Introduction

Webcast archive: Carter case decision

This week, we discuss the implications of the Supreme Court's decision in Carter.

Webcast archive: Carter case decision

In this episode of Euthanasia & Disability, Amy Hasbrouck and Christian Debray discuss:

  • The Supreme Court of Canada’s decision in the Carter case

Please note that this text is only a script and that our webcast contains additional commentary.

SUPREME COURT DECISION IN THE CARTER CASE

  • On Friday, February 6, the Supreme Court of Canada declared that the sections of the Criminal Code that prohibit assisted suicide are unconstitutional insofar as they deny to access assisted suicide and euthanasia to certain people.
  • In their unanimous decision, the court said the “prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”
  • So to qualify for assisted suicide or euthanasia, a person must:
    • Be a competent adult
    • Have an illness, disease or disability
    • Have intolerable physical or psychological suffering
    • Ask for it.
  • The Council of Canadians with disabilities and the Canadian Association of Community Living issued a press release stating that they are extremely disappointed that the views of the disability rights community in Canada, , were disregarded by the Court.
  • CCD and CACL believe the judgment creates the potential for the most permissive and least restrictive criteria for assisted suicide in the world, putting persons with disabilities at serious risk.
  • The Court did not impose a requirement of terminal illness, as is required in the states of Washington and Oregon.
  • The criteria of “intolerable suffering,” is completely subjective and will make it difficult to review decisions of doctors who believe the life with a disability is, by its nature, intolerable.
  • In allowing assisted suicide on the basis of psychological suffering, the court places people with serious mental and emotional disabilities at risk, as well as people who have not yet come to grips with their disability.
  • The judgment allows people to decline palliative and other care that would alleviate their suffering. Worse, it imposes an obligation on the state to provide Assisted Suicide, but not palliative care.
  • The Court did not limit Assisted Suicide to those who cannot commit suicide without assistance, despite the fact that the court’s reasoning is based on the idea that people with disabilities are deprived of the “right to life” because they are incapable of committing suicide without help. (para 57-58)
  • The court continues to disregard the legal and ethical difference between withdrawal of medical treatment and an action to induce death.
  • The court suspended the “declaration of invalidity” for a year to allow parliament time to act. If parliament doesn’t do so within that period, there will be no regulations on assisted suicide and euthanasia.
  • The decision includes several contradictory arguments, such as:
    • In paragraph 25 the court cites with approval the finding of Justice Smith in the B.C. Court, who found that in Europe: “empirical researchers and practitioners who have experience in those [regulatory] systems are of the view that they work well in protecting patients from abuse while allowing competent patients to choose the timing of their deaths.”
    • But later, in paragraph 112, the court says that evidence of a slippery slope in Belgium was not credible. “the trial judge concluded that it was problematic to draw inferences about the level of physician compliance with legislated safeguards based on the Belgian evidence (para. 680).  This distinction is relevant both in assessing the degree of physician compliance and in considering evidence with regards to the potential for a slippery slope.”
  • In other words, we should believe the evidence that says there aren’t any problems in Europe, but reject the evidence that shows that there’s a slippery slope.
    • The decision leaves us with many questions
  • How do we reconcile assisted suicide and euthanasia (AS/E) with the public policy goal of suicide prevention?
  • How do we prevent the circumstances that lead to requests for AS/E?
  • How do we ensure that disability and the need for personal care are not equated with indignity, suffering, and thus a justification for assisted death?
  • How do we detect and eliminate negative beliefs of the quality of life with a disability in the policy and practice related to AS/E?
  • How do we ensure that people who receive AS/E are:
    • Making a free and informed choice.
    • Unable to commit suicide without help
  • How do we ensure that:
    • Eligibility criteria don’t slip
    • Eligibility criteria are respected
  • Many of the people who have publicly called for the legalization of AS/E were capable of committing suicide. Will we be able to maintain a restriction to those who are not capable of killing themselves?
  • Should we only allow assisted suicide, where the person triggers the fatal action?
  • How do we change the perception that safeguards work against the interest of those who ask for assisted suicide and euthanasia?
  • Does the government of Canada, via its health care providers, really want to go into the business of putting its citizens to death?
  • How does Canada reconcile adopting AS/E while rejecting capital punishment?
  • How do we reconcile the doctor’s role as healer with putting people to death?
  • Assisted suicide and euthanasia will exacerbate the current conflict experienced by doctors to (on the one hand) act as advocates to obtain the best treatment for their patients, and (and the other hand) contain costs. How do we as a society propose to deal with this conflict?
  • How do we respect the conscience of doctors, nurses, pharmacists, etc., who do not wish to participate in killing people?
  • Are we prepared to allow individuals and groups to profit from providing services in causing death to Canadians?