College of Physicians and Surgeons of Ontario Policy Consultation: Planning for and Providing Quality End-of-Life CareJanuary 9, 2015
Professionalism and ethicsFebruary 19, 2015
On February the 6th 2015 the Supreme Court of Canada issued its ruling in the Carter Case. The ruling is unanimous and unequivocal.
Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
Section 241 of the Criminal Code prohibits aiding or counselling suicide and Section 14 prohibits consenting to one’s own death. Both sections are judged to be void, and the judgment is suspended for one year to allow new legislation. Section 7 of the Charter concerns the right to life and liberty.
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.
Some of the arguments in this case were novel.
It was ruled that the right to life and liberty was breached because the law against assisted suicide had the effect of requiring some people to take their own lives earlier than they would have done if they could have had someone assist them.
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.
That is, for instance, in the case of someone with a neurological degenerative disease where the person becomes progressively physically incapable, that person would have to commit suicide earlier – while physically capable of doing so, than he or she might choose if assistance was available. This deprives that person of his or her right to life. As has been pointed out elsewhere this is a “right to life” argument used to support physician assisted death.
But there is more:
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. And by leaving them to endure intolerable suffering, it impinges on their security of the person.
This is a more conventional version of the argument from autonomy or liberty. But the two arguments are significantly different and would lead to quite different conclusions. For instance, the “forcing some individuals to take their own lives prematurely” argument only applies in those cases where there is a progressive physical degeneration which requires the person to act now because he or she will be physically unable to act later. This would apply only to a very restricted number of cases. (I will come back to those situations where the degeneration or decline is mental rather than physical later.) However, the “right to make decisions concerning bodily integrity” argument leads to far wider conclusions. The judgment rests on the latter argument. The judgment does not speak to issues such as progressive physical deterioration, or terminal illness, nor does it restrict physician assisted death to situations where the person is actively or imminently dying. This decision would grant the right of any competent adult with a “grievous and irremediable medical condition” to seek physician aid in dying. What counts as “grievous”? That is probably in the perception of the person him or herself, where the disease causes “enduring suffering that is intolerable to the individual.”
This judgment is momentous, in many respects it settles one part of the debate. It will be very difficult now to argue against physician assisted death in all circumstances. The debate will shift now to the circumstances under which physician assisted death will be permitted. The debate has become not if – but how.
On the “how” question, for many people their greatest fear is not physical degeneration and decline, but rather mental decline. The family of Gillian Bennett (see: deadatnoon.com/ ) argued that their mother was forced to commit suicide sooner than she would otherwise have done in order to avoid mental decline. The “forcing some individuals to take their lives prematurely” would apply to her, but she would not meet the “competence” test at the time that she would wish the death to occur. The issue of advance directives concerning physician assisted death will have to be dealt with at some stage.
There is plenty more to say, the issue of physician and care-provider conscience was raised in the judgment and left open for legislation at either the federal or provincial level.
What do you think?