The implications arising from the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) earlier this year are coming to the forefront as we approach the February 2016 deadline that is often referred to in the news media.
Many people have been waiting a long time for the Supreme Court of Canada to revisit the legality of physician-assisted-suicide, which is also referred to as physician-assisted-death. I still remember how the Rodriquez case catapulted the issue of physician-assisted-death to the forefront of a polarized public debate. A majority ruling in Rodriquez reinforced the prohibition on physician-assisted-death and confirmed the rationale of protecting vulnerable persons from being induced to request physician-assisted-death during times of weakness.
In the 22 years since the Supreme Court decided Rodriquez, we have seen a change in societal circumstance coupled with evidence that shifts the parameters of the debate. It was on this basis the Supreme Court allowed the appeal in Carter.
The scrutinized laws include section 241(b) of the Canadian Criminal Code (the “Criminal Code”), which states that aiding or abetting a person to commit suicide is a criminal offense, and section 14, which states that no person may consent to death by another.
In hearing the new evidence, the Supreme Court unanimously reversed its decision in Rodriquez. The Judges concluded that section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”), i.e., the guarantee to the right to life and liberty and security of the person, is violated by Criminal Code sections 241(b) and 14. The court determined that the challenged sections were overbroad in their application because the exclusion meant that citizens do not have “right to make fundamental personal choices free from state interference”. Further, the legal prohibition was not saved by section 1 of the Charter because “A theoretical or speculative fear cannot justify an absolute prohibition”. Any rationale to support a section 1 justification for a law must demonstrate, not intuit, that a law will indeed protect the vulnerable in a way that minimally impairs the life and liberty of the other members of society. Thus the Supreme Court issued a declaration of invalidity which was suspended for 12 months to allow Parliament time to revise the law.
In upholding the trial court decision, the Supreme Court relied upon the trial judge’s extensive review of the empirical data from jurisdictions that have legalized physician-assisted-death. The trial judge had made key findings of fact, including there was no evidence to suggest that the elderly or disabled are at a greater likelihood of accessing a physician-assisted-death; nor compelling evidence that a slippery slope had been created; nor an abuse of patients; nor that physicians were unable to reliably assess competence, voluntariness and non-ambivalence or to obtain informed consent. The trial judge went on to say that when a regime is designed properly with administrative safeguards it can protect vulnerable people from abuse and error and concluded, in part, “We should not lightly assume that the regulatory regime will function defectively, nor should we assume that other criminal sanctions against the taking of lives will prove impotent against abuse”.
The new law will apply to competent adults who clearly consent to the termination of life and who have a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring physical or physiological suffering that is intolerable to the individual in the circumstances of his or her condition. Physicians who do not want to offer an assisted death will be under no obligation to provide it.
Interestingly, the Court did not say that a diagnosis must be terminal, which hypothetically allows those with mental illness to avail themselves of a physician-assisted-death. We may see the legislature tighten up these parameters. Some propose that we follow Oregon’s guidelines containing the mandate that physician-assisted-death is only available to those with a terminal diagnosis in their last six months of life. Whatever the guidelines evolve to be, physicians will need to ensure that patients properly understand their diagnosis and prognosis as well as available treatment options, including palliative care, as an alternative to physician-assisted-death.
It is still possible that the government could invoke the notwithstanding clause, which is the parliamentary power under the Chart to overrule a Supreme Court decision, however, this seems unlikely given the current political and social climate. In the absence of a legislative amendment, organizations like the Canadian Medical Association may be left to draft a policy directive much as was done to regulate the availability of abortions when the Supreme Court struck down the abortion prohibition in Morgantaler and the legislature failed to intervene with a new law.
The Supreme Court’s decision is certainly controversial and has raised many questions and concerns. Will the consent process occur only at a capable patient’s bedside, or will consent be part of a health care directive contained in a power of attorney for personal care document prepared by a grantor in advance of any illness? Will a substitute decision maker be in a position to rely upon a grantor’s previously given capable verbal or written wishes for physician-assisted-death? This decision only applies to adults, so it would seem unlikely that minors will be able to consent to physician-assisted-death. Will we follow the highly regulated system in place in Oregon or will we fail to regulate and leave these decisions open for determination on a case by case basis? Will individuals with mental illness seek physician-assisted-death? If so, physicians may be in the position to provide those with intractable depression or other mental illness with medical assistance and alternative treatment options that patients would not otherwise receive or seek out had they not requested physician-assisted-death.
Legalized physician-assisted-suicide has been a long time coming for many, but a frightening evolution for others. For the time being, the prohibition continues and is enforceable until February 2016. I look forward to seeing what regulations will be in place in the New Year and the changes they will bring to our delivery of end-of-life care.