9th Feb 2015
Physician Assisted Death: Your Constitutional Right to Die
Carter v. Canada (Attorney General)
In a nutshell, the Supreme Court of Canada (SCC) ruled that the criminal prohibition against assisted suicide is unconstitutional to the extent it applies to competent adults who clearly consent to termination of their life and who suffer from grievous and irremediable medical conditions (see the final order below). The decision is suspended for 12 months in order to give the government time to introduce new legislation.
How did the SCC arrive at this decision? Let me take you on a brief tour of our Charter of Rights.
Setting the Stage
“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.” (Para 1, Carter)
The question before the court was whether
The criminal prohibition that puts a person to this choice violates her s. 7 Charter rights.
A Little Aside: What happened to the SCC Rodriguez decision of 1993?
In the Rodriguez decision, the SCC ruled that the Criminal Code prohibitions related to physician assisted death were valid after engaging in a s. 7 Charter analysis. The facts of the Rodriguez case were very similar to the facts in the Carter case, so why did Rodriguez no longer apply?
The SCC stated that trial courts may reconsider settled rulings of higher courts, including the SCC, in 2 situations:
1) where a new legal issue is raised; and
2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”
The SCC found that both of these conditions were met so it was within the powers of the trial court to reconsider the issue of physician assisted death and the Criminal Code prohibition, notwithstanding that that issue was already dealt with by the SCC in Rodriguez.
OK, back to the analysis.
s.7 of the Charter: Onus on the Appellants
The first step is for the party alleging that their s. 7 Charter rights have been infringed to prove their case. I will refer to this party as the Appellants (as referred to in the Carter case). If the Appellants cannot prove this, the case is over and they lose.
1) There are 2 parts to s. 7 that the Appellants need to prove:the law (Criminal Code) interferes with, or deprives them of, their life, liberty or security of the person; and
2) once they show 1) above has been engaged, then they must show that the deprivation is not in accordance with the principles of fundamental justice.
The trial court found on the evidence before it that the prohibition had the effect of forcing some individuals to take their lives prematurely, for fear that they would be incapable of doing so when their suffering became intolerable. This established that the prohibition deprives some individuals of life, a position that was not challenged by the AG of Canada.
The SCC did not agree with an existential formulation of the right to life which requires an absolute prohibition of assisted death, for to do so would create a “duty to live” rather than a right to life, which would have further ramifications for the legality of withdrawing life saving or life-sustaining treatment.
Liberty and Security
The SCC noted that liberty and security are distinct interests, but for the Carter case, they were similar enough in interest that they could be considered together.
Underlying this analysis was the concern for the protection of individual autonomy and dignity, which includes matters such as control over one’s bodily integrity free from state interference, and is engaged by state interference with an individual’s physical or psychological integrity (for example state action that causes physical or serious psychological suffering).
The court found that an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. Interference with their ability to make decisions concerning their bodily integrity and medical case trenches (infringes) on liberty, and leaving people to endure intolerable suffering impinges on their security of person.
OK, Step 1 satisfied by the Appellants.
Step 2: Principles of Fundamental Justice
Since s. 7 came into force, the courts have been working on a set of rules to define the principles of fundamental justice. Although several principles have been recognised, 3 principles have emerged as central in recent s. 7 analysis. Laws that impinge on s. 7 rights must not be:
2) overbroad; or
3) have consequences which are grossly disproportionate to their object.
In order to embark on the fundamental justice analysis, it is first necessary to identify the object of the prohibition on assisted dying. Each of the 3 principles set out above are then compared with this object.
The court found that the object of the prohibition was to protect vulnerable persons from being induced to commit suicide at a time of weakness. It is important to note here that at this stage of the analysis, the competing moral claims and broad societal benefits are not considered as they are considered at the s. 1 justification stage of the analysis (See below). Remember, the onus is still on the Appellants to prove their case so the case to be met in the s. 7 analysis is focused on this object, not broader societal or competing moral claims. If the Appellants are successful in proving infringement of their s. 7 rights, then it is the turn and opportunity of the AG of Canada to prove that the infringement is justified pursuant to s. 1 of the Charter.
Using this object, the court then found that the prohibition was not arbitrary and also decided that it was not necessary to analyse “gross disproportionality”. The s. 7 case ultimately turned on the “overbreadth” principle of fundamental justice.
The question to be answered in the “overbreadth” analysis is whether the law takes away rights in a way that generally supports the object of the law, but which goes too far by denying the rights of some individuals in a way that bears no relation to the object. The focus is not on social impacts, but rather on the impact of the law on individuals whose life, liberty and security is trammelled. The court found that the blanket prohibition, although it achieved its object of protecting vulnerable persons, went too far by sweeping into its ambit individuals who are not vulnerable, but who do wish the right to physician assisted death. Put another way, if the object of the prohibition is to protect vulnerable persons from being induced to commit suicide at a time of weakness, applying the prohibition to competent individuals who clearly consent to termination of life and who have a grievous and irremediable medical condition that will cause enduring, intolerable suffering, then the blanket prohibition is not rationally connected to its object, so far as it applies to these types of competent individuals.
So, the Appellants proved their case under s. 7. The onus of proof now shifts from the Appellants to the AG of Canada to justify why the s. 7 rights can be infringed. This leads us to s. 1 of the Charter of Rights.
s.1 of the Charter: Onus on Canada
In the s.1 analysis, the AG of Canada needs to prove the following 4 matters (technically it is 2 matters, with the second matter further divided into 3 different items):
1) law has a pressing and substantial object
2) the means adopted are rationally connected to that object;
3) it is minimally impairing; and
4) there is proportionality between the deleterious and salutary effects of the law.
The SCC found that the AG of Canada proved its case for 1) and 2) above. It also found that it was not necessary to consider 4) above as the case revolved around 3) above: minimal impairment.
The analysis here is meant to ensure that any infringement or deprivation of a Charter right is confined to what is reasonably necessary to achieve the state’s object, whether there is a less harmful means of achieving the legislative goal (citing Hutterian Brethren).
Here the SCC relied heavily on the work and analysis provided by the trial court justice who had the opportunity to review information from several jurisdictions around the world that allow physician assisted death (e.g. Netherlands, Switzerland, Belgium, Luxembourg, Montana, Oregon, Washington and Colombia). The key findings referred to are as follows:
1) a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error;
2) it is feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process;
3) it would be possible for physicians to apply the informed consent standard to patients who seek assistance in dying, adding the caution that physicians should ensure that patients are properly informed of their diagnosis and prognosis and the range of available options for medical care;
4) there was no evidence from permissive jurisdictions that people with disabilities are at a heightened risk of accessing physician assisted dying;
5) there was no evidence of inordinate impact on socially vulnerable populations in the permissive jurisdictions; and
6) although there were both positive and negative impacts on physicians, the evidence supported the conclusion that physicians were better able to provide overall end of life treatment once assisted death was legalised.
The SCC found that the blanket prohibition against physician assisted death was not minimally impairing since it included competent individuals, who clearly consent and who have a grievous and irremediable medical condition. Therefore the prohibition is unconstitutional so far as it applies to these types of individuals.
The formal declaration is as follows:
“ The appeal is allowed. We would issue the following declaration, which is suspended for 12 months:
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.”
What Does This Mean?
1) The federal government now has 12 months to come up with a legislative response to this decision. At the end of 12 months, those portions of the Criminal Code will have no force or effect in accordance with the ruling of the SCC and s. 52 of the Constitution Act, 1982. Since the Criminal Code is a federal area of jurisdiction, it is only the federal government that can amend the Criminal Code.
2) The area of health care is a little more complex since many aspects are within the competence of both the federal government and the provincial governments (called “concurrent jurisdiction”). For example, it may be possible for the provincial legislatures to each come up with statutes that deal with health care in a fashion that may have applicability to physician assisted death. If that happens, there could be a patch work of statutes across Canada (for example see Quebec’s “An Act respecting end-of-life care” which has been drafted but not yet enacted). The complexity increases in that if the provincial statutes cross over into an area that is within a core federal jurisdiction, the provincial statute could be invalid under the principles of paramountcy or inter-jurisdictional immunity.
3) For lawyers and physicians, the practical challenge of knowing what they can do and what they should be doing comes into play. The Carter case is based on the ability of physicians to know their patients, the informed consent process and decisional capacity in the context of medical decision-making. These are all processes usually handled by physicians and not lawyers. However, the issues of undue influence, coercion and perhaps ambivalence are areas that are normally handled by a lawyer. The solemnity and safeguards in place for testamentary instruments such as a will are well known to lawyers. It would seem reasonable that at least this level of solemnity and safeguards should also be applicable to the situation of when a patient is requesting physician assisted death. Is it reasonable for physicians to know this part of the law? Will the standard of undue influence be the same as it is for testamentary instruments – overriding the intentions of the decision maker or will it be a lower standard, and if so how will the issue of persuasion be handled or tolerated before it becomes undue influence in the physician assisted death scenario? Is capacity to make the decision the same as for a personal directive (Alberta) or is it testamentary capacity, which is a lower threshold? Is there a difference between medical care and personal care? Is it possible to make a declaration in a written document such as a personal directive that would still have effect once the person has lost capacity? What does the physician do when their patient arrives without capacity, but has a personal directive requesting physician assisted suicide?
Questions, questions, questions. We will need to see the response of both levels of government and the governing body for physicians in Canada to see how some of these questions will be answered.
Gregory Senda Peterson & Purvis LLP 537 – 7th Street South, T1J 2G8 P.O. Box 1165, T1J 4A4 Lethbridge, Alberta, Canada Telephone (403) 328-9667 Fax (403) 381-8822 e-mail address: email@example.com web site address: www.petersonpurvislaw.ca
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