The right to life can be flipped into a right to die
By Margaret Somerville
It’s often said that Australia and Canada are, in many ways, comparable countries. So let’s look at a recent Canadian euthanasia case, that of Audrey Parker, to see what we might learn relevant to the current euthanasia debates in Australia.
But first some background. Canada legalized physician-assisted suicide and euthanasia (PAS-E, euphemistically called “voluntary assisted dying” in the Victorian Voluntary Assisted Dying Act) just over two years ago.
Like the Australian pro-euthanasia advocates, the Canadian advocates claimed that PAS-E would be rarely used and only in extreme cases; that safeguards would be highly effective and would not change, that is, there would be no slippery slopes; and that vulnerable people, for instance, those who are mentally incompetent, would not be placed at risk because only adults able to give informed consent immediately prior to being euthanized could have access to it.
Audrey Parker was a 57-year-old Canadian living in Halifax, Nova Scotia. She was diagnosed with Stage IV breast cancer in early 2016. The cancer had spread to her bones and the lining of her brain.
Audrey was assessed and approved for euthanasia (MAiD– Medical Assistance in Dying) under the Canadian law providing for this procedure. She describes in a Facebook post, written just hours before her death by euthanasia on November 1, that for seven months she had been in contact on a monthly basis with the person who would provide her with euthanasia.
Audrey also disclosed that she would have liked to live until Christmas and New Year – as she put it, her “favourite time of the year” – before accessing euthanasia, but she was frightened to do this. The basis for her fear was that if she became mentally incompetent she could not be euthanized, because the law only allowed persons competent to give a valid consent just before the euthanasia procedure to have access to it. Audrey’s concern was that the metastases in her brain could render her incompetent to consent.
Audrey teamed up with Dying with Dignity to advocate for a change in the law that would make prior consent adequate – that is, that consent to euthanasia in advance directives would be sufficient if the person were mentally incompetent.
Canadian Press reported that Audrey said that Dying with Dignity had drafted a bill proposing that change and after her death would be promoting it under the banner of Audrey’s Law.
CBC News noted that she wrote, “I’m willing to leave early if it will result in this change for those who come after me.”
As this statement shows and as is true for possibly everyone, Audrey wanted her death to have meaning. We saw this same phenomenon in the early days of the HIV/AIDS epidemic when there were no effective treatments and young men dying of AIDS committed suicide. They were often told by advocates of the legalization of assisted-suicide and euthanasia that they were heroes for choosing suicide and their brave action would promote its legalization, which would help others in the same situation as they were.
But back to Audrey. CBC News later posted “a corrected story” stating,
“A previous version contained inaccurate information that Dying with Dignity Canada would submit a bill next week, dubbed Audrey’s Law, seeking an amendment to remove the need for late-stage consent for medically assisted dying patients who have already consented and been approved. In fact, the organization will launch a campaign in the coming weeks with the aim of seeing that the rights of people who’ve been assessed and approved for assisted dying are respected.”
Why might Dying with Dignity have sought this correction?
Repealing a safeguard provision in the euthanasia law – namely, the requirement for competency and consent at the time of inflicting death – is less likely to meet the approval of the general public or politicians than arguing for this change in the law on the basis of respect for individual autonomy. Moreover, the latter approach is consistent with the respect for individual autonomy arguments on which the MAiD law was based and which were very influential in having the law enacted.
And seeing the proposed change as dropping a safeguard is inconsistent with the claims of pro-euthanasia advocates that no logical slippery slope (the expansion of the people and circumstances where euthanasia is permitted) would occur and, likewise, that vulnerable people, such as those who are mentally incompetent, would not be put at risk because their consent was needed at the time of euthanasia.
The change would also eliminate another safeguard–the possibility of a person changing their mind about euthanasia. We know from research that even people who have asked for euthanasia can change their minds when given good palliative care.
But might a court rule that it is unconstitutional, or a breach of a person’s human rights, to require a final consent? Audrey’s argument that she is forced to die sooner because of the consent requirement exactly mirrors the argument of Gloria Taylor, a plaintiff in the Carter case, which resulted in the legalization of PAS-E in Canada.
Ms. Taylor was suffering from a serious neurodegenerative disease, amyotrophic lateral sclerosis (ALS), and wanted access to PAS-E. The Supreme Court of Canada ruled that prohibiting PAS-E faced Ms Taylor with a “cruel choice” between, as she argued, committing suicide while still able to do so without assistance or living longer and being unable to commit suicide, because the assistance she would need was a crime.
The court held the prohibition of assisted suicide was a breach of Ms. Taylor’s right to life in section 7 of the Canadian Charter of Rights and Freedoms and unconstitutional, because it meant she would commit suicide sooner if assistance remained prohibited, that is, the criminal prohibition of PAS-E shortened her life.
In short, the Supreme Court converted the “right to life” to a “right to death through PAS-E.”
It’s true Australia does not have a Charter of Rights as part of its Constitution [as does Canada], but Australian courts have ruled the same fundamental rights exist at common law and the right to life is certainly such a right.
Applying the [Supreme Court of Canada’s] reasoning in its Carter decision to Audrey’s case, it can be argued that if a legal prohibition (in this case on euthanizing mentally incompetent people) means they will die sooner in order to have help in dying, that prohibition is unconstitutional because it shortens life thereby contravening the “right to life” in section 7 of the Charter. Moreover, as was also held in Carter, it would also contravene the section 7 Charter rights to liberty and security of the person or the common law equivalents of these rights.
Audrey’s case is a good example showing that once we step over the line that we must not intentionally kill there’s no logical stopping point. We can only hope that if there were a court challenge to requiring consent at the time of euthanasia, the Canadian courts would rule that section 1 of the Charter applied to justify any breaches of section 7 rights that the consent requirement was found to constitute, as being a restriction that was a “reasonable limit prescribed by law … [that] can be demonstrably justified in a free and democratic society” and, therefore, not unconstitutional.
And should Dying with Dignity be successful in having a bill come before the Canadian Parliament let’s hope that it would reject such a change, not least in the interests of protecting highly vulnerable people, such as those with dementia.
Australia can avoid all such problems by persuading the Victorians to repeal the Voluntary Assisted Dying Act and not legalizing PAS-E.
Editor’s note. Margaret Somerville is professor of bioethics in the school of medicine at the University of Notre Dame Australia. This appeared at Mercatornet and is reposted with permission.