Physician Assisted Dying: How the SCC got there

It’s a paradox.

Your right to die is an affirmation of your right to live.

In a unanimous decision of astonishing clarity the Supreme Court of Canada (SCC) decided that the Criminal Code prohibition on physician-assisted dying violates your Charter rights to life, liberty and security.

Here’s how they did it.

Section 7:  right to life, liberty and security  

Those who are grievously and irremediably ill may take their own lives prematurely rather than risk of being incapable of ending their lives later when their suffering becomes intolerable.

This violates the right to life.

The prohibition on physician-assisted dying interferes with a person’s freedom to make fundamental personal choices concerning their bodies.

This violates their right to liberty.

Condemning a person to a state of intolerable suffering interferes with their right to control their “bodily integrity”.

This violates their right to security.

Consequently the Criminal Code prohibition on physician-assisted suicide violates a person’s Charter rights to life, liberty and security.

current-judges

The Supreme Court of Canada

The SCC acknowledged that the state can interfere with a person’s life, liberty or security—in fact it does so all the time—but only if it does so without violating the principles of fundamental justice.

Fundamental justice

The principles of fundamental justice dictate that the state cannot enact laws that are arbitrary, overbroad or grossly disproportionate to their objective.

The objective of the prohibition on physician-assisted dying is to protect vulnerable people from being induced or pressured to commit suicide.

A total ban on physician-assisted dying is not arbitrary in that it achieves this objective, however it is overly broad because it catches everyone, the vulnerable and others who have a “considered, rational and persistent wish” to end their lives.

Having decided that the prohibition was overly broad, the SCC did not have to decide whether it was also grossly disproportionate (ie. was the suffering of those who wanted physician-assisted dying was out of proportion to the law’s objective of protecting the vulnerable).

Section 1: the notwithstanding clause

A law that violates section 7 and runs afoul of the principles of fundamental justice can be saved by the “notwithstanding clause” in section 1 of the Charter if the state can show that the public good justifies depriving an individual of life, liberty or security.

The state could satisfy this burden if it could show that an absolute ban on physician-assisted dying was the only way to protect the vulnerable.

This requires evidence that (1) physicians can’t assess a patient’s competence to give informed consent for medical treatment and (2) patients in permissive jurisdictions have been abused and their lives have been casually terminated.

The state provided anecdotal examples of abuse that were countered by anecdotal examples of systems that worked well.

The SCC relied on the evidence, not competing anecdotes.  It accepted evidence that properly trained physicians can assess a patient’s competence to give informed consent and determine whether coercion or undue influence is at play.  In fact physicians make such assessments today when patients refuse life-saving medical treatment.

The SCC concluded that the risks of physician-assisted dying can be managed by a carefully designed system of safeguards and an absolute ban was not necessary.  As such the state could not invoke invoke the “notwithstanding clause” to save the absolute ban on physician-assisted dying.

The decision

The SCC concluded that physician-assisted dying was legal in cases where a competent adult person (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 his/her circumstances.

In reaching this decision the SCC confirmed that end-of-life decisions belong to the individual not the state.

This is as it should be.

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12 Responses to Physician Assisted Dying: How the SCC got there

  1. Einar says:

    I always remember having to make the decision to sustain my parents life medically or let them “slip away”. I had really good medical advice, their personal directives and a desire to do the best I could for my parents. I still have doubts I did the right thing, 13 years after my father and 3 years after my mother and again I had the very best medical advice from doctors and nurses I really trusted. I truly believe that there still needs to be some hoops you need to jump through, so it’s a little more complicated than just telling your doctor you want to die today. We need to be careful we don’t open the door too far, but respect that it is equally terrible to allow a person to needlessly suffer. This has nothing to do with religion and everything to do with humanity and making really tough decisions for the ones we love and ourselves. This law needs to happen, that is a given, but it something I still feel a little worried that it could be misused. Get it done, but do it carefully.

    • Well said Einar. This is definitely the time to “get it done, but do it carefully”.

      The SCC tried to address the issues that could arise from “getting it done” too quickly by giving the federal and provincial governments a full year to get prepared. Sadly they dragged their feet, likely because physician-assisted dying hits a nerve no matter who you are and how blandly the issue is framed. I think Alberta did a very good job in setting up the appropriate safeguards, however it will be up to all of us to ensure that they are properly followed by the healthcare professionals entrusted to do so.

      On a slightly different point, I wanted to pass along a comment by lawyer Peter Roberts who said the decision “demonstrates the ability of a single citizen to raise for debate serious questions and issues that affect all Canadians, even when the politicians refuse to do so.” It’s a remarkable aspect of our judicial system and makes for a healthier society.

    • carlosbecaCarlos Beca says:

      I am surprised that you say that it is not a religious decision.
      The only reason why we are still debating this issue is because religious groups have put a lot of pressure on politicians to not bring this issue up at all.
      In fact this is the reason why the conservatives missed the deadline. They did not want to face it as well as abortion only because the Harper government was without a doubt one of the most influenced by religion in the last 30 years. Their attitude towards science said it all.
      So I totally disagree with you on this one.

      • Einar says:

        I should have phrased that better. It shouldn’t be a religious decision, because if it is, then it will never pass. Someone would make the case that helping someone to die is a sin and against God’s will. It should be about us wanting to show people compassion, instead of prolonging their suffering we support their right to end that suffering. I agree the Harper Gov’t choked on their responsibility to have the debate, they did us no favour on many things. Maybe that is why they are no longer government and now the Trudeau Government needs to shoulder the responsibility and debate. I have always been a big believer that religion is faith and government is secular and other than trying to be wise, compassionate and having good judgement, religion and state should be separate. My apologies for not saying it better and perhaps I still haven’t.

    • carlosbeca says:

      I am surprised with your comment that it is not a religious decision.
      The only reason why we are still debating this issue is because religious groups have put a lot of pressure on politicians to not bring this issue up at all.
      In fact this is the reason why the conservatives missed the deadline. They did not want to deal with it. The Harper government was without a doubt one of the most influenced by religion in the last 30 years and they had no interest on raising this issue at all. Their attitude towards science was bad enough to figure where they stood.
      So I totally disagree with you on this one.

  2. carlosbeca says:

    SUsan not sure why two entries but the bottom one is the one I sent. 🙂
    I am sorry not sure how this happened

  3. Wonderful blog, Susan! This is a difficult situation, for sure. Whatever is the outcome of the political and judicial debate, it must be a very private decision and kept professionally between the patient, the physician and the closest advocates for the patient. There should not be special rooms or any obvious ‘special’ circumstances that will allow others to infer from either the dialogue of the behaviour just what is going on in that relationship! Privacy rules!!

  4. …. that would be “either the dialogue OR the behaviour …. ” Should have edited more closely! 🙂

    • No worries Jane, I’m in 100% agreement with your comment, this is a private decision. The CPSA standards of practice appear to be robust enough to both protect privacy and ensure that the vulnerable are not taken advantage of. The issue, as Julie points out, is making sure the standards of practice are properly applied.

  5. jerrymacgp says:

    What worries me most about this decision, is that it will short-circuit ongoing discussions about palliative care, and making high-quality end-of-life care available to everyone, since end-of-life is a time that will come to us all. Will MAID (medical assistance in dying) be made available in rural and remote communities that currently cannot access the whole spectrum of palliative care? Will individuals facing end of life, and their loved ones, choose MAID in their local community instead of facing being transferred far from home, and far from loved ones, to a distant palliative care unit or hospice, often in a larger centre, to await the natural end of life? Is this not a perversion of ethical decision-making?

    I also worry about the current reluctance among both health care providers and patients/families to have honest and open discussions about end of life care before the decision is staring them in the face, and the battles we still see over continuing aggressive interventions in the face of futility. As a former ICU nurse, I have lived those battles, and seen the suffering that can ensue when aggressive interventions are prolonged beyond any reasonable expectation of utility. How will those discussions be affected by the availability of MAID in the constellation of treatment options?

    • Jerry you raise very important points. I don’t know if this is correct, but I’ve heard that only 30% of the terminally ill are in palliative care. I’m not sure whether this is their choice or the lack of access or a combination of both. In any event the SCC said the trial judge reviewed the evidence from jurisdictions where MAID is allowed and “rejected the argument that the legalization of physician-assisted dying would impede the development of palliative care in the country, finding that the effects of a permissive regime, while speculative, would not necessarily be negative.” I’d like to know what the phrase “not necessarily be negative” means exactly and will dig into the trial decision to see if I can shed some light on this issue.

      Your second point reminds me of Dr David Swann’s earlier comment. Everyone is reluctant to talk about end of life care and, as you observed, the result can be a pitched battle between the family, the patient and the medical team.

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