Chapter 1 – Introduction
On February 6th 2015, the Supreme Court of Canada published a milestone ruling that struck down the ban on assisted suicide. Consequently, a great challenge laid ahead to craft a responsible law regulating euthanasia practices in a way that safeguards the vulnerable and offers conscience protections for medical staff. In It’s Not That Simple, authors Ian Gentles and Jean Echlin analyze the implications of the Supreme Court decision in terms of legal ramifications and effects on the Canadian healthcare system. The conclusion of the analysis considers positive alternatives to euthanasia, such as compassionate pain management in the context of high-quality palliative care.
A key reason given by the Supreme Court for lifting the longtime prohibition on assisted suicide is the shift in public opinion that took place since the Sue Rodriguez case in 1993, when the prohibition was upheld. However, as will be stressed in this book, public opinion is not an acceptable standard by which to formulate public policy. The public do not have in-depth knowledge of the subject, nor are many aware of the serious implications of legalized assisted suicide. Thus, public opinion can be relatively easily swayed in either direction.
In this analysis, authors will consider the many consequences of euthanasia practices for affected families and loved ones, as will its corrupting of the vocation of doctors and nurses committed to saving lives, not ending them. Furthermore, the lives of persons with disabilities as well as the elderly and vulnerable will be at increased risk. The authors make this prediction based on the evidence from Belgium and the Netherlands, where this has demonstrably already occurred.
Following the Supreme Court decision, a three-member expert panel was formed whose purpose was make recommendations to the Federal Government about framing a law on assisted suicide. A member of this panel, Dr. Catherine Frazee, has stated that at the heart of the euthanasia debate is the question of how far individual liberty should extend, and what limitations on personal freedoms benefit society in terms of protecting the vulnerable among us from abuse. However, in this book authors will argue that even stringent safeguards in euthanasia policy cannot prevent abuse, even euthanizing people without their consent.
Furthermore, the authors will consider and analyze the new challenges for religious and conscience rights of medical professionals and faith-based healthcare institutions. The potentially dangerous effects of legalized euthanasia on the prevalence and availability of skilled palliative care are also outlined, using for comparison healthcare systems in countries of western Europe with and without legalized euthanasia.
The purpose of this book is to show, using factual evidence, that the negative results of euthanasia practices in countries like Belgium and the Netherlands are substantial and will be ignored by policy makers in Canada at their cost. Additionally, the authors argue that excellence in palliative care as well as compassionate management of human pain, if implemented, will vastly diminish the requests made for euthanasia.
Chapter 2 – The Supreme Court Decision on Assisted Suicide
This chapter outlines the judicial history leading up to the Supreme Court’s decision to overturn the Criminal Code prohibition on physician-assisted suicide, as well as recommendations made by several expert bodies that have studied this practice. The authors analyze the implications of Quebec’s Bill 52, which legalized physician-assisted suicide before the Federal Government’s expert panel finalized its recommendations. The authors then discuss the “test” laid out by the Supreme Court and some ambiguities in it. Furthermore, a few questions left unanswered by the Supreme Court are emphasized. The chapter concludes with a broader analysis of the all-too possible abuses that the Supreme Court ruling will bring in its train.
In 1993, the Court made a clear ruling against granting ALS-afflicted Sue Rodriguez her plea for medical assistance in ending her life. The Court confirmed that “the societal concern with preserving life and protecting the vulnerable” was of higher importance than relieving one individual of her suffering. Then, in the 1997 case of Robert Latimer, a father who euthanized his 12-year-old daughter who suffered from various disabilities, the Court upheld the prohibition on euthanasia and assisted suicide. Latimer was convicted of second-degree murder. In the aftermath of the Rodriguez case a Special Senate Committee published a report in 1995 recommending that no changes be made to the Criminal Code regarding assisted suicide and that euthanasia in all its forms should remain illegal.
However, following a radically different route, Quebec legalized assisted suicide with the passing of Bill 52 on June 5th, 2014. Among the eligible criteria were being of full age and capable of consent, being at the end of life, suffering from a serious or incurable illness, being in a state of irreversible decline in capability, and experiencing constant and unbearable physical or psychological suffering that cannot be relieved in a way that the patient deems tolerable. It is important to note that Bill 52 and the test laid out in the Supreme Court ruling in Carter v. Canada (2015) define patient suffering subjectively, such that a patient’s eligibility for euthanasia can be determined on their stated ability to tolerate suffering.
In 2011, Lee Carter and her husband Hollis Johnson launched a lawsuit, arguing that they should not have had to leave Canada to go to Switzerland to end the life of Carter’s mother, Kathleen Carter, by assisted suicide. The lawsuit was later joined by ALS-afflicted Gloria Taylor, who was made the lead plaintiff and given the benefit of fast-tracking court proceedings. Together, the claimants argued that an absolute ban on assisted suicide was unconstitutional. The British Columbia Supreme Court sided with the claimants and declared the ban unconstitutional by a 2-1 majority. The reasoning of the Court was that the 1993 Rodriguez precedent was no longer valid, as a strong societal consensus had since developed In support of physician-assisted dying when it is consistent with a patient’s will and best interests, and when its purpose is to relieve suffering.
However, the B.C. Court of Appeal overturned this ruling on the principle of stare decisis which means “let the [previous] decision stand”, namely the 1993 decision in the Rodrigues case. This decision was itself appealed to the Supreme Court of Canada, which led to the ruling of 6 February 2015. Unanimously the nine judges struck down the Criminal Code prohibition on assisted suicide, on the grounds that it violated the citizen’s right to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms. In effect sections 14 and 241(b) of the Criminal Code were void because they deprived a competent adult of assistance where (1) the person makes clear that they consent to the termination of their life and (2) the person has a grievous and irremediable condition, such as a disease, illness or disability, which causes enduring suffering deemed intolerable by the individual.
This ruling overrode the repeatedly expressed will of the federal Parliament. Since 1991, 15 initiatives that would have legalized assisted suicide were defeated by large majorities in the House of Commons and the Senate. After the ruling in Carter, the federal Parliament was given one year to enact new legislation. After receiving a 6-month extension, Parliament passed Bill C-14 on 16 June 2016.
There remain a few outstanding questions regarding the Carter decision. The first concerns the definition of competency, which is often challenged in the legal context, especially in cases of the distribution of the will of an elderly person. Furthermore, when a person is facing a grievous and irremediable condition, what is the limit of his or her competency? Another question left not fully answered in the Carter ruling regards what constitutes a “grievous and irremediable condition.” In its test, the Court stated that conditions deemed “grievous and irremediable” include “an illness, disease or disability.” In clarifying the term “irremediable,” the Court stated that this term “does not require that the patient undertake treatments that are not acceptable to the individual.” This distinction could potentially mean the lowering of the required threshold for the kinds of conditions acceptable for physician-assisted suicide. Next is the question of what constitutes “enduring and intolerable suffering,” which the Court described as “enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” This test is largely subjective, and suggests that the discretion and, in effect, the decision rests with the patient. Furthermore, it is difficult to determine if a person has actually consented to being killed, as possible barriers to this include sometimes subtle social, cultural and economic pressures in a society that can be overlooked. Lastly, the protection of patients may be threatened as the practice of physician-assisted suicide can potentially affect the quality of palliative care offered.
Chapter 3 – The State of the Law Throughout the World
This chapter, written with the assistance of Julia Giancola, describes the state of the law on euthanasia practices throughout the world. Many people have the impression that controversial debates on euthanasia and assisted suicide are world-wide. However, this is not the case as the practice is still illegal in Asia, Africa, Latin America (with the exception of Columbia), most of Europe and most of the United States. A few countries such as Germany, Australia, France and Britain have had extensive debates about legalizing this practice; however, it remains illegal in these countries despite multiple attempts at legalization.
In total, 192 countries have laws against euthanasia and physician-assisted suicide. This includes all of Asia and Africa, as well as all of Latin America with the exception of Columbia, and all of Europe except the Netherlands (2001), Belgium (2002), Albania (1999) and Luxembourg (2008). Columbia legalized euthanasia by a 1997 Supreme Court decision. In Canada, it was legalized by a 2015 Supreme Court decision, and in the U.S., in Oregon (1997), Washington (2008), Montana (2009) and Vermont (2012).
It is important to note that the World Medical Association adopted a Resolution on Euthanasia in 2005, which was reaffirmed in 2013, that states clearly: “Physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession.”
By definition, euthanasia is the direct killing of a person, by action or omission. Physician-assisted suicide refers to doctors providing a lethal prescription to a patient. Barely two per cent of countries or jurisdictions worldwide legally sanction patients’ deaths.
In Switzerland, euthanasia remains illegal. However, assisted suicide is allowed in some cases. According to Swiss law, assisted suicide is only a crime if it is done for “selfish” reasons. If the motive is altruistic, assisted suicide is condoned. Furthermore, the law does not require that a physician be involved in the process, nor that the patient be terminally ill. As a result, the law has been subject to much dispute. It is important to note, however, that euthanasia (as opposed to assisted suicide) in Switzerland is still illegal.
In conclusion, the authors point out that the vast majority of countries continue to prohibit both euthanasia and assisted suicide. Moreover, they recommend that Canadian law-makers and politicians learn from the experience of countries and jurisdictions that have legalized these practices, to take effective measure to protect vulnerable people from having their lives ended without their consent, as so often happens in the Netherlands for example. The experience of euthanasia and assisted suicide in jurisdictions that have legalized it is explored in Chapter Four.
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