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Supreme Court of Canada allows doctor-assisted suicide in specific cases

suicide
People with grievous and irremediable medical conditions should have the right to ask a doctor to help them die, Canada's highest court says in a unanimous ruling in Carter v Canada (Attorney General).

The Supreme Court of Canada says a law that makes it illegal for anyone to help a person commit suicide should be amended to allow doctors to help in specific situations.

The ruling only applies to competent adults with enduring, intolerable suffering who clearly consent to ending their lives.

The court has given federal and provincial governments 12 months to craft legislation to respond to the ruling; the ban on doctor-assisted suicide stands until then. If the government doesn't write a new law, the current one will be struck down.

The ruling is not limited to those with a physical disability who require a physician's assistance to end their lives.

All nine justices share the writing credit on the ruling, an unusual action meant to signal particular institutional weight behind the decision.

'Impinges' on security of the person

The court says the charter right to life doesn't require an absolute prohibition on assistance in dying.

"This would create a 'duty to live,' rather than a 'right to life,' and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment," the court wrote in the decision.

​"An individual's choice about the end of her life is entitled to respect."

The court also found an individual's response to "a grievous and irremediable medical condition" is a matter critical to their dignity and autonomy. The law already allows palliative sedation, refusing artificial nutrition and hydration and refusing life-sustaining medical equipment.

"And, by leaving people ... to endure intolerable suffering, it impinges on their security of the person," the court wrote.

The court also agreed with a trial judge in British Columbia that the safeguards work where they've been set up in jurisdictions that allow physician-assisted suicide.

The top court agreed that doctors are capable of assessing the competence of patients to consent, and found there is no evidence that the elderly or people with disabilities are vulnerable to accessing doctor-assisted dying.

While the ruling sets out specific criteria, it leaves some questions.

The decision is silent, for example, on whether depression or mental illness counts as a medical condition. The court does include psychological pain under the criteria of enduring and intolerable suffering.

From the decision:

" Section 241 (b) of the Criminal Code says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. She was joined in her claim by C and J, who had assisted C’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic; a physician who would be willing to participate in physician‑assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.

The trial judge found that the prohibition against physician‑assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1 of the Charter . She declared the prohibition unconstitutional, granted a one‑year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.

The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge’s assessment of stare decisis, her application of s. 7 or the corresponding analysis under s. 1 . However, he concluded that the trial judge was bound by the conclusion in Rodriguezthat any s. 15 infringement was saved by s. 1 ."

"The Court" held (unanimously) that the appeal is allowed. Writing as follows (at paras. 2-4, 126-128):

"The question on this appeal is whether the criminal prohibition that puts a person to this choice violates her Charter rights to life, liberty and security of the person (s. 7 ) and to equal treatment by and under the law (s. 15 ). This is a question that asks us to balance competing values of great importance. On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.

The trial judge found that the prohibition violates the s.7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition. She concluded that this infringement is not justified under s. 1 of the Charter . We agree. The trial judge’s findings were based on an exhaustive review of the extensive record before her. The evidence supports her conclusion that the violation of the right to life, liberty and security of the person guaranteed by s. 7 of the Charter is severe. It also supports her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.

We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) 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. We therefore allow the appeal.

...

We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code , s. 241 (b) and s. 14 ) infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter . To the extent that the impugned laws deny thes. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982 . It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14 of the Criminal Code are void insofar as 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. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician‑assisted dying may be sought.

We would suspend the declaration of invalidity for 12 months."


Note: The summary is a reprint of a CBC News article. The body is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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