A ‘right to die’ case has recently been widely reported in the British media. New Zealand law is similar to English law on this point and raises interesting ethical issues.

Mrs Diane Pretty, a woman with motor neurone disease who is terminally ill, lost her appeal to the European Court of Human Rights for an order that her husband be able to assist her in committing suicide without the threat of a criminal prosecution.

The law in New Zealand is the same as the law in England in relation to assisting suicide. Although committing suicide has long ceased to be a crime in either country, it remains a crime, punishable by up to 14 years imprisonment, to aid or abet any person in the commission of a suicide.

On the way to the European Court, in rejecting the patient’s application, the House of Lords pointed out that in seeking to rely on European law, her arguments were inconsistent with two principles deeply embedded in English law. The first was the distinction between taking one’s own life by one’s own act and the taking of life with the help of another. The latter is not permitted as a matter of policy, because of the view that ‘the sanctity of life entails its inviolability by an outsider’.

The second is the distinction between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other.

That point was touched upon in a New Zealand case in 1993. Auckland Area Health Board sought clarification from the Court as to whether the doctors in the ICU would have been guilty of culpable homicide in withdrawing the ventilatory-support system, which maintained the breathing and heartbeat of a patient with Guillain-Barre syndrome. The court found there was lawful excuse in discontinuing ventilation when there was no medical justification for continuing that form of medical assistance. It noted that there was a significant difference between hastening the death of a living person who may be terminally ill, and discontinuing a life-support system, which was artificially prolonging the manifestations of ‘life’.

Society preserves the right to refuse to undergo any medical treatment as a matter worthy of protection under the New Zealand Bill of Rights Act 1990. Arguably a patient may thereby be entitled to hasten their own death, by competently refusing treatment, yet it remains a criminal offence to assist in the commission of a suicide.

Ironically, whilst Mrs Pretty has the right to refuse treatment, that is not an option for her because her medication relieves the pain of her condition.

Meanwhile, in the Netherlands, the Euthanasia and Assisted Suicide Act took effect on 1 April 2002. For the first time there is a legal structure regulating when doctor-assisted suicide and euthanasia is permitted. Euthanasia is still punishable in principle, but so long as certain procedures are followed as to ‘due care’, there are exemptions from punishment. The Dutch address the issue by seeking to impose safeguards on abuse of the system. In Mrs Pretty’s case, the European Court noted that the 1961 Suicide Act (UK) was intended to safeguard the protection of life, and to build in exemptions would greatly increase the risk of abuse.

The law relating to assisted suicide is ultimately a question of public policy. It seems the Dutch have decided that the sanctity of life does not entail its inviolability by an outsider, and a patient in pain is entitled to end their own life, whether or not they are able to do so alone or with the help of others. Supporters of Mrs Pretty are seeking to persuade the government to change the law. Such a change would require an acknowledgement of a shift in deeply embedded ethical beliefs. It will be interesting to see if a sad case can lead to change, and whether such a change will be mirrored by other countries which share common legislation.

This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.

For further information contact Neil Beadle, senior associate:
neil.beadle@phillipsfox.com

Copyright Phillips Fox, 2002

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