Posted on February 9, 2015 at 1:12 PM
by Craig Klugman, Ph.D.
A year from now, all Canadians may have the right to assisted suicide. In February 6, the Canadian Supreme Court ruled “that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person 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.” In other words, a competent and capacitated person with a serious and unresolvable condition that creates suffering has a right to have assistance to end his or her life.
This case has its origins in two cases. The first was Gloria Taylor who was diagnosed with amyotrophic lateral sclerosis (ALS) in 2009. Ms. Taylor did want to watch herself slowly disintegrate so she challenged the ban on assisted suicide in British Columbia Supreme Court. As Ms. Taylor’s condition worsened she feared that she would be unable to request physician-assisted suicide came when she needed it because of its legal status and her lack of funds to travel to receive aid-in-dying. Thus, Taylor claimed she had a choice of suicide before she was ready or giving up any ability to control her death. Taylor died in 2012 from an infection.
A second case joined the first. Lee Carter and Hollis Johnson assisted in Kathleen (Kay) Carter’s death by taking her to Switzerland to die with the assistance of DIGNITAS in 2010. Kay Carter suffered from spinal stenosis that limited her mobility and caused her chronic pain. Carter and Johnson joined the case because a physician in British Columbia said he would have helped if the process was not illegal under Canadian law. For their part in arranging Kay’s suicide overseas, they could have been persecuted under Canadian law, though this did not come to pass.
The Canadian Supreme Court ruling does not take effect for 12 months. This leaves time for Canada’s Parliament and provincial legislatures to enact laws regulating assisted suicide. The court’s opinion lays out a limited framework:
- Patient must be a competent adult who consents to terminate his or her life’
- Patient must suffer from a “grievous and irremediable medical condition…that causes enduring suffering that is intolerable” and
- No physician can be compelled to assist a person who wants to die
The rulings leaves a lot of unanswered questions: What qualifies as a “grievous and irremediable medical condition” and what is “enduring suffering that is intolerable” is up for debate. Does this include depression or other mental illness? Critics have already come out against the ruling. Concerns have been expressed by the disabilities and culture of life communities as well as conservative politicians.
This case is not the first time that Canada has dealt with the issue of assisted-suicide. In June 2014, Quebec passed an aid-in-dying law that requires a patient to request assistance in dying; the physician who will provide the aid must confer with a second physician to verify that the request was made voluntarily, without coercion, and with full informed consent. The physician then delivers the aid personally and cares for the patient until death.
Canada joins a growing number of nations that have enacted aid-in-dying laws. Just to its south, in the United States, assisted suicide is permitted in 5 states. Oregon, Washington, and Vermont legalized it through law or referendum. In Montana a court ruled that a physician who helps a person die is not criminally liable. And in New Mexico a judge ruled that there is a constitutional right for competent, terminally ill patients to seek assistance.
In Europe, assisted suicide is legal in the Netherlands, Belgium, Switzerland, and Luxembourg. And in South America, Colombian courts have ruled that a physician cannot be prosecuted for helping a consenting, terminally ill patient to die.
I am supportive about this decision because it allows those individuals who are competent, aware, and desiring assistance to avoid a loss of dignity, disintegration, suffering and pain that they do not desire. Unlike some press on this case, no one will be forced to die, no physicians are required to participate, and no one will be killed simply for having a medical or health condition. I do think Parliament has an opportunity to craft good legislation that helps ensure this is a fair and just process that protects individuals and permits them to exercise their rights.
Hand-in-hand with these laws, need to be greater efforts to improve care at the end-of-life through hospice, palliative care, and pain control. Not everyone wants to choose assisted suicide and they should be forced to choose such a path because of a lack of resources to deal with their concerns.
With 12 months until enactment, a great deal can happen. And perhaps this provides some impetus for changes in death and dying both north and south of the border. One of the first changes is willingness for a public conversation between the public, the Canadian Medical Association, and government leaders on end of life. Another result is a call for greater awareness of and support for palliative care. Canada has taken steps to bring dying, specifically, aid-in-dying, into the public light. By taking the mystery out of dying and destigmatizing death, the possibilities opens for making end-of-life an open and rewarding experience for all.