In 2015 the Supreme Court of Canada issued a decision in the case of a B.C. woman who wanted the right to be able to determine the timing and circumstances of her own death; what was termed at the time “doctor-assisted suicide”, and what has now become referred to as medical assistance in dying or MAID. This reflects the fact that sometimes other medical professionals, including nurse practitioners and pharmacists, may be involved.
Those for whom death is imminent and who do not wish to spend their final moments in a hospital bed will have the ability to make other arrangements to allow themselves to spend the final days in a more comfortable and personal setting, such as their own homes or in a hospice for the terminally ill. It has virtually always been a crime in Canada for any person to assist another to commit suicide (presently section 241 of the Criminal Code). In 1993 the Supreme Court refused to strike down this law when it decided the case of Rodriguez v. Attorney General of British Columbia. However, by 2015 the legal and social landscape had changed, and the Supreme Court ruled that Canadians should have the right to the assistance of a doctor in ending their own lives, in certain circumstances (Carter v. Attorney General of Canada).
The details of the decision, and arguments against physician-assisted death are being explored in other articles in this issue. In this piece, I will attempt to identify and discuss what might be considered the advantages of allowing individuals this final, ultimate choice.
The most obvious benefit to this change in the law is also the point which was most central to the Supreme Court’s decision: the alleviation of extreme personal suffering and pain. Many of the individuals who have litigated these issues (including Sue Rodriguez in 1993 and Gloria Taylor in, as well as “S.M.”, the applicant in the first decision in Canada permitting physician assisted death made on February 29, 2016 in Calgary) suffered from amyotrophic lateral sclerosis (“ALS”). It was described in the 2015 Supreme Court decision as leading to the gradual loss of all basic body functions: “ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and eventually breathe.” Despite medical procedures and the use of medication and drugs, death comes painfully and at least sometimes, slowly.
And unfortunately, it is not just persons suffering from ALS who must endure such ordeals: many other diseases and conditions involve unending, permanent pain and unpredictable periods of suffering. Some conditions end in death, while others do not. In some situations, the individual must look forward to a long, painful life of disability and suffering.
Watching a family member or loved one suffer endlessly and being helpless to alleviate that condition carries its own form of mental and emotional pain and upheaval. With the change in the law triggered by the Supreme Court decision in 2015, in at least some situations, those persons who wish to avoid prolonged periods of suffering may now have that choice. The Court recognized that liberty and security of the person (both interests which are protected under Section 7 of the Charter of Rights and Freedoms) included giving individuals the power to make their own decisions about essential medical care and their responses to such grievous medical situations. Even the protected interest of life itself was negatively impacted by the prohibition on physician-assisted dying. It was under review because the law forced at least some persons to take their own lives prematurely and without assistance (suicide is not against the law, but assisting someone to take their own life is) for fear that waiting until their condition worsened would leave them incapable of doing so later. In short, a fundamental aspect of personal autonomy and freedom was found to include having the power to decide when to end one’s own suffering, and the ability, with assistance if necessary, to act on that decision.
On June 17, 2016 an Act to amend the Criminal Code, removing the ban on assisted suicide received Royal Assent. It also created new provisions to allow medical assistance in dying (MAID). However, controversy continues about this legislative response to the Carter decision. The main point of contention lies in the scope of the government’s proposed changes to the law. While the Supreme Court did not limit the results of its ruling to persons for whom death is imminent, that is a central feature of the new law. As the amendments are presently worded, the law would be changed in such a way as to allow medical assistance in dying to be available only for persons whose death “has become reasonably foreseeable” even though this would not require a precise prediction of when the end will actually come. At issue is whether the law would restrict the benefits or options of seeking medical assistance in dying to those persons for whom death is already near.
In a decision rendered on May 17, 2016, the Court of Appeal of Alberta rejected federal government arguments that such a limitation flowed from the Supreme Court decision in Carter. The higher court’s ruling was intended to address the situations of persons suffering from conditions which were intolerable and unending, but not necessarily such that the conditions in question were themselves “life-threatening or that reduce one’s life expectancy.” The Court of Appeal noted that, under the government’s position, the cruelty of unending suffering which the high court intended to relieve against would be continued without relief or end, in cases where the illness itself was not considered terminal.
…another group who may find some relief and a form of benefit from the change in the law are medical professionals.Thus, at this time it remains an open question as to whether the law narrows the scope of this benefit – or the group of persons who may make use of the benefit – or whether the options available as a result of the Carter decision will be available to a wider selection of persons (that is, those whose suffering is a permanent condition but whose deaths are not necessarily being hastened as a result).
A second, related “benefit” to the change in the law is likely the emotional and mental health result which flows from placing of control over the timing of one’s death into the hands of the person involved. Alleviating physical suffering and anguish is the most obvious beneficial result of the Supreme Court’s decision, but the emotional value of providing a greater degree of certainty and control of the timing of one’s own death cannot be underestimated either. Most people have, at some point in their lives, contemplated the philosophical question of whether or not it is preferable to know in advance the timing and circumstances of their deaths. Where that intellectually and emotionally interesting (and usually fairly theoretical) issue becomes very real and meaningful, however, is in the throes of a serious and permanent medical condition causing unending, extreme suffering for the patient. Along with enduring the physical results of the disease or disorder, until now patients also had to suffer the mental anguish of not knowing how long their condition would persist (in the sense they had no way of knowing when they would finally die, and thus, end their suffering) or what physical state they might be in when their final moments finally arrived.
Alleviating physical suffering and anguish is the most obvious beneficial result of the Supreme Court’s decision, but the emotional value of providing a greater degree of certainty and control of the timing of one’s own death cannot be underestimated either. With Medical Assistance in Dying now available, persons suffering in such ways will have perhaps a small measure of comfort which comes from being given a greater degree of control as to when, and in what circumstances, they will finally pass away. Those for whom death is imminent and who do not wish to spend their final moments in a hospital bed will have the ability to make other arrangements to allow themselves to spend the final days in a more comfortable and personal setting, such as their own homes or in a hospice for the terminally ill. Unlike the individuals whose court cases have led to these changes, they will now have greater control over how long they are prepared and willing to suffer physically and will be able to take charge of their own end of life scenarios in a way previously not possible.
The relief from the anguish which comes from such uncertainty and lack of control will also be available for family members and others who care about the condition of the afflicted. Watching a family member or loved one suffer endlessly and being helpless to alleviate that condition carries its own form of mental and emotional pain. With the change in the law brought about by the Supreme Court decision, family members will have greater comfort knowing the person about whom they care deeply can decide for him- or herself how long they will continue to endure the suffering, and can then plan for their final ending accordingly.
Having this control also means being able to properly plan and prepare for the aftermath of death. Family members and others can arrange in advance for details such as funeral arrangements and the holding of any commemorative events. Having a chance to make proper preparations for death and the events which follow would be preferable to a scenario where such decisions must be made while loved ones are still in states of shock and grief (and sometimes, even horror) which follow an unexpected death.
In short, a fundamental aspect of personal autonomy and freedom was found to include having the power to decide when to end one’s own suffering, and the ability, with assistance if necessary, to act on that decision.Finally, another group who may find some relief and a form of benefit from the change in the law are medical professionals. While the profession is somewhat divided about what the role of doctors and nurse practitioners should be when it comes to the end of life, those who are willing to assist patients who wish to end their own suffering will be able to do so, within the bounds imposed by the new law, as well as the internal guidelines and policies being formulated by various medical associations and health ministries across the country). Until now, anyone – including doctors, nurse practitioners, pharmacists and others – who in any way knowingly assisted any other person to end their own lives were liable to be prosecuted for extremely serious criminal offences: assisting in a suicide (which carries a maximum punishment of 14 years imprisonment) or even murder (mandatory minimum sentence of life imprisonment without a chance of parole for 10 to 25 years, depending on a number of factors). Now, medical caregivers who wish to assist their patients in this way will no longer be open to prosecution. They will be able to act according to their consciences in an effort to humanely alleviate and end the terrible sufferings of some of their patients.
Without any doubt, the concept of medical assistance in dying is a very difficult one, with many intertwined ethical and moral issues. Various groups within Canadian society are divided about the merits and wisdom of allowing any form of assisted suicide and there are grounds for some of the fears expressed in the public debate which surrounds the Carter decision. But with the proper restrictions and safeguards and the careful enforcement of them, those who wish to take advantage of this very significant change in our law will be able to do so. Deciding how much suffering to endure, and whether and when to terminate one’s own life in order to end that pain will always be an extremely personal decision. But the new medical assistance in dying law has now opened the way to such steps being taken.
About Charles Davison
