Euthanasia, Suicide or Just Death? The New Rules In Canada

On February 6, 2015 a unanimous Supreme Court of Canada rendered its decision in a much-awaited case dealing with physician-assisted death called Carter v. Canada. The Court declared void the criminal prohibition in s. 241 (b) of the Criminal Code that makes aiding and abetting people to commit suicide a criminal offence, overturning its 1993 decision in the Rodriguez case.
The Court said that people should not have to face the face the cruel choice of ending their own lives prematurely or violently while they still can, or enduring a long, drawn out, and painful death because they are no longer capable of seeking medical assistance to end their lives.

What is physician-assisted death?
How is this different from euthanasia?
What did the court decide?
What will change now?
What safeguards are required?
What about the danger of abuse and error?
Why did the Court depart from its 1993 ruling in Rodriguez?
Is this judge-made law?
Can the Supreme Court overturn itself?
Won’t this hurt the push to strengthen palliative care?
Is this an “activist” decision?


What is physician-assisted death?
Where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient.

How is this different from euthanasia?
Euthanasia is usually understood to encompass death inflicted on another person, including without the voluntary and explicit consent of that person. Physician-assisted death is narrower and applies only to assistance in dying provided by a physician: it requires the express voluntary wishes of a competent patient who consents to the procedure.

What did the court decide?
s. 14 of the Criminal Code says that no person may consent to death being inflicted on them.

Section 241 (b) of the Criminal Code makes it illegal to help someone to commit suicide. This section was found to have a heavy impact on personal autonomy (liberty), the bodily integrity of patients, and on how people make decisions about their own lives. The Court found that s. 241(b) overreached, meaning that it could have achieved its valid legislative objective (of preventing vulnerable persons from being induced to commit suicide at a time of weakness) through less drastic means. Section 241(b) thus failed to respect the rights of people who are not vulnerable, and who seek assistance to end their lives. It therefore violated the right to life, liberty and security of the person under s. 7 of the Charter. Together, these provisions prohibit the provision of assistance in dying in Canada. The conclusion by the Court is set out here:
Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The right to life
It may seem counter-intuitive that a person seeking the right to die can claim legal protections based on the right to life. The trial judge had found, however, that s. 241(b) operated to force individuals to consider taking their own lives prematurely for fear that they would be unable to do so when they reached the point where suffering was intolerable. On that basis, the Trial Judge found that the right to life was engaged. The Supreme Court agreed.

The Court agreed that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly, but also decided that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect. This was the key choice on which the decision turned.

The rights to liberty and security of the person
Autonomy in medical decision-making that affects a person’s bodily integrity is protected in Canada. The Court held that by preventing a person from seeking assistance in dying, the person’s right to autonomy or liberty was affected by the government through the criminal prohibition. As well, the right to physical integrity was affected by the inability to control the moment of death. The relevant passage helpful sets out the thinking of the trial judge that was adopted by the Court. The trial judge had noted that the criminal prohibition interfered with:

“fundamentally important and personal medical decision-making” (para. 1302), imposing pain and psychological stress and depriving her of control over her bodily integrity (paras. 1293-94). She found that the prohibition left people like Ms. Taylor to suffer physical or psychological pain and imposed stress due to the unavailability of physician-assisted dying, impinging on her security of the person. She further noted that seriously and irremediably ill persons were “denied the opportunity to make a choice that may be very important to their sense of dignity and personal integrity” and that is “consistent with their lifelong values and that reflects their life’s experience” (para. 1326). [Paragraph references are to the trial court decision.]

What will change now?
The Court held that sections 14 and 241(b) are void, meaning that it is of no force and effect. The government was given 12 months to modify the law so that it complies with the Charter.

The decision paves the way for provinces to introduce legislation that sets out the ground rules for physician-assisted death, as Quebec has already done.

What safeguards are required?
The patient must be a competent adult (that is, legally in a state of mind to give valid consent) and (1) must clearly consent to the termination of life; and (2) must have a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

What about the danger of abuse and error?
The evidence shows that in jurisdictions like Oregon and the Netherlands, which have experience regulating physician-assisted dying, the systems work well to protect vulnerable patients from abuse and error, while allowing patients to choose the timing of their death. The evidence at trial, also accepted by the Court, showed that procedures in these and other permissive jurisdictions were designed to ensure consent and voluntariness, and to ascertain the competence of the patient to make a decision.

The Court noted with approval the trial judge’s conclusion that:

“It would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care, including palliative care interventions aimed at reducing pain and avoiding the loss of personal dignity.”

The evidence also shows that it is possible to detect coercion, undue influence, and ambivalence. The risks “can be identified and very substantially minimized through a carefully designed system” that imposes strict limits and that are scrupulously monitored and enforced.

Why did the Court depart from its 1993 ruling in Rodriguez?
There were significant new facts and legal issues at play. First, no Western democracies permitted assisted death in 1993. Although the practice is still illegal in the most countries, physician-assisted death is now permitted in at least eight jurisdictions: Belgium, Columbia, Luxembourg, the Netherlands, Switzerland, and three US states, namely Oregon, Montana and Washington.

There are indications that the United Kingdom may be moving to a more permissive regime following a 2014 court decision (R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843)

Second, there is growing evidence in Canada that doctors already engage in practices that hasten the death of patients in end-of-life situations and that there is no significant ethical distinction between these practices and physician-assisted death. In other words, distinctions between “active” and passive” assistance in dying are not clear.

Third, there is now a strong consensus that physician-assisted dying would be ethically acceptable to most Canadians in certain circumstances.

Changes to the legal landscape also led the Court to revisit the Rodriguez decision. First, the 1993 Court had not addressed the right to life under s. 7 directly.  Second, the Court took into consideration more recent developments, notably “overbreadth”, meaning that s. 241(b) was too broad, and operated to catch people in its net who should not have been covered by the prohibition. This is a relatively new legal test in considering whether s. 7 Charter rights are violated.

Is this judge-made law?
No. The Court did not approve any particular approach or regulatory framework for physician-assisted death. That will be the job of the federal government.

Nor did it decide that the criminal law’s prohibition on aiding and abetting suicide was outside the proper remit of the federal power over criminal law.

Can the Supreme Court overturn itself?
Yes.

Arguably the best line of the decision is the one that acknowledges the importance of stare decisis (the rule that lower courts are bound by the decisions of higher courts) but that this important principle does not condemn the law to a frozen and immutable state:
“stare decisis is not a straitjacket that condemns the law to stasis”.

Won’t this hurt the push to strengthen palliative care?
No evidence was provided to the Court or to the lower courts indicated that the availability of PAD had or would deter or impair improvements to palliative care.

Is this an “activist” decision?
Some writers who oppose physician-assisted death argue that Carter is another example of an “activist” court exceeding its proper authority. It is important to distinguish between decisions that one dislikes and accusations that the Court has overstepped its proper role. A careful reading of the decision shows how cautious the Court was not to decide beyond those matters strictly necessary for the disposition of the case, and the extent of the deference shown by the Court to Parliament on social issues requiring complex regulatory decisions.

Other resources

Legislation

Act respecting end of life care, CQLR, c. S 32.0001 [the Quebec legislation, not yet in force].

 

Caselaw

R. (on the application of Nicklinson) v. Ministry of Justice, [2014] UKSC 38, [2014] 3 All E.R. 843)

 

Case note

Jennifer Koshan, Oxford Human Rights Hub, Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

 

Media

Aide médicale à mourir : la Commission des droits de la personne et des droits de la jeunesse accueille favorablement la décision de la Cour suprême 15 février 2015 (Quebec human rights and youth commission)

La Presse : Mourir dans la compassion 11 février 2015

Le Devoir : L’aide médicale à mourir approuvée par la Cour suprême — Suprêmement illégitime

Aide médicale à mourir : Ottawa n’envisage pas le recours à la clause nonobstant 11 février 2015

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Categories: Civil Liberties, Discrimination

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