In a landmark judgement, nine member bench of Supreme Court of Canada on 06 Feb 2015, voted unanimously to allow doctor-assisted death for patients suffering ‘grievous and irremediable medical conditions.’ The bench observed that the prohibition on physician-assisted dying infringes on 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 court suspended its ruling for 12 months to give the Canadian government, medical regulatory bodies and the provinces a chance to draft new laws and policies around assisted dying. It said doctors have the ability to address whether an individual is capable of consent, and said the intolerable suffering can be physical or psychological. In its direct effect on how Canadians are permitted by their government to die (or live); this ruling will always stand out as one of the most remarkable one by the Supreme Court of Canada.
It is pertinent to note that the Honourable Supreme Court had used the term ‘physician-assisted death’ and has not used the term ‘physician-assisted suicide’. This could be because suicide is a criminal offence and so is aiding or abetting a person to commit suicide.
Currently eight jurisdictions permit some form of assisted dying – Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia. The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. Colombia followed in 1997. The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009. Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable.
Many governments and societies base their laws regarding criminality of suicide and homicide based on a belief that human life is God gifted and no human has the right to take it away. It is a dichotomy that the most countries that legislate a death penalty does not provide for any form of form of assisted dying. It is a crime in these jurisdictions 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 cruel options; either she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. In all the jurisdictions that allow some form of form of assisted dying, the death penalty is not in vogue.
In Canada it all begun with the Rodriguez vs British Columbia case of 1993 and in the judgement, the court upheld the blanket prohibition on assisted suicide by a slim majority. The court ruled that the state’s purpose of banning assisted suicide was legitimate – to protect the sanctity of life. Ms Sue Rodriguez suffered from amyotrophic lateral sclerosis and she requested for the right to a physician’s help in ending her life. She in an affidavit said that feared she would suffocate and die struggling for air. She died of an infection in late 2012.
Despite the Court’s decision in Rodriguez case, the debate over physician‑assisted dying continued. Between 1991 and 2010, the Canadian Parliament and its committees debated on six private member’s bills seeking to decriminalize assisted suicide, but none was passed. While opponents to legalization emphasized the inadequacy of safeguards and the potential to devalue human life, a vocal minority spoke in favour of reform, highlighting the importance of dignity and autonomy and the limits of palliative care in addressing suffering. The majority expressed concerns about the risk of abuse under a permissive regime and the need for respect for life. A minority supported an exemption to the prohibition in a given exceptional circumstances.
In case of Ms Lee Carter, she took her mother Kathleen, 89, to Switzerland in 2010 for a doctor-assisted death because of a degenerative spinal condition. Kathleen said in an affidavit she did not wish to live ‘as an ironing board,’ flat on her back, unable even to read a newspaper. Ms Lee Carter said that, after her mother’s death that the entire family were elated as Kathleen got what she wanted. The case of Kathleen led to the court’s decision, which indicates that Canadians have a choice to die with dignity in their own country, surrounded by friends and family.
The timing of the judgement is considered politically explosive. It raises the very real possibility that doctor-assisted suicide could become an issue in the October federal election. The Conservatives led by the incumbent Prime Minister Stephen Harper, clearly oppose doctor-assisted suicide. Federal lawyers had argued unsuccessfully that totally banning assisted suicide shows that all lives are valued and worthy of protection. They also argued that such a ban would protect the vulnerable from being subtly encouraged to end their lives.
The Supreme Court has placed a 12-month delay on the ruling’s effect. Parliament has a year to draft a new law. If that does not happen, the decision takes over, and would allow for physician-assisted death. With the federal elections taking place in October 2015, formation of the new government after the election, all indicate that there is hardly any time with the parliament to pass any legislation. Politically too, the ruling dispensation would never like to touch such a subject during an election year, for obvious reasons.
The Canadian Supreme Court by this ruling has clearly defined the distinction between ‘right to life’ and ‘duty to live’. The ruling is a statement that the current law against doctor-assisted death breaches rights in Section 7 of the Charter of the Canadian Constitution, which protect life, liberty and the security of the person.