'My Life ... My Death' Controversy

Big news out of the Supreme Court of Canada yesterday - relevant for all of us, whether or not we currently have a disability.

I am speaking, of course, of the Supreme Court of Canada's decision striking down the law against assisted suicide in Canada. Or, at least, that's what the media would tell you happened.

Prior to yesterday, there were two sections of the Criminal Code, which, when combined together, banned assisted suicide.

Sec. 241 prohibited counseling, aiding or abetting anyone to commit suicide

Suicide

Counselling or aiding suicide
241.Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years

and sec. 14 provided that no one can consent to having someone else end their life.

Consent to death
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

What the Court did was to strike down these two sections of the Criminal Code only to the extent that they prohibited physician-assisted suicide "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". 

So, just to clarify, the law against assisted suicide still stands when it comes to you or I or Joe Blow down the street counseling, aiding or abetting someone (anyone) in committing suicide - this decision only applies to physician-assisted suicide, which fact was implied in some media coverage, but perhaps not clearly stated in all of it.

And, for just a bit more clarity (in case you missed this little tidbit in the ongoing roar), this declaration of invalidity was suspended for 12 months - what that means is all will continue as it was for the next year, giving the government the opportunity to attempt to craft a new law. Of course, the federal government could also decide to do nothing at all (after all, not deciding is a decision in and of itself, isn't it?) in which case, come February 5, 2015, physician-assisted suicide (but only under the circumstances set out above) will be legal in Canada.

In case anyone is wondering why the SCC would approve of physician-assisted suicide today when it didn't, ten years ago, when the case involving Sue Rodriguez was decided (which is a very good question, by the way), the Court explained this inconvenient little inconsistency away by stating that law relating to sec. 7 of the Charter (which protects an individual's right to "life, liberty and security of the person" and is the section of the Charter that the Court used to strike down the relevant Criminal Code sections) has "materially advanced" since the Rodriguez case was decided.

But back to the Carter decision; the Court found that, insofar as the Criminal Code prohibited physician‑assisted dying for competent adults who were suffering from a grievous and irremediable medical condition that caused enduring and intolerable suffering, it deprived these adults of their right to life, liberty and security of the person under s. 7 of the Charter. How you ask?

Well, the Court reasoned that the prohibition had the effect of forcing some of these people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person (which deal with concerns about autonomy and quality of life), were also engaged as a person’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denied people in this situation the right to make decisions concerning their bodily integrity and medical care and by leaving them to endure intolerable suffering, it impinged on their security of the person.

Further, this infringement was done in a manner that was not in accordance with the principles of fundamental justice. The object of the prohibition was not to preserve life whatever the circumstances, but to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights were not deprived arbitrarily. However, the prohibition caught people outside the class of protected persons and the limitation on their rights was in at least some cases not connected to the objective, making the prohibition overbroad.

Looking at the question of whether the government was justified in violating these individuals' right under sec. 7, the Court went on to hold that although an absolute prohibition on physician‑assisted dying was rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, the evidence did not support the contention that a blanket prohibition was necessary in order to substantially meet that objective. The evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making showed that a permissive regime with properly designed and administered safeguards would be capable of protecting vulnerable people from abuse and error. Vulnerability could be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally.

As an interesting aside, because the Court found that the prohibition on physician‑assisted dying violated s.7 of the Charter, it did not go on to consider whether it also deprived adults with physical disabilities of their right to equal treatment under s. 15 of the Charter. Any equality arguments around sec.15 of the Charter concerning this issue remain to be dealt with on another day.

And given that the Supreme Court of Canada is the highest court in the land, that, as they say, is that. Or is it?

Apparently not. Although a lot of people are very happy about this decision (and in all honesty, I am one of them - full disclosure, as a teenager, I watched my uncle repeatedly but futilely beg two of our relatives, former nurses, to give him something, anything to end it all now and take away the incredible pain he was suffering only to have him "hang on" for a few months before the inevitable occurred), a large and very vocal segment of the disability community, has come forward expressing great concern that allowing physician-assisted suicide (even in the strict circumstances that the Court set out above) will somehow lead to Canadian society favouring and accepting euthanasia of persons with disabilities. Honestly, I can't see the connection or how that jump is made - in my mind, assisted suicide (physician-assisted or not) is a very different concept from euthanasia. But apparently not all see it that way.

Funny, I was sure that I had expressed my personal viewpoint on a closely related topic a few times already on this blawg, but, apparently, I was wrong. I had done so on my personal blog, Free Falling in the Great White Up. So take a peek, if you care to.

At any rate, it's comments like this that are partially responsible for making me so confused about the disability community's reaction to the SCC decision.:

The decision allows euthanasia and assisted suicide for not only physical but also psychological suffering, without limiting it to clear parameters. Because there is no possible definition for psychological suffering, the Court has opened a Pandora’s Box.

Do you see me problem?

"The decision allows euthanasia and assisted suicide" ... given the connector "and", I can only assume that the author does not equate euthanasia and assisted suicide as being the exact same thing (although apparently some do - see the definition of the word "euthanasia" on this page), but neither does he distinguish between how they are different.

At any rate, apparently the reasoning goes something like this:

The decision states that the person must clearly consent. But what if a person is unable to consent? Recent statistics from the Netherlands indicate that there are at least 300 assisted deaths without consent each year. The statistics also indicate that these assisted deaths are rarely reported.

"But what if a person is unable to consent? ... not brain surgery to me (pardon the unintended pun), but the obvious answer to that question is that, in such a circumstance, it will remain illegal. And the fact that people do things that violate the law (that people commit murder, rape, theft and many other horrible illegal acts) should not be an earth-shattering concept - I have no doubt that such things are happening right here right now. And happened right here yesterday. And the day before. And .. .you get my drift. People will break the law, no matter what the Supreme Court of Canada or the federal government says or does. And, if they are caught, they will be prosecuted.

This is, of course, a very important issue for a variety of reasons. But for those among us who are so concerned about the potential long-lasting effects of this ruling on persons with disabilities, perhaps they (and others, like I, who cannot really see the problem) should be banning together to influence the federal government's response to this historic decision.

Really, when you get right down to it, no matter your viewpoint on this issue, it will be the federal government's response (or non-response, which is always a possibility, although I think it unlikely) to the SCC decision that will have a far greater impact on us all. Let's lobby (and assist) the government in creating legislation that will protect us all - those who want (and deserve) the power to end their lives while in the throes of an excruciatingly painful, terminal illness (count me in) and those who require the state's (and all of our) protection from the unscrupulous and immoral among us.

UPDATE: I was heartened to read on the CACL blog this evening.

Debate leading up to this legal decision has too often been polarized and divisive. CCD and CACL know that Canadians wish to be compassionate. CCD and CACL are resolved to work creatively and in good faith to build  solidarity among justice seeking communities as we embark upon the journey invoked by today’s Court's ruling.

There are difficult days ahead. The Canadian disability movement remains united in our claim that the lives of people with disabilities  matter. We speak with one voice in our condemnation of all forms of discrimination and abuse. We affirm together our entitlement to live good lives in places and conditions of our choosing. Consistent with our long history of fearless and principled advocacy, we now join with fellow citizens across the full spectrum of views on end-of-life in an urgent call for universal, unencumbered access to the highest possible standard of palliative care in Canada.

In the dialogue to come, we urge respect, openness and assurance that Canadians with disabilities and our representative organizations can fully participate, in full confidence that our experience, voices and knowledge are valued. We seek wise decisions guided by the values of diversity and inclusion that define us and underpin our Canadian society.