Lecretia's Choice

by Matt Vickers

  Instead we explored the seal colony at the promontory at the end of the township. We ate crayfish at a roadside stall, and then stopped at a winery for lunch. Lecretia gingerly found her way to the only free table, in the far corner of the restaurant. I sat to her left, where she couldn’t see me, but which allowed her to see the waitstaff approaching and the other people in the restaurant.

  After lunch, Lecretia spent longer in the bathroom than I’d expected, and time got away from us. We were going to struggle to get to Christchurch airport on time. We arrived very late, beyond the advertised check-in time, and despite Lecretia’s protests I secured a wheelchair for her and ran through the airport to the departure gate pushing her in front of me. It must have looked like I was giving her a joyride. I was thoroughly stressed about the whole thing: I am not one of those people who can abide rushing for flights, and we very nearly missed it.

  Once seated in the plane, Lecretia turned to me, smiling mischievously, and said: ‘See? Nothing to worry about.’ To this day I think she always wanted to miss that flight and get another chance to see the whales.

  When we returned, Lecretia resumed discussing the case with Andrew Butler. Until then he hadn’t committed to taking it on, but she was doing her best to convince him. Part of his hesitation was the fact that he was a Catholic. It perplexed me too—why did Lecretia want a Catholic to lead her case? But she was convinced he was the best lawyer for the job.

  After Kaikoura, Andrew was able to see how committed she was, and he agreed to propose it to the other partners at Russell McVeagh to get their support. Though Lecretia and I would pay part of the cost, the bulk of the case would be pro bono and funded by the law firm. The cost of a High Court case generally runs into hundreds of thousands of dollars, so it was no surprise that the partners were hesitant to take it on.

  However, when Mai Chen, Lecretia’s former employer at Chen Palmer, expressed interest in taking the case, the decision became an easier one for the partners at Russell McVeagh to make. Taking on a pro bono case was one thing, but losing the opportunity to take on a high-profile pro bono case to a rival law firm was quite another. After Lecretia let Andrew know about Mai’s interest in the case, he got back to her quickly to say that the partners were now fully supportive and explain how he saw things going ahead. He proposed a timeline and a figure for our financial contribution, and gave Lecretia and I time to talk it over.

  Lecretia sent him a short email the next morning, with the subject line ‘Let’s go’:

  Hi Andrew,

  I just wanted to confirm that I’d like to go ahead with proceedings in the way we discussed yesterday.

  On 13 March 2015 he accepted instructions to take the case to the High Court, and to file a statement of claim about Lecretia’s right to have a doctor assist her to die.

  Lecretia was still very independent, rejecting assistance except where there was a tacit agreement that I would help: getting dressed, cooking, helping her up to the car and in and out of it. When I tried to help in a new way, she was always resistant; I suppose each additional thing she wasn’t able to do was a cause for concern.

  But there were times when she took a tumble. Sometimes she’d try getting up by herself, or moving from one room to another. In our home was a short, narrow hallway, and with the left side of her vision not working, she would find herself bumping into the left-hand side of the corridor, or into the left-hand side of a doorframe. She was prone to falling through them.

  On one particular night in March, Lecretia was in the hallway. She spotted Ferdinand at the other end and sang to him as she often did. He blinked at her in the way that cats do. She turned to her left and clipped her nose on the door, lost her balance and fell into the living room, landing with a thump on the floor. Blood started gushing from a cut on the side of her nose, making a thick red puddle on the carpet. I was cooking in the kitchen. Hearing her fall I rushed in to see her curled up in a foetal position, the blood pooling around her head. She was whimpering and crying.

  I knelt at her side and tried to lift her, but whether through shock or weakness she didn’t want to move.

  ‘Oh babe, what did you do?’

  ‘I fell.’

  ‘I’ll get you something, hang on.’

  I went and got a damp cloth, then propped her up in a sitting position and held the cloth to her nose. The cut was only small, but it produced a lot of blood, and she complained of it hurting. As she never complained, I was worried. In a little while she gathered the strength to let me help pick her up, and I got her to the couch. These falls were becoming more frequent.

  Every morning, she did floor exercises, trying to build up her strength. She stretched her legs and her arms and did sit-ups. And she used to get herself up by pushing her good arm against the side of the couch. But not any more. If she fell, she was helpless.

  Could my wife, so diminished, so helpless, really face a court case and everything that went with it?

  Once we’d decided to file a claim in the High Court, Cate started to brief journalists. I set up a Facebook page called Lecretia’s Choice and posted a link to Rebecca Macfie’s January Listener article. Within a couple of hours I had a few hundred likes. The social media campaign had begun.

  The team at Russell McVeagh consisted of Andrew Butler, the lead counsel, Chris Curran, a smart young human rights lawyer, and Lecretia’s friend and former colleague from Chen Palmer, Catherine Marks. Russell McVeagh set out two claims. The first was that the Crimes Act did not prohibit a doctor from helping Lecretia to die. Suicide in New Zealand is not illegal, but aiding and abetting of suicide is, with a maximum jail term of fourteen years. This claim leaned on the fact that there is no definition of suicide in the New Zealand Crimes Act, and that what Lecretia wanted the right to do did not constitute suicide, and therefore a doctor helping her would not be breaking the law. The other argument this claim relied on was that the doctor’s intent would be to end suffering, not to take a life.

  There had never been a case like it in New Zealand, and it was unusual in that it was a priori, or before the fact. Lecretia was attempting to ascertain the legality of an act bringing about the end of her life before the act had taken place. Most court cases in New Zealand that had dealt with the legal definitions of assisted suicide or murder took place after those events had happened. It was only then, with one life lost, and another potentially ruined, that the bounds of those definitions were tested.

  Though no doctor in New Zealand had been charged with helping a consenting patient to die, there had been cases in New Zealand of family members assisting their terminally ill or suffering relatives to end their lives. Lesley Martin, a former nurse, famously helped her mother to die by injecting her with a lethal dose of morphine in 1999. She was investigated at the time, but no charges were laid until three years later, when she published a book, To Die Like a Dog, in which she bravely gave details of her role in her mother’s death. She was arrested, tried and sentenced to fifteen months of home detention.

  Professor Sean Davison helped his mother, Pat, to die in 2006. His mother, a doctor, had given her son instructions on the right medication to provide her to end her life, and after much soul-searching, he agreed to do so. He was sentenced to five months of home detention. After he was freed, he left for South Africa, where he founded DignitySA and began campaigning for assisted-dying law changes there.

  Evans Mott helped his wife Rosie to die in 2011. She suffered from multiple sclerosis. He helped her procure the means to end her own life, and on her instructions he left the house while she did so. Mr Mott was arrested and prosecuted but discharged without conviction.

  In each of these cases the judiciary showed a certain leniency, giving light sentences or no sentence at all because the defendant was motivated by compassion—but could a doctor be successfully prosecuted for assisting the death of a patient in Lecretia’s specific circumstances, if they had the consent of that patient and the intent was to curtail the suffering of that pat
ient? Lecretia intended to test this in the courts.

  Lecretia’s second claim was that the Crimes Act—if it did imply that a doctor helping her to die could be successfully prosecuted—infringed the rights granted to her under New Zealand’s bill of rights, specifically the right to life. The argument was that Lecretia, denied the right to an assisted death, would have to consider taking her own life early, without assistance, and while she still could. She also had the right not to be subjected to cruel, degrading or disproportionately severe treatment, which the lack of assisted-dying laws essentially forced her to undergo. If the High Court found that the Crimes Act was inconsistent with New Zealand’s bill of rights, it would, Lecretia hoped, prompt parliament to legislate to remove the inconsistency—which was what had happened in Canada.

  The first claim would be tough to win, but it was Lecretia’s only real hope. If the judge ruled that a doctor wouldn’t be prosecuted, then Lecretia’s GP could safely help her to die—if she requested it. Winning the second claim wouldn’t help Lecretia, as any changes to the law would come too late for her, but it would advance the debate in New Zealand by years, if not decades.

  Cate and I drafted a press release outlining the claims. Lecretia wrote and sent the following email off to her old employer.

  Dear Prime Minister,

  I was your justice adviser in the Policy Advisory Group for a few months in 2010.

  Shortly after leaving the Department of the Prime Minister and Cabinet, I was diagnosed with terminal brain cancer.

  I am writing to let you know that I am filing High Court proceedings later today against the attorney-general for a declaration that the Crimes Act 1961, when interpreted consistently with the New Zealand Bill of Rights Act 1990, does not make physician-assisted dying illegal for those who have an irremediable medical condition and are suffering intolerably. A recent judgment of the full Canadian Supreme Court gives me cause to think I may be successful.

  Alternatively, my counsel, Andrew Butler, will advocate for a declaration that the relevant Crimes Act provisions are inconsistent with the Bill of Rights Act. The courts have never made a declaration of inconsistency before, but this could be the first one!

  I wanted to forewarn you, as there is likely to be media interest in the case.

  Kind regards,

  Lecretia Seales

  As Lecretia was preparing to file her statement of claim, I was preparing to return to Vancouver for a week to resume my leadership course. As I boarded my flight, a lawyer from Russell McVeagh was walking down Lambton Quay to deliver documents to the High Court in Wellington, and Cate was sending our press release out far and wide. On the plane I picked at airline food and watched movies, stories about superheroes and wronged men and dystopian futures. I couldn’t sleep. I sensed something big was about to happen. And Lecretia, my incredible wife, was compelling me to step up, to change in ways I’d never expected, so that I could be the husband she needed me to be for whatever came next.

  Chapter 17

  IN VANCOUVER, WHILE I waited in the long line to clear passport control, I turned on my phone for the first time in fourteen hours and glanced at the screen. Notifications fired in from multiple sources: emails, Twitter, Facebook, and other applications long since forgotten.

  Lecretia’s face was on the front page of every major newspaper in the country. The two major television networks were running stories. The radio stations were expanding on the news at every hourly bulletin. Lecretia was suddenly famous: for being terminally ill, for wanting to have a choice about how she died, for taking her case to the High Court.

  It was a strange feeling. Lecretia had always been an advocate for law reform and someone who had debated for justice for others. But in filing her statement of claim, Lecretia had become an actor, not merely an advocate, and she was centre stage. She would be judged, her motivations questioned, her ideas challenged. My wife and her circumstances had become a national talking point, and everyone had an opinion. John Key had not replied to Lecretia’s email, but he now authorised a statement to the media: ‘The prime minister is aware of Ms Seales’ illness and his thoughts are with her at this difficult time.’

  In late March I returned from Canada and was reunited with Lecretia. I was excited to see her. I embraced her and kissed her as though I’d been away for much longer. I was proud of what she had done. She was happy too, and looking forward to the court case. The team at Russell McVeagh had begun assembling evidence from experts all over the world and preparing Lecretia’s affidavits.

  But I was shocked by her decline. She was walking nowhere near as well as when I left her, just a week earlier, and her speech had taken on a slur. Her left hand hung uselessly at her side. But if the changes were obvious to me, they did not appear to be obvious to her, as her humour and spirit remained undiminished. If she knew that her health was deteriorating, she wasn’t letting on.

  As the case drew closer, I wondered whether she was up to the challenge she had set herself. I was still unsure about Andrew Butler too. As a Catholic, could he suspend his beliefs and run this case? My question, which I posed to Tim Clarke, partner at Russell McVeagh, was a simple one.

  ‘Is Andrew more Catholic than lawyer?’

  A lawyer’s job, Tim explained, is not to agree or disagree with the client but to mount the best case possible on the client’s behalf. What Andrew believed was irrelevant: his job was to advocate, to speak for Lecretia, and not to advance his own agenda. It was fascinating, but the contradiction between what Lecretia wanted and what Andrew’s faith taught and believed was a source of concern for me.

  Then I thought about Christopher Finlayson, the New Zealand attorney-general, the man Lecretia was symbolically taking to court as the Crown’s representative. The man was a devout Catholic, but also gay. He has been reported as describing himself as an ‘odd fish’. Clearly some Catholics were comfortable living with contradiction and balancing the demands of their faith with the real world. Maybe Andrew was capable of this too.

  As Lecretia engaged more with the media, she strived to remain as neutral as possible, siding with no political party, as the issue of assisted dying, based on the polls we’d seen, had broad popular support. The Labour Party had been more active in advocating for assisted dying in the past, but the National Party was now in power with twice the support of its rival and no change would happen without them. If we made it a National issue or a Labour issue, people might turn against it, whether they believed in it or not. Although Labour and National had been fighting over the centre for decades and there was no longer much discernible difference between them, there was still a lingering tribalism among their supporters.

  Lecretia and I went home to Tauranga for Easter for Lecretia’s forty-second birthday. Her brother Jeremy, now in Auckland, came down for the weekend with his wife, Kate, and son, Rafferty. Kat and her new husband, Andrew, also joined us. Lecretia had resumed chemotherapy a few days prior, and it was knocking her around. She spent a lot of time resting on her parents’ couch at their home, without saying much. She smiled when four-year-old Rafferty entered the room, but he was now a little scared of his aunt, whose physical decline was becoming more obvious. It must have broken Lecretia’s heart. She would have dearly loved to scoop him up in a hug and hold him to her.

  That weekend I wrote my first post for Lecretia’s blog, describing our weekend in Tauranga together. I published it and monitored the traffic in real time as it circulated through the social media networks. The issue was touching people. Michael Laws, former Labour MP, and architect of the first assisted-dying bill in 1995, made supportive comments on Lecretia’s Facebook page, along with Don Brash, the former National Party leader. Helen Kelly, a staunch left-wing employee rights advocate who ran the Council of Trade Unions, suffering from terminal cancer herself, publicly shared her support. Right-wing blogger David Farrar backed Lecretia’s efforts on his blog. Chris Trotter, a left-wing political commentator, wrote a long endorsement of Lecretia’s le
gal challenge, calling her ‘brave and deeply ethical’. Other comments were made by Jackie Blue, a former National MP, and Lianne Dalziel, a former Labour MP and now mayor of Christchurch. It was truly an issue that crossed political boundaries. It boiled down to one essential question: what rights does an individual have to choose?

  Opposition to Lecretia’s campaign was mobilising too. Shortly after the statement of claim was filed, a group called the Care Alliance declared their intention to intervene in the case. The Care Alliance was made up of palliative care groups (Hospice New Zealand, the Australian and New Zealand Society of Palliative Medicine, the New Zealand Health Professionals Alliance, and Palliative Care Nurses New Zealand), Christian groups (Lutherans for Life, the Salvation Army, the Nathaniel Centre, and the Christian Medical Fellowship), and lobby groups (Family First New Zealand, a politically organised anti-progressive movement founded by a former Christian radio broadcaster, Bob McCoskrie; Euthanasia-Free NZ, a purportedly secular group that ran many fear-mongering events in Catholic venues; and Not Dead Yet Aotearoa, a disability rights group that had its roots in the United States).

  The Care Alliance claimed it represented both faith-based and secular groups, but it was not hard to see its conservative Christian streak. Both hospices and palliative care have their roots in religion, and the leadership of hospices today tends to be assumed by people of faith. The proportion of practising Christians in palliative care and hospice care is far higher than in any other area of medicine—demonstrably true in Australia, anecdotally true in New Zealand. In fact, much of the practice around our end-of-life care is rooted in the application of dogmatic Christian values, whether those same values are held by the patient or not.

  Though Lecretia was annoyed by the intervention, it wasn’t unexpected. There had been similar challenges in Canada and in other cases overseas. While neither of us was a Christian in the churchgoing sense, Lecretia and I both sought a relationship with the divine that was personal and unfiltered through organised religion. We believed in good and evil, but we both believed that context meant everything. A dying patient seeking mercy is very different from a patient being put to death against their will—but as we saw it, the law and the Christian values that underpinned it did not reflect that subtlety, a subtlety we believed that a merciful God was more than capable of.