25 May 2015

Huge interest as right-to-die case opens

7:07 pm on 25 May 2015

A woman fighting for the right to die on her terms likely has only weeks to live according to her lead oncologist, the High Court at Wellington has been told.

Lecretia Seales on TVNZ Sunday programme.

Lecretia Seales on TVNZ's Sunday programme. Photo: TVNZ

Lecretia Seales, 42, has terminal brain cancer and is taking historic legal action, asking the High Court for a ruling which would ensure her doctor would not be charged if she helps her to die.

Her statement of claim argues if a doctor cannot lawfully help her die, then she will face a choice between taking her own life, or suffering a slow and painful death.

Today, she sat in the court, wheelchair-bound and with eyes closed.

Her lawyer, Dr Andrew Butler, read an affidavit from her lead oncologist which said he last saw her on 18 May, at which point she had "no more than weeks or a short number of months" to live.

The case is being heard by a lone judge, Justice Collins, and opened this morning before a packed public gallery.

Members of Ms Seales' family and her supporters, including former Prime Minister Sir Geoffrey Palmer, QC - Ms Seales' former boss - were seated in what would usually be the jury box.

Dr Butler painted a picture for the court of just who Ms Seales is - a daughter, wife, friend and lawyer who planned to have children with husband Matt Vickers.

Ms Seales' lawyer, Dr Andrew Butler

Dr Andrew Butler Photo: RNZ / Alexander Robertson

But the couple had problems becoming pregnant, and it was while they were exploring options for parenthood that Ms Seales had a minor car crash and experienced persistent headaches.

Tests revealed she had terminal brain cancer, Dr Butler said.

Dr Butler told the court Ms Seales was born in Tauranga to parents Shirley and Larry, the eldest of three siblings and was determined from the beginning.

"From a young age she has been determined - that word again - to be independent," she said.

Ms Seales had a keen sense of justice from a young age and decided by the time she was 11 she wanted to be a lawyer.

She studied law at Victoria University before working for Kensington Swan, then heading off to London for two years.

When she returned she joined Wellington law firm Chen Palmer before in 2007 moving to the Law Commission, where she was able to combine her passion for law, reform and social justice.

"Lecretia considers herself lucky to have been born with a good brain," Dr Butler said.

She had surgery soon after being diagnosed and went into the operation not knowing whether she would live; if she did, she could be left paralysed or blind.

"Nevertheless I remained optimistic and resolved to get through it," she said in an affidavit read by Dr Butler.

Lecretia Seales' husband, Matt Vickers, walking into High Court.

Lecretia Seales' husband, Matt Vickers, walking into High Court. Photo: RNZ / Alexander Robertson

She survived the operation and while recovering resolved to live remainder of her life as positively as she could and to focus on the things she enjoyed - cooking, dancing, work, and her husband, family and friends.

"I knew I wanted to really live while I'm still living."

However, Ms Seales could not bear the thought of a terrible and undignified death.

She did not know how it would happen but, given her current state, it was likely to be "difficult, slow and unpleasant", she said in her affidavit.

"I want to be able to say 'enough is enough'."

She could not bear the thought of being incontinent and unable to clean herself, of choking, or of being in a drugged haze, not aware of her life and surroundings.

"I don't want to be virtually unconscious, breathing and that's all," she said.

"I do not lack courage. If my death is manageable, I should be the one to manage it.

"I want to live as long as I can but I want to have a voice in my death and say 'enough'."

"I really want to be able to say 'goodbye' well."

Dr Butler read an affidavit from Ms Seales' doctor, who has name suppression, in which she said she would help her patient die if she could be assured it was not a criminal offence.

Ms Seales was not depressed; to the contrary, she was positive and determined to enjoy her life for as long as possible, the affidavit said.

It was clear she was competent and able to give consent, and having the choice of how and when she died would give her great comfort, she said.

Dr Butler said the Crown's solution to Ms Seales' suffering was to say palliative care was available, and that was why it opposed aided dying.

But he read affidavits from several palliative care experts who all said it may not address all suffering in all circumstances.

Cranford Hospice founder and former Hospice New Zealand president Dr Elizabeth Smailes said palliative care was appropriate for most dying people.

However, the pain was so great for some that the only way was to "treat them into unconsciousness" and wait for them to die.

"The patient's heart continues to beat, and they breathe, but they are unconscious," she said in her affidavit.

It was hard to imagine the level of suffering created when that was the only way to treat a patient, Dr Smailes said.

Michael Ashby, a consultant in palliative and pain medicine in Tasmania, said palliative care had made great advances but still had limitations; it was unable to relieve the suffering for all people.

People with high levels of mental accomplishment, such as Ms Seales, tended to struggle in palliative care, and it was possible it would be unable to address her suffering, he said.

Dr Butler read from affidavits of experts from Oregan, where people with fewer than six months to live qualify for assisted dying through a prescription from their doctor.

One doctor told a man he did not know if he would meet the criteria, and that he would need to see a consultant; the man went home and killed himself.

But a woman with a young family who did meet the criteria and who sought assurance from her doctor she would get a prescription should she want it instead went home and concentrated on her husband, children and "writing inspiring poetry", Dr Butler said

Another expert said she did not know when she wrote a prescription for assisted dying whether it would be used.

She believed simply having the prescription helped the patient live longer, and with a better quality of life, as they had control.

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