EUTNANASIA: Should it now be legal in Canada? (Part 3)

The paragraphs with white backing have no special significance as it is merely an anomaly in the printing of this article.

Introduction

In 1973 while I was in my third year of studying criminology at the University of Toronto, I arrived late in one of my classes and all the topics in which we were to write a paper on were all chosen by my fellow students and the only one left was on the subject of euthanasia. I had no real idea as to just how difficult writing a paper on that subject would be. In any case, as I delved into the subject of euthanasia, I discovered just how difficult it is for everyone including terminally ill persons, their doctors and their family members to deal with euthanasia and accept it as one way to save terminally ill persons from further pain. I was at that time a member of the Corrections Committee of the Anglican Church and I was asked to write an opinion on that subject and submit it to the Church. In November of that year, an international medical journal called ‘Modern Medicine’ published my paper and I was later told that it was published in a number of countries around the world. That same year, it was published in a law journal and at that time, the Toronto General Hospital in Toronto invited me to give a lecture on that subject to a large number of the hospital’s doctors and nurses. Writing on that topic isn’t as difficult nowadays as it was then however the subject is still one that is widely discussed and to some people, a contentious issue.  In this piece, I am going to submit to my readers the second of three court cases which took place in Canada that dealt with euthanasia. But first, I will briefly explain what euthanasia is.  

 Legislation on euthanasia in Canada distinguishes between passive and active euthanasia, although the active procedure remains illegal. Passive euthanasia can include starvation or de-hydration, or withholding any life-preserving procedures. Sometimes the patient will sign a “Do Not Resuscitate’form and on occasion, family members have also signed such forms when their stricken loved one cannot do it.  Active euthanasia comes about when someone other than the patient brings about the death of the patient generally with the patient’s blessing.

 In recent years, several public cases of active euthanasia have re-opened the debate on what Canadian  society considers to be socially and morally acceptable in terms of euthanasia. Incidentally, euthanasia is also called ‘mercy killing’.

The ethics of physician-assisted suicide and euthanasia have been vigorously debated by individual citizens, politicians, lawyers, philosophers and ethicists since November 1973 when my paper on the subject was published in medical journals. In fact a questionnaire was included in the Modern Medicine journal in which a great many doctors submitted their replies of which the vast majority of them approved of the concept that terminally ill patients should be permitted to die without further treatment being administered if that is their patient’s wish. They also recommended that the legal aspect of euthanasia should be looked into. In recent years, several public cases of active euthanasia have re-opened the debate on what Canadian society considers to be socially and morally acceptable in terms of euthanasia.

 And now, the third case.

 Gloria Taylor

 This 64-year-old woman became the first Canadian to be granted the right to have a physician-assisted suicide. (a form of Euthanasia) After hearing the ruling of a British Columbia Supreme Court, she said that she is relieved she won’t have to endure an agonizing death but is not currently prepared to die just yet. She is in the late-stage of a fatal neurodegenerative disease which is officially called ‘amyotrophic lateral sclerosis’ and is also referred to as ‘’Lou Gehrig’s disease’. (named after the famous baseball player who died from the disease. The disease she is suffering from causes progressive muscle weakness and eventually progresses to near total paralysis. She was the prime plaintiff in this landmark case in which one of the British Columbia Supreme Courts struck down Canada’s right-to-die legislation. In the 395-page ruling, Justice Lynn Smith ruled that the ban was unconstitutional and gave Parliament a year to rewrite it.

 Gloria is the also first person to be given an exemption to have a doctor-assisted suicide, which means she can go ahead even if an appeal by the government is filed. A decision by the government to appeal the ruling must be made by July 14, 2012.

 An ‘assisted suicide’ means the act of intentionally killing oneself with the assistance of another person who provides the knowledge, means or both. In Canada, a poll was taken last December and 26% of Canadians approved of assisted suicide.    

A ‘Physician-assisted suicide’ means the act of intentionally killing oneself with the assistance of a medical practitioner, or person acting under the direction of a medical practitioner, who provides the knowledge, means, or both.

Gloria called the ruling a blessing for her and for other seriously ill Canadians. She said “We have emerged from the dark ages to realize dying is just part of living. And we no longer have to die a horrible and tormented death.”

 Since the case began in November 2011, Gloria’s condition has deteriorated and she has lost function in her hands. Her voice has also changed and she is largely confined to a wheelchair. The passions she once had such as outings with her granddaughter, visiting family and friends and cooking are now impossible for her to do.

 To plan her death, which Gloria insists is not suicide but dying the way she wants, she will need to undergo an assessment from a psychiatrist and be informed by her doctor about alternatives in medical treatment and palliative care. Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of ongoing and continuous unconsciousness (palliative sedation). I should point out that palliative care for dying patients who are suffering from Lou Gehrig’s disease won`t really be a boon to anyone dying from this disease because in the latter stage of the disease, the patients will be no different than a vegetable being given water and nutrients. Their eyes will be closed because the muscles in their eyelids won’t function anymore and they will be fed through a tube inserted into their stomachs.

 Gloria said that her doctor has told her that he would support her decision. But Taylor added she has not yet made plans for when and if she will carry through on her right to have an assisted death.

 “To die screaming at the top of my lungs because the pain is so great, I can’t stand that,” she said. “It’s something I try not to think about. Now I’m thankful I don’t have to fear that kind of death.”

 Now I will submit to you some of what the particulars discussed in her trial and what the court ruled and how the judge came to the decisions she did. Gloria`s opponents were the Attorney General of British Columbia and the Attorney General of Canada.

 Gloria challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rghts and Freedoms should be able in law to assist her in dying before she reaches the final stages of her disease.

 Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that the current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing. I should point out that one of the methods of allowing a patient to die sooner is to stop feeding the patient and stop giving the patient water. This in my opinion is extremely gross. You can’t imagine the suffering a dying patient would endure while slowly dying of thirst.

 Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.

 The defendants (Attorneys General) identified a number of areas of risk for patients if physician-assisted death is permitted, such the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. Risks in these areas of concern do exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.

 The claim that the legislation infringes Gloria’s equality rights begins with the fact that the law does not prohibit suicide but persons who are physically disabled to such a degree that they cannot commit suicide without assistance from a doctor are denied that option, because section 241(b) of the Criminal Code of Canada prohibits assisted suicide and makes it a crime and any person who assists in a suicide is liable to imprisonment for fourteen years.

 The judge said; “The legislation’s infringement of section 15 equality rights is not demonstrably justified under section 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, (a former case heard by the Supreme Court of Canada) is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation—grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in their situations which are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality” unquote

 In simpler terms, the judge was saying that the current legislation as it stands now conflicts with the rights of citizens to be treated equally. In other words, the judge ruled that the prohibition on doctor-assisted suicide was unconstitutional.

This was in conflict with what others who testified in court had to say.

The attorney general of Canada argued that whatever one might conclude about the ethical position is irrelevant to the legal questions before the Court. He criticized the plaintiffs’ argument for attempting to raise one ethical view to the status of a principle of fundamental justice. Nevertheless, he said that the preservation of human life is a fundamental value in Canadian society and that respect for life transcends individual, religious and diverse cultural values. He did not assert a state interest in the absolute protection of all human life. It said, however, that respect for this fundamental value is reflected in the state’s interest in not condoning the taking of human life, and embodied in the criminal law. In other words, he was saying that Canada as a society should not approve of doctor-assisted death for terminally ill patients.

The attorney general for British Columbia, similarly, argued that the sanctity of life is a fundamental principle in our society. He referred to the American case of United States of America v. Burns, where the US Supreme Court dealt with the issue of capital punishment stated:

“The distinction between “general public policy” on the one hand and “the inherent domain of the judiciary as guardian of the justice system” is of particular importance in a death penalty case. The broader aspects of the death penalty controversy, including the role of retribution and deterrence in society, and the view that capital punishment is inconsistent with the sancity of human life, are embedded in the basic tenets of our legal system, but they also reflect philosophic positions informed by beliefs and social science evidence outside “the inherent domain of the judiciary”. unquote

 He was saying that the courts should not be dealing with this issue since philosphical positions, informed beliefs and social science is the role of the parliamentarians to make these views and not the courts. I do agree that it finally falls on Parliament in Canada and the Congress in the USA to decide what the law should be as the court’s role is to interpret laws and decide if the laws conflict with the constitutional rights of the citizens.

I disagree with the opinion of the AG of B.C. on that issue just as I disagree with the decision of the US Supreme Court’s view. Beliefs and social science in my respectful opinion plays an important role when courts must decide on life and death issues.

The attorney general of Canada is also opposed to the granting of any of the relief sought by the plaintiffs. It pleaded that there is no reason to depart from the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), which affirmed the constitutionality of section 241(b) of the Criminal Code. Further, he says that the plaintiffs are claiming a constitutionally protected right that is broader than that which was rejected by the Supreme Court of Canada in that decision, in the following ways:

(a) The plaintiffs’ (Gloria and others) claim includes a right to both assisted suicide and euthanasia.

(b) The plaintiffs’ claim may not be limited in a meaningful way to physician-assisted suicide or euthanasia because the plaintiffs’ definitions contemplate someone “acting under the general supervision of a medical practitioner” and there is nothing in the plaintiffs’ pleadings that limit who that person might be, or define what “acting under the general supervision of a medical practitioner” means.

(c) The plaintiffs’ claim challenges not only section 241(b),(of the Criminal Code)  but also section 241(a), the prohibition on counselling suicide. Thus, Canada says, the plaintiffs’ claim would allow physicians to counsel a patient to commit suicide.

(d) The plaintiffs’ claim relates not to individuals who are terminally ill, but rather to persons who are “grievously and irremediably ill”.

(e) The plaintiffs’ claimed right is not limited to individuals who are experiencing intractable suffering; rather, the pleadings require only that the person be suffering “enduring physical, psychological or psychosocial suffering” that is intolerable to that person. Canada says the test is thus entirely subjective and the plaintiffs’ pleadings do not require that all reasonable efforts, or even any efforts, have been made to try to relieve the person’s suffering.

(f) The plaintiffs’ claim includes individuals who could commit suicide without assistance, and is not limited to persons who are or will become unable to end their own lives without assistance.

The attorney general of Canada argued that protecting against death does not infringe the right to life, liberty or security of the person, although it concedes that insofar as the individual plaintiffs’ actions may expose them to prosecution, their liberty interests are engaged. He argued that the individual plaintiffs’ life or security of the person interests are not affected, but submits that if they are, such effect is in accordance with the principles of fundamental justice. He submitted that the current laws are necessary to protect people in vulnerable circumstances, and that nothing short of the existing laws would achieve that goal.

Finally, he submitted that if the laws are found to infringe the rights of any individuals, then such infringement is justifiable in a free and democratic society and is saved by section 1 of the Charter of Rights and Freedoms.

Section 1 of the Charter states that the rights set out in the Charter can be subject to reasonable limits prescribed by law is a free and democratic society.

The attorney General of British Columbia responded to the plaintiffs’ claim in similar terms to those of the attorney general of Canada. He argued that the Rodriguez decision of the Supreme Court of Canada is binding and determinative. (you can read part of that decision in my previous article on this subject that was posted in my blog two days ago) Further it submits that there is no infringement of the plaintiffs’ rights under subsection 7 or 15, and that if there is, such infringement is justified pursuant to section 1. In general throughout he adopted the submissions of the attorney general of Canada.  

The Christian Legal Fellowship (“CLF”) counsel argued that the intentional taking of innocent human life is always wrong and that the principle of inviolability of life is a cornerstone of Western civilization. It distinguishes this principle from the goal of preserving life at all costs. Counsel for this intervenor argued that the strong medico-legal culture against killing needs this inviolability principle. He said that what prevents killing is the law, along with the internalized medical culture that draws a clear line against directly taking life. Further, the CLF’s position was that physician-assisted death entails a conclusion by the physicians in question that a life is not worth living. Thus, “what looks like patient autonomy is, in reality, a greatly expanded discretionary power over life and death to be given to physicians.” It says that refusal or voluntary withdrawal of treatment is consistent with the inviolability principle because where the physician’s intention is to comply with a patient’s wishes to withdraw treatment, rather than to kill, the act is ethical and lawful when it is not.

I disagree with the CLF’s view of doctor-assisted euthanasia. It is my view that where a terminally ill patent is dying in pain or is going to continue to live as a vegetable, that person should be permitted to die and should be assisted in his or her death if necessary.

Gloria Taylor isn’t the only terribly ill person this year that the court gave its blessing for someone to end his or her life.  In the United Kingdom a high court studied the case of Tony Nicklinson, 57, who suffers from "locked-in" syndrome following a massive stroke he suffered while on a business trip in Greece in 2005. He is paralyzed from the neck-down, and can only communicate via a voice-synthesizer. He launched a legal action seeking the right for a doctor to be able to lawfully end his life, which he sums up as “dull, miserable, demeaning, undignified and intolerable.” His wife added that her husband did not want to die immediately, but wanted to have the option available to him. On 'March 12th, the high court rules that  the paralyzed man can begin legal proceedings for a doctor to end his “intolerable life.”

In summation

Patient decision-making is central to all medical care. The doctrine of informed consent protects a patient’s right to accept or refuse medical treatment. No medical procedure may be undertaken unless a medical practitioner has obtained the patient’s consent after providing information sufficient to enable the patient to evaluate the risks and benefits of the proposed treatment and other available options. Informed consent presupposes the patient’s capacity to make a subjective treatment decision based on the patient’s understanding of the necessary medical facts provided by the doctor and on the patient’s assessment of the patient’s own personal circumstances.

Justice Robins, writing for the Supreme Court of Canada in the Malette case said in part;

“The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment.” unquote

The Malette case arose when a physician, aware that his severely injured and unconscious patient was carrying a card identifying herself as a Jehovah’s Witness and requesting that she not be given a blood transfusion under any circumstances, nevertheless administered a blood transfusion to save her life. The Court concluded that the effect of the plaintiff’s card was to restrict the treatment which could be provided to her, and that the physician’s administration of the transfusions therefore constituted a battery. On the basic principle, the Court stated in part;

“At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based.” unquote

Surely it must follow that if a person wishes to refuse life-saving treatment for religious reasons, a person who is terminally ill and wishes to die should have the same right. And is it too big a step to permit a doctor to assist the terminally ill person to end his or her suffering by injecting a drug into her system that will end that person’s life?                                                                                                         

It seems to me that the right to determine what shall, or shall not be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our laws. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body should be considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment and be able to seek and obtain assistance from a doctor who is willing to adhere to the patient’s wish to die to end that patient’s suffering. 

In Gloria’s case, the judge authorized her to seek a doctor-assistance death in Canada but the judge’s ruling only applies to her. She has to find a doctor in Canada willing to assist her in this manner. If she cannot, then she obviously has the option of going to US states of Oregon or Montana where euthanasia is legal and where there are doctors who subscribe to euthanasia as a means of ending the suffering of patients from their excessive and never ending pain or whose future will be life as a vegetable. 

The judge also ordered that the existing law is still in force for a period of one year to give the Canadian government an opportunity to change the law so that it will permit Euthanasia in Canada.

I would be extremely surprised if both attorney’s general of Canada and B.C. don’t file an appeal and that prospect being highly likely, as sure as God made little apples, the matter will end up in the Supreme Court of Canada.                                                     

If Gloria Taylor chooses to die in either the states of Washington or Oregon, she must meet certain conditions. The Oregon Death with Dignity Act, and the Washington Death with Dignity Act set certain requirements and safeguards before a person may commit suicide with a doctor's assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication. The patient must make a request orally and in writing. Two doctors must confirm a diagnosis of terminal illness that the patient has no more than six months to live. Two witnesses, one being a non-doctor unrelated to the patient, must confirm the patient's request, and the patient must make a second request after 15 days.                          

In 1998 in Oregon, there were only 25 doctors willing to prescribe the fatal drugs but in this year as many as 1,200 are willing to do so.                                    

It is difficult for a doctor to forecast a date in which a patient will die of Lou Gehrig’s disease and worse yet, in both of those States; no one can actually physically inject them with a fatal drug. The dying person will be given the drugs by a doctor but the patient must take the drugs orally on his or her own. And in cases where the patient wishing to die who has the Lou Gehrig disease, the patient’s ability to swallow may be gone by then, hence, the patient won’t be able to swallow the fatal pills. Because the muscles in the patient’s arms will also be wasted away, the patient won’t even be able to place the fatal drugs intro his or her mouth or inject the fatal poison into his or her arm.                                            

On December 5, 2008, Montana district judge Dorothy McCarter ruled in the case of Baxter v. State of Montana that Montana residents have the legal right to physician assisted suicide. The Court further ruled that state law protects doctors in Montana from prosecution for helping terminally ill patients die. I don’t know if that law only applies to permanent state residents. Non-physician assisted suicide is permitted.

While in the Netherlands and Belgium only, physicians are allowed to assist a suicide, in Switzerland this assistance can be provided by (non-physicians) volunteers working for non-profit organisations. The role of doctors is limited to prescribing the lethal drug and assessing the patient decisional capacity; they do not perform the assistance in the suicide themselves.

I suppose that if Gloria chooses to die in Canada while her ability to swallow hasn’t been yet curtailed, she could take a handful of sleeping pills and die peaceably in her own bed.  In any case, I sincerely hope that she achieves her goal of having an easy death however way she chooses to acquire it.