You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2017 >>
[2017] NZBORARp 48
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
End of Life Choice Bill (Inconsistent) (Sections 5, 19) [2017] NZBORARp 48 (10 August 2017)
Last Updated: 8 January 2019
J.4
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the End of Life Choice
Bill
Presented to the House of Representatives pursuant to Section 7 of the New
Zealand Bill of Rights Act 1990 and Standing Order 265
of the Standing Orders of
the House of Representatives
- I
have considered whether the End of Life Choice Bill (‘the Bill’), a
member’s Bill in the name of David Seymour
MP, is consistent with the
rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990
(‘the Bill of Rights Act’).
- I
have concluded that the Bill appears to be inconsistent with s 19 (freedom from
discrimination) in respect of age and cannot be
justified under s 5 of the Bill
of Rights Act. As required by s 7 and Standing Order 265, I draw this to the
attention of the House
of Representatives.
- I
have also considered the consistency of the Bill with ss 8 (right not to be
deprived to life), 13 (freedom of conscience), and 14
(freedom of expression)
and have concluded that the Bill is consistent with those rights and
freedoms.
Introduction
- Assisted
dying is an issue on which philosophical, moral, religious, ethical and clinical
views are divided. My report relates to
the legal question of the Bill’s
consistency with the Bill of Rights Act. Social and moral considerations raised
by the Bill
are matters for Parliament.
- There
have been two previous private members’ bills on the subject of assisted
dying drawn from the ballot. The first was the
Death with Dignity Bill 1995,
introduced by Michael Laws MP on 2 April 1995. The second was the Death with
Dignity Bill 2003 (‘the
2003 Bill’), introduced by Peter Brown MP on
6 March 2003.
- The
then Attorney-General, Hon Margaret Wilson, concluded that the 2003 Bill
contained provisions that appeared to be inconsistent
with ss 8 and 14 of the
Bill of Rights Act.1 As required by s 7 and the
Standing Orders, she drew this to the attention of the House of
Representatives.2
- The
2003 Bill was, in many respects, similar to the current Bill. Like the current
Bill, it contained comprehensive procedural safeguards.
However, one significant
difference was that it provided for an “advance directive”, whereby
a person could outline the
medical or surgical procedures he or she wished to be
followed should he or she become incompetent to make, or incapable of
communicating,
a treatment decision. This process did not have the same
procedural safeguards as a request for contemporary assistance in dying.
For
this reason, the Attorney-General considered that the advance directive regime
was inconsistent with the right not to be deprived
of life in s 8 of the Bill of
Rights Act.
The Bill
- The
objective of the Bill is set out in the explanatory note under the heading
‘Purpose’:3
This Bill gives
people with a terminal illness or a grievous or irremediable medical condition
the option of requesting assisted dying.
1 The finding of inconsistency in respect of s 14 is
irrelevant for present purposes, and is not discussed further.
2 The report is available at www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/bill-of-
rights-compliance-reports/section-7-reports/
3 Explanatory note, p1.
The motivation for this Bill is compassion. It allows people who so choose,
and are eligible under this Bill, to end their lives in
peace and dignity,
surrounded by loved ones.
The Bill carefully defines those eligible for assisted dying, details a
comprehensive set of provisions to ensure this is a free choice,
made without
coercion, and outlines a stringent series of steps to ensure the person is
mentally capable of understanding the nature
and consequences of assisted
dying.
- Put
another way, the objective of the Bill is to allow people suffering intolerably
with a terminal illness, or grievous or irremediable
medical condition, to make
a free and informed decision to end their suffering and maintain their dignity
through assisted dying.
- Given
the importance of the subject matter, I set out the process in the Bill in some
detail. To be eligible for assisted dying, a
person
must:4
- 10.1 be aged 18
years or over
- 10.2 be a New
Zealand citizen or permanent resident
- 10.3 suffer
from a terminal illness likely to end their life within six months or have a
grievous and irremediable medical condition
- 10.4 be in an
advanced state of irreversible decline in capability
- 10.5 experience
unbearable suffering that cannot be relieved in a manner that he or she
considers tolerable, and
- 10.6 have the
ability to understand the nature and consequences of assisted dying.
- If
a person tells a medical practitioner (‘the attending medical
practitioner’) that he or she wishes to have the option
of assisted dying,
the medical practitioner must:5
- 11.1 inform the
person of the prognosis for the terminal illness or grievous and irremediable
medical condition, and the irreversible
nature and anticipated impacts of
assisted dying
- 11.2 talk to
the person about his or her wish at intervals determined by the progress of his
or her condition
- 11.3 ensure
that the person understands his or her options for end of life care
- 11.4 ensure
that the person knows that he or she can change his or her mind at any time
- 11.5 encourage
the person to talk about his or her wish with others, such as family, friends,
and counsellors, and ensure that the
person has had the opportunity to do so
4 Clause 4.
5 Clause 8.
11.6 ensure that person knows that he or she is not obliged to talk to anyone,
and
11.7 do his or her best to ensure that the person expresses his or her wish free
from pressure from any other person by talking to
other health practitioners who
are in regular contact with the person and members of the person’s family
approved by the person.
- If
the person still wishes to proceed, the medical practitioner must then decide
whether the person is or is not eligible for assisted
dying, or would be
eligible for assisted dying if his or her competence was established by a
psychiatrist or psychologist (“a
specialist”).6
- If
the medical practitioner reaches the opinion that the person is eligible, or
would be eligible if his or her competence was established
by a specialist, the
practitioner must get a second opinion from an independent medical practitioner
identified by the Support and
Consultation for End of Life in New Zealand
(‘SCENZ’) Group.
- The
independent medical practitioner must read the person’s file and examine
them to decide whether the person is or is not
eligible, or would be eligible if
his or her competence was established by a
specialist.7
- If
one or both medical practitioners consider that the person would be eligible for
assisted dying if his or her competence was established
by a specialist, the
practitioners must jointly get an opinion from a specialist identified by the
SCENZ Group. The specialist must
read the person’s file and examine them
to decide whether or not the person is competent.8
- If
either of the medical practitioners decides that the person is not eligible for
assisted dying, or if the specialist decides that
the person is not competent,
the practitioner or specialist (whichever is applicable) must explain the
reasons for that decision
to the person.9
- At
each stage, the actions taken and decisions reached must be recorded using a
prescribed form and sent to the Registrar (assisted
dying) and any prior
decision makers.
- If
both medical practitioners decide that the person is eligible for assisted dying
(and a specialist decides that the person is competent,
if applicable), the
attending medical practitioner must:10
- 18.1 tell the
person that he or she is eligible for assisted dying
- 18.2 discuss
the progress of the person’s terminal illness or grievous or irremediable
medical condition with the person
- 18.3 discuss
the likely timing of the assisted dying with the person, and
6 Clause 10.
7 Clause 11.
8 Clause 12.
9 Clause 13.
10 Clause 14.
18.4 make provisional arrangements to be available to administer the medication
at that time.
- Once
found eligible, if the person tells the attending medical practitioner that he
or she wishes to exercise the option of receiving
assisted dying, the
practitioner must ask the person to choose from several methods of administering
a lethal dose of medication,
choose a time at which it is to be administered,
and ensure that the person understands that he or she can change his or her mind
at any time.11
- At
least 48 hours before the time chosen for administering the medication, the
attending medical practitioner must write the prescription
and provide it to the
Registrar (assisted dying) and advise the Registrar of the method and time
chosen for administration. The Registrar
must check that the preceding steps
have been complied with and, if they have, co-sign the
prescription.12
- At
the chosen time, the attending medical practitioner must ask the person if he or
she chooses to receive the medication. If the
person does, the medication is
administered by the chosen
method.13
Inconsistency with s 19 (freedom from discrimination)
- Section
19(1) of the Bill of Rights Act affirms that everyone has the right to freedom
from discrimination on the basis of age, commencing
at the age of 16
years.14 While age limits of any kind are likely to
involve a degree of arbitrariness, Parliament has chosen 16 as the starting
point for
discrimination on this basis.
- The
key questions in assessing whether there is a limit on (breach of) the right to
freedom from discrimination are:15
- 23.1 does the
legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act
and, if so,
- 23.2 does the
distinction involve disadvantage to one or more classes of individuals?
- The
eligibility criteria in the Bill include the requirement that the person be aged
18 years or over. This prima facie limits the right to freedom from
discrimination on the basis of age in respect of 16 and 17 year-olds. Put
another way, 16 and 17
year- olds are disadvantaged vis-à-vis those aged
18 and over because they are ineligible for assisted
dying.16
- A
provision limiting a particular right or freedom may nevertheless be consistent
with the Bill of Rights Act if it can be considered
reasonable and justified in
terms
11 Clause 15(1) – (3).
12 Clause 15(4) – (6).
13 Clause 16.
14 Section 19(1) Bill of Rights Act and s 21(1)(i)
Human Rights Act 1993.
15 See, for example, Atkinson v Minister of
Health and others [2010] NZHRRT 1; McAlister v Air New Zealand [2009]
NZSC 78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT
31.
16 This issue did not arise with the 2003 Bill,
which had no age criterion.
of s 5 of that Act. The s 5 inquiry was summarised by the Supreme Court in
R v Hansen as follows:17
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
Is the objective sufficiently important?
- The
objective of the requirement that the person be aged 18 or over appears to be to
ensure that the person is mature enough to understand
their prognosis and the
nature and consequences of assisted dying. This objective is sufficiently
important to justify some limitation
on the right to freedom from discrimination
on the basis of age.
Is there a rational connection between the limit and the
objective?
- For
the reasons that follow, I do not think there is a rational connection between
the objective (ensuring that the person is sufficiently
mature to understand
their prognosis and the nature and consequences of assisted dying) and the limit
(restricting eligibility to
those aged 18 or over).
- I
acknowledge there is a wide range of minimum ages in legislation. For
example:
- 28.1 the age of
majority for all purposes of the law is reached at 20 (s 4 Age of Majority Act
1970)
- 28.2 the age at
which a person can consent to sexual intercourse is 16 (s 134 Crimes Act 1961
(which makes it an offence to have sexual
conduct with a person under the age of
16))
- 28.3 the age at
which a person can be registered to vote is 18 (ss 3 (definition of adult) and
74 Electoral Act 1993), and
- 28.4 the age at
which a person can purchase alcohol or tobacco is 18 (s 5 (definition of
purchase age) Sale and Supply of Alcohol
Act 2012 and s 30 Smoke-free
Environments Act 1990).
- I
think the closest analogy to assisted dying is the age of full consent to
medical treatment and other decisions that concern bodily
integrity. Under the
Care of Children Act 2004, a child of or over the age of 16 can consent, or
refuse to
17 Hansen v R [2007] NZSC 7 at
[121].
consent, to medical treatment as if they were of full
age.18 There is also a common law principle, set out in
Gillick v West Norfolk and Wisbech Area Health
Authority,19 that a child under 16 years is able to
consent to medical treatment if he or she is mature enough to fully understand
what is proposed.
- I
am not aware of any evidence that the age of 18 is a suitable proxy for maturity
and competency to consent to assisted dying.20 Indeed,
it seems unnecessary to use age (or anything else) as a proxy given the
Bill’s other safeguards to ensure that the
person is in fact competent to
make the decision. Age tends to be used as a proxy for maturity in situations
where it would be impracticable
to assess maturity on an individual basis
(usually because of volume), which is not the case here. For this reason, I do
not consider
that there is a rational connection between the limit and the
objective.
- The
lack of rational connection may reasonably be considered a threshold issue which
itself results in a conclusion of inconsistency
with the Bill of Rights
Act.21 However, I consider it beneficial for this
analysis to also address the tests of minimal impairment and due
proportionality.
Does the limit impair the right no more than reasonably
necessary to achieve the objective?
- The
minimal impairment inquiry concerns whether the objective might sufficiently be
achieved by another method involving less cost
to the right in
question.22 In my view, setting the age of eligibility
at 18 is not the least restrictive means necessary to achieve the objective.
People mature
at different rates and the least restrictive means to achieve the
objective of ensuring competence is to assess each person individually
(it not
being impracticable to do so in the circumstances).
- In
my view, the primary purpose of the Bill could be sufficiently achieved with
less cost to the right to be free from discrimination
by reducing the age of
eligibility to 16 (because s 19 is only engaged after the age of 16), or by
removing the age criterion altogether
and relying on the other criteria and
safeguards to ensure competence.
Is the limit in due proportion to the importance of the
objective?
- Because
I have concluded that the age criterion is not the least restrictive means
necessary to achieve the objective, I cannot conclude
that it is in due
proportion to the importance of the objective.
Conclusion on the right to be free from discrimination on the
grounds of age
- The
requirement that a person be 18 or over to be eligible for assisted dying limits
the right to freedom from discrimination on the
basis of age. I do not think
this
18 Section 36 Care of Children Act
2004.
19 Gillick v West Norfolk and Wisbech Area Health
Authority [1985] UKHL 7; [1985] 3 All ER 402.
20 The same conclusion was reached by the
Attorney-General, Hon Dr Michael Cullen, in respect of the Human Tissue (Organ
Donation) Amendment
Bill 2006. In that Bill it was proposed to limit
registration to donate organs to those aged
18 years or over. The s 7 report on the Bill is available from the website in
n 2 above.
21 Hansen, above n 17, at [121].
22 Hansen, above n 17, at [126].
limitation can be justified under s 5 because it is not rationally connected
to the objective of ensuring that the person is competent
to make the decision
to end their life (there being no evidence that 18 is a suitable or necessary
proxy for competence). The Bill
could be made compliant with s 19 by reducing
the age of eligibility to 16, or by removing the age criterion altogether and
relying
on the other criteria and safeguards to ensure competence.
- As
drafted, however, I think the Bill appears to be inconsistent with the right to
be free from discrimination on the grounds of age
affirmed in s 19(1) of the
Bill of Rights Act.
Consideration of consistency with other sections of the Bill of Rights
Act
Section 8 – Right not to be deprived of
life
- Section
8 of the Bill of Rights Act affirms the right not to be deprived of life. The
section provides:
No one shall be deprived of life except on such grounds as are
established by law and are consistent with the principles of fundamental
justice.
- Section
8 was recently considered in the context of assisted dying in Seales v
Attorney-General.23 That judgment drew extensively
on decisions of the Canadian Supreme Court, particularly Carter v Canada
(Attorney-General),24 on the equivalent provision
of the Canadian Charter of Rights and Freedoms (s 7). However, care must be
taken in applying those decisions
in the current context. The issue in
Seales and the Canadian cases was whether the statutory provisions that
prohibited assisted dying were consistent with the right not to be
deprived of life. The issue I am considering is whether the Bill’s
provisions
allowing assisted dying are consistent with that right.
- There
are three aspects to consider in determining whether the Bill engages the right
not to be deprived of life and, if it does,
whether it prima facie limits
that right:25
- 39.1 the right
to life
- 39.2 exceptions
to that right established by law, and
39.3 consistency with the principles of fundamental justice. Right to
life
- In
Seales, Collins J said that assisted dying engages four principles: the
sanctity of life, respect for human dignity, respect for individual
autonomy,
and protection of the vulnerable.26 He observed that
the sanctity of life is not an absolute principle
23 Seales v Attorney-General [2015] NZHC 1239; [2015]
3 NZLR 556.
24 Carter v Canada (Attorney-General) [2015]
SCC 5.
25 Seales, above n 23, at [152].
26 Seales, above, n 23, at [62] –
[81].
and must, on occasion, “yield to other principles, such as accepted
standards of medical practice which recognise individual
autonomy and human
dignity”.27
- At
first glance, it may seem counterintuitive that the right not to be deprived of
life could be engaged by a Bill that allows a person
to consent to assisted
dying.28 In her report to the House of Representatives
on the 2003 Bill, the Attorney-General considered whether a person could be said
to
be “deprived of life” if he or she consented to the termination
of his or her life. She observed that, by adopting one
possible meaning of
‘deprived’ – to take without permission – it could be
argued that protections provided
by s 8 could be waived by a person who
consented to ending his or her life. However, referring to cases to the
contrary,29 she considered the Courts were unlikely to
adopt this interpretation.30 I agree.
- In
the context of assisted dying the right not to be deprived of life protects
against the risk that a vulnerable person31 will make a
decision that is not truly voluntary or otherwise the product of rational
choice, or is motivated by reasons other than
to relieve suffering and maintain
dignity (such as relieving the financial and emotional burden on family
members). The existence
of such risks means that the Bill engages the right not
to be deprived of life. The question is then whether the Bill is lawful and
fundamentally just in the way it addresses those risks.
Exceptions established by law
- As
outlined above, the right to life is not absolute. However, s 8 requires that
the state may only deprive a person of life on the
basis of grounds established
by law.32
- The
Bill creates a regime for determining when a person is eligible for assisted
dying and how assisted dying will occur. It also
provides that a person is
immune from civil or criminal liability “for acts or omissions in good
faith and without negligence
in providing or intending to provide assisted
dying.”33 The Bill, if enacted, therefore
provides a ground, established by law, by which a person may be deprived of
their life.
27 At [64]. For example, in Shortland v
Northland Health Ltd [1998] 1 NZLR 433 the Court of Appeal held that the
Northland Health Board could not be compelled to continue renal dialysis
treatment, without which
Mr Shortland would die, because the decision to
discontinue dialysis was consistent with prevailing medical practices.
28 See similarly Seales, above n 23, at
[162].
29 The Attorney-General cited Shortland v
Northland Health, above n 27, and Pretty v the United Kingdom App. No
2346/02, 29 April 2002 (ECtHR). In Shortland, the Court of Appeal held
(at 445) that, in the circumstances, Northland
Health’s actions in refusing to provide Mr Shortland with dialysis
treatment would not ‘deprive’ him of life in
terms of s 8 of the
Bill of Rights Act. In Pretty, the European Court of Human Rights held
(at [39]) that art 2 (right to life) of the Convention for the Protection of
Human Rights
and Fundamental Freedoms “cannot, without a distortion of
language, be interpreted as conferring the diametrically opposite
right, namely
a right to die; nor can it create a right to self- determination in the sense of
conferring on an individual the entitlement
to choose death rather than
life.” It should be noted that art 2 does not contain the s 8 exception
for “such grounds
as are established by law and are consistent with the
principles of fundamental justice”.
30 This particular issue did not arise in Seales
and Carter as the Courts in those cases accepted that the right not
to be
deprived of life was engaged because “the prohibition on
physician-assisted dying had the effect of forcing some individuals
to take
their own lives prematurely, for fear that they would be incapable of doing so
when they reached the point when the suffering
was intolerable.”;
Carter, above n 24, at [57], cited in Seales, above n 23, at
[165].
31 As noted in Seales and Carter, the
fact that a person is suffering from a terminal illness or grievous or
irremediable
medical condition does not necessarily mean they are vulnerable.
32 Seales, above n 23, at [167].
33 Clause 26.
Principles of fundamental justice
- Any
exception to the right to life established by law must also be consistent with
“the principles of fundamental justice”.
This is the crux of the s 8
analysis. It imports an element of justification into the right itself and,
unsurprisingly, has been
interpreted as engaging considerations similar to some
of those identified in R v Hansen as relevant in determining whether a
particular breach of a right is justified under 5 of the Bill of Rights Act (see
paragraph 25
above).34
- In
Seales, Collins J observed that the scope of the phrase “consistent
with the principles of fundamental justice” had not previously
been
determined in New Zealand. He found it useful to refer to Canadian case law,
which identified three components to be considered:
arbitrariness, overbreadth,
and gross disproportionality.35 Each is discussed
separately below.
- Collins
J also adopted the Canadian approach whereby competing social interests or
public benefits of a law were not relevant to assessing
whether the law was
consistent with the principles of fundamental justice (at least in respect of
individual claims). Rather, those
factors were relevant to the subsequent
question of whether a particular breach was justified in a free and democratic
society under
s 5 of the Bill of Rights Act.36 In
Carter, the Canadian Supreme Court explained the reason for this
approach:37
In Bedford, the Court
noted that requiring s. 7 claimants “to establish the efficacy of the law
versus its deleterious consequences on
members of society as a whole, would
impose the government’s s. 1 burden [equivalent to s 5 of the Bill of
Rights Act] on claimants
under s. 7”. A claimant under s. 7 must show that
the state has deprived them of their life, liberty or security of the person
and
that the deprivation is not in accordance with the principles of fundamental
justice. They should not be tasked with also showing
that these principles are
“not overridden by a valid state or communal interest in these
circumstances”.
- One
matter that the Courts in Seales and Carter did not specifically
address was whether, to be consistent with the principles of fundamental
justice, the objective of the law has
to be one that is legitimate in the sense
that it could reasonably justify some limit on the right not to be deprived of
life. Those
cases concerned the laws prohibiting assisted dying. Few would
dispute that the objective of such laws could reasonably justify some
limit on
the right, and it is therefore possible that it was not specifically addressed
because it was not at issue.
- My
preliminary view is that it is inherent in the concept of fundamental justice
that the legislative objective must be one that can
reasonably justify some
limit on the right not to be deprived of life. However, I have not found it
necessary to resolve this issue
because, as discussed below, I consider that the
Bill does serve a legitimate objective.
34 The authors of Andrew Butler and Petra
Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,
LexisNexis, Wellington, 2015) consider (at 9.6.1) that “[t]here is
unlikely to be much need for resort to s 5 of BORA
in cases where a prima facie
breach of s 8 has been established. That is because if legislation provides for
deprivation of life
that is not “consistent with the principles of
fundamental justice” it is unlikely to be capable of being justified as
a
reasonable limit on the s 8 right.” A similar point was made by the Court
in Carter, above n 23, at [95], although the Court did not rule out the
possibility that a breach could be justified in the right circumstances
(see
also [82]). However, see footnote 47 below about whether s 5 applies to s 8 at
all.
35 At [169] – [170].
36 At [175]; See also Carter, above n 24, at
[79].
37 At [80] (references omitted).
Objective of the Bill
- Arbitrariness,
overbreadth, and gross disproportionality are all assessed by reference to the
objective of the relevant law. As outlined
above, the objective of the Bill is
to allow people suffering intolerably with a terminal illness, or grievous or
irremediable medical
condition, to make a free and informed decision to end
their suffering and maintain their dignity.
- For
the purposes of assessing the legal question of compliance with the Bill of
Rights Act, I think a Bill promoting the liberty of
persons to decide to end
their life in certain limited circumstances can be a legitimate objective, such
that it can justify some
limit on the right not to be deprived of life.
Arbitrariness
- A
law is arbitrary where there is no rational connection between the objective
being pursued and the law that purports to achieve
it.38 In Chaoulli v Canada (Attorney- General)
the Supreme Court of Canada outlined the test for arbitrariness as
follows:39
A law is arbitrary where
“it bears no relation to, or is inconsistent with, the objective that lies
behind [it]”. To determine
whether this is the case, it is necessary to
consider the state interest and societal concerns that the provision is meant to
reflect...
In order not to be arbitrary, the limit on life, liberty and security
requires not only a theoretical connection between the limit
and the legislative
goal, but a real connection on the facts ... The question in every case is
whether the measure is arbitrary in
the sense of bearing no real relation to the
goal and hence being manifestly unfair ...
- The
Bill contains a comprehensive regime for determining if, and how, a person with
a terminal illness or a grievous or irremediable
medical condition may access
the option of assisted dying. The provisions of the Bill are directly related to
the objective and so
not arbitrary.
Overbreadth
- A
law is overbroad where it goes further than necessary to achieve the objective
being pursued.40 In Carter, the Canadian Supreme
Court said:41
The overbreadth inquiry asks
whether a law that takes away rights in a way that generally supports the object
of the law, goes too
far by denying the rights of some individuals in a way that
bears no relation to the object. Like other principles of fundamental
justice
under s. 7 [of the Canadian Charter], overbreadth is not concerned with
competing social interests or ancillary benefits
to the general population. A
law that is drawn broadly to target conduct that bears no relation to its
purpose “in order to
make enforcement more practical” may therefore
be overbroad. The question is not whether Parliament has chosen the least
restrictive
means, but whether the chosen means infringe life, liberty or
security of the person in a way that has no connection with the mischief
contemplated by the legislature.
38 Seales, above n 23, at [171];
Carter, above n 24, at [83].
39 Chaoulli v Canada (Attorney-General) [2005]
1 SCR 791 at [130] – [131], cited in Seales, above n 23, at
[176].
40 Seales, above n 23, at [172].
41 At [85] (references omitted).
- In
Carter, the Supreme Court held that the objective of the provisions
prohibiting assisted dying was to protect vulnerable persons from being
induced
to commit suicide in a moment of weakness. However, the Court concluded that a
total ban was overbroad because it caught
people outside this
class.42 In Seales, Collins J concluded that the
objective of the equivalent New Zealand provisions was wider, protecting not
only the vulnerable but
“so far as is reasonably possible, the lives of
those who are not vulnerable.”43 In light of the
wider objective, Collins J held that the New Zealand provisions were not
overbroad.
- The
Bill is tightly circumscribed in its application. Amongst other things, the
person must be in an advanced state of irreversible
decline in capability and be
experiencing unbearable suffering that cannot be relieved in a manner that he or
she considers tolerable.
This must be assessed by two medical practitioners. In
addition, the person must be assessed as competent and the medical practitioners
must do their best to ensure that the person’s decision is free of
coercion. The Bill cannot therefore be said to be overbroad.
Gross disproportionality
- A
law is grossly disproportionate where the impact of the law is out of all
proportion to the objective being pursued.44 In
Carter, the Supreme Court of Canada
said:45
The enquiry into gross
disproportionality compares the law’s purpose “taken at face
value”, with its negative effects
on the rights of the claimant, and asks
if this impact is completely out of sync with the object of the law. The
standard is high:
the law’s object and its impact may be incommensurate
without reaching the standard for gross disproportionality.
- In
Canada (Attorney-General) v Bedford, the Supreme Court of Canada gave the
following example of gross
disproportionality:46
This idea is captured
by the hypothetical of a law with the purpose of keeping the streets clean that
imposes a sentence of life imprisonment
for spitting on the sidewalk. The
connection between the draconian impact of the law and its objective must be
entirely outside the
norms accepted in our free and democratic society.
- The
objective of the Bill is to allow people suffering intolerably with a terminal
illness, or grievous or irremediable medical condition,
to make an informed
decision to end their suffering and maintain their dignity. The method by which
the Bill achieves that objective
does not result in impacts that are grossly
disproportionate to the objective. There are multiple safeguards built into the
process,
including the stringent criteria for eligibility (see paragraph 10
above), the requirement for an independent second opinion and
referral to a
specialist (if necessary), and the ability for the person to change their mind
at any time.
42 At [86].
43 At [132] and [184] – [186].
44 Seales, above n 23, at [173];
Carter, above n 24, at [89].
45 At [89] (references omitted); See also
Seales, above n 23, at [188] and [189].
46 Canada (Attorney-General) v Bedford 3 SCR
1101 at [120], cited in Seales, above n 23, at [189].
Conclusion on the right not to be deprived of life
- I
have concluded that the Bill engages the right not to be deprived of life, but
does not prima facie limit that right. The Bill creates a statutory
exemption to the right to life that is consistent with the principles of
fundamental
justice (the Bill’s objective being one that can reasonably
justify some limitation on the right, and the method by which it
seeks to
achieve the objective not being arbitrary, overbroad, or grossly
disproportionate). As I have concluded that the Bill does
not limit the right
protected by s 8, there is no need to consider s 5 (justified
limitations).47
- For
the reasons above, I think the Bill appears to be consistent with the right not
to be deprived of life affirmed in s 8 of the
Bill of Rights Act.
Section 13 – Freedom of conscience
- Section
13 of the Bill of Rights Act affirms the right to freedom of conscience,
including the right to adopt and hold opinions without
interference.
- Clause
7 of the Bill requires a medical practitioner, who has a conscientious objection
to doing anything authorised or required by
the Bill, to tell a person seeking
assisted dying that the medical practitioner has a conscientious objection and
that the person
may ask the SCENZ Group for the name and contact details of
another medical practitioner. This provision prima facie engages the
right to freedom of conscience because it requires the medical practitioner to
assist the person to do something the practitioner
conscientiously objects to
(by referring the person to another medical practitioner)).
- To
the extent that cl 7 limits the right to freedom of conscience, I consider that
the limit is justified for the effective functioning
of the regime for assisted
dying created by the Bill. In particular, I consider that the requirement to
identify another medical
practitioner is necessary to meet the objective of the
Bill and is the most minimal impairment of the right possible. I also consider
it important that a medical practitioner is not obliged to raise assisted dying
with a potentially eligible patient; they are only
required to respond if the
patient raises it.
- I
think the Bill appears to be consistent with the right to freedom of conscience
affirmed in s 13 of the Bill of Rights Act.
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms the right to freedom of expression. This
includes the freedom to seek, receive, and
impart information and opinions of
any kind and in any form. The right has been interpreted as including the right
not to be compelled
to say certain things or to provide certain
information.48
47 I note that it is unclear whether the
question of justification is built into the right itself such that a subsequent
analysis under
s 5 is unnecessary, as the Supreme Court held in Hamed v R
[2011] NZSC 101; [2012] 2 NZLR 305 (at [162]) in respect of s 21 of the Bill of Rights Act
(unreasonable search and seizure) (see also the general discussion of this
issue
in The New Zealand Bill of Rights Act: A Commentary, above n 35 at 6.6.11
to 6.6.18). The reasoning of Collins J in Seales (see paragraph 47
above), suggests that there is still a role for s 5, at least in respect of
individual complaints.
48 RJR MacDonald v Attorney-General of Canada
(1995) 127 DLR (4th).
- The
Bill contains various provisions (including cl 7 discussed in the preceding
section) requiring the medical professionals involved
to provide certain
information, record actions taken and decisions made and, in some cases, to
provide reasons. These provisions
prima facie engage the right to freedom
of expression.
- To
the extent that any of the provisions of the Bill limit the right to freedom of
expression, I consider that the limit is justified
for the effective functioning
of the regime for assisted dying created by the Bill.
- I
think the Bill appears to be consistent with the right to freedom of expression
affirmed in s 14 of the Bill of Rights Act.
Conclusion
- I
therefore conclude:
- (a) the Bill
engages the right not to be deprived of life (s 8 of the Bill of Rights Act),
but does not prima facie limit that right; and
- (b) to the
extent the Bill limits the right to freedom of conscience and expression (ss 13
and 14 of the Bill of Rights Act respectively),
the limits are justified;
but
- (c) the Bill
appears to be inconsistent with s 19(1) (freedom from discrimination) of the
Bill of Rights Act in respect of age and
the limit cannot be justified under s 5
of the Act.
Hon Christopher Finlayson
Attorney-General
August 2017
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2017/48.html