Canada to legalise physician assisted dying
Published Online: 16 February 2015
This month, all nine judges in Canada's Supreme Court agreed to strike down the country's law against physician-assisted dying in a landmark ruling. Paul C Webster reports.
In a decision noting that physicians currently legally assist patients who wish to die in Belgium, Colombia, Luxembourg, the Netherlands, Switzerland, and three US states, on Feb 6, Canada's Supreme Court set the stage for Canadian doctors to soon join their ranks.
In a rare unanimous ruling, Canada's highest court repealed existing Canadian laws criminalising physicians who assist patients seeking to die. Although under existing Canadian law, the Court noted, patients can already “refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment”, they cannot request a physician's assistance in dying. And that, the Court decided, “interferes with their ability to make decisions concerning their bodily integrity and medical care” and thus denies patients their liberty and “security of the person”, both of which are protected within the Canadian Constitution.
The Canadian Medical Association (CMA), which represents 80 000 Canadian doctors, was among several groups that intervened with arguments before the Supreme Court. The CMA's current policy states that it supports the right of all physicians, within the bounds of the law, to follow their conscience in deciding whether or not to provide aid in dying. The Court's ruling echoed this policy.
The Court's decision caps decades of Canadian legal struggles in which the arguments of terminally ill patients, physicians, and civil rights organisations were pitted against government lawyers who argued that legalising physician-assisted dying inevitably risks creating a “permissive” regime potentially jeopardising the lives of vulnerable patients.
In deciding that these risks have been overstated by the Canadian Government and can be managed safely, the Court closely examined the experience of Gloria Taylor, a British Columbia woman who was diagnosed in 2009 with amyotrophic lateral sclerosis, a fatal neurodegenerative disease in which patients first lose the ability to use their hands and feet, then the ability to walk, chew, swallow, speak and, eventually, breathe.
Backed by the British Columbia Civil Liberties Association, Taylor's physician and the family of Kay Carter, another patient with an incurable disease, mounted a legal challenge arguing that they had the right to instruct their physicians to terminate their lives. Although Taylor died of medical complications before the case was resolved, in 2012 her lawyers persuaded a provincial court she and Carter were right. That decision, however, was successfully appealed by the Canadian Government in 2013.
In upholding the 2012 court decision allowing physician-assisted dying, the Supreme Court of Canada quoted Taylor's assertion that “there will be some point in time when I will be able to say ‘this is it, this is the point where life is just not worthwhile’. When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good bye, and obtain final closure—for me and for them.”
Although opponents of physician-assisted dying in Canada have phrased the controversy as a debate over “physician-assisted suicide”, the Supreme Court ruling highlighted Taylor's desire to avoid an “ugly death”, noting her insistence that “I do not want my mode of death to be traumatic for my family members…I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified, and inconsistent with the values and principles I have tried to live by.”
The Court's examination of the Canadian Government's arguments in seeking to block physician-assisted dying is in many places scathing. “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 decision notes. “The risks that Canada describes are already part and parcel of our medical system.”
Under the Court's ruling, the current law against physician-assisted dying will remain in place for another 12 months. In the meantime, it falls to the colleges of Canadian medical professionals, the Canadian Parliament, and possibly provincial legislatures to respond with laws or regulations that respect the Constitutional rights of patients and providers, says Robert Leckey, a professor of family and constitutional law at McGill University in Montreal.
In forging a new framework for physician-assisted dying, Leckey notes, Canadian lawmakers could use a soon-to-be-implemented law in the province of Quebec that permits physicians to assist consenting patients with irremediable illnesses in dying. Noting that Quebec's law took years to fashion, Leckey says the Supreme Court has now imposed “an aggressive timeline” for the rest of the country to follow suit.
Assisted Dying Bill calls for stricter safeguards
In the UK, the Assisted Dying Bill1 proposed that adults who are terminally ill, are reasonably expected to die within 6 months, and have a clear, decided, voluntary intention to seek help in dying, without coercion or duress, should be provided, at their request, with specific assistance to end their own lives by doctors who are willing to provide such assistance. The request must be supported by the attending doctor (mostly the family doctor) and an independent doctor, both of whom are satisfied that the applicant has “the capacity to make the decision to end their own life”.1 The wording of important clauses in the Bill is likely to change as it progresses through the Parliamentary stages. Here I discuss some of the medical safeguards.
Diagnosis, prognosis, and assessment of mental capacity are of paramount importance. A distinction that will often have to be made is that between true clinical depression (as understood by psychiatrists with knowledge of the phenomenology of depression) and despair and distress that are understandable in someone suffering from a terminal illness. In many patients, this distinction should be fairly easy to make, but in others, a doctor could miss a treatable depressive illness, especially if he or she is unfamiliar with the psychopathology associated with terminal illness or does not have the skill to tease out all relevant phenomena and assess them in relation to the patient's suffering and personal wishes. This oversight could, in some patients, result in assisting of a death rather than provision of skilful treatment.
The independent doctors should, in my view, be consultant palliative care physicians and psychiatrists with at least 10 years' experience in their respective consultant roles. They should initially be appointed for a short period and then provided with special continuing training in matters of potential concern. A structured checklist of essential components of assessment might help as an aide memoire in training and practice, but not as a rating scale.2 The advice of others, such as experienced social workers and nurses, should be sought when relevant. Monitoring, feedback, review, and research input are recommended.
Not all doctors, even experienced consultants, have the ability to do the complex, demanding work that would be necessary, and recruitment of those suitable to undertake this work is likely to be difficult. Physicians and psychiatrists need to fully assess and prepare comprehensive reports on the medical and psychological state of the person requesting assisted dying. In view of the life-and-death nature of the deliberations, conclusions should be based on robust evidence, with no substantial room for doubt. Assessments should be tailored to the applicant's circumstances and legal decisions can, if necessary, be made quickly.
Aspects of assessment that would be unacceptable to omit include whether the patient had been offered the best of what palliative care has to offer (medical); whether pathological notions of low self-worth, feelings of being a burden, guilt, disproportionate pessimism, and nihilism had been sufficiently explored (psychiatric); and whether anyone liable to gain from the death or have subtly influenced the request for assisted dying had been carefully explored, and more overt coercion eliminated (medical, psychiatric, and social).
I support assisted dying in very exceptional cases and with the safeguards spelt out in this correspondence. I declare no other competing interests.
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