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.]

On Physician Assisted Dying

by Jacob Dahlke, Bioethics Program Alum (MSBioethics 2012)

Death with dignity. Physician assisted suicide. Compassionate choice. Euthanasia. “One of these things is not like the other … ” Okay, so not really. They are pretty much all the same thing, used to describe what just happened here in Vermont. Last night, the Vermont state House approved a Senate amendment that provides legal protection and a strict protocol for physicians to follow. It permits physicians to prescribe a legal dose of medication with the knowledge that the patient will take the full dose with the intent to die. Insert here: your choice of words or phrase to illustrate your support or criticism. My interest is two-fold. First, is this a good thing? That is, is it morally or ethically permissible, or is it morally objectionable and ethically impermissible? Second, is this a good law? Before we get into that, let’s start with words. Words matter. I choose to use physician assisted dying (PAD). I think it is the most neutral, as it implies an active process on the part of the physician without any judgment for or against. If you disagree with that assertion, please simply note that my intent is to describe this topic from a neutral point of view. Thanks.

Autonomy is a well-established principle in both law and ethics. It promotes the right of individuals to accept and to refuse medical decisions regarding their own bodies. A person with decisional capacity must be able to understand (identify the relevant “dots”), appreciate (connect the “dots”) and communicate the risks, benefits, and alternatives of the decision at hand, in order to satisfy a minimum threshold of informed consent. Additionally, their decision ought to be consistent with their known goals and values. An adequately informed patient with decisional capacity may make a rational choice to accept or decline any proposed treatment, even a lifesaving one.

In this case, then, it is argued that PAD is an extension of patient autonomy. I see two variables in the equation: the patient’s decision (acceptance/refusal of the treatment), and the treatment outcome (life prolongation/hastening of death). Patient autonomy asserts that one has the right to accept treatments in order to prolong life, self-evidently the vast majority of medical interventions. Patient autonomy also permits patient to refuse treatments even if they have the prospect of prolonging life- see experimental (or even some traditional) cancer treatments. If patient autonomy finally permits one to refuse a treatment that would hasten their death (such as withholding or withdrawing nutrition and hydration), then PAD would provide an example of being able to accept a treatment that does the same thing- hastens their death.

The criticism of PAD, as I understand it, is that this final quadrant – performing treatments that intend to hasten death – violates the other well-established principles of beneficence and non-maleficence, as they exist in dynamic balance with each other and with autonomy. Physicians are obligated to facilitate the two broad goals of medicine – the maximization of health and wellness, and the alleviation of pain and suffering. PAD is inherently because it sits conveniently between these two. First, it recognizes that the first goal is not achievable due to the terminal state of the patient’s particular disease. Second, it requires a redefinition and expansion of the second goal to allow active physician participation in ending life. This in and of itself need not be controversial; after all, we have all likely heard a variance of the maxim that there are worse things than dying. But PAD in a sense absorbs that maxim into permissible professional action for physicians within the scope of alleviating pain and suffering. Pain and suffering can indeed be alleviated in death, but the question is how involved ought physicians be. When we consider beneficence and non-maleficence, we consider the harms and/or risks of harm against the benefits of the treatment. If we accept that there are worse things than death – such as living with intractable pain and suffering – then it follows that there would likely be no benefit that could outweigh such harms. It in a sense forces the physician to act (in order to benefit), as opposed to refrain from acting (in order to avoid harm). In order to support PAD in this context, then, it requires refining the definition of the physician’s professional obligations. While this ought to be done by physicians and their respective groups (and it is), the legislature, by acting now, is accelerating the process. Good for them? Bad? Ask me in a decade. But my impression is that the legislative process, as I observed it here in Vermont, did not account for this unresolved aspect and accepted as resolved.

So what about the law itself then? The larger implications I will leave to the people far smarter than myself, but I do have some observations of the law, based upon the many discussions we had with people very close to the process here, including some legislators. This is my first experience this close to the legislative process, so my filter is still green, but some of what the bill actually says gives me pause and some concern. For example, the bill defines how a patient needs to be “capable”; that is, it “ “means that a patient has the ability to make and communicate health care decisions to a physician, including communication through persons familiar with the patient’s manner of communicating if those persons are available.” Hmmm. This seems to me some ambiguous middle ground between a person with capacity – which includes the ability for them to communicate their own choice – and between using surrogates who can offer substituted judgment, in which some sort of interpretation is needed. I foresee this as being potentially problematic in enacting at the bedside.

Another potential problem is that it may fundamentally discriminate against those people for whom it is supposedly protects. If this (PAD) is really a good thing, one that ought to be made available, then it ought to be made as inclusive as possible. But because of the limitations themselves such as the communication requirement, then it restricts some patients for whom could benefit. For example, imagine a patient who has suffered such a brain injury that he may be minimally aware but non-communicative. Suppose the patient had an advance directive (or more definitively, a COLST form) stating his wish to end his suffering if he were ever to suffer such an injury. Is this clear expression of his autonomous wish any less valid than someone who can actually speak or write? And yet, this patient would be unable to avail himself of this accommodation under this law.

There is of course no obligation or duty for physicians to participate in PAD, and their physicians cannot be disciplined by their employers or experience other recourse by participating. What is less clear is the facility’s role in permitting PAD on its grounds. One particular phrase of note: “A health care facility may prohibit a physician from writing a prescription for a dose of medication intended to be lethal for a patient who is a resident in its facility and intends to use the medication on the facility’s premises, provided the facility has notified the physician in writing of its policy with regard to the prescriptions.” (emphasis mine) I think I understand the intent of the phrase – to permit facilities to determine their willingness to participate at an institutional level. But the way this is phrased indicates an attempt to lump together hospitals (‘patients’) with other facilities like nursing homes (‘residents’). My sense here is that the letter of the law may interfere with the spirit of the law, but we will have to see how relevant this section becomes.

I must say that the process is a thorough one, particularly in ensuring and documenting awareness of all of the other end-of-life measures, including palliative care, hospice, generic ‘comfort care’ and ‘pain control’. There is a general immunity, for example, for a person who may have taken the lethal dose at home but somehow found himself at the hospital and died in the setting of the physicians withholding full measures to rescue. There has been talk of the strict reporting for the next three years and then a tapering off, but I was not able to find that in the statute itself. I must say I don’t quite get that either, if true. If this is indeed a good law, because it provides strict protection, then why would the reporting of a patient be a good thing now, but not in 2016?

Regardless, it is here. It is what it is, and I honestly consider myself fortunate to be here now.

[This blog entry was originally posted on Mr. Dahlke’s blog on May 14, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]