To conclude our discussion of the Carter v Canada decision, we interviewed one of our own professors at the Faculty of Law, Professor Erin Nelson. We are very thankful to have had the opportunity to interview her and are excited to share another perspective on this topic! Please see below for Part I of our interview with Professor Nelson and check back this afternoon for Part II.
1. In Carter v Canada, the Supreme Court of Canada held that, “section 241 and section 14 of the Criminal Code unjustifiably infringe section 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) 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” (Carter v Canada, 2015 SCC 5 at para 147). In regards to this declaration, how should it be determined that an individual has “clearly” consented to physician-assisted dying? Further, how should a “grievous and irremediable medical conditions… that causes enduring suffering that is intolerable” be defined? Is this something that Parliament will determine or that the courts will have to grapple with in subsequent decisions?
The need for consent in health care is not new – health care providers must obtain consent from their patients before proceeding with diagnostic testing, treatment and other interventions. So the mechanisms and processes for obtaining consent to treatment are already in place, and the courts and other decision makers (such as regulatory bodies) already have experience with determining whether consent has been given, based on the evidence (including written consent forms and documentation in patient records). And, given that competent adult patients are entitled to refuse treatment, including life-saving treatment, there is already a degree of familiarity with decision-making that has similar implications to the consent referred to by the Supreme Court in Carter. My sense is that the physicians who agree to participate in assisted dying will be extremely careful about documenting consent to ensure that there are no questions about whether the patient consented.
One important thing to bear in mind is that the Court does not specify whether the only physician assistance that should be allowed is physician-assisted suicide or whether physician assistance could also involve the physician administering the medication or agent that causes the patient’s death. These two alternatives have very different consent implications. Physician-assisted suicide would entail the provision of some means by which a person can end his or her own life. Usually, this would involve providing a prescription for a lethal dose of medication that the patient can take. While it is possible to question the reality of consent in circumstances where a patient expresses a wish to end his or her own life, the consent in this situation needs to be followed up by the patient’s own actions – filling the prescription and ingesting the medication. Where the physician is the one who administers the medication, there is potentially much more room for questions about the reality of consent.
As to defining “grievous and irremediable medical conditions”, and the question of what is meant by “enduring and intolerable suffering”, there are a few possibilities. Assuming that Parliament enacts legislation to respond to the constitutional concerns the Court has expressed in Carter, the legislation could go some distance to defining these terms. It is unlikely that the legislation would specify particular conditions or illnesses that would meet the threshold identified by the Court, but there could be some information in the legislation to guide physicians on this point. Alternatively, the question of what amounts to a “grievous” or “irremediable” condition may be left to physicians (or physician regulators, such as Colleges of Physicians and Surgeons) to define.
A decision as to whether a person is enduring intolerable suffering is a very subjective matter, and I don’t think that this can really be defined in legislation. I imagine that physician regulators will handle guidance on this issue.
2. In light of the fact that the SCC suspended the decision in Carter v Canada for a period of 12 months, how do you think Parliament will react in terms of amending the legislation?
It is difficult to speculate as to how Parliament will respond. My guess is that we will eventually see legislation, but I don’t expect that to happen quickly. I also expect that the legislation will be very restrictive.
There is currently a Private Member’s Bill before Parliament (actually two – Bill C-581 and C-582) dealing with physician assisted death. The Bills are sponsored by MP Steven Fletcher (see http://www.stevenfletcher.com/news.asp?news_ID=2258). It is possible that those Bills (or something along those lines) could be what we ultimately see, although again, my sense is that the law will be more restrictive than these Bills.
3. Should doctors be permitted to include physician-assisted dying as a “treatment option” in consultations with their patients? Does this bring the issue of voluntariness into question?
It is certainly arguable that if physicians start raising assistance in dying as a treatment option, patients will feel pressured to consider it even if they otherwise would not have. However, in practice, I do not think that physicians will raise the possibility of assisted suicide with their patients. I think it is much more likely that they will deal with the issue in response to questions or requests by patients. The majority of physicians will not be prepared to offer assistance in dying.
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