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.
No comments:
Post a Comment