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.”
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.