BC Supreme Court grasps the nettle in right to die case
21 June 2012
Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment
Interest in the “locked-in syndrome” cases currently before the High Court runs high. We posted here on the permission granted to locked-in sufferer Tony Nicklinson to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.
He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)
Despite the apparent strength of these claims, it is unlikely that the UK courts will be prepared to seize the initiative from Parliament in this tricky area. But the fact that the case has been given permission to go ahead on public funding signals a sea change in society’s approach to this question. It is probably true to say, as Nicklinson’s lawyers are saying, that there is no longer a societal consensus supporting a principle of the absolute sanctity of human life but that there is a societal consensus supporting the principle of a person’s autonomy over his or her own body. This has been borne out by the recent ruling of the British Columbia Supreme Court that certain provisions of the Canadian Criminal Code prohibiting physician-assisted suicide violate important rights of equality, life and liberty under the Charter.
The somewhat lengthy case analysis that follows attempts to do justice to the 2,000-odd paragraphs of Madam Justice Lynn Smith’s nuanced and detailed judgment, much of which deals with the mass of evidence on the question whether the removal of the prohibition against physician-assisted suicide might put at risk vulnerable members of society, such as the aged and the disabled.
Details of the case
Gloria Taylor suffers from amyotrophic lateral sclerosis (ALP), a fatal neurodegenerative disease. She wanted to know that she can have a physician-assisted death (PAD) if and when continued life becomes unbearable to her. She told the court that she would be “greatly distressed” by living in a state where she would have no functionality, that requires others to attend to all her needs and would thereby effectively oblige her family to bear witness to the final steps of the process of her dying with the indignity a “slow death” from would entail:
My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives. I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by. I am proud to be dedicating the final days of my life trying to change the law in this respect.
The other plaintiffs in this application were the daughter and son in law of a woman suffering from a degenerative spine disorder who helped her to arrange an assisted death in Switzerland, and a family physician in British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited.
The Governments of Canada and British Columbia opposed the challenge and argued in favour of maintaining the prohibition against physician-assisted suicide.
Countries where PAD has been decriminalised
Most Western countries do not permit physician-assisted dying or assisted dying, but a few do. Euthanasia and assisted suicide are governed in the Netherlands by a law which came into force in 2002. This statute is proof that the courts can, and do take the initiative on these issues where the legislature lacks the stomach to act, since it mainly codifies a permissive regime that had developed through a series of cases in which judges confirmed that, in certain circumstances, euthanasia and assisted suicide could be justifiable even though they were offences under criminal law.
The Belgian 2002 law on euthanasia is similar to the Dutch Act upon which it is based. In Swiss law of course assisting suicide is not an offence (unless it is done for selfish motives).
Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The Oregon Death By Dignity Act permits only one specific form of physician assisted dying: the provision of a prescription for lethal medication to be self-administered by the patient, who must be suffering from a terminal disease. It has survived a series of legal and political attacks since it was passed in 1994. The Washington Act is substantially similar to the ODDA upon which it was modelled. While Montana has not legalised assisted suicide, its Supreme Court has recognized that the consent of a terminally ill patient can constitute a statutory defence to a charge of homicide against an aiding physician. Like the Dutch example, Montana judges have shown that it is entirely within their remit to take a stand where the legislature has failed to grasp the nettle.
Studies of physician-assisted deaths in these jurisdictions have shown that there is no evidence to justify the concern often expressed about the potential for abuse – namely, the fear that legalised physician-assisted dying will target the vulnerable or pose the greatest risk to people in vulnerable groups. On the contrary, the take up tends to be by members of groups enjoying comparative social, economic, educational, professional and other privileges. It seems that higher education and social status sharpens anxieties about the loss of control as a result of degenerative illness. Indeed, the argument that legalisation of PAD would lessen pressures for improvement of the circumstances of vulnerable people is positively “disturbing” to one Netherlands specialist, based as it is on the “usually tacit assumption” that the suffering of such people, in circumstances where euthanasia is not allowed,
will serve as leverage for improving the provision of such things as adequate terminal care, adequate pain control, and the like. The evidence appears to be the other way around. Pain management was improving in the Netherlands before euthanasia was fully legalized, but has continued to do so at an increasingly rapid rate since legalization. It is legalisation, or the prospect of immediate legalisation, which appears to contribute to the improvement of terminal care and pain control.
As the judge observed, the argument that legalisation should not be contemplated until palliative care is fully supported rests on a “form of hostage-taking”.
Canada: the legal position
The main obstacle facing the plaintiffs in this case was the Supreme Court of Canada of Rodriguez v. British Columbia (Attorney General), which the defendants argued had already definitively decided the issue. Mrs Rodriguez also suffered from ALS, fully understood her condition, the trajectory of her illness and the inevitability of how her life would end; her wish was to control the circumstances, timing and manner of her death. She did not wish to die so long as she still has the capacity to enjoy life. However, by the time she no longer is able to enjoy life, she would be physically unable to terminate her life without assistance. Like Gloria Taylor she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand, at the time of her choosing, end her life. She sought to have the provisions of Canadian criminal law prohibiting PAD struck down on the basis that it violated sections 7 (the right to “life, liberty, and security of the person), 12 (protection against “cruel and unusual punishment”), and 15(1) of the Canadian Charter of Rights and Freedoms (equality). The Supreme Court dismissed her appeal by a slim majority, ruling that the interference with her right to security of the person was justified.
The plaintiffs argued that Rodriguez was not on all fours with their case for a number of reasons, including the fact that the weighing of “societal interests” could no longer viewed as correct; that the evidentiary record in this case was more complete than it was in Rodriguez, and reflected a significant material change from the evidence available when Rodriguez was decided. It was significant that Mrs Rodriguez was the only plaintiff in the earlier case; here, the three supporting plaintiffs were in a different situation than that of Ms. Taylor and Ms. Rodriguez, and their liberty interests were affected in a different way. Moreover, the evidence regarding the experience in jurisdictions permitting physician-assisted death was simply not available in 1993.
Medical practice and ethics
Under Canadian law, treatment cessation, pain management, and terminal sedation can all be justified when they are the outcome of an informed choice (whether request or refusal) on the part of a decisionally capable patient, and they serve the best interest of the patient by preventing or avoiding needless suffering. This justification holds even when the result of any of these measures is the hastening of the patient’s death. These measures may in many circumstances better serve both patient autonomy and patient well-being by hastening death, if that is the outcome that the patient seeks and that will help to minimise suffering. The plaintiffs argued that either assisted suicide or voluntary euthanasia could be justified in exactly the same way by reference to exactly the same values. There cannot be an ethical bright line between the three conventionally accepted measures and these further ones, since they all serve exactly the same core values.
The ethical framework that will justify treatment cessation, pain management, and terminal sedation will therefore equally justify assisted death.
It is indeed hard to see the distinction between a practitioner’s duty to follow a patient’s instructions to withhold or withdraw life-sustaining treatment from patients, the administration of medications to alleviate pain in dosages that hasten death, and acting intentionally to bring about a patient’s death in order to alleviate suffering. But Rodriguez based the distinction between assisted suicide and other end-of-life practices on intention – in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.
This broader ethical question did not arise in Rodriguez, and here the judge was persuaded by the plaintiffs’ experts that there was no true distinction. She also attached significance to the argument that there is no valid ethical distinction between suicide and assisted suicide, if suicide is ethical. She upheld he prohibition against physician-assisted violated the right to equality guaranteed under section 15 of the Canadian Charter of Rights and Freedoms and the right to liberty and security of the person guaranteed under section 7 of the Charter. She further held that the provisions could not be saved under section 1 of the Charter because a complete ban on physician-assisted suicide was a disproportionate response to the concern about protecting vulnerable people.
The judge agreed with the plaintiffs that she was not entirely bound by the Canadian Supreme Court’s ruling in Rodriguez . She concluded that, whilst she was constrained by that case to decide that the Criminal Code was not an arbitrary curtailment of Gloria Taylor’s rights to security of the person and liberty, these provisions nevertheless offended against the prohibition of discrimination in the enjoyment of Charter rights because the effect of it is that the physically able person is legally allowed to end his or her life; he or she cannot be criminally penalised for attempting or committing suicide. But the person who is physically unable to accomplish the act is not similarly allowed to end her life.
She rejected defendants’ somewhat unattractive, if forensically necessary, arguments that there was no discrimination because anyone, disabled or able-bodied, can choose to die by starvation or dehydration. Not only was there evidence before the court that leaving the physically disabled to that choice was cruel, since such a death can be slow and excruciating, but this was a matter of “substantive” rather than merely formal equality. Furthermore, this discrimination could not be justified by the objective of eliminating all risk that people might be wrongly assessed as competent or eligible for PAD, if exceptions were created to the blanket prohibition. Prevention of all wrongful deaths cannot be the legislative objective, given the absence of regulation of the currently accepted end-of-life practices of physicians withdrawing or withholding treatment, and administering palliative sedation.
Whilst she recognised the need to defer to Parliament in such controversial matters, this
does not allow a court to down tools and end the analysis. This Court must fulfill its constitutional duty to decide whether Parliament’s choice of an absolute prohibition, which infringes constitutional rights, is justified in comparison with other possible measures which would avoid infringement. 
She accepted that suicide and attempts at suicide are “serious public health problems” that governments are trying to address.
To that end, the absolute prohibition may have some of the salutary effects the defendants allege, for example, sending an anti-suicide message and a message about the value of every life, including the lives of those who are elderly or disabled… Nevertheless, I note that by thwarting the wishes of persons who are physically disabled, grievously ill and suffering intractably, the law sends a negative message that their wishes, and their suffering, are not as important as are other considerations. The law’s positive general message about the value of human life must be weighed against its negative message specific to the people whom it most directly affects. [1265 – 1266]
Lest anyone should be in any doubt about the relative weight of the interests of unknown persons from being induced to commit suicide versus the constitutional rights of individuals in Gloria Taylor’s position, Madam Justice Smith quotes at length from the Affidavit of Leslie LaForest who has stage IIIC anal cancer. It does not make for comfortable reading. There can be no doubt, as the judge says, that the benefits of the impugned laws are not worth the costs of the rights limitation they create.
2) Right to life, liberty and security of the person
The judge agreed that the legislation affects the plaintiff’s right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
She found that the legislation deprives all the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad (not an argument available at the time Rodriguez was decided). Second, the legislative response – an absolute prohibition – is “grossly disproportionate” to the objectives it is meant to accomplish. As with the s. 15 infringement, there could be no justification for the infringement of the right to life under the Charter.
The judge did not order the provisions to be removed from the Criminal Code, declaring instead that they be of no force and effect in certain circumstances. The declaration of invalidity is to be suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. Gloria Taylor was granted a constitutional exemption during this period of suspension, so that she can that seek physician-assisted suicide under specified conditions.
Whether or not it survives appeal to the Canadian Supreme Court, this deeply considered and humane judgment is an excellent source of comparative, ethical, medical and social material on the question of end of life decisions. The debate necessarily turns around people making assessments of their future chances, where even clear medical evidence of physical degeneration cannot predict how swiftly the patient’s quality of life will deteriorate. But there is no reason why a patient should not be entitled to make decisions if negative future circumstances are never fully certain. As ethicist Margaret Battin says:
All decision-making involves a consideration of possibilities and probabilities. Suicide to avoid likely future evils is not irrational as a calculation of future interests; if the likely loss is great enough, to bet against such evils may be folly, to act to avoid them is the rational move. A competent patient is entitled to make an assessment regarding his or her own probable future and to weigh that as a factor in their decision making. Further, not only is the assertion that decisions made to avoid future evils are irrational a false one, it is a position that condemns many to die in the miserable conditions they sought to avoid when faint hope ultimately does not materialize. 
To conclude, let us consider the opposing statements of two participants in this debate. The first is law professor John Keown, who gave evidence opposing the application in Taylor. He submitted that the autonomous will of the individual should not be allowed to take precedence over both “social cautions” and “medical cautions”. This is to assume the person choosing has all knowledge and the perspective to employ it:
this is precisely what differentiates these complicated medical realities from the normal consumer mode of choice in our society. .. Medicine, unlike many other areas, is one in which the knowledge of the person is necessarily limited when compared to the knowledge of the professional. They are not commensurate and thus demand a degree of trust and faith in the medical professionals to do what is right.
Then there are the reflections of Times journalist Melanie Reid, whose column Spinal Tap charts her life after a horseriding accident rendered her tetraplegic in 2010.
But you know sometimes, just sometimes, I get angry enough to wish that a few bishops, palliative care specialists and those dedicated campaigners from Care Not Killing — ah! what amazing arrogance lurks in a name — were in my skin, sitting in my shower chair, facing my future.
At the root of all this, is the question of knowledge. Whose knowledge of the (competent) patient’s condition should prevail – that of the patient, or that of the medical, legal and ethical experts around them. The answer should be obvious. Competent adults with grievous and irremediable neurological diseases should be allowed to determine for themselves the line between acceptable and unacceptable levels of suffering:
Knowing that I have a choice is a huge comfort to me; it sustains me on the days when I make the mistake of looking too far in the future. But the point is, I am blessed precisely because I have a choice. I can talk, use my hands to a limited degree. I could, if I sought to, take my own life without implicating anyone else.
There are many other people who, because of their illness or their disability, do not have this possibility of self-determination. (Melanie Reid, The Times, 2012)
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