A Rights-Based Approach to Physician-Assisted Suicide

Posted by Chetan Muram on June 2, 2015

At the age of 88 Kay Carter was diagnosed with spinal stenosis, a terminal neurological condition. Just one year following her diagnosis, Ms. Carter was unable to feed herself, unable to move herself and had become incontinent. She wished to put an end to her suffering, but was unable to do so in her native Canada due to a prohibition on physician-assisted suicide (PAS). Ms. Carter traveled to Switzerland, where PAS has been legal for many years. Lying in her bed at the Dignitas clinic, with her family by her side, Ms. Carter took a fatal dose of sodium pentobarbital, slipping into a coma and soon after died.

Upon returning to Canada, the Carter family, joined by multiple other parties, challenged the criminal prohibition on PAS, arguing that it violated the Canadian Charter of Rights and Freedoms. Many legal observers and commentators thought the Court would simply be bound by previous decisions and uphold the prohibition.

In R v. Carter, however, the Supreme Court of Canada defied precedent and unanimously struck down the absolute prohibition on PAS holding that it violated Charter rights. Broadly prohibiting anyone from physician-assisted dying unjustifiably infringed on the right to life, liberty and security of the person. In terms of the right to life, prohibiting assisted death indirectly coerces people suffering from a major illness, disease or disability into taking their lives prematurely. Individuals are forced to choose between taking their lives while they are still physically capable of doing so, or living with immense pain and difficulty for the rest of their lives. Forcing people to live with such pain and difficulty violates the right to security, and depriving them of the choice to control their bodily integrity and alleviate the pain violates the right to liberty.

Rather than immediately striking down the prohibition, the Court suspended the effect of the ruling for 12 months, until February 2016, giving the federal government enough time to amend the law accordingly. The Court only ruled that a prohibition was unconstitutional, and did not provide guidance for how assisted suicide laws should be crafted. As the February 2016 deadline draws nearer, proponents of the prohibition will continue to lobby the federal government to craft legislation that respects their concerns.

Proponents of the prohibition will continue to argue that it helps to protect vulnerable people from taking their lives during a time of weakness. They fear that the risks created by PAS will fall disproportionately on marginalized populations, such as the physically disabled and elderly, who will experience family pressure to end their lives prematurely.

Related to the vulnerable populations concern is the “slippery slope” argument. Margaret Somerville, a lawyer and bio-ethicist, has repeatedly voiced the moral concern that once physicians cross the line of voluntarily killing someone, related practices such as involuntary assisted death targeted at vulnerable groups will soon become acceptable. In Belgium and the Netherlands, Somerville notes that assisted suicide laws were first conceived as applying in a small, subset of cases to consenting adults suffering a terminal illness. Once the line was crossed of justifiably killing someone, however, the justifications widened and were not held to only narrow cases. For example, people with psychological afflictions and even children can now undergo PAS in Belgium and the Netherlands. Given this loosening of PAS rules, Somerville and other opponents of PAS, hold that it as only a matter of time until vulnerable people, such as the elderly in “crowded, cash-strapped hospitals are actively encouraged, even pressured, to relieve society of the burden they represent”.

Evidence from jurisdictions where physician-assisted death is legal dismisses such fears. A 2007 study examining evidence from the Netherlands and Oregon, USA, where PAS is legal, showed no increased incidence of assisted death in vulnerable groups such as people with low socioeconomic status, the elderly, racial or ethnic minorities, and the physically disabled. In fact, the study found that people who receive physician-assisted death were comparatively more privileged than the general population, in terms of socio-economic, educational and professional status.

More specifically, evidence from the Netherlands does not support the existence of involuntary assisted death. Since legalizing PAS, Dutch laws surrounding it have undoubtedly become more permissive, allowing a wider range of people to avail of the service. Despite this, there is no evidence to suggest increased incidents of involuntary assisted death. A 2009 study examining the “slippery slope” and PAS in the Netherlands found little evidence of abuse. Patients were much more likely to talk about the procedure than to actually undergo it. They would engage in a dialogue with their physicians, that served a palliative effect,  affirming social bonds and social life. Such dialogue empowered the patients, leaving them to make an informed choice about whether or not to pursue PAS. This helped to ensure that people were not coerced into PAS against their will.

Additionally, the recent South African case Stransham-Ford v Minister of Justice and Correctional Services and Others dealt with the issue of the right to die, and directly referenced and built upon the reasoning in Carter. The Court saw the Carter ruling as recognizing the dignity and autonomy of a competent adult. Moreover, the Court held that the right to life articulated in Carter should also incorporate the fundamental human right to die with dignity.

There are thousands of people across Canada being forced to unjustly suffer, as Kay Carter did. Recognizing the unconstitutionality of an absolute prohibition on physician-assisted suicide is merely the first step. In crafting new legislation, the ruling government must also incorporate empirical evidence and a rights-based approach to create a system that minimizes risks and recognizes the right to die with dignity.

Chetan Muram is an intern at Lawyers Collective and JD Candidate at the University of Toronto.