Legal Series
Physician Assisted Death: Carter v Canada

Physician Assisted Death: Carter v Canada

by ARETA LLOYD
Contributor

In 2015 the Supreme Court of Canada issued a landmark decision regarding physician-assisted suicide: it is against the Charter of Rights and Freedoms to prohibit a person from seeking the assistance of a physician to end his or her life.

The result is not quite so simple as a blanket acceptance of physician-assisted suicide. The court crafted a carefully worded decision that puts parameters on this right.

The court ruled that physician-assisted death is not illegal for “a competent adult who clearly consents to the termination of his or her life, and is suffering intolerably as a result of a grievous and irremediable medical condition.”

For an illness to be considered “irremediable,” a person does not have to exhaust all treatment options prior to requesting assisted death. An individual has the right to reject treatments that are unacceptable to him or her.

Lawyers and courts read the decision as a series of tests or conditions that need fulfilling:

  • the person is an adult
  • is mentally competent
  • provides clear, voluntary, and informed consent
  • has a grievous and irremediable medical condition that could be an illness, disease or disability
  • the condition causes enduring suffering
  • the suffering is intolerable in the individual’s circumstances.

The court gave parliament one year to amend the Criminal Code and specifically those sections at the core of the case:

  • section 14, which prohibits anyone from consenting to their own death, and
  • section 241(b), which prohibits anyone from assisting someone with ending their life.

The court did not strike down these sections as patently unconstitutional because they continue to serve an important purpose. What the court did, was tell parliament to carve out an exception for physician-assisted dying.

How did these sections offend the Charter? The Charter right at issue was section 7 which guarantees life, liberty and security. The court reasoned that the blanket prohibitions in sections 14 and 241(b) of the Criminal Code:

  • deprived some persons of life because they were forced to end their lives prematurely for fear that they would not have the ability to do so when they reached the point of intolerable suffering;
  • deprived some persons of liberty because a person’s response to their grievous and irremediable medical condition is central to their dignity and autonomy and they were denied the right to make decisions about their bodily integrity and medical care;
  • deprived some persons of security because they were forced to live with intolerable suffering.

It should be noted that “suffering” can be physical or psychological. Past case law includes psychological suffering, although at a very high level, within the scope of section 7.

It should be noted that “suffering” can be physical or psychological.

This decision, which was unanimous, overturned the Supreme Court’s ruling just barely more than 20 years ago on the same issue. At that time, the court’s decision was split: 5 justices wrote the majority decision and 4 dissented. One of those four was the current Chief Justice Beverley McLachlin.

In the intervening 20 years, other jurisdictions legalized assisted suicide and adopted different regimes to regulate it. The court heard new evidence from these jurisdictions and found that it could be possible to allow assisted suicide and still protect vulnerable people. The court stated that existing informed consent guidelines used by the medical profession in end-of-life situations could be used to ensure that no one was coerced, manipulated, influenced unduly or motivated by depression or mental illness.

If you follow this issue, you already know that there continues to be disagreement about the evidence from other jurisdictions, especially on the issue of whether there are enough protections for the vulnerable. The court did not give further guidance, only that it will be up to parliament, provincial legislatures and medical regulators to address the issues.

The one-year deadline passed in early 2016 and the government received an extention until June 6, 2016 to pass a new law. Since the deadline passed without the proclamation of a new law, the existing Criminal Code provisions will be ineffective for physician-assisted death as per the court decision.

Prior to that deadline, anyone wishing for an assisted death had to apply to the Ontario Superior Court, whose guidelines include that a person must be competent. The medical regulatory body also advises doctors to obtain informed consent from a capable patient for assisted death. Therefore, depending on the timing of their request, dementia patients may be denied the option of assisted death. At this time, doctors remain bound by the guidelines of the College of Physicians and Surgeons, and the court process remains open to everyone.

What the Carter Decision means for Dementia Patients

The key issue for dementia sufferers is the criteria of mental competence to give informed consent to physician-assisted death, and the lack of mention of advance directives.

While it is not arguable that dementia of all types is a grievous and irremediable illness, it is not certain that in all cases it will cause intolerable suffering.

It is quite clear from the court’s decision that the justices envisioned a person giving informed consent to their own death. The question that was put to the court was whether a “competent adult” was deprived of a right to die. The court upheld the trial judge’s reasoning which (a) envisaged a limited exception for someone “competent, fully informed, non-ambivalent and free from coercion”; and (b) accepted that informed consent procedures for medical treatment are sufficient to address decisional capacity and protect the vulnerable. Thus, the court stated that only “a competent adult” would have the right to request assisted suicide. This phrase is relied on to exclude advance directives or substitutes from making the decision.

Further, if we apply the Carter criteria to the concept of advance consent, there is an issue with the second part of the test. While it is not arguable that dementia of all types is a grievous and irremediable illness, it is not certain that in all cases it will cause intolerable suffering. Even if someone believes their suffering will be intolerable, it is possible that it may not be. And, it may not be possible to ever confirm this.

In Ontario, advance directives are not advanced informed consent for any kind of medical treatment or withdrawal of treatment. They are simply a person’s wishes that act as guidance for a substitute decision maker. Therefore, if advance directives were determined to be appropriate for assisted suicide, this would have to be amended in Ontario’s substitute decision laws.

Due to these parameters it is ironic that dementia patients will also face “a cruel choice” similar to the plaintiffs in the Carter case. It may be inevitable that many people suffering from dementia will never be included in an assisted suicide regime because of the very nature of their illness.

However, near the end of the decision, the court stated that their ruling was intended to respond to the facts in the case and that they were not commenting on other situations in which physician-assisted death may be sought.

 

PLEASE NOTE: The information provided in this article is for informational purposes only. It is general information and should not be taken to be a full and accurate discussion of the law on this topic, nor is it intended to be legal advice or to be relied upon as legal advice by the reader.

If you have questions about physician-assisted death, you may contact the author:
Areta N. Lloyd

In Association With
Elder Law Group



About the author

Areta Lloyd

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