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11/Mar/2015
The Right to Die With Dignity: the Supreme Court Revisits the Issue of Physician-assisted Suicide

Canadians faced with “intolerable” suffering as a result of serious illness or disability have the right to doctor-assisted suicide, the country’s top Court ruled.

Earlier last month, the Supreme Court of Canada released its much-anticipated decision in Carter v. Canada 2015 SCC 5 (Canlii), which dealt with the criminal prohibition on providing assistance in suicide. The Supreme Court had previously upheld a blanket prohibition on assisted suicide by a slim majority in its 1993 decision of Rodriguez v. British Columbia.  In the twenty years since the Rodriguez decision, the political landscape had changed.  Between 1991 and 2010, there were six private member’s bills in the House of Commons debated seeking to decriminalize assisted suicide.  None passed. The majority of members of Parliament expressed concerns about the risk of abuse of the vulnerable under a permissive scheme and the need to respect the sanctity of life.  The minority supported an exception to the criminal prohibition in limited circumstances.

In a unanimous judgment, the Supreme Court of Canada held Canada’s laws banning assisted suicide to be a contravention of Canada’s Charter of Rights and Freedoms and declared them invalid in situations where they prohibit physician-assisted death for a competent, consenting adult suffering from a grievous medical condition.

The judges, however, suspended their declaration of invalidity of the laws for one year, in effect allowing the federal and provincial governments 12 months within which to come up with new legislation governing assisted suicide that does not breach the Charter.

Currently, under Section 241(b) of the Criminal Code, counselling or aiding anyone to commit suicide is a crime punishable by up to 14 years’ imprisonment, while Section 14 states that “no person is entitled to consent to have death inflicted on him”.

The February 6, 2015 Judgment upholds a 2012 British Columbia Supreme Court ruling which found that, in cases where people are suffering severely from illness or disability, Sections 241 and 14 violate Section 7 of the Charter, which guarantees an individual’s right to life, liberty, and security of the person.

An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy”, stated the Supreme Court of Canada in their decision.  “The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, however, denies them the right to request a physician’s assistance in dying.  This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus entrenches on liberty.” (See paragraph 66 of the decision)

The recent ruling in effect reverses the top Court’s landmark Rodriguez decision of 1993, in which a majority of the Court upheld the ban on doctor-assisted suicide.  In that case, the judges found the prohibition violated the Section 7 Charter right to life, liberty, and security of the person, however, that it did so “in accordance with the principles of fundamental justice”, an exemption permitted under the same section.  The judgment stated that the ban reflected the fundamental values of society by seeking to protect vulnerable people, such as the elderly and disabled, from being pressured into consenting to assisted suicide.

In the 1993 constitutional challenge, British Columbia resident Sue Rodriguez had sought legalization of doctor-assisted suicide after being diagnosed with Amyotrophic Lateral Sclerosis (ALS), a progressive neuromuscular disease that leads to loss of voluntary movement of muscles, such as those involved in walking, talking, and swallowing, and usually results in death within a few years.

In 2011, a new constitutional challenge was launched by Gloria Taylor, who, like Sue Rodriguez, also sought doctor-assisted suicide after being diagnosed with ALS. Lee Carter and Hollis Johnson, who had helped Carter’s mother achieve her goal of dying with dignity by taking her to Switzerland to use the services of an assisted-suicide clinic there, B.C. physician Dr. William Shoichet and the B. C. Civil Liberties Association joined in the court challenge.

The B.C. Court decision in Taylor’s case finding the assisted-suicide prohibition to be unconstitutional was overturned on appeal before being upheld by Canada’s top court.  The B.C. trial judge had also suspended the invalidity of the ban for one year and granted Taylor a one-year exemption from it, however, Taylor died before the appeal without using the exemption.

In Carter, the Supreme Court of Canada held that under existing law, a person who is “grievously and irremediably ill” cannot seek a doctor’s assistance in dying and “may be condemned to a life of severe and intolerable suffering”.  Such a person has two choices, the court noted:  “… she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes.  The choice is cruel.” (paragraph 1)

The Supreme Court agreed with the B.C. trial judge’s finding that forcing people to make such a choice is a “severe” violation of their right to life, liberty, and security of the person, and also with her finding that a “properly administered regulatory regime is capable of protecting the vulnerable from abuse or error” when doctor-assisted suicide is legal.

In detailing the reasons for their decision, the judges stated there have been a number of changes in the legal landscape since the Rodriguez ruling, including advancement in the law relating to the concepts of “overbreadth” and “gross disproportionality” as principles of fundamental justice. (paragraph 46)

The Court held that: “The prohibition on physician-assisted dying infringes the right to life, liberty, and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness … However, the prohibition catches people outside the class of protected persons.  It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad”. (paragraph 56 & 76)

The judges also noted in their decision that, while no Western democracy expressly permitted assistance in dying at the time of the Rodriguez ruling in 1993, by 2010, eight jurisdictions allowed some form of assisted dying.  This development, they said, created a previously unavailable body of experience and evidence that supported the conclusion that permitting strictly regulated doctor-assisted suicide was a reasonable way to balance the rights of those who seek it and those who are vulnerable to being pressured into it.

The Court also addressed the issue of balancing the rights of patients seeking doctor-assisted suicide with the rights of the physicians who would provide it, however, in doing so, raised more questions than it answered.

Ruling the ban on doctor-assisted suicide to be unconstitutional, said the court, does not create a legal obligation for physicians to provide assistance in dying.

“The declaration simply renders the criminal prohibition invalid”, the judges wrote.  “What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures.  However, we note … that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief ….  In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment.  Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.” (paragraph 132)

The decision has engendered many questions, such as what role, if any, will the physician play in assisting in the suicide of his or her patient, the treatment of the disabled in a civilized society, and a myriad of ethical and legal issues surrounding how we think of and care for the elderly in our family and in our community. We expect that there will be further litigation to define the scope of the Court’s ruling and the extent to which physicians, for moral or religious reasons, can refuse to assist in the suicide of their patient.

Informed consent will also be a critical consideration, with patients who seek assistance in dying requiring full and complete information about diagnosis, prognosis, and the range of available options for medical care.  Too often, patients are not given the opportunity to fully appreciate the range of options for medical treatment, resulting in a breach of informed consent. The right to decide one’s own fate is the basis of informed consent. At Bogoroch & Associates LLP we regularly act for individuals who believe that they did not give informed consent to medical treatment for themselves or for their loved ones. Please contact Richard Bogoroch rbogoroch@bogoroch.com or Pinta Maguire pmaguire@bogoroch.com for further information on how we can assist you or a family member with a medical or hospital malpractice claim.

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