Auckland Barrister Grant Illingworth QC is opposing the End of Life Choice Bill.
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23 June, 2019
By Grant Illingworth, Queen’s Counsel
The State has an obligation to protect its citizens – that is part of the social contract we as individuals have with the State. Our laws are based on the idea that human life has a certain sanctity about it which needs protection. Even in our Bill of Rights Act, we have provisions that mean that life has to be protected.
The End of Life Choice Bill is premised on the idea that there are some conditions or characteristics that exclude a person from the need to protect their life. If these are absent, the person's life is protected in law.
If they are present, the person may gain assistance to end their life. By taking away the protection for each human life, the End of Life Choice Bill breaches the social contract.
Perhaps some people would be fine with the State breaching the social contract in this way if it meant that they could have control over how they die.
They may say it is justifiable for some people to make a self-destructive decision because life for them has become intolerable, but that is not really the issue. The issue is, how do you distinguish those cases from the ones that should not be treated in that way?
Modern societies are often judged by the way they treat their weakest and most vulnerable citizens. The End of Life Choice Bill inherently involves people who are in a state of weakness or vulnerability.
During my more than 40 years of experience as a barrister, I have seen the pressures and abuses that can come to bear upon people who are in a state of weakness or vulnerability.
There are many good, altruistic people in our community who would never think of destructively influencing another person, but there is also a group of people who are totally selfish, self-centred, and willing to do almost anything to exert control, to get money, or to abuse.
And once a vulnerable person comes under the manipulative control of another, it's almost impossible to distinguish between whether that person is exercising free will or not.
And the exercise of free will would be crucial to any assisted suicide law because you'd want to ensure that only those who truly understand what they are doing and who are making a completely voluntary decision will have access to lethal drugs.
There must be a watertight case for the decision to die being voluntary on the part of the person concerned. And herein lies the Achilles' heel of the End of Life Choice Bill.
Some people are extremely manipulative, though they can come across as trustworthy. It may be someone that you've known for many years and trust implicitly.
I've seen many cases where children have manipulated their own parents into giving them financial assistance or signing a mortgage for the child's benefit when, in fact, the parent really has no idea of what they're getting into.
All the legal rules in the world aren't able to protect a person in the real-world situation where those things are happening. Legal rules simply don't operate in the room that we're in at the moment.
If I'm manipulating you or you are trying to manipulate me, it might not be until some years later that it will be found to be wrongful conduct in a court of law. But that some years later isn't going to help us in the here and now.
Apply this reality to the End of Life Choice Bill, and you can see how easy it would be for someone to be manipulated into requesting assisted suicide and for no one to know about it until after the person is dead – if even then.
Believing that doctors will always be able to tell whether or not someone is making a free choice is a mistake. Doctors are fallible, just like any other human being.
And even the best doctors on their best days will struggle to determine, with 100 per cent accuracy, that the patient in front of them is making a free and voluntary decision.
It is a difficult thing to determine, but essential if you are talking about ending a person's life. There should be no doubt that the request and the consent to die are freely given. But there will always be doubt.
The End of Life Choice Bill may be compelling in its rationale, but the execution of such a law would break the social contract the State has with some of our weakest and most vulnerable citizens and expose them to a dangerous new world in which manipulation and coercion could take on deadly consequences.
Grant Illingworth QC is a barrister-at-law based in Auckland. He is a litigation specialist with interests and expertise in, among other things, public law, the law relating to trusts and relationship property, and professional disciplinary proceedings. Grant takes part in #DefendNZ because he knows of the reality of coercion and the difficulty in detecting it. He is concerned that, should the End of Life Choice Bill pass, it would be impossible to know with 100% certainty that people are making a free choice in requesting euthanasia or assisted suicide. Grant speaks out to #DefendNZ vulnerable in the documentaries ‘Terminal but not dead yet’, and ‘A life in chronic pain’ from #DefendNZ released this year featuring Vicki Walsh who has the same condition that Lecretia Seales had, and Dr John Fox who has cerebral palsy and tells his story and the risk placed on disabled and vulnerable New Zealanders.