Wednesday, 9 September 2015

Doctor  assisted euthanasia permitted in Canada                      

In November 1973, a Canadian medical journal titled, Modern Medicine of Canada published an article written by me that was titled, Euthanasia: the issues and implications. The article was also published in medical journals around the world. After the article was published, I gave speeches in Ontario on that subject including one in a very large hospital in Toronto.  In my article and in my speeches, I said that I approved of euthanasia.  

In my article I said in part; “It is very difficult for those of us who are healthy in mind and body to imagine ourselves begging for death and it is also unlikely that any adult living has not at least on one occasion known personally or known of a person who would be better off dead.”

In my article. I told of an American case where a man euthanized his small child who was suffering from never ending excruciating pain. She begged her father to kill her. He fill their bathtub with water and placed his small child in the tub. She made no effort to prevent him from bringing about her  pending death that would forever end her constant agony.  The judge said to the unfortunate man’s jury, “It is a matter which gives food for thought for when one comes to consider that had this poor child been an animal instead of a human being, so far from there being anything blameworthy in the man’s action in putting an end to its suffering, he would have been liable to punishment  had he not done so.”

In Canada, it is against the law to counsel or assist anyone to commit suicide. If convicted of that crime, one could be sentenced to prison for fourteen years. In the past that meant that even if a doctor gave a terminal patient who was suffering from unbearable pain a fatal drug to end his or her patient’s life, he or she could go to prison for doing so. That has changed. Doctors and only they are now exempt.

The Supreme Court of Canada studied this issue and made their ruling on June 2, 2015. What follows are particulars of the case that was appealed to that particular court and what the court had to say about doctor-assisted euthanasia.

After Gloria Taylor was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. She was joined in her claim by Lee Carter and Hollis Johnson, who had assisted Carter’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic where a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited. The British Columbia Civil Liberties Association also got into the fray. The Attorney General of British Columbia participated in the constitutional litigation as of his right to do so and as such, he was the respondent in that original court hearing.

The trial judge found that the prohibition against physician‑assisted dying violates the section 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under section 1 of the Charter. She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided Taylor with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised in the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.                                          

The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow the Supreme Court’s decision in Rodriguez v. British Columbia (Attorney General), where a majority of the Court upheld the blanket prohibition on assisted suicide. 

Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. The argument before the trial judge involved a different legal conception of section 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of over breadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.

The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under section 91(27) of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician‑assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claim cannot succeed.

Insofar as the law prohibits physician‑assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, subsection 241(b) and 14 of the Criminal Code deprives these adults of their right to life, liberty and security of the person under section 7 of the Charter. 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. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.

The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. Further, it leaves them to endure intolerable suffering, and as such, it impinges on their security of the person.

The prohibition of 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. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. 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.

Having concluded that the prohibition on physician‑assisted dying violates section 7, it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under section 15 of the Charter.

Sections 241(b) and 14 of the Criminal Code are not made valid by section 1 of the Charter. While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to its objective. An absolute prohibition on physician‑assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government’s objective.

The trial judge made no overriding error in concluding, on the basis of evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. It was also open to the trial judge to conclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.

The Supreme Court of Canada ruled that the appropriate remedy is not to grant a free‑standing constitutional exemption, but rather to issue a declaration of invalidity and to suspend the matter for 12 months. Nothing in the court’s declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.  

Of course, great care should be undertaken to ensure that any person seeking doctor-assisted euthanasia is of sound mind and that the people who are dealing with the patient’s request are satisfied in their minds that the patient is not making that decision while acting under duress brought about by family members or anyone else.     

In the upcoming legislation, I hope that the legislators include in the proposed legislation that such doctor-assistant euthanasia decisions would be arrived at by a panel comprising of the patient’s doctor, a second doctor and a 
psychologist who if satisfied that the request for doctor-assisted euthanasia of the patient is genuine, would give its approval for the procedure to undertaken. Hopefully, the procedure would be quick and painless.           

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