Options for Implementing Carter: One Lawyer’s Unique Perspective on the Landmark SCC Decision
I recently read a national post article by Dr. Will Johnston. In addition to being a family physician, Dr. Johnston is an anti-euthanasia activist. His article suggests that members of the judiciary would be better positioned to judge whether or not a person is competent to make a life-ending decision than members of the medical profession. I believe there is merit to Dr. Johnston’s point but I do not know if the model Dr. Johnston is proposing would be an appropriate one. Members of the judiciary may have similar issues in making competency. This is because, for the most part, judges are unlikely to have a background in disability issues. For the purposes of this article I have chosen to confine my comments to the application of Carter to persons with physical disabilities. The application of the ruling to the terminally ill presents its own unique set of issues which will not be dealt with here.
In Carter v. Canada the Supreme Court of Canada found that the prohibition against physician-assisted suicide violates the rights of individuals who are terminally ill or who have a disability. The decision was based on section 7 of the Canadian Charter of Rights and Freedoms which guarantees the right to Life, Liberty and Security of the person. The court went on to find that the blanket prohibition on assisted suicide could not be justified as a reasonable limit which minimally impaired the rights in question. The decision finds that physician-assisted suicide should be allowed where the request is being made by a mentally competent person in the following circumstances:
- The person affected clearly consents to the termination of life; and
- The person 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 (Carter, at para 4).
The current ban on assisted suicide remains in effect until February 2016. This will give the federal government time to consider its response to the decision and decide whether to put an alternative scheme which regulates the use of physician-assisted suicide in place.
Dr. Johnston’s article raises the question of whether medical professionals are qualified to make determinations of competency in this area. As a person whose disability requires me to get assistance with many activities of daily living I have first-hand knowledge of the difficulties faced by many persons with disabilities when they are attempting to access standard medical treatment. It’s been my experience that many medical professionals do not have sufficient knowledge of persons with disabilities to allow them to make educated decisions as to whether or not a person is competent to consent to end their life.
In 1993, in the Rodriguez v. British Columbia decision, the Supreme Court of Canada rejected Sue Rodriguez’s claim that the ban on assisted suicide violated the Charter. The Majority found that the safe-guards associated with the ban were necessary to protect vulnerable individuals such as people with disabilities who could be unwilling victims of assisted death.
In Carter the Court notes that the prevalence of laws allowing assisted dying has increased significantly since the release of the ruling in Rodriquez. The decision comments on the feasibility of safeguards to prevent undue influence or duress being placed upon persons seeking medical assistance to end their lives. The decision notes that other jurisdictions have Right to Die laws which have safeguards in place to prevent exploitation. Well known examples of this include the Netherlands, Switzerland and the U.S. state of Oregon. In the Netherlands, doctors are permitted to assist individuals in dying where they are competent and experiencing unbearable suffering. The request for physician-assisted suicide must be approved by two doctors. Switzerland has the most liberal assisted dying model currently in existence. Any individual can assist with the process of suicide so long as the motives are unselfish. Switzerland is also the only jurisdiction to allow non-residents to make use of its assisted dying laws. In Oregon, doctors are permitted to prescribe lethal dosages of medication where patients are terminally ill and have six months or less to live. Patients must administer the medication independently. The majority of these schemes came into effect after the Supreme Court of Canada released the Rodriguez decision.
As we have seen, the legal landscape surrounding assisted suicide has changed significantly since 1993. I am apprehensive about how medical professionals will approach the issue of assisted dying on a practical level. There will no doubt be principles and guidelines put in place as a result of the Carter decision, but my concern is their application by the professionals entrusted with overseeing and implementing any legislative scheme. My concerns centre mostly on the fact that many medical professionals have limited experience with people with disabilities.
Unfortunately due to how my disability appears to others, I am frequently presumed to be incompetent. Society in general needs to be better educated about the effects disability can have on a person’s ability to make decisions. People need a better understanding of the fact that competency isn’t a black and white concept. Many people with intellectual disabilities for example are capable of providing consent in some areas of their lives but not in others. My biggest fear considering assisted suicide as a result of the Carter decision is that people will be denied the opportunity to take advantage of any scheme that is put in place to regulate it because they may be presumed incompetent by medical professionals who have limited knowledge of disability. Conversely, the individuals charged with approving requests for assisted suicide may not be able to spot request being made under duress. This also would be due to a lack of education on the part of the persons involved in determining the competency of the individual making the request.
The types of issues I have just mentioned can be solved by educating medical professional and judges. These types of issues could be dealt with by creating team or panels of experts charged with approving requests for assisted dying. These teams could include a medical professional, a judge or legal professional and someone such as a social worker who has expertise dealing with disability issues or is focused solely on issues concerning assisted suicide. The individuals on these teams should be required to receive education concerning the realities of living with a disability and the intricacies associated with end of life decisions. I would propose that similar panels be put in place to assist the terminally ill to access any assisted dying regime put in place as a result of the decision in Carter.
People with disabilities need to become actively involved in their healthcare, if they do so, the medical profession will come to see this as the norm and will become more comfortable in dealing with persons with disabilities. Where this is not possible due to the nature of an individual’s disability, advocacy groups assisting these individuals should also make every effort possible to educate the professionals involved in the individual’s care. These groups should also involve the individual in making decisions about their health as this will assist healthcare professionals in viewing the individuals as being an important part of the decision making process. Members of the judiciary could participate in specially designed disability awareness sessions put on by judicial educational institutions. Similarly, colleges of physicians or nurses and medical schools could also play a role in educating their members as to the effects which disability could have on a person’s health situation.
Assisted suicide will soon be a reality in Canada. This means that the professionals involved in helping people make end of life decisions have an even greater duty to make sure that the individual making the decision remains central to the process regardless and in spite of any obstacles posed as a result of a person’s disability.
______________
Christy Smith-Worthylake is an Ottawa-based virtual research lawyer. She owns and operates CSW Legal Research which provides legal research services to law firms, and organizations. Her practice mainly focuses on labour and employment law, disability issues and anti-spam law. Ms. Smith-Worthylake has quadriplegic cerebral palsy and has served as a volunteer with many disability organizations including the Ontario March of Dimes.
An excellent article and gives one much to ponder in what is a life changing debate.
Christy’s suggestion of aligning medical and legal expertise within a decision-making process merits serious consideration.
The real test for the forthcoming regime will be: How do we deal with requests by individuals with intractable mental illnesses?
“Assisted suicide,” which is a polite term for euthanasia because it sounds like we’re helping, puts a burden on individuals with disabilities to earnestly consider whether their lives are worth living. As a person with a disability, I already feel burdened. The decision making process for me is no longer involves looking for the most effective treatment available to alleviate as much suffering as possible. The decision becomes: is my life worth living at all? Suicide is not just a last-ditch option of the desperate. It’s a morally-sanctioned, state-approved choice. We as a society have now acknowledged that some lives are not worth living. In doing so, we have imposed on all an existential burden, a burden that falls more heavily on the disabled.
This is a great analysis Christy. You rightly identify the main issue in assisted suicide cases, and most other disability cases – competency of decision makers.
Disability is relatively new to society, as in the past many disabilities would just result in death. I am not sure there are any professions equipped to properly make decisions as simple as disability social assistance or disability insurance eligibility, let alone assisted suicide eligibility though.
Traditionally, the medical profession deals with disability, but my own disability – having been born without arms and legs and being an electric wheelchair user – has very little medical significance; I am healthy but limited in many of the things I can do. Yet I must get medical approval for things like assistive technology funding, an accessible parking permit or disability tax credit status. In those cases, I am required to take time to attend an appointment or series of appointments, where I must educate my doctor or occupational therapist in coming to an appropriate recommendation that really comes from me, while a fee for the professional’s work is charged to me or someone else, like the government.
I was recently shocked, when I had sudden appendicitis and had to get my appendix removed. I went to the hospital and the doctors and nurses were fantastic. I realized in my few days in the hospital for an acute issue, that this was the first time in my whole life of several decades, that I had seen doctors acting competently. All my other interactions had been due to disability, where seemingly no one in society has expertise. Doctors certainly do not.
I think the crux of the issue is as follows. If I happen to be affected by a particularly vicious form of dementia, or chronic pain, or some other situation I cannot bear in my later years I should have a meaningful option of ending my life with dignity. If those future disabilities stop me from ending my life, when someone without those disabilities could, through for example non-assisted suicide, that is discriminatory and a nightmare situation. If I have more benign end-of-life symptoms of ageing like further reduced mobility, the last thing I want is an administrator somewhere saying: “that poor old man can hardly move AND he has no arms and legs. I learned in university having no arms and legs is serious so let’s fast track assisted suicide. Where did I put that judge and social worker’s email?”
Thanks for having this conversation and helping me think about it. Maybe we need to start a new profession of Disability Specialists – I believe the issue goes far beyond assisted suicide.