Thursday, June 18, 2015

Karl du Fresne: Collins got it right, but received no thanks for it


Justice David Collins drew the short straw when he was assigned to hear Lecretia Seales’ case seeking the right to die at a time of her own choosing. He made the correct decision, ruling that it was for Parliament, not the courts, to change the law relating to assisted suicide.

He explained his decision in a thorough, carefully reasoned 55-page judgment. That he produced this document in a matter of days, hoping to deliver his decision before Seales died (which he did), was no small achievement.
He was under immense pressure, not only in terms of time but because whatever decision he made was bound to provoke an intense reaction. Few judges have presided over a more emotional case.

But Collins has been given precious little credit. Some media portrayed his decision as cold and heartless, when in fact he was at pains to express sympathy for Seales’ predicament.

TVNZ’s coverage, in particular, was disgracefully loaded. Of all media, state-owned broadcasters have a particular obligation to be balanced and objective. But TVNZ adopted a partisan and emotive tone, portraying Seales as having been cruelly denied her dying wish.

Her family, colleagues and friends could be excused their extreme disappointment. She was clearly loved and admired, and those closest to her had been through an emotional wringer.

Seales’ husband, Matt Vickers, told reporters of his wife’s deep hurt at being told of Collins’ decision. “Her reaction utterly broke my heart,” he said at a crowded press conference. 

There was a reproachful note in his statement, as if Collins had failed a dying woman. In fact he had done exactly what judges are supposed to do – interpret the law without fear or favour.

But it’s scarcely surprising that Vickers felt strongly. He had just lost a wife. He was grieving. 

Journalists have no such excuses. We expect them to report issues fairly and dispassionately.

We are entitled to expect thoroughness too, especially when an issue has commanded public interest as the Seales case did. But there was remarkably little reportage of Collins’ reasoning. It became almost incidental to the main story.

It was far easier, apparently, to go for emotional impact – to wring every ounce of sentiment from the family’s reaction, even if the public was left wondering why the judge ruled the way he did.

Suffice it to say that Collins’ judgment illustrates the daunting complexity of the issues. The questions Seales asked the court to determine were profound and potentially far-reaching. 

On a central issue in the case – namely, whether palliative care allows people to die with dignity and free of pain – experts on each side presented diametrically opposed views. When even professionals can’t agree, what’s a judge to decide?

But Collins picked his way through the tortuous legal and ethical minefield and came to the only sensible decision: that it’s for Parliament, the ultimate court in the land, to determine whether doctors should be permitted to assist in the death of terminally ill patients.

This will have disappointed those who believe courts should take an activist role in making law rather than merely interpreting it. But this case wasn’t just about Seales.

It had far broader implications, as Collins would have been keenly aware. He would have been entitled to feel uneasy about creating a precedent that could be applied in cases where terminally ill patients weren’t in command of their faculties as Seales obviously was. 

Part of his decision deals with the need to protect vulnerable people from being induced to commit suicide. Advocates of euthanasia and assisted suicide insist there can be safeguards against this happening, saying that doctors would have to be satisfied that the person genuinely wanted to die.

But how much faith can be placed in those assurances? After all, the abortion laws require two certifying consultants to satisfy themselves that a pregnant woman’s mental health would be endangered if she gave birth – but history shows that obtaining approval for an abortion is a rubber-stamp process. 

Would assisted suicide or euthanasia be any different? If a life in the womb can be extinguished so easily, why should clinicians feel any differently about one that is nearing the end of its course?

Collins prudently and properly decided that such questions are not to be determined by non-elected judges. 

His decision may have come as a bitter disappointment to Seales and her supporters, and it  certainly seems to have upset TVNZ's editors. But it was constitutionally correct.


Karl du Fresne blogs at karldufresne.blogspot.co.nz. This article was first published in The Dominion Post.

1 comment:

Robyn Bridgman said...

Good Afternoon Mr. du Fresne,
Thank you for your erudite summation of the Judge's findings in the Seales case. Unfortunately for her she did not get her wish, but if she really wanted to die, she could just have stopped eating. It has been done before and she probably would have been given some sort of sedation. From what I have read, there are horrendous cases of lives being taken unlawfully in other countries, because someone thinks that is the best option, regardless of whether the (old or infirm) person wishes it. Anyway you have written a brilliant piece and I wish all people would read, mark learn and understand it.
Thank you,
Robyn Bridgman (frbridgman@xtra.co.nz