By Burke J. Balch, J.D., director of NRLC’s Powell Center for Medical Ethics
People with disabilities must be killed when they consent under a February 6, 2015, decision by Canada’s highest court striking the Canadian law protecting against assisting suicide.
Unlike doctor-prescribed suicide laws in Oregon, Washington and Vermont that theoretically are limited to those with terminal illness, the sweeping ruling allows killing any Canadian who “has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
“Irremediable,” the court stressed, “does not require the patient to undertake treatments that are not acceptable to the individual.”
Even this broad language, which leaves it hard to identify any circumstances in which a subjective statement by an individual that she or he thinks life is not worth living would fail to authorize assisting suicide, may in the future be expanded. The court explicitly stated, “We make no pronouncement on other situations where physician-assisted dying may be sought.”
While the ruling on its face only applies to “a competent adult person who . . . clearly consents to the termination of life,” the court hinted that it may later hold that surrogates have the right to kill people with disabilities who cannot speak for themselves and have never asked to die. After rejecting any distinction between rejecting life-preserving treatment and direct killing, stating that both hasten death, the court noted, “In some cases, [decisions to reject life-saving treatment] are governed by advance directives, or made by a substitute decision-maker.”
The unanimous ruling in Carter v. Canada flatly rejected the position, advanced by the Canadian government, that a law against assisting suicide may be justified by the objective of “preserving life.” Ironically, it actually held that the law violates the right to life because it has “the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”
The only potentially allowable justification under Canada’s constitutional Charter of Rights, the court held, would be “the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness.” Reversing a 1993 Supreme Court decision, Rodriguez v. British Columbia, that pointed to the danger of abuse while upholding the law against assisting suicide, the current court deemed preventing all assistance of suicide “overbroad” on the grounds that “vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally.”
“Concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making,” the court wrote. “Logically speaking, there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying. The risks that Canada describes are already part and parcel of our medical system.”
The court acknowledged that “Some people with disabilities oppose the legalization of assisted dying, arguing that it implicitly devalues their lives and renders them vulnerable to unwanted assistance in dying, as medical professionals assume that a disabled person ‘leans towards death at a sharper angle than the acutely ill – but otherwise nondisabled – patient’.”
However, the court said it “saw no reason to reject” the trial court’s conclusion that “rejected the contention that unconscious bias by physicians would undermine the assessment process.”
The court suspended the invalidation of Canada’s law against assisting suicide for a year to allow “Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out . . . .”
However, in light of the court’s insistence that deference to the judgment of physicians whether or not they ought to kill particular individuals fully meets any constitutionally valid interest in protecting “the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness,” it will be very challenging for Canadian legislators to craft laws that provide any realistic measures of protection.