Thursday Thinkpiece: Downie on Pathways to Law Reform for Voluntary Euthanasia and Assisted Suicide
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Jocelyn Downie, SJD, FRSC, FCAHS; Professor, Faculties of Law and Medicine, Dalhousie University
Queensland University of Technology Law Review Volume 16, Issue 1, pp 84-112
Excerpt: Introduction and Sections III-VI | Footnotes omitted. They can be found in the original via the link above
NB: The author has graciously provided an update that describes the most current developments on the issues discussed in the original paper. The update can be found below at “Addendum to the Addendum”.
INTRODUCTION
End-of-life law and policy reform is the subject of much discussion around the world. Many jurisdictions, including Canada, have been actively exploring the issue of whether to move to more permissive regimes with respect to voluntary euthanasia and assisted suicide. However, this is not a paper on that well-travelled terrain. Rather, it explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions.
There are, of course, a number of pathways to permissive legal regimes with respect to voluntary euthanasia and assisted suicide. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada.
I seek to gather into one place descriptions of law reform initiatives across a significant set of jurisdictions. This consolidation provides a useful resource for those simply seeking a record of past activities in order to do further comparative work across jurisdictions or across spans of time. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.
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III. LOOKING FORWARD
Before turning to lessons learned, it is worth briefly reviewing the voluntary euthanasia and/or assisted suicide law reform initiatives that are currently active in the five countries under consideration.
A. Canada
In February 2014, the National Liberal Party (the Official Opposition in the Federal Parliament), passed a resolution that calls for voluntary medically-assisted death to be decriminalised. The resolution calls for a public consultation process to make recommendations to Parliament with respect to criteria for access to, and appropriate oversight of, medically-assisted end-of-life. According to the National Liberal Party’s website, ‘Policy resolutions adopted by convention delegates officially become “Party policies” and inspire [but do not direct] the next electoral platform.’ Ultimately, however, the decision to include a policy resolution in the electoral platform rests with the party leadership. Following the release of the Supreme Court of Canada decision in Carter, the leader of the Liberal Party expressed support for the decision and made a motion in the House of Commons to appoint a special committee to ‘consider the ruling of the Supreme Court; that the committee consult with experts and with Canadians, and make recommendations for a legislative framework that will respect the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.’ The motion failed with 132 in favour 146 against. If the Liberal Party forms the Government after the 2015 election, it seems reasonable to assume that the goal of the policy resolution and the Supreme Court of Canada decision will be reflected in legislative action by the Government.
On March 27, 2014, Conservative MP Steven Fletcher and NDP MP Manon Perreault introduced Bill C-581 to decriminalise physician-assisted death and Bill C-582 to establish an oversight commission on physician-assisted death. To the same end and in much the same form, Bill S-225 was subsequently introduced into the Senate by Senators Larry Campbell and Nancy Ruth. However, even when introduced it was clear that, barring some extraordinary parliamentary maneuvering, none of these bills would ever proceed to a vote. Nonetheless, they reopened the conversation at the federal legislative level and may be taken as a foundation upon which to build legislation if Parliament decides to legislate in response to the Supreme Court of Canada decision in Carter.
Outside Canada, there is also considerable law reform activity in progress.
B. United Kingdom
In the United Kingdom, the Assisted Dying Bill was introduced in front of the House of Lords on 15 May, 2013. It passed second reading and moved to Committee on 18 July, 2014. It was considered by the Committee on 7 November, 2014 and 16 January, 2015. The Bill provides for a person over the age of 18 who is terminally ill and has six months or less to live to seek and lawfully be provided with assistance to end their own life. Health care professionals can prescribe the lethal medication and prepare it for administration. However, the individual would need to take the final act that ended their own life by self-administering the medication.
In Scotland, the Assisted Suicide Bill was introduced in the Scottish Parliament on 13 November, 2013. The Bill is working its way through various Committees and may reach Parliament in the Spring of 2015. The Bill enables people with terminal or life-shortening illnesses or progressive conditions which are terminal or life-shortening and who wish to end their own lives to obtain assistance in doing so. It does this by removing criminal and civil liability from those who provide such assistance provided that the procedure set out in the Bill is followed. The individual must be over the age of 16 and must have an illness which, in his or her case, is terminal or life-shortening or a condition which, in his or her case, is progressive and either terminal or life-shortening.
C. United States
In the United States, successful legislative reform in Oregon, Vermont, and Washington has encouraged other states to consider passing permissive assisted suicide legislation. Legislation is being considered in 27 states and the District of Columbia.
D. Australia
In South Australia, the Ending Life with Dignity (No 2) Bill 2013 provides for the administration of medical procedures to assist death for those who are terminally ill, suffering unbearably and who have expressed a desire for the procedures. It was introduced in October 2013, but the Bill lapsed when Parliament was prorogued. At the federal level, on June 24, 2014, Senator Richard Di Natale released an Exposure Draft of a bill – Bill for an Act relating to the provision of medical services to assist terminally ill people to die with dignity, and for related purposes (Medical Services (Dying with Dignity) Bill 2014). The Exposure Draft of the Bill was considered by the Legal and Constitutional Affairs Legislation Committee which issued its report in November 2014. The Committee made two key recommendations:
(1) That Senator Di Natale should address the technical and other issues raised in evidence to the committee, and seek the advice of relevant experts before drafting the final Bill.
(2) That if the Bill is introduced in the Senate, Party Leaders should allow Senators a conscience vote.
This Bill seeks:
(a) to recognise the right of a mentally competent adult who is suffering intolerably from a terminal illness to request a medical practitioner to provide medical services that allows the person to end his or her life peacefully, humanely and with dignity; and
(b) to grant a medical practitioner who provides such services immunity from liability in civil, criminal and disciplinary proceedings.
E. New Zealand
On March 20 2015, Lecretia Seales filed a claim in the New Zealand High Court claiming that the prohibition on physician-assisted death violates her right not to be deprived of life or subjected to cruel treatment under the Bill of Rights Act and seeking a ruling on whether her physician can provide her with physician-assisted death without fear of criminal liability.
F. Looking Forward Conclusions
Here it can be concluded that there is a significant amount of law reform activity aimed at moving toward more permissive regimes with respect to voluntary euthanasia and assisted suicide taking place right now in Canada and in other common law jurisdictions. Whether we will see significant increases in the number of permissive regimes of course remains to be seen.
IV. LESSONS FROM LOOKING BACKWARD AND FORWARD
Given recent developments in Canada (in particular the Quebec legislation and the Supreme Court of Canada decision in Carter there are lessons from Canada for those seeking law reform in common law jurisdictions.
First, reform is possible. There are now 13 jurisdictions which have, in one way or another, permitted voluntary euthanasia and/or assisted suicide in some circumstances. As Canada has recently demonstrated, it may take years, but with persistence it can come.
Second, legislators and judges can be persuaded of the fact that slippery slopes do not materialise after decriminalisation. First, permissive regimes do not slide from voluntary euthanasia to non-voluntary or involuntary euthanasia (either in relation to the criteria for access or in practice). Second, palliative care and, more generally, end of life care, is benefitted rather than harmed by the decriminalisation of assisted death.
Third, there is wisdom in linking palliative care to assisted death in the reform process. The decriminalisation of voluntary euthanasia and/or assisted suicide can be used to benefit access to and quality of palliative care – this has been seen, for example, in Oregon. This lesson was clearly learned by the Quebec legislators as An Act Respecting End of Life Care explicitly addresses and strengthens palliative care in Quebec (including, for example, the establishment of a right to palliative care).
Fourth, it is important to prepare in advance for the (legislative or judicial) window of opportunity to open. Academics had been developing the legal and philosophical arguments for a number of years in anticipation of there being the political will for legislative reform or an appropriate case upon which to build a court challenge. For example, I published my first paper advocating for the decriminalisation of voluntary euthanasia in 1993, and a book on the same topic in 2004.
When the facts about the impact of decriminalisation became known over a significant period of time (particularly in the Netherlands and Oregon) and the legal principles driving the analysis in section 7 of the Charter changed, I published a paper arguing that the time had come to launch another Charter challenge to the prohibitions on assisted death under section 7 in 2008. So when the right plaintiffs and counsel came along ready to launch a challenge in Carter v Canada, the foundation for the case had been laid (by these pieces as well as essential scholarship produced by others in Canada and abroad) and the academic analysis was ready for the litigation strategy (both to shape, support, and be used by it). By way of an example from the political arena, in the same paper in which the argument for a Charter challenge was laid out, my co-author and I included a draft federal statute. When Stephen Fletcher indicated that he was going to introduce a private members bill into the Federal Parliament, a collection of key documents laying out the core arguments and evidence was ready along with draft legislation and so the window of opportunity for such an initiative could be capitalised upon.
Fifth, evidence and the law itself changes over time. The evidence in front of the court in Rodriguez in 1993 and in front of the Senate Special Committee on Euthanasia and Assisted Suicide in June 1995, was taken to demonstrate that: medical associations around the world were opposed to decriminalising assisted suicide; palliative care was threatened by decriminalisation; and descents down the slippery slope from voluntary to non-voluntary and even involuntary euthanasia follow decriminalisation. The evidence in front of the court in Carter and presented to the Special Committee on Dying with Dignity in Quebec and the Quebec National Assembly, by contrast, was taken to demonstrate that: some medical associations now support or have taken a position of ‘studied neutrality’ on decriminalisation; palliative care is not harmed (and may be helped) by decriminalisation; and the slippery slopes have not materialised. These facts certainly made a difference in the results in these various venues. The law had changed as between Rodriguez and Carter with respect to the principles of fundamental justice (neither overbreadth nor gross disproportionality were recognised as principles of fundamental justice in Rodriguez and yet played important roles in Carter) and the role of administrative facts in section 1 analysis. These changes made a difference in terms of the case even being heard (affecting the stare decisis analysis) and the result (affecting the sections 7 and 1 analyses).
Sixth, empirical evidence matters, so it is important to build good evidence-gathering processes into any permissive regime. The results in the Quebec National Assembly and in Justice Smith and the Supreme Court of Canada’s decisions in Carter turned in large part on the availability of reliable and reassuring evidence from other permissive regimes, in particular with respect to the impact of decriminalisation on vulnerable people. It is therefore important for all permissive regimes to maintain accurate, comprehensive, and transparent oversight systems to continue to provide the empirical foundation for law reform initiatives elsewhere.
Seventh, it is not necessary to restrict permissible assisted death to assisted suicide or terminal illness in order to appropriately circumscribe access. The Supreme Court of Canada’s decision in Carter applies to both voluntary euthanasia and assisted suicide. The Quebec legislation permits voluntary euthanasia (termed ‘medical aid in dying’). The criteria for access to voluntary euthanasia and assisted suicide in Justice Smith’s decision in Carter and in Quebec’s An Act Respecting End-of-Life Care do not include ‘terminal illness’. This term has been rightly criticised in the literature, and the Supreme Court of Canada and the Quebec legislators wisely used other terminology and concepts to limit access to assisted death.
Eighth, some strategies that worked elsewhere could not be used in Canada (but might be workable elsewhere and so should not be forgotten). In Canada, we do not have the European Convention for the Protection of Human Rights and Fundamental Freedoms that provoked the prosecutorial charging guidelines in England and Wales so we could not motivate or launch any actions under that. Except in British Columbia, we also do not have the people’s ballot initiatives process, unlike Oregon and Washington State, so we could not translate the 70-80+ per cent support among Canadians for decriminalising assisted death into statutory reform through that form of direct democracy. Furthermore, criminal law is federal in Canada (unlike in the United States where jurisdiction rests with the state) so we did not have the option of situating the criminal law reform theatre at the state (ie provincial/territorial) level. Others, however, may be able to pursue these pathways.
Finally, not only is a consultative, rigourous, evidence-based, non-partisan process of legislative reform possible (albeit hard work), it may even increase the chances of successful legislative reform. Quebec provides powerful evidence for this claim. In Quebec, the process of passing Bill 52, An Act Respecting End-of-Life Care, required over five years of cross-party work. It began in 2009 when the National Assembly responded to a discussion paper from the Collège Des Médecins Du Québec well as polls showing support for decriminalizing assisted death among general practitioners, specialist physicians, and the general public. The National Assembly unanimously passed a motion to create the Select Committee on Dying with Dignity to study the issue of dying with dignity. The all-party committee was chaired by Liberal MNA Geoff Kelley with opposition Parti Quebecois MNA Veronique Hivon as co-chair. The Select Committee engaged in extensive consultation across the province with a first stage focused on experts and a second phase on members of the public. They heard from 32 experts and received over 16 000 comments online. The Committee made a trip to France to learn about the on-going debate there and to the Netherlands and Belgium to learn from those countries’ experiences with assisted death legislation. The final March 2012 report, Dying with Dignity, made 24 recommendations, including that Quebec allow medically assisted death and increase accessibility to palliative care.
On June 12, 2013, Bill 52 was introduced to the National Assembly by then Minister Veronique Hivon and subsequently went through consideration by the Health and Social Services Committee which studied the Bill and made 57 amendments. This amended Bill 52 was introduced to the National Assembly on February 11, 2014 but its progress stalled when a provincial election was called. After the election, though, on 22 May 2014, Bill 52 was reintroduced into the National Assembly in a motion adopted unanimously by all four provincial parties. Remarkably, Veronique Hivon was included as a co-author of the Bill, along with Gaetan Barrette, the current minister of Health and Social Services, even though her political party, the Parti Quebecois, was no longer in power. On 5 June 2014, the Quebec National Assembly passed Bill 52 by a vote of 94 to 22.
V. CONCLUSION
As the discussions of end of life law and policy reform continue around the world, the pathways followed by those who have already moved to permissive regimes lie before those who have not. Those who seek permissive law reform can, and should, take notice of what has (and has not) worked elsewhere as described above. In common law countries, change is possible. In fact, if the lessons are learned and advocates engaged, it may even be likely.
VI. ADDENDUM
There have, of course, been significant developments in a number of the jurisdictions discussed in this paper since the paper was submitted. For example:
1) The Canadian Conservative government was defeated and the Liberal Party was elected. This new government sought a six-month extension on the suspension of the declaration of invalidity that had been issued by the Supreme Court of Canada in Carter v Canada (Attorney General) and was granted a four-month extension (equivalent to the suspension of activity caused by the election process). The Supreme Court of Canada also allowed for constitutional exemptions during the period of the extension to enable individuals who meet the Carter criteria to apply to a superior court for authorisation of physician-assisted death.
2) California Governor Jerry Brown signed into law the End of Life Option Act to permit physician-assisted suicide.
3) In New Zealand, Lecretia Seales was unsuccessful in her effort to challenge the prohibitions on assisted dying. However, the New Zealand Health Select Committee is now holding an inquiry on the issue of assisted dying.
4) The Assisted Suicide (Scotland) Bill was defeated.
5) The United Kingdom Assisted Dying Bill was defeated.
While these examples represent mixed results, the paper’s conclusions remain sound: there are important lessons to be learned from efforts at law reform in jurisdictions around the world; and change is possible.
Addendum to the Addendum – May 25th, 2016
On April 14, 2016, the federal Minister of Justice introduced Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). The Bill was sent to Standing Committee on Justice and Human Rights and, despite calls for significant amendments from many witnesses and members of the Opposition parties, only modestly amended. It is now before the House of Commons. It is expected to go to a final vote on Monday, May 30th. If it passes, it will go to the Senate for consideration. The Senate has already indicated (through a pre-study report by the Standing Committee on Legal and constitutional Affairs and comments made to the media by numerous Senators), that it will not be willing or able to conduct its Committee process and then consideration by the full Senate by the June 6th deadline (the date on which the Supreme Court of Canada’s Carter 2016 extension on the suspension of the declaration of invalidity expires). If, as expected, no legislation has passed by June 6 th , after that date, assistance in dying will be regulated by Carter 2015 (establishing the eligibility criteria) and guidelines from the Colleges of Physicians and Surgeons from across the country (establishing procedural safeguards).
In the meantime, medical assistance in dying has been being provided in Quebec under the Quebec legislation and in the rest of Canada through applications to the court for authorization under the Carter 2016 constitutional exemption. Of greatest significance for the prospects of Bill C-14, in Canada (Attorney General) v. E.G., 2016 ABCA 155, the Alberta Court of Appeal recently flatly rejected the interpretation of Carter that was offered by the Attorney General of Canada in the arguments against the authorization (which are the same arguments the government has offered in support of Bill C-14). These applications will continue until June 6 th at which point Carter 2015 will take effect and court authorization will no longer be required to access medical assistance in dying.
Further information can be found on www.eol.law.dal.ca.
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