'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?

Decisions About Health and Personal Care: What does it take to be legally capable?

For those interested concerned with issues around "consent" (and that should be all of us), might I suggest the recent presentation given by Professor Sheila Wildeman, a law professor at the Schullich School of Law (aka Dalhousie Law School).

Prof. Wildeman has a deep understanding of the issues involved under the Incompetent Persons Act and other relevant legislation in Nova Scotia. Beginning with the now well-known story of Jenny Hatch (the young American woman with Down Syndrome who successfully fought her parents' guardianship application), Professor Wildeman goes on to examine the current state of the law surrounding "legal capacity" in Nova Scotia in regards to guardianship and health and personal care decisions.

But she doesn't just offer a useful tour through the current state of the law - Professor Wildeman does an excellent job of setting out the fundamental values that are at stake here and explaining the differences between substitute decision-making regimes (such as guardianship) and supported decision-making (one of the newest buzz terms in the disability community).

Yes, the lecture is lengthy but I highly recommend it for anyone who wants to get a real grasp on these issues. Because, really, without a firm grasp on these issues, how we can expect to advocate effectively for ourselves and our loved ones?





On a related note, I present to you ARCH's analysis of the recent Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53.

In Cuthberton, the SCC was asked to examine the process that the law requires when an incapable person is unable to provide consent or refusal in situations involving life support.  Decided under Ontario's Health Care Consent Act, the Court concluded that “treatment” under this Act extended to withdrawal of life support, contrary to the arguments of the doctors.

An Interesting Tidbit Look at Physician-Assisted Suicide

In Canada, suicide is not a crime. However, assisting someone to commit suicide is.

Or, at least, it was.

In a June, 2012 decision out of British Columbia, the British Columbia Supreme Court (BCSC) found that these Criminal Code prohibitions violated the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the relatives of another woman who had terminated her life in Switzerland with their assistance).

Some of you might recall the issue of physician-assisted suicide being dealt with many years ago; in 1993, to be exact. In that case, the Supreme Court of Canada (SCC) found that although the prohibition on doctor-assisted death engaged the s. 7 rights of liberty and security of the person, the law should be upheld based on the importance of the objective behind it; namely, the protection of the vulnerable. This policy is part of our fundamental concept of the sanctity of life and it was noted that blanket prohibitions on assisted suicide is the norm among Western democracies.

The government's repeal of the offence of attempted suicide was not a recognition that suicide was to be accepted within Canadian society but merely reflected the recognition that the criminal law is an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the SCC found that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.

But the law has developed since then, particularly as to what exactly is encompassed in the term "principles of fundamental justice" (as found in s. 7).  Further, the Rodriguez case had not dealt with the issue of s. 15 equality rights.

Good On Him

Although I cannot for the life of me find the story in the digital world *, I heard on the ATV Evening News tonight that a man in the New Glasgow area has brought a lawsuit against the Province in regard to the lack of sign language interpreters available to the deaf population during emergency situations. I believe the gentleman's name was Fiet, but please forgive me if I'm wrong.

At any rate, this person, who has been deaf all their life, had a stroke and ended up in a Halifax hospital, where he asked for a sign language interpreter so he could communicate with the doctor.  Lo and behold, there were none in the land!

And to think I thought we had well and truly dealt with this issue back in 1997!

Because when the Supreme Court of Canada speaks, really, we all should listen:

71 If there are circumstances in which deaf patients cannot communicate effectively with their doctors without an interpreter, how can it be said that they receive the same level of medical care as hearing persons?  Those who hear do not receive communication as a distinct service.  For them, an effective means of communication is routinely available, free of charge, as part of every health care service.  In order to receive the same quality of care, deaf persons must bear the burden of paying for the means to communicate with their health care providers, despite the fact that the system is intended to make ability to pay irrelevant.  Where it is necessary for effective communication, sign language interpretation should not therefore be viewed as an “ancillary” service.  On the contrary, it is the means by which deaf persons may receive the same quality of medical care as the hearing population.

72 Once it is accepted that effective communication is an indispensable component of the delivery of medical services, it becomes much more difficult to assert that the failure to ensure that deaf persons communicate effectively with their health care providers is not discriminatory. In their effort to persuade this Court otherwise, the respondents and their supporting interveners maintain that s. 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action. Adverse effects only arise from benefit programs, they aver, when those programs exacerbate the disparities between the group claiming a s. 15(1) violation and the general population. They assert, in other words, that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits.

 ~  ~   ~  ~

95 I have found that where sign language interpreters are necessary for effective communication in the delivery of medical services, the failure to provide them constitutes a denial of s. 15(1) of the Charter and is not a reasonable limit under s. 1. Section 24(1) of the Charter provides that anyone whose rights under the Charter have been infringed or denied may obtain “such remedy as the court considers appropriate and just in the circumstances”. In the present case, the appropriate and just remedy is to grant a declaration that this failure is unconstitutional and to direct the government of British Columbia to administer the Medical and Health Care Services Act (now the Medicare Protection Act) and the Hospital Insurance Act in a manner consistent with the requirements of s. 15(1) as I have described them.

So I think that should just about take care of that, don't you?

* I would be grateful to anyone who could find me an internet reference to the story.