The Carter v. Canada Conundrum: Next Steps for Implementing Physician Aid-in-Dying in Canada

by Sally Bean and Maxwell Smith (Bioethics Program Alum, 2010)

We applaud the February 6, 2015 Supreme Court of Canada’s (SCC) unanimous ruling in Carter v. Canada (Attorney General), 2015 SCC 5. The Court found the criminal prohibition of assisted death to be in violation of section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. The ruling has been suspended for 12 months to enable time for a Parliamentary response. In the wake of this landmark ruling, we identify and briefly discuss three issues that require serious attention prior to the implementation of Physician Aid-in-Dying (PAD) in Canada.

The legal prohibition on assisted dying in Canada dates back 22 years to the SCC’s 1993 ruling in Rodriguez v. British Columbia (Attorney General). In a 5-4 decision, the majority of the Court held that, although prohibiting aiding and abetting a person in committing suicide (section 241(b) of the Criminal Code) did deprive a patient (Rodriguez) of her security of person under section 7 of the Canadian Charter of Rights and Freedoms, this violation was justifiable because the infringement was in accordance with “the principles of fundamental justice.”

Reflecting a changing legal and moral landscape, the Carter v. Canada SCC ruling again addressed Criminal Code section 241(b), in addition to section 14 (prohibiting persons from consenting to death being inflicted on them). Specifically, the ruling held that these sections of the Criminal Code are void if they prohibit PAD for a competent adult 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 physical or psychological suffering that is intolerable to the individual in the circumstances of his or her condition.”

Competent Adults

The SCC Carter ruling will now require subsequent legislation or regulations to delineate who counts as a competent adult. Like most jurisdictions that permit PAD, the ruling limited it to competent adults. Importantly, this may preclude patients suffering from advanced dementia or other diseases that render a person incapable of making their own treatment decisions. The legal standing of an advance directive authorizing PAD, made while an individual possesses decision-making capacity, remains to be seen and warrants further consideration.

Some Canadian jurisdictions, such as Ontario, do not have a legal age of consent for healthcare treatment decisions. Rather, under Ontario’s Health Care Consent Act, decision-making capacity is based on an individual’s ability to both understand the relevant information and appreciate the reasonably foreseeable consequences of the decision. Therefore, in jurisdictions without an age of consent for treatment, the Carter ruling could potentially require clarification if a determination of being an “adult” is based on the legal age of majority as determined by each province or territory (and is either 18 or 19 years of age across Canada), or if it is based on a capacity to make treatment decisions.

PAD Application beyond Terminally Ill Patients

The SCC left open the possibility that PAD should not be confined only to the terminally ill but also “persons with a grievous and irremediable medical condition that causes enduring physical or psychological suffering.” As Sean Philpott-Jones notes, “[b]y including references to disability and psychological suffering, the Court potentially opened the doors not only to those with terminal illnesses, but also those with chronic but not life threatening illness or disabilities, as well as those suffering from mental illness.” Further thought will have to be given to how we determine that a person’s condition is in fact “grievous and irremediable.” For example, will someone with treatment resistant depression be required to have attempted all reasonable treatment options, regardless of associated side effects?

Physician Conscientious Objection

The ruling also broaches the issue of which physicians will provide PAD. Just one month before the ruling, a member survey by the Canadian Society of Palliative Care Physicians found that 74% of its members reported they would not provide PAD. Similarly, a member survey conducted by the Canadian Medical Association indicated that more than one-quarter would be willing to provide PAD. Jurisdictions with PAD legislation, such as Oregon’s Death with Dignity Act, recognize that physicians have the ability to conscientiously object to participating in PAD. As a harbinger to the Carter ruling, in August 2014, the Canadian Medical Association softened its stance on PAD and in a released statement noted that the CMA “supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding to provide medical aid in dying.” Before PAD is implemented in Canada the issue of who will provide assistance in dying must be addressed at the very least to avoid inequities in access.

Now that the ruling has been handed down, the more difficult task of defining the legal and ethical parameters of who can consent to PAD and what obligations physicians have to honor such requests must begin.

[The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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How to Die in Canada

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

Last week, our neighbors to the north took a huge step towards legalizing physician aid-in-dying. On Friday, the Supreme Court of Canada unanimously struck down that country’s ban on the practice, suspending two sections of the Criminal Code that outlawed assisted suicide and euthanasia, and ordering the Canadian Parliament and the various provincial legislatures to draft new legislation that would allow physician aid-in-dying.

This is not the first time that Canada has dipped it toe into these treacherous waters. Earlier this year, the Canadian province of Quebec passed Bill 52, also known as ‘An Act Respecting End-of-Life Care’. That Act, which would have taken effect in December, would grant terminally ill Quebecers the right to request a physician’s aid in dying.

In order to qualify for medical assistance in ending their lives, however, these patients must have “an incurable illness that is causing unbearable suffering”. They would have to be in constant and unbearable pain that doctors couldn’t relieve with treatment. The request for aid-in-dying would also have to be made in writing, witnessed by the attending physician, and approved though consultation with a medical team after two doctors determine that the patient is competent to make this request.

The Supreme Court ruling went much further than what Quebec’s law would allow. The nine Canadian justices ruled that physician-assisted suicide should be made available to any competent adult who “clearly consents to the termination of life and 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.”

By including references to disability and psychological suffering, the Court potentially opened the doors not only to those with terminal illnesses, but also those with chronic but not life threatening illness or disabilities, as well as those suffering from mental illness.

It is unclear how Canadian legislators and medical professionals will respond to this ruling, but they will face a number of challenges in devising an aid-in-dying process that will allow seriously ill patients to end their lives peacefully while still protecting their rights and safety.

But this is a Canadian problem, right?. Why should we care what is happening in the Great White North? Rulings by that country’s Supreme Court have no bearing on US law. Moreover, any aid-in-dying process that our neighbors create is likely to be limited to the citizens and residents of Canada, preventing so-called ‘euthanasia tourism’.

But we should care about what’s happening in Canada because the aid-in-dying movement is also becoming an increasingly powerful voice in US medical practice (particularly following the death of Brittany Maynard, the terminally ill 29-year-old who spoke publicly about moving from California to Oregon in order to legally end her life). American policymakers and physicians can learn a lot from watching the Canadian experiment.

Currently, only five states allow physician aid-in-dying: Montana, New Mexico, Oregon, Vermont, and Washington. In three of those states, laws allowing terminally ill patients to request a doctor’s assistance in ending their own lives were passed by popular referendum or legislative votes. Similar legislative bills or public referendums have been proposed in other states, and popular support for physician aid-in-dying is increasing.

Just last November, for instance, Massachusetts’ voters narrowly defeated a referendum called Question 2 that would have legalized physician aid-in-dying in that state. That narrow 51-49 loss occurred only after well funded and politically savvy opponents were able to reframe discussion about the referendum. The public debate about Question 2 became less about the rights of the terminally ill and more about potential abuses of the disabled and the elderly. But recent polls suggest that nearly two-thirds of voters in the Bay State now support physician aid-in-dying, and a new bill to legalize the practice is currently winding its way through the Massachusetts legislature.

Those of us who live in the Empire State may never get a chance to vote on physician aid-in-dying as New York does not have a popular initiative and referendum process. Efforts have been made to introduce aid-in-dying bills in the state legislature, but these bills face an uphill battle due to strong opposition by religious groups, disability advocates and conservative lawmakers. But this doesn’t mean that physician-assisted suicide won’t soon be legal in New York.

As with Montana and New Mexico, physician aid-in-dying may become legal in New York via court ruling. Just last week, a group of terminally ill patients and clinicians filed a lawsuit asking the New York Supreme Court to invalidate the state’s current prohibition on assisted-suicide.

Currently, a doctor who prescribes a fatal dose of medication to a terminally ill patient can be prosecuted for manslaughter under New York’s Assisted Suicide Statute, which makes it a crime to “intentionally cause or aid another person to commit suicide.” To date, no doctor has ever been prosecuted under this statute. Despite this, the plaintiffs argue that current assisted suicide laws violate the equal protection clause of the State Constitution. For example, physicians are already help some terminally ill patients die (by removing life support) but they cannot help patients who do not rely on continuous medical intervention to live.

Whether or not the New York Supreme Court will rule for the plaintiffs in this case remains to be seen, but the tide of public opinion is clearly shifting in favor of physician aid-in-dying. Physician aid-in-dying may not become the law of the land in New York anytime soon (be it by legislative action or judicial fiat), we need to start talking about it.

No matter which side of the debate you are on — either for or against physician aid-in-dying — we need to have a thoughtful and respectful discussion about dying, about the rights of the terminally ill, and about the role that physicians should play in helping patients attain a peaceful death. And we should watch the Canadian experiment carefully (and the experience of Montana, New Mexico, Oregon, Vermont, and Washington), and learn from their success and mistakes.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on February 12, 2015, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Rated NC-17: Why Voluntary Euthanasia of Children is Dead Wrong

by Dr. Patricia Mayer, Bioethics Program Alumna (2009)

Belgium just became the first country in the world to extend the option of voluntary euthanasia to children under the age of 12.  Voluntary euthanasia of adults has been legal in that country since 2002, but the Belgian parliament has now decided to remove age restrictions from the current law.

This decision raises both ethical and medical questions.  For a patient to qualify, the current law in Belgium requires the patient to make the request, be in unbearable pain, be assessed by two doctors and a psychiatrist or psychologist, and have consent from their legal representative (usually the parents in cases involving children).

Medically, the phrase “unbearable pain” makes little sense in this context.  Physical pain can be controlled with current medical therapy.  It is true that sedation to unconsciousness might be required to achieve complete pain relief in rare cases, but it is not true that physical suffering cannot be controlled. From a physical standpoint, the phrase “unbearable pain” is ambiguous and inapplicable.

Unbearable mental pain or suffering is different, and palliative care cannot guarantee relief from that kind of suffering in all cases. However, the determination that a patient is experiencing unbearable mental suffering must be made by a patient with decision-making capacity. As a society, however, we do not believe children, particularly those under the age of 12 have complete decision making-capacity. Their brains are not developed enough, nor do they have the life experience to always make rational choices.

This underdeveloped decision-making capacity is why we have laws stipulating how old children must be before they can engage in certain tasks or consent to specific acts, such as driving, drinking, voting, and serving in the military.  We rate movies to prevent children from attending those that we deem inappropriate because of extreme violence or sexual content.  We have statutory rape laws under which a child cannot legally consent to sexual intercourse under any circumstances (except marriage) until a specified age is reached.   We also do not allow children the right of refusal; they cannot refuse to be vaccinated, to go to school, to live with parents or guardians, or to accept needed medical treatment except in rare situations..

These laws exist because we believe underage children are not capable of making decisions of great magnitude, or decisions that might later prove harmful to them.  They are not capable of making autonomous decisions the way adults are, so we limit the autonomy of children in all kinds of ways.  Thus it makes little sense to allow a child, who cannot even choose what movie to watch, to request death.

This does not mean that we should not listen to children.  The terminally ill child who has “had enough” should certainly be involved in decisions to forgo further aggressive or life-prolonging treatments.  Such a request should be carefully considered and a decision reached in conjunction with loved ones and the medical team.  Terminally ill children, like all terminally ill persons, should have access to effective palliative care.

Grandma got it right: Johnny doesn’t (always) know what’s best.  Killing him at his request, no matter how ill he is, is surely not the right course of action.

[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]

Unintended Consequences: Obstruction of Patient Choice

by Sue Dessayer Porter, Bioethics Program Alumna (MSBioethics 2011)

Oregon was the first state to legalize aid-in-dying. Since 1998 it has implemented “Death With Dignity (DWD),” which allows eligible terminally ill people to end their lives peacefully with a legal prescription.

Contrary to fears asserted by the opposition, there has been neither a slippery slope, nor granny panels, nor hordes of people clamoring to Oregon in order to die. With fifteen years experience, DWD has demonstrated successfully that cautious adherence to the law provides safe choice and dignity at the end-of-life.

But in spite of this flawless record, there is increasing obstruction against choosing this autonomous and personal end-of-life option. The problem? As Catholic hospitals merge with financially imperiled medical centers or acquire independent medical practices, they are instituting religious policies which prohibit doctors from any participation with DWD. This restriction applies to all doctors, not only Catholics. Therefore, a Jewish physician treating a Protestant patient is dictated by Catholic doctrine. – Doctors are not even allowed to have a conversation with their patients about DWD, so the “duty to refer” to another physician is not even a consideration.

An unintended consequence? Section 127.885 (5) (a) of Oregon’s DWD Act allows a health care provider to prohibit another health care provider from participating in DWD (http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx). This was a compromise incorporated into the law in order to appease the opposition and move the law forward. But in retrospect, lawmakers in the early 1990’s could not have predicted the merger activity by Catholic hospitals twenty years into the future. The state of medical economics has changed so dramatically in the last two decades, that private practitioners cannot sustain on their own; for survival, they are bought by medical centers. Therefore, doctors who previously supported patients through DWD can no longer do so. Washington state voted DWD into law in 2008 and is facing the same obstacles.

Catholic health care leaders claim to be in a savior mode, in that if it were not for them, many communities would be bereft of medical care. They state that they are “driven by a mission to serve the underserved” and profess a commitment to help every human being (http://www.nytimes.com/2013/05/13/us/hospital-mergers-in-northwest-).” This is a guise of altruism, as patients requiring end-of-life choices are being denied lawful alternatives. This pervasive barrier to aid-in-dying is affecting ever-increasing numbers of qualified terminally ill patients who try to avail themselves of DWD. Because their state voted DWD into law, residents of Oregon and Washington reasonably assume that their doctor-patient relationship entitles them access to aid-in-dying. Although this is a credible expectation, it is proving to be false too frequently.

Doctors are individually protected by conscience clauses to deny services that are in conflict with their personal beliefs. Alternatively, as long as freedom of choice is protected for doctors who do not want to participate in specific procedures, the same principle of choice should be guaranteed for doctors who do choose to offer what they consider responsible, ethical and dutiful medical care. And logically, a patient should be assured their right to self-determination.

Medical beneficence should be defined by the doctor and patient, not dictated by the religious views of a separate entity which controls with economic power.

[The contents of this blog are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]