Lecretia's Choice

by Matt Vickers

  The jury box began filling up with Lecretia’s friends and family. One of Lecretia’s aunts, Soraya, had come down from Auckland to follow the trial. Angela and Ben were there, along with Sonya, who had once told me I knew how to make Lecretia laugh. Jo Hughson, a barrister, was there too, and Sir Geoffrey Palmer. Geoffrey’s son, Matthew Palmer, was also in the court, acting as counsel for the Human Rights Commission.

  The public gallery was full. I recognised a few of the faces, which included Andrew Geddis, a law professor from Otago University, and several of Lecretia’s colleagues from the Law Commission. There were also a few faces I knew from the media.

  I laid eyes on the solicitor-general for the first time that day. Mike Heron was a youngish, handsome man who seemed to have slightly more panache than his assistant counsel Paul Rishworth. He came over and introduced himself to us. He was the opposition, but he was genuinely likeable, even if he did congratulate us for getting things ‘this far’. Perhaps the subtle slight was a lawyer’s tactic.

  Finally, the hour arrived, and we were invited to rise by the court’s clerk. Justice Collins made his entrance and invited us all to sit. He asked after Lecretia, and Andrew Butler explained that she had not yet made it to the courtroom, but when she arrived perhaps the court could adjourn and allow her to enter. Justice Collins agreed.

  Andrew’s first remarks were about Lecretia herself. He reminded the judge that the case was about her circumstances, and he gave a long outline of her life and illness, and her motivations for wanting to have her claim heard by the High Court. He emphasised that Lecretia’s medical witnesses had described the possibility of a painful death, and that vulnerability, coercion and incompetence were not factors in this case. All of the defence’s evidence that suggested otherwise could be dismissed. While he laid out his case, occasionally coughing to clear his throat, the four other lawyers from Russell McVeagh passed him papers, shared their notes and took notes of their own.

  I was impressed by Lecretia’s lawyers. Along their expansive desk, facing the judge, they had arranged all of their papers in large binders, indexed and arrayed like books on a bookshelf. They looked like magicians in their robes, conjuring up truth as they made their arguments, shuffling papers and facts. This was the way legal decisions had been made for centuries. Only the traditional wigs were absent, a very modern omission.

  Midmorning Lecretia and Shirley arrived. The court had given Lecretia a parking space in the basement, so she was able to enter the jury room unmolested by the media waiting out the front of the building. The information was relayed to Andrew. At the conclusion of his statements, he informed the judge.

  The decision to adjourn was made, and I went to the jury room, where Lecretia was sitting in her wheelchair, sipping a cup of tea and nibbling on a chocolate brownie.

  ‘Hello,’ she said, smiling.

  I told her how the case had begun, and then Andrew Butler came in and gave his interpretation of events. The boxy little room, absent of windows, with a large formica table in the middle and a whiteboard at the end, took on the aspect of a canteen, as people made coffee and chatted. After ten minutes or so, we made our way back into the courtroom. Someone held the door open as I wheeled Lecretia in, and all eyes were on her as she entered the room.

  Lecretia sat with her feet out in front of her and her head leaned back. She could no longer bend at the waist very easily, and her left leg, very stiff, stuck out as though in a cast. Her left arm and hand were curled up against her stomach. Her hair, thin and matted, was curly against her skull. Her right eye was swollen shut, but her left eye gleamed. She was smiling, clearly pleased to see the results of her efforts. Despite her illness, she had an air of dignity. Her presence was powerful. This was not a hypothetical case. This was about a real person, and her real circumstances.

  When Justice Collins returned, the court rose. Lecretia tried to rise out of her chair. Her mother and I gently dissuaded her, assuring her that it wasn’t necessary. When Justice Collins invited the room to be seated, his first comments were to Lecretia, acknowledging her arrival and thanking her for being in court.

  Lecretia listened as Andrew Butler continued to lay out his case. As the first part of the claim related to the legal definition of suicide, he discussed the differences between suicide and making a rational decision to die. He asked whether Lecretia, and people in similar circumstances, should be forced to die in ways that were inconsistent with their beliefs in order to uphold an assumption about the meaning of the law—would their human rights be infringed for the benefit of others?

  Section 179 of the New Zealand Crimes Act makes it illegal to aid and abet suicide. But what if such a death wasn’t suicide? And what was the purpose of this section anyway, if not to protect the vulnerable? Lecretia, as she had asserted in her affidavits, was not vulnerable, so wasn’t it unfair that the law should prohibit her, and others like her, from seeking help to die, when they had made a rational decision to do so?

  Next Andrew Butler discussed section 41 of the Crimes Act, which permits the use of reasonable force to prevent a suicide. Could someone assault a doctor who was attempting to remove treatment from a patient in a hospital, if that patient had asked for the doctor to do so? Does the law support the force-feeding of a patient who has chosen to starve to death—in effect a slow suicide? On certain readings of the law, it would appear that it did.

  After Andrew spoke, his colleague Chris Curran began discussing the bill of rights, and how it applied to Lecretia. The Bill of Rights Act guarantees the right not to be deprived of life and not to be subjected to cruel and degrading treatment. But did the right to life mean that an individual was obliged to live at all costs, even if they felt their life had no quality? Did our laws, ostensibly secular, enshrine the religious principle of the sanctity of life?

  During this discussion, Matthew Palmer was asked, as the representative of the Human Rights Commission, for his views on the bill of rights and how it applied to Lecretia’s case. He assured Justice Collins that if he found a breach of rights, the means were there for him to make a declaration. A declaration of this type had never been made in a New Zealand courtroom before, but Matthew Palmer explained that the legislation was clear: if an inconsistency between the bill of rights and the Crimes Act was found, Justice Collins was not only permitted to declare it, he was obliged to.

  Lecretia was listening intently, stimulated by the legal discussion. This was rights law in practice, law making vital contact with the real world, and the courtroom bristled with energy. I followed as closely as I could, but the debate was clearly of greater interest to her, in the way that prior knowledge and learning expands an artwork’s meaning for the observer.

  Finally Andrew Butler drew attention to the deficiencies of palliative care. Lecretia’s prognosis was grim, and, as Michael Ashby had testified, her perfectionist tendencies meant that palliative care was likely to exacerbate her psychological and emotional suffering. Dr Butler pointed out that the Crown’s witnesses and Lecretia’s witnesses all agreed, to varying levels, that palliative care was incapable of addressing all suffering. So what do we do for those people whom palliative care cannot help? Do we stand by and do nothing?

  At the end of the day, Justice Collins adjourned the court, and we took a few moments in the jury room to collect ourselves. Lecretia was relaxed but exhausted as we wound our way to the car park beneath the building. At the exit, a number of photographers and camera crews were gathered, hoping to catch a glimpse of Lecretia in the passenger seat as she was driven away.

  When we got home, we gathered in the living room and watched the news. Lecretia’s case was a lead item. After an early dinner, she went to bed. I joined her later, putting my arms around her as she slept.

  The next day Larry and I once again went to the court early, leaving Lecretia to sleep. The media were still out in force, and the public gallery was full once again. After Andrew Butler finished his arguments, the solicitor-general’s team was invited
to speak.

  The solicitor-general’s case was focused on the purpose and intent of the Crimes Act and the bill of rights. If the law was clarified in Lecretia’s favour, he said, the effect would be equivalent to new legislation. It would destabilise the laws of homicide. He asserted that it was up to parliament to make such a decision, not the High Court. He could foresee a time when assisted dying was legal in New Zealand, but this was not the forum in which that change should be initiated.

  The solicitor-general also suggested that a favourable ruling would place an administrative burden on the courts: would a judge have to preside over every petition for an assisted death? Would there be a number of these cases every year?

  The difference in language was marked: Lecretia’s lawyers talked about aid in dying, and assisted death, while the Crown’s lawyers spoke of assisted suicide and euthanasia. In doing so, they asserted their arguments: for Lecretia’s lawyers, what she was after was not suicide; for the Crown’s lawyers, it was.

  It caught my attention when the Crown mentioned the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Association’s standard criteria used in diagnosing psychiatric disorders, which they noted did not make any distinction between a rational decision to die versus suicide. I knew that Allen Frances, the chairman of the taskforce that had compiled the DSM-IV, the edition which had been in use until 2013, had made several public statements in favour of assisted dying, and I flicked a text to Catherine Marks pointing this out. A rational decision to die is not a mental disorder, so it is no surprise it does not appear in the DSM.

  The Crown also argued that Lecretia was vulnerable, in the sense that all human beings are vulnerable, and that laws designed to protect the vulnerable are there to protect all of us.

  I was glad Lecretia had not arrived in time to hear this. She would have found this argument insulting. Meanwhile, Shirley had texted to say that Lecretia had only got up at around lunchtime, and it was unlikely she would make it into court today.

  In the afternoon the Crown argued that Lecretia had access to the best palliative care available. If she were to suffer, well, that was part of life, and something we all experience. But I’d come to believe that humanity’s role is to shape a better world. To ask, how can this be better? Society is defined by people who question the way things are and come up with new answers. Lecretia’s case represented our quest for a more compassionate world, while the Crown was arguing that the existing one was good enough.

  At home that evening, we watched the news together again. Lecretia had perked up a little, but was now confined to her armchair, moving from there to her wheelchair, and occasionally to a commode that had been provided by the hospice. She was deteriorating quite quickly, and the temozolomide was having no effect.

  On the final day, the Crown finished its arguments and Andrew Butler received a right of reply. Lecretia was unable to attend again that morning. Andrew emphasised the fact that Lecretia faced a cruel choice between a lonely suicide and the possibility of a painful, drawn-out death. The right to life was really about quality of life, and autonomy. Obliging the terminally ill to live in order to protect the rights of others was a wrong-headed interpretation of the law, as no individual should be forced to suffer for the benefit of others.

  The interveners finally got their chance to speak. Kate Davenport, speaking for the Voluntary Euthanasia Society, explained that, in effect, assisted dying was a form of treatment, a medical procedure, and that overseas jurisdictions had effectively legislated as such. If assisted dying was treatment, then the Crimes Act provisions should not apply—as treatment would be neither homicide nor assisted suicide.

  Speaking for the Human Rights Commission, Matthew Palmer asserted that our bill of rights, though not explicitly stating a right to dignity, had dignity as one of its tenets, and that this had been demonstrated in various judgments made in New Zealand courts, including one or two made by Justice Collins. In 2013, in relation to a case regarding the withdrawal of treatment from a patient, Justice Collins had written that the purpose of section 9 of the bill of rights was to ‘ensure that all persons are treated with respect and dignity and not subject to physical or psychological harm through cruel, degrading and disproportionately severe punishment or treatment’.

  The word dignity did not appear in the bill of rights in that clause—in fact the word only appears once in the entire bill of rights, when referring to the treatment of someone arrested or detained—but in using that word Justice Collins acknowledged that it underpinned the document.

  Victoria Casey, for the Care Alliance, described a hypothetical future in which the elderly and disabled were coerced to die, in what seemed to me to be an emotive narrative unsupported by facts or evidence. I was glad Lecretia didn’t have to hear it.

  Andrew was invited to respond briefly to the interveners. Once again he debated the nature of suicide. We heard the example of a soldier throwing himself on a grenade to save his comrades: a life-ending act, but suicide? If that was not suicide, then surely the definition of suicide was arguable? It was a fascinating day.

  Shirley sent me a text to let me know that Lecretia was on her way. She arrived at around 3 pm, in time to hear some of Andrew’s final statements. As he concluded, Justice Collins asked whether he thought that a recent amendment to the Crimes Act regarding vulnerability had some bearing on the case. The amendment had been recommended by the Law Commission. Justice Collins asked whether Lecretia had been involved with that amendment. She had not, but she smiled.

  In closing, Justice Collins turned directly to Lecretia and thanked her for bringing an issue of such public importance to the courtroom. He said she had made a sizeable contribution to rights law in bringing the case. She smiled again, pleased to have been acknowledged.

  He said: ‘It is obviously a matter of extreme importance to you but also is extremely important to the way in which medicine and law are conducted in this country.’ He complimented all the counsel for their submissions, saying that they had been exceptional and that it had been a privilege to listen to them. ‘I only hope that my judgment will ultimately do justice to the quality of those submissions.’

  In the jury room, Lecretia and her lawyers discussed the case. We felt confident. There was something in the way Justice Collins had finished the day that suggested things might go Lecretia’s way. The Crown’s arguments had been tested and in some cases exposed as wanting. There was an air of celebration. The case was over, and some good was certain to come of it. We believed that Lecretia’s moral right to choose was absolute. The question was whether the law could be interpreted in a way that would allow it. We got the sense that Justice Collins might agree that it could.

  Later that night, back at home, I wrote an email thanking the legal team at Russell McVeagh, which said in part:

  Whichever way this case goes, there’s no doubt that this will go down in case law as historic. As a team you have given Lecretia a great honour. I know that a lot of you worked long hours and weekends preparing submissions and evidence, reviewing arguments, interviewing experts and more, and I want to say how profoundly we appreciate all of that work. Andrew and Chris did an exemplary job with their oral submissions, and they were electrifying. I know the reason they were able to do that was because they were supported by a team of passionate solicitors who had worked tirelessly to prepare Lecretia’s case. I hope that in working on my wife’s case you have gained experience that will help you further your own careers, ambitions and lives, and that you found the case interesting and rewarding. It’s the sort of thing Lecretia would have loved to have worked on herself, and the sort of case for which she took up law in the first place.

  If Lecretia had lived in Belgium, or the Netherlands, or Oregon, she would have quietly inquired about being able to end her life if the pain and suffering was too much to bear. She would have made her decision in consultation with her family and her friends. If she’d decided to go ahead, she would have
set a date, without fanfare and fuss, in a way that was consistent with how she had lived her life—privately, and with dignity. Her circumstances would have been uncontroversial: she would have been well within the boundaries of the law in any of those places. She would have had the death she wanted, either with or without assistance, surrounded by her loved ones. Her story would have been of no interest to the media at all.

  But the laws in New Zealand forced her to confront the injustice of her situation. If she could have done it without media attention, she would have. If she’d managed to convince the minister of justice to initiate an investigation, working in tandem with the Law Commission, that would have been enough. If someone in parliament had launched a bill, that might have been enough too. She was a reluctant hero who believed the law was wrong and needed righting.

  Lecretia never denied her privilege, and the fact she’d had a stellar career. She knew that she was fortunate, that on balance her life had turned out well. It kept her humble. But everything she had, she had worked for, a woman succeeding in a male-dominated profession. She had come from a poor family. While others in the law were second or third generation solicitors, went to private schools, had family connections, she had none of that. She was proud of her origins, and proud of her mother and father and the sacrifices they had made for her.