A terminal illness is any disease that curtails life even for a day.
– Jack Kevorkian, National Press Club in 1992
The Carter decision of the Supreme Court of Canada appears to have been generally well received by most Canadians. Yet the decision and new implementing legislation are fraught with quandaries at several levels. There are many who say this sudden and drastic change to such important social policy affecting life and death – basically a court overruling very longstanding parliamentary will – should have received more public consultation and democratic scrutiny. This is not a policy that can be easily reversed or moderated.
Apart from the fact that this critical social policy comes about by a few judges striking a crime out of the Criminal Code, Canadians still are sharply divided on the important details. The recent tug-of-war in the House of Commons and Senate over Bill C-14 demonstrates that the line-drawing about who should be able to legally choose this option and under what circumstances falls far short of a national, multicultural consensus. Ethnic and religious views and philosophies of life and death vary significantly from group to group. Minority perspectives on assisted suicide were largely unsolicited.
Some judicial principles also seem to have been contested to get to this result. For example, the Court had to overlook or amend its own doctrine of mootness. Ms. Carter, who brought the case, had died before the decision was made. Accordingly, any decision had no direct impact on her and the question she raised did not need to be answered. For the Court to follow through in any event raised the spectre of the Court legislating on the issue. The Court also had to confront the binding effect of its own 1993 precedent of Rodriguez [http://canlii.ca/t/1frz0] which stood in the way of permitting assisted suicide.
Nor can it be said that assisted suicide is so widely approved in other countries that there was some form of need to “catch up” with modern western values and practices. Only six other countries have legalized it. These are: the United States (Washington, Oregon, Montana and Vermont), Colombia, Luxembourg, Belgium, the Netherlands, and Switzerland.
Even the nomenclature that attaches to this law reform is politically contentious. The reform takes place in the context of criminal law. The Criminal Code provision that the Court struck out has its 19th century roots in concepts of murder and homicide. A euphemism would be euthanasia. The impugned crime, until it was struck out, was “counselling, aiding or abetting . . . suicide”. The Court and other proponents of the Carter outcome avoid the unpalatable criminal language of murder, homicide and suicide. The federal legislation is subtitled “medical assistance in dying.” Proponents of the phenomenon are likely to focus on “quality of life” and “dying with dignity” themes. Oregon immediately referred to the suicide option as “comfort care.” Words have power and content.
This article, however, takes a different critical approach. We describe some of the substantive drawbacks and pitfalls of the assisted suicide issue.
Arguments Against Physician-Assisted Suicide
(1.) Suicide devalues human life
The social pressure to save money and ration care will be palpable. There has long been a moral and legal taboo around suicide in Canadian society. Until recently, suicides were not carried in the news. Attention was not drawn to suicide in the hope it would not be mainstreamed in any way. Suicide, euthanasia and murder-with-consent are seen to devalue human life. When assisted suicide is presented as a means of “taking control” or acting “with dignity,” all Canadians – including the young and fit – may view suicide as an easy and acceptable response to life’s problems. When the sanctity of life is displaced by a culture of respectable voluntary death, attitudes will eventually disrupt the personal autonomy of the living.
The Hippocratic Oath commands physicians to “do no harm”. The same sentiment is contained in the Canadian Medical Association’s Code of Ethics. But now, the helping hand is called on to take life. We are collectively, for the first time since the abolition of capital punishment, handing physicians the legal license to kill others under certain circumstances. It visits the greatest harm (some would say benefit) possible on the patient by the physician. Medical conceptions of well-being and treatment are radically and permanently transformed, as are perceptions of medical professionals.
Ultimately, a very tiny number of Canadians will elect assisted suicide as a human right. Yet they have a disproportionate impact on how the rest of society views the medical sciences, their practitioners, consent to life and death, and the value of life. This tiny group is able to effectively remove this taboo about killing, which opens all of society to what is referred to below as the slippery slope hazard.
(2.) Impacts on health care professionals
By legalizing suicide assistance, we alter the fundamental role of physicians and other health professionals. Instead of working toward the cure or prevention of disease, physicians are now equally expected to help end lives. We involuntarily conscript them into the suicide project which they may not have signed up for. The new Act says that “for greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying. However, it is now up to each province and each provincial medical association to create the protocols and rules around the service. At this point it is not clear what protections will be put in place and what balancing will take place concerning the consciences and religious interests of physicians, nurses and pharmacists who are asked to participate in ending the lives of others.
(3.) Finality and Non-Reversibility
One of the main objections to capital punishment is that it cannot be undone. The same applies for suicide. Despite all the checks and balances, mistakes and misunderstandings will happen and there is no second chance when it comes to suicide. The precautionary principle ought to apply such that it is preferable to prohibit assisted suicides if even a small number of them can go awry.
Assisted suicide is a major social experiment that may prove to defy some predictions and objectives and produce unintended consequences of serious proportions.The deceased would miss out on new treatments and cures that may come along. What may today be a “terminal” condition may become treatable. Patients are able to assess options only in light of their current experience and knowledge but they are not objective and they may misjudge. Erroneous diagnoses will lead to assisted suicides. The new Canadian legislation protects medical practitioners and nurse practitioners who act under “reasonable but mistaken belief.”
We know from experience that enforcement of legal standards and safeguards will be far from perfect. How much independent control can be exercised over the full spectrum of this procedure? How will one, after the death, ever know whether the deceased “made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure” [section 241.2 (1)(d)]? If the suicide has occurred without the safeguards being met, it will be practically impossible to establish that beyond a reasonable doubt.
(4.) Rational Basis in Social Context
History has taught us the dangers of removing the taboo on suicide, which is why so few countries to date have regulated and legalized the practice. Almost all societies for thousands of years have condemned and criminalized assisted suicide. How can a traditionally and culturally repugnant behaviour be seen as suddenly acceptable?
(5.) Assisted Suicide Impedes Development of Pain Treatment and Palliative Care
Pain control medicine and palliative care are far better than they have ever been any time in history and they are continuously improving. When assisted suicide becomes a an acceptable treatment option, the motivation of medical science to continue research and make advancements in prevention, therapies, pain control and palliation declines.
Physician-assisted suicide has been legal in the Netherlands since 2002. Today more than 4000 Dutch citizens each year opt for that medical procedure. At the same time, advancements in palliative care in the Netherlands have lagged behind most other developed countries.
(6.) Autonomy and Consent Inherently Illusory
By legalizing suicide assistance, we alter the fundamental role of physicians and other health professionals.People with advanced dementia or other mental illness such as severe depression cannot voluntarily consent to suicide. Likewise for those who cannot communicate. Even for others, when choosing and orchestrating something as extreme as one’s own death, one’s judgment is inherently in question. Most mindful people do not volunteer for suicide. Any expressed consent is a Sophie’s Choice consent, not a Reibl v. Hughes informed consent [http://canlii.ca/t/1mjvr]. Even among the population of mentally and physically competent people, the line that separates voluntary and involuntary decision-making and consent is unclear. It can never be assumed to be free, fully informed and absolute.
(7.) Qualifying for “Assistance”
This is one of the most contentious aspects of assisting suicide. The new Canadian legislation requires one to suffer from “a grievous and irremediable medical condition.” This threshold is satisfied by meeting all of the following [section 241.2 (2)]:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
What do these concepts mean: “serious,” “incurable,” “illness,” “disease,” “disability,” “advanced state of irreversible decline in capability,” “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable,” and “their natural death has become reasonably foreseeable”?
The physician or nurse practitioner makes the decision that each of these requirements are met and one cannot expect all of them will form the same conclusions. Some proponents of this option will more liberally than others determine that the requisite conditions have been met in patients.
A co-founder of the Hemlock Society often refers to “terminal old age.” Jack Kevorkian, an early activist for assisted suicide, regarded a terminal illness as “any disease that curtails life even for a day.” It is virtually impossible to predict the life expectancy of any particular patient. Some people diagnosed as terminally ill do not die for years, if at all, from the condition. As for the Canadian prerequisite that “natural death has become reasonably foreseeable,” natural death is more than “foreseeable”. It is inevitable. What is one to make of the “foreseeability” of death?
When assisted suicide is presented as a means of “taking control” or acting “with dignity,” all Canadians – including the young and fit – may view suicide as an easy and acceptable response to life’s problems.
The last two issues are concerns about the ‘slippery slope’. Assisted suicide is a major social experiment that may prove to defy some predictions and objectives and produce unintended consequences of serious proportions. The rationale for authorizing some people to help others die arises from each individual’s dignity, personal autonomy and equality.
(8.) The Power of Incrementalism in Law Reform
Incrementalism is a powerful, almost invisible, force in law and policy reform. Once an activity that was long prohibited has been declared legal, there invariably follows a relentless energy applied to expand that activity through law. For example, in the early 1990s, after the Supreme Court of Canada struck down all criminal restraints against abortion in the Morgentaler case [http://canlii.ca/t/1ftjt], most legislators and Canadians at the time were not comfortable with an “abortion on demand” policy. When the federal government was unable to find a balance regulating abortion, Canada got abortion on demand. No contemporary politician will attempt to regulate abortion today. Carter has been implemented by Bill C-14 regulation. Government presumes its regulatory scheme will prevent abuse and other harm in this vulnerable population.
(9.) The Inexorable Drive to Reduce Health Care Costs and Family Impact Compromises Voluntariness
There are many who say this sudden and drastic change to such important social policy affecting life and death – basically a court overruling very longstanding parliamentary will – should have received more public consultation and democratic scrutiny.The Alberta health care system alone costs more than $20 billion per year, some $56 million per day. It alone accounts for 46% of total Alberta spending on programs and operations. This continues to be the fastest growing expenditure category, at about a 3% increase each year. That level of spending on health care will be unsustainable. Efforts to contain and prioritize costs will increase as the population ages and taxpayers demand relief from the burden.
In Canada, hospital stays are already being shortened and money is tight for home care. Registered nurses are being replaced with less expensive practical nurses. Patients endure long waits for many surgeries. Statistically, by far most of the health care costs are spent in the last months and weeks of one’s life. A 2014 study by the Institute of Health Policy in Toronto, estimated the total cost of end-of-life care at $34,197.73 per patient over the entire palliative trajectory which averages four months. A dose of suicide drugs costs about $100.
The social pressure to save money and ration care will be palpable. The story is told about a request for public funding of a chemotherapy drug that cost US$4000 per month in Oregon. The health plan denied the request but approved coverage of a suicide drug dose. Doctors, hospitals, family members and even provincial governments might all have perverse incentives to favour death overall as the best treatment option. Costs and other pressures will be brought to bear upon the disabled, depressed, dependent and elderly to ease the emotional and service burden on caregivers.
In a public health care system with limited resources, where suicide is regarded as a good and brave decision, one might feel guilty just for choosing life.