The last time the Supreme Court of Canada considered the constitutional status of Canada’s ban on assisted suicide (in Rodriguez, 1993), it voted narrowly to uphold the law. Now, in Lee Carter, it is revisiting the issues after a gap of 21 years.
When courts rule on issues of fundamental human rights they don’t pay attention to public opinion. At least that’s what we teach Canadian law students. But in Rodriguez, speaking for the majority, the late Justice John Sopinka seemed to think it significant that there was “no public consensus” in favour of physician-assisted suicide (PAS). Justice Beverley McLachlin, writing on behalf of the four dissenting judges, took issue with Sopinka. She perceived that “the pulse of the nation” favoured decriminalizing PAS.
So, while no one advocates that issues of constitutional rights should be settled by opinion poll, it seems undeniable that in a democratic society public opinion has an important role to play in judicial decision-making.
For the past 15 years or so, opinion polls have consistently shown that at least two-thirds of Canadians favour legalizing PAS. Moreover, in the second week of September, just days before the Supreme Court was due to hear arguments in Lee Carter, a comprehensive new poll was published on the issue. Using double the sample size of previous public opinion surveys, the Ipsos-Reid poll found that 84% of Canadians now favour legalization of PAS with careful safeguards. Even more remarkable was that 85% of those who identified as disabled were in favour, as were 80% of all Christians, including 83% of Catholics.
It turns out that in contemporary Canadian society this most controversial of moral issues isn’t really controversial at all. Public opinion now decisively favours decriminalizing PAS.
Two decades of experience
There have been other important social changes since the Supreme Court ruled 5-4 against Sue Rodriguez.
In 1993, no jurisdiction in the world had yet legalized either PAS or mercy killing, and lawyers and judges could only speculate on possible negative consequences. Over the course of the past 21 years, however, five U.S. states (including Oregon and Washington State) and several European countries (including the Netherlands, Belgium and Switzerland) have opted to regulate assisted dying instead of imposing a total ban. Their experiences have been closely studied and there is now a substantial body of empirical data relevant to the issue of whether legalization poses a danger to vulnerable individuals or groups, such as elderly and disabled persons. I’ll consider this evidence in a moment.
Keep in mind that prior to 1972 if someone attempted suicide but failed s/he could have faced criminal charges and a prison sentence. Suicide was decriminalized in Canada 42 years ago. This means if you are a competent adult you already have the right to end your own life. But if you are a dying cancer patient, or have ALS (as Sue Rodriguez did), and you have reached the point where you wish to take your own life, you may no longer be physically able to do so without assistance.
After the B.C. Supreme Court heard all the expert arguments and considered all the empirical evidence in Lee Carter, Madam Justice C. Lynn Smith ruled that the Criminal Code prohibition against assisted suicide wrongfully discriminates against people who are unable to take their own lives. If we truly value life then then we should not force patients to choose between a life of prolonged suffering or the option of killing themselves prematurely (i.e. while they are still capable of suicide, before their illness makes suicide impossible without assistance).
Gloria Taylor, one of the plaintiffs in Lee Carter, put the central point eloquently:
What I want is to be able to die in a manner that is consistent with the way that I lived my life. I want to be able to exercise control and die with dignity and with my sense of self and personal integrity intact. I want to be able to experience my death as part of my life… I do not want the manner of my death to undermine the values that I lived my life in accordance with.
In other words, autonomous individuals should be free to decide their own fate. When an important life choice concerns a private matter, and when the individual making that choice is near death and suffering without relief, then the state should not interfere unless it can prove that interference is necessary to protect vulnerable third parties.
If you are dependent upon technology to stay alive—a breathing machine, say, or dialysis—you already have the legal right to say “enough is enough; pull the plug.” No one can force life-prolonging treatment upon a competent adult patient. Today, most Canadians in this situation die as a result of their voluntary refusal (or that of their family or substitute decision-maker) to accept life-prolonging treatment. This used to be called “passive euthanasia.” Now it’s called “appropriate care.” Both our legal system and society at large accept that competent adults (or their surrogates) have the right to say “no” to any treatment whatsoever—even when the result of that decision is certain to be a quick death.
Our society’s respect for the right of patients and their families to refuse life support, or to insist upon its discontinuation, has given many the option of a hastened death. Of course, it falls to physicians to “pull the plug.” But far from desensitizing or even “brutalizing” doctors, as some predicted, our hospitals and hospices have become kinder, gentler places, and physicians have become much more respectful of the value of patient autonomy. Not all slopes are slippery.
However, if your life is not technology-dependent then a doctor cannot legally assist you in dying. Gloria Taylor sees this as illogical and unfair. Most Canadians, as we’ve seen, agree with her.
Of course, when your life becomes intolerable you can always choose to stop eating and drinking. But dying slowly by starvation and dehydration is not everyone’s idea of a good death. You can also opt for continuous palliative sedation, in which case you will be sedated to unconsciousness; food and fluids will be discontinued, and you will never regain consciousness.
It is not surprising that many terminally ill patients find these ways of dying unattractive. Some reject continuous palliative sedation because they do not want to linger for days in a state of drug-induced stupefaction. In particular, they may not wish to be remembered this way. They may also wish to spare their family and friends the emotional burden of a prolonged dying.
Many dying patients opt for palliative care, sometimes delivered at home, sometimes in a hospital’s palliative care ward or a standalone hospice. Unfortunately, these options have their limits. Even the most skilful palliative care cannot always provide needed relief from severe and intractable suffering. Moreover, unrelievable suffering can result not only from acute pain but also when the dying patient experiences discomfort from nausea, vomiting, giddiness, a struggle to breathe… all of which are frequent side-effects of both pain-relief medicines and of severe illness.
Aside from pain and discomfort, some dying patients also suffer greatly from feelings of helplessness, hopelessness and fear. In short, palliative care is an important option but it is not always sufficient to prevent implacable suffering for patients at or near the end of their lives.
Regulation better than prohibition
The Supreme Court acknowledged in Rodriguez that the prohibition against assisted death violated the constitutional liberty of the patient. But, as they correctly observed, autonomy rights are not absolute. The Court ruled against Rodriguez because a majority of justices feared that even careful safeguards would not adequately protect the most vulnerable members of society against error, coercion or other forms of abuse and exploitation.
In Lee Carter, the case made by lawyers for the government was based precisely on this fear:
[T]here is a reasonable apprehension that allowing assisted suicide or euthanasia will result in serious harms to individuals and society [and] will result in wrongful deaths. A serious illness or traumatic injury can make any individual vulnerable. Some individuals may also be particularly vulnerable because of other personal circumstances, such as physical and mental disabilities, age-related illnesses or social indifference and isolation.
The government goes on to argue that decriminalizing assisted suicide would result in other harms, including sending a negative message about the value of life, weakening palliative care and negatively impacting physicians.
Justice Smith, who first heard the Lee Carter case, considered all the empirical evidence introduced by both the government and the plaintiffs, including Carter and Taylor. She found in favour of the plaintiffs because the empirical evidence from those jurisdictions that have already legalized PAS and euthanasia decisively disproved the claims made by the government.
Linda Ganzini, an Oregon psychiatrist who has done many studies of PAS in Oregon and in the Netherlands, testified that the experience refutes predictions that legalization of PAS leads to a slippery slope:
We found that rates of assisted dying in Oregon and in the Netherlands showed no evidence of heightened risk for the elderly, women, the uninsured, people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses, including depression, or racial or ethnic minorities, compared with background population.
Significantly, patients receiving PAS in Oregon and the Netherlands are disproportionately among those people who “enjoy comparative social, economic, education, professional and other privileges.”
If anything, the empirical evidence offered in that trial establishes that vulnerable patients are better protected, respect for life is increased, and the bond of trust between doctors and patients is enhanced in Oregon and the Netherlands compared to Canada and U.S. states that have totally banned PAS.
In Oregon, only a tiny fraction—on average, about 1 in 500—of overall deaths takes place with physician assistance. Of these, most have metastatic cancer, are very close to death, and are suffering without hope of relief, despite excellent hospice care. (Among U.S. states, Oregon’s palliative care comes out very near the top.)
The rate of physician-hastened deaths in the Netherlands has remained reasonably constant over the years, ranging between 3% and 4% of total deaths. For example, in 2010 the number of patients who died from euthanasia or physician-assisted suicide was 4,050. According to research published in the medical journal The Lancet, this number is virtually unchanged since 2002, when voluntary euthanasia and PAS were first legalized.
But what if, contrary to fact, the rate of deaths from PAS in Oregon or the Netherlands (or in some other jurisdiction that opted for regulation rather than total prohibition) increased over time? Would such an increase demonstrate that we were sliding down a dangerously slippery slope? Not necessarily.
An increase in PAS cases might be due to abuse of vulnerable patients, but it could just as easily be the result of an increased number of patients coming to understand that PAS is an option worth considering. We need to be cautious when drawing inferences from the data. Despite regular “scare stories” from opponents, the safeguards appear to be working well in both Oregon and the Netherlands.
In 2005, 0.4% of patient deaths in the Netherlands were the result of what the Dutch call LAWER: Life-terminating Acts Without Explicit Request (from the patient). Taken out of context, that figure looks worrying; it means that the legal safeguards, in particular the requirement that no patient’s death should be hastened unless that patient makes an explicit request, are sometimes ignored. In other words, the data show that doctors in the Netherlands do not always follow the rules.
But is this not true everywhere, including in Canada? In fact, in the Netherlands, where the practice of euthanasia is highly monitored, the evidence shows there were fewer cases of LAWER after the decriminalization of euthanasia. Again and again, studies show that vulnerable patients are at least as well protected if not better protected in both Oregon and the Netherlands than they were before legalization of PAS. Regulation works better than prohibition.
Much has been made of the fact that the Belgian parliament recently allowed dying children to opt for hastened death. “Aha!” say the critics. “The slope is slippery.” But these same people neglect to mention that children are eligible for PAS only when they possess “discernment,” and only when parents and doctors agree. It seems unreasonable to turn compassion for the pain of dying children into a weapon against mercifully hastened death for competent adults.
Very few Canadians will want or need PAS in their lives. But if the practice were legalized then many would take comfort from knowing that if things do get really bad, their physician could help them to achieve a quick and peaceful death.
Arthur Schafer is Director of the Centre for Professional and Applied Ethics at the University of Manitoba and a CCPA research associate. His article, “Physician Assisted Suicide: The Great Canadian Euthanasia Debate,” on which this article is based, was published in the September–December 2013 issue of the International Journal of Law and Psychiatry.