up all the lawyers bag of tricks to go to work on the term "suicide" in the Crimes Act - which is a disciplinary practice different to that carried out by others who try to find out what words "mean".

You would likely find that people were really distinguishing between "suicides they approved of" and "suicides they didn't approve of" (confusing descriptive and evaluative senses of a term).

Which is fine! Criminal law ought to reflect the underlying moral intuitions of the society it governs, not adhere to some rigid and arid philosophical consistency (what gets called "the austerity of tabulated legalism" in our trade). We're not writing stage one philosophy essays here - we're dealing with rules backed by sanctions that regulate some of the most important actions that an individual may undertake.

Hence, Mr All doesn't really want to die and the cancer patient does. 

No! That's entirely the point!!

The cancer patient doesn't "want to die". Offer a cancer patient wanting to end her or his suffering the choice between a lethal dose of phenobarbital and a magic pill that cures the cancer and which do you think she or he would choose? Which is precisely why her or his situation is different from a "suicide". 

So the person who seeks Aid in Dying isn't "choosing death qua death". They are entirely motivated by avoiding otherwise unfixable suffering and torment (which again distinguishes them from Willy Loman - a guy who fails to get the counselling he needs just isn't the same as someone with ALDS or a brain cancer). Meaning that their situation seems entirely analogous to that of Mr All Means All, "Death is an unwanted end result of the means [the person] has adopted [to end their suffering], but it is certainly not his desire, nor his intention."

If you are going to make the common use distinction between "suicides" and "non-suicides" depend on the psychological state of the agent, in which category are you going to put  the elderly man who calmly decides that life without his wife is not worth living?

No idea! But the fact that defining categories always involves hard borderline decisions doesn't mean much at all. Because all categories have them.

Post new comment

You must be logged in to post a comment.