July 11, 2012

Law criminalizing physician-assisted suicide is unconstitutional

Health Law

In a lengthy but well-crafted judgment, the BC Supreme Court found that criminal laws preventing physicians from aiding or abetting persons to commit suicide were unconstitutional, as these provisions absolutely preventing patient access to physician-assisted death violated the s.7 and s.15 Charter rights of grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress: Carter v. Canada (Attorney General), 2012 BCSC 886.

Overview. Four plaintiffs challenged the law against physician-assisted suicide: one woman with a fatal neurodegenerative disease, Ms. Taylor; a married couple who helped arrange for a mother’s assisted death in Switzerland, and a family physician willing to participate in physician-assisted dying if it were no longer prohibited. The challenge involved s.241 of the Criminal Code and related provisions. Section 241 stipulates that everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Factual background. The court declared s.241 and related provisions to be invalid, but suspended the operation of its declaration for one year, subject to Ms. Taylor having the option of physician-assisted death under a number of conditions. [2; 19; 1400-1415]

The court made its decision in the context of a number of key facts (and notably, the reasons show the court having evidence before it from 57 expert witnesses):

(1) Palliative care is far from universally available in Canada, and even the best palliative care cannot alleviate all suffering, except possibly through palliative sedation.

(2) Current end-of-life practices allow physicians to withhold or withdraw life-sustaining treatment from patients (following patient or substitute decision-makers’ instructions), or to administer medications in dosages that may hasten death.

(3) Medical practitioners disagree about the ethics of physician-assisted death.

(4) Public opinion is divided on physician-assisted death.

(5) Jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols (including second opinions and reporting requirements) are followed. No evidence establishes an inordinate impact of physician-assisted dying on vulnerable populations. [359-747]

(6) Risks relating to the ability of patients to make well-informed decisions and to be free from coercion or undue influence, and the ability of physicians to assess patient capacity and voluntariness can be avoided by carefully-designed, well-monitored safeguards. [748-883]

The court summarized the main ethical and practical arguments for [315(a)-(p)] and against [314(a)-(m)] physician-assisted suicide being made available to a limited class of patients “who are competent adults (decisionally capable); fully informed as to their diagnosis, prognosis and all options for treatment or palliative care; persistently and consistently requesting assistance with death (that is, non-ambivalent); and not subject to coercion or undue influence.” [313]

Equality rights infringed (Charter s.15). In this factual context, section 241(b) of the Criminal Code infringed the s.15 equality rights of the plaintiff, Ms. Taylor, who suffers from amyotrophic lateral sclerosis (ALS), or Lou Gehrig’s disease. The law does not prohibit suicide, but persons who are physically disabled such that they cannot commit suicide without help are denied that option. The law against assisted suicide has a more burdensome effect on persons with physical disabilities than on able-bodied persons, creating a distinction based on physical disability. [15]

The infringement of Ms. Taylor’s equality rights was not demonstrably justified. Although the purpose of the absolute prohibition – preventing vulnerable persons from being induced to commit suicide at times of weakness – was pressing and substantial, and was rationally connected to the measure, an absolute prohibition did not impair Ms. Taylor’s equality rights as little as possible; “a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death.” [16] Furthermore, severe adverse effects of the absolute prohibition on Ms. Taylor were not outweighed by the benefits. [16]

Life, liberty and security of the person (Charter s.7). The Criminal Code provisions also infringed the s.7 rights of plaintiffs to life, liberty and security of the person, except in accordance with the principles of fundamental justice, including a right not to be deprived of s.7 rights through legislation that is overbroad or grossly disproportionate.

The provisions deprived Ms. Taylor of her right to liberty and security of the person, and in particular, her right to live her remaining life with the inherent dignity of a human person, her right to control what happens to her body while she is living, and her right to be free from governmental interference in making fundamental personal decisions concerning the terminal stages of her life. [1291-1304] Furthermore, the provisions infringed her s.7 right to life in that the effect of the legislation has the effect of shortening the lives of persons who fear that they will become unable to commit suicide later, and therefore take their own lives at an earlier date than would otherwise be necessary. [1305-1322]

The provisions also deprived Ms. Carter and Mr. Johnson of their liberty rights, as they and others in their position “are forced to risk prosecution for a serious criminal offence if, even reluctantly and purely out of compassion, they accede to a request to help a relative or loved one who wishes to obtain assisted death.” [1304; 1330]

The provisions did not deprive the plaintiffs of their s.7 rights in accordance with the principles of fundamental justice. Although the provisions are not arbitrary, [1331] the provisions are overbroad, as the court found that a prohibition without exception was not necessary to meet the government’s objectives. [1364] An absolute prohibition would seem necessary if the evidence showed physicians being unable to assess competence, voluntariness and non-ambivalence in patients, or failing to understand or apply informed consent requirements; [1365] and an absolute provision might be called for if evidence from permissive jurisdictions showed abuse of patients, or carelessness or callousness on the part of physicians, or evidence of the reality of a slippery-slope. [1366] But in fact the evidence supported a conclusion that “a system with properly designed and administered safeguards could, with a very high degree of certainty, prevent vulnerable persons from being induced to commit suicide while permitting exceptions for competent, fully-informed persons acting voluntarily to receive physician-assisted death.” [1367]

The provisions were also grossly disproportionate to any legitimate government interest. [1373] The court concluded that “the effect of the absolute prohibition on the life, liberty and security of the person interests of the plaintiffs is very severe, and is grossly disproportionate to its effect on preventing inducement of vulnerable people to commit suicide, promoting palliative care, protecting physician-patient relationships, protecting vulnerable people, and upholding the state interest in the preservation of human life.” [1378]

Finally, based on its analysis of the provisions not being demonstrably justified in relation to Ms. Taylor’s equality rights, the court found that if such an analysis were necessary or appropriate in the context of the s.7 infringement, it would reach the identical conclusion. [1383]

Carter v. Canada (Attorney General), 2012 BCSC 886

Links are here (BCSC) and here (CanLII).