For the first time, the Canadian Medical Association is acknowledging that helping a suffering patient die may be a doctor’s most humane option.
The organization’s updated and recently approved policy on euthanasia and assisted death comes as the powerful doctors’ lobby prepares for a possible lifting of the federal ban on assisted suicide when the Supreme Court of Canada releases its historic ruling Friday morning in Ottawa.
Many expect assisted suicide will, somehow, be made legal. “The big question is, how?” says University of Ottawa law professor Amir Attaran.
No one is predicting a carte blanche for assisted deaths should the Supreme Court justices deem the current ban too broad.
This time the country may be ready for it
But it has been 22 years since the high court ruled, in a razor edge decision in the Sue Rodriquez case, to uphold the federal laws banning assisted suicide.
“This time the country may be ready for it,” Attaran said.
The Canadian Medical Association — once firmly opposed to any form of doctor-hastened death — has already prepared draft proposals for a “medical aid in dying” regime in Canada. In a new position statement approved by its board in December, the association now states “there are rare occasions where patients have such a degree of suffering, even with access to palliative and end of life care, that they request medical aid in dying. In such a case, and within legal constraints, medical aid in dying may be appropriate.”
If on Friday laws making it a criminal offence to “counsel, aid or abet” another person to commit suicide are lifted, “we’re going to need to hit the ground running if we want to lead and do this well,” said CMA president Dr. Chris Simpson.
Simpson said doctors would be seeking clarification and input on issues such as eligibility: What kinds of conditions would qualify? Would doctor-assisted death be open to fully competent adults only, or their substitute decision makers as well? Would it be restricted to those free of mental illness or clinical depression, and whose terminal, incurable illness is causing enduring and intolerable physical and psychological suffering?
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The case before the nation’s highest court involves two British Columbia women, Gloria Taylor and Kay Carter, both who have since died. Lee Carter and her husband, Hollis Johnson, launched the original lawsuit at the B.C. Supreme Court in 2011 on behalf of Lee’s mother, Kathleen (Kay) Carter, who was suffering from a painful and paralyzing spinal condition. Kay Carter died by assisted suicide in a clinic in Zurich, Switzerland, surrounded by her family, after drinking a lethal dose of barbiturates through a straw.
She may be one of the last Canadians to have to travel abroad to realize their wish for an assisted death. Attaran and others expect the Supreme Court will effectively overrule itself when it issues its decision Friday. “This case was always about whether Canadian society has moved on beyond 1993 and the Rodriquez decision,” Attaran said.
The Rodriquez case was “balanced on a knife edge” — a 5-4 split, with now Chief Justice Beverley McLachlin in dissent. McLachlin is also the only justice still on the Supreme Court bench.
During a one-day hearing in October, federal government lawyers — who argued the prohibition against assisted suicide is as vital today as it was in 1993 to protect the vulnerable — faced skeptical questioning from the bench. “There is something stereotypical in your argument that is bothering me — that they, all of them, need protection, a leg up,” McLachlin told one federal lawyer.
From the tenor of the arguments, “I think it’s 90-per cent-plus clear that the Carter camp will win,” said Attaran, who holds the Canada Research Chair in law, population health and global development policy.
Attaran said the court could “take a black marker” and strike out entirely the provision of the Criminal Code that decrees assisted suicide murder. Or it could leave the section intact, but declare it does not apply to individuals in certain situations — for example, people with a terminal diagnosis “who for, whatever reason, are unable to carry out suicide by their own hand,” Attaran said.
“The court could spell out, in greater or lesser detail, what that situation is,” Attaran said.
No one is expecting dying Canadians would rush to doctors to seek a lethal prescription, or lethal injection should the laws be overturned.
But merely knowing the option exists would provide “solace” for patients and their families, “should dying become too difficult,” said Dr. Gerald Ashe, an Ottawa-area family physician and palliative care specialist.
It would also help prevent violent and lonely suicides, he said. In early December, one of Ashe’s patients, a 59-year-old father of three with terminal cancer, shot himself with a rifle.
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Opponents of legalized euthanasia are adamant that the court should maintain its ruling in the Rodriquez case. They point to controversial mercy killings — including deaf, twin brothers from Belgium who chose death by lethal injection when they learned they were going blind, and a Belgian woman who was put to death for “untreatable depression” — as evidence that slippery slope fears are real.
“The laws in other jurisdictions have been abused, euthanasia has expanded to include people with depression, people with psychiatric problems, people with dementia, teenagers and incompetent people,” Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, said in a statement.
“Canada needs to focus on how it cares for people in difficult circumstances, not how to kill its people.”
Queen’s University bioethicist Udo Schuklenk said that even if abuses may be occurring, “they are occurring in such small numbers that I cannot see how any supreme court in the universe would think these are reasons not to change our take on this issue.”
“The Supreme Court of Canada has always put a lot of weight on social science evidence, and we know support for assisted dying is overwhelming in Canada,” he said.
Support is cutting across political persuasions. “Conservatives are overwhelmingly in favour of it; a majority of Christian Canadians are in favour of it,” Schuklenk said.
“The court will almost certainly take all of this into consideration and will decide that the time has come — regardless of whether politicians think so or not.”