Justice an elusive concept

DIFFICULT JUDGMENT: Lecretia Seales went to the courts to try to end her life quickly with the assistance of a doctor while suffering terminal cancer.PHOTO/FILE A-200315SPLLECRETIA1

THE tragic - yet in some ways magnificent - recent case of Lecretia Seales has well and truly pushed the envelope of the judicial agenda on assisted suicide. Lecretia challenged us to further explore contentious issues that cut to the very nub of boundaries between personal choice and collective responsibility.

It is interesting that some of the debate has been couched in the context of justice. With her own considerable expertise in the profession, Lecretia argued that current legislation proscribing assisted suicide abnegated her rights as defined by the Bill of Rights Act. Of course the problem here is that any health professional assisting the suicide would be culpable under the Crimes Act.

But justice is a highly elusive concept in adjudicating the complexity of euthanasia issues - matters perhaps more in the moral and/or ethical domain. Legislating in these areas involves traversing a veritable minefield of competing interests - a terrain that Justice Collins chose to sidestep altogether. The devil, as they say, is in the detail - and what devilish details there are.

Take what is presently referred to as The Dutch Debate.

The Netherlands was the first country to legalise euthanasia, coming into effect in 2002. Many conditions have to be met in order to qualify: the patient must repeatedly ask to die; two doctors have to agree in writing that euthanasia is justified; and a post-mortem panel of a doctor, a jurist and an ethical expert have to confirm all legal requirements are met. Although the 2002 law allowed that advanced psychological pain could justify euthanasia, its main thrust was as a response to extreme physical duress.

However, recent years have seen a significant increase in cases where the psychological aspect has predominated. In other words, physical suffering wasn't at issue - it was solely the individual's perception that they were in the grip of extreme psychological pain remediable only by death. And the statutory arbiters have agreed, and the assisted suicide duly facilitated. These include the cases of a 63-year-old unattached man who - recently retired - who simply considered he had nothing to live for, and a 35-year-old woman with a history of clinical depression.

Like Lecretia, they wanted the choice of an assisted suicide. But unlike Lecretia, both these individuals desired it for purely psychological reasons, and their wishes were granted.

The question is, should they have been? And it is a question that is causing even the Dutch much unease. Is it the slippery slope that many have averred would inevitably occur with any form of euthanasia legalisation?

Assisted suicide has a long history in contexts outside formal legal jurisdiction, such as in traditional Inuit communities.

But in more recent times, a 2003 Dutch study published in the British medical journal The Lancet and based on more than 20,000 deaths registered in six countries (Belgium, Denmark, Italy, the Netherlands, Sweden and Switzerland), contained telling observations. It found that roughly half the deaths under medical supervision involved doctors making end-of-life decisions to palliate patients' suffering before death - decisions such as withholding life-prolonging treatments or prescribing drugs that ease pain but possibly hasten death.

Anecdotally, many would assert that New Zealand's statistics in this regard are not too dissimilar. In other words, we - with many others - already have a regime of tacit extra-judicial, yet nevertheless de facto, assisted termination for humanitarian reasons. Given that about half of the deaths reviewed in the Dutch study concerned patients aged 80 or over, one could also reasonably speculate that patients' extremis conditions sometimes created a context of tacit assisted suicide.

The term euthanasia derives from Greek meaning "easy death". The intentions are good, but the hard part is in getting the balance right in any formal legal codification, as the Dutch themselves are now finding.

Frank Greenall has a master's degree in adult literacy and managed Far North Adult Literacy before moving to Wanganui.