Canadians have right to doctor-assisted suicide, Supreme Court rules

Posted on in Health Policy Context

TheGlobeandMail.com – News/National
Feb. 06 2015.   Sean Fine – Justice Writer

Canadian adults who are mentally competent and suffering intolerably and permanently have the right to a doctor’s help in dying, the Supreme Court ruled unanimously on Friday morning. The intolerable suffering can be physical or psychological.

The court suspended its ruling for 12 months to give the Canadian government, medical regulatory bodies and the provinces a chance to draft new laws and policies around assisted dying. It said doctors have the ability to address whether an individual is capable of consent.

The court said nothing in its ruling suggests doctors may be compelled to assist a patient in dying.

In its direct effect on how Canadians are permitted by their government to die, the ruling may be the one out of the court’s 140-year history that most directly and powerfully touches Canadians’ lives. The decision was signed by “The Court,” signifying its institutional weight.

The ruling comes 22 years after the court narrowly rejected the claim of 42-year-old Sue Rodriguez, dying of amyotrophic lateral sclerosis, to a right to a physician’s help in ending her life.

The case at issue involved two women, both of them now dead. One was Kathleen Carter, 89, suffered from a degenerative disease, spinal stenosis, that left her lying “flat as an ironing board,” in her own words, and unable even to read a newspaper. Her daughter Lee Carter took her to Switzerland for an assisted death. The other was Gloria Taylor, who suffered from the same condition as Ms. Rodriguez and died of an infection in late 2012.

The court called the law against assisted suicide cruel and said that, far from protecting the vulnerable, it harms those who suffer terribly and unchangingly. It began Friday’s momentous ruling: “It is a crime in Canada to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

The court did not strike down the Criminal Code’s prohibitions on assisted suicide, but said they no longer apply “to the extent that they prohibit physician-assisted death for a competent adult person 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 suffering that is intolerable to the individual in the circumstances of his or her condition.”

At the Toronto headquarters of Dying With Dignity, a non-profit organization that has been advocating for doctor-assisted death for years, a cheer went up when CEO Wanda Morris emerged with the news: “It’s allowed,” she said, her voice breaking.

A moment later, someone shouted from the back of the room: “Wanda, it’s unanimous!”

After hugging some of the two dozen or so people in the small office, she turned to the crush of reporters awaiting her reaction. “I am so pleased that today the courts have dragged our laws into line with the values of Canadians, those values of compassion and autonomy we hold so dear,” she said, crying.

Ms. Morris thanked the B.C. Civil Liberties Association and the plaintiffs who brought the case. “Also, a heartfelt thanks to our physicians, who had the courage to go against their profession and stand up.”

The court also ordered a major change to the rules around who pays the costs of litigants in cases of broad public importance. It said the governments involved should pay the full costs. In this case, that is likely to amount to more than $1-million for Canadian taxpayers, and a smaller portion to British Columbia.

The federal government had argued that Canada needs a blanket ban on doctor-assisted suicide to protect vulnerable people and assert the value of the lives of disabled people. In its decision 22 years ago, the Supreme Court accepted similar arguments, ruling 5-4 that the government was justified in trying to protect the sanctity of life. Justice John Sopinka, writing for the majority, said that to the extent a consensus existed, it opposed assisted suicide, and cited Canada’s abolition of capital punishment in support of the view that Canadians wished the sanctity of life to prevail.

But this time, the court overwhelmingly rejected the notion that the sanctity of life was at stake, or that the vulnerable were endangered by assisted dying.

A key to the ruling was a trial judge’s finding that jurisdictions such as Belgium, Luxembourg, Washington and Oregon that allow physician-assisted dying have shown they can protect vulnerable people from death against their wishes. No Western jurisdiction had such a policy when the court decided the Rodriguez case. (Quebec has passed a law recognizing medical aid in dying as an appropriate part of end-of-life care, the only province to have done so.)

The court said the blanket ban was unconstitutional under Section 7 of the national charter of rights because it limited the right to life, liberty and personal security more than was necessary to accomplish its goals, and in such a way as to deprive suffering people of their dignity and autonomy.

The case was the third in three weeks in which the court expressly overturned earlier rulings, and sided with a trial judge, by arguing that where social or legislative facts have changed and where the understanding of constitutional principles such as “the right to life, liberty and security of the person” have changed, trial judges have the right to depart from precedent. Precedent is “is not a straitjacket that condemns the law to stasis,” it said.

The ruling caps a momentous 14 months in which the court unanimously struck down laws against prostitution – also as a violation of security of the person – granted an aboriginal group in B.C. right to land title, or permanent ownership, of a fair-sized chunk of the province, rejected the Prime Minister’s choice of a new Supreme Court judge, softened or struck down federal criminal laws, and declared a constitutional right to strike and to unionize.

With a report from Kelly Grant

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