Assisted Suicide: Carter, Bentley and the law of end-of-life decision-making

“It is a crime in Canada to assist another person in ending her own life.  As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering.  A person facing this prospect has two options:  she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes.  The choice is cruel.”

The opening paragraph of the landmark decision in Carter v. Canada (Attorney General), 2015 SCC 5, succinctly outlines the “cruel” choice faced by many Canadians near the end of their lives. In a unanimous decision, the Supreme Court of Canada struck down Canada’s Criminal Code provisions prohibiting physician-assisted suicide, paving the way for individuals to choose the means and timing of their death. The decision is highly controversial, and is likely to be a hot topic for the remainder of 2015 as Parliament decides whether to implement new legislation to govern assisted suicide, or to do nothing and leave a legislative void.

The Carter decision was foreshadowed in the dissenting decisions in the Supreme Court’s 1993 decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. In Rodriguez, the court split 5-4, with Canada’s current Chief Justice, Beverly McLachlin, writing a strong dissent in favour of allowing physician-assisted suicide. Justice Sopinka, for the majority, rejected the right to die as an element of the Charter right to life, liberty and security of the person under s. 7. Instead, Justice Sopinka reasoned that respect for human dignity was not a principle of fundamental justice that could trump society’s conception of the sanctity of life.

The Court’s ruling in Carter has been lauded in some circles as “compassionate”.[1] Critics, however, are disappointed that the Court has placed individual autonomy above society’s interest in the sanctity of human life.[2] The coalitions formed on both sides of the argument in anticipation of Carter are not treating the Court’s decision as the last word. Groups opposed to assisted suicide have already called on the Federal Government to draft legislation that imposes “stringent safeguards” on the use of physician-assisted suicide.[3]

Both camps have been waiting for the Court of Appeal’s decision in Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91,[4] released this week. The Bentley decision affirms that absent a clear directive that complies with statutory formalities, the court will be extremely cautious in its evaluation of a person’s wish to be allowed to die after they have lost the capacity to make that decision for themselves.

In the wake decisions like Carter and Bentley, what are the arguments for and against physician-assisted suicide and the withdrawal of care at the end of life? Here, we propose to touch on a few of the arguments briefly, a short primer if you will, with a goal to revisit this issue further over the course of 2015.

One of the most significant arguments in discussions about end-of-life care are the risks to vulnerable populations. These groups fall generally into two categories: disabled individuals, and individuals who have diminished or no mental capacity. At the trial level in Carter, Justice Lynn Smith found that “it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process.” She cited numerous empirical studies that showed there was no evidence to justify the concern of abuse to these vulnerable populations.

Another major argument is that there remains no consensus, either amongst the Canadian public or amongst the medical profession, that assisted suicide is ethically defensible. Those opposed to assisted suicide have argued that human life is intrinsically valuable. Permitting assisted suicide would move doctors away from a traditionally accepted goal of preserving life at all costs, and would give doctors discretion over their patients that would threaten existing norms with respect to consent and personal autonomy of patients. The public opinion evidence provided at the Carter trial, however, shows that a majority Canadians are in favour of doctor-assisted suicide in certain scenarios. Further, there are other end-of-life medical treatments that are lawful and viewed as ethically acceptable, such as refraining from treatment or administering palliative sedation. Supporters of physician-assisted suicide say that the ethical distinction between passive versus active assisted dying is arbitrary.

A related issue is whether doctors will be required to participate in an end-of-life treatment even if they have a moral objection. This applies both to the withdrawal of care, such as in the case of Bentley, as well as in physician-assisted suicide cases, such as Carter. This question remains an unanswered question at law. The court in Carter did not get into the details of how assisted suicide treatments should be administered. There may be parallels to be drawn between this issue and the issue of administering gay marriage. In 2011, Saskatchewan’s Court of Appeal held that provincial marriage commissioners could not invoke freedom of religion to refuse to marry gay couples. Will the courts similarly require doctors working in publicly funded hospitals to help a patient die, even if it is contrary to their faith?

There are certainly other issues that give rise to debate: Is it really necessary to repeal s. 241, when it still serves a deterrent purpose for non-physicians who are counselling suicide? What of the costs of such programs – will physician-assisted suicide be considered treatment that is covered under health care plans, or will it be an electable treatment that costs additional money? Would such a distinction create a situation of discriminatory access? Is someone who has a mental illness truly competent to consent to physician-assisted suicide? Is a life insurance policy going to pay out upon an assisted suicide? Is there any merit to a “floodgates” argument that the rate of suicides will increase? What are the statistics with respect to suicide rates in jurisdictions where assisted suicide has been decriminalized?

We will be writing about some of these issues in the coming months.