Submission to the College of Physicians and Surgeons of Nova
Scotia
Re: Standard of Practice:
Physician-Assisted Death
Appendix "A"
Supreme Court of Canada
Carter v. Canada (Attorney General),
2015 SCC 5
Full Text
A1. Carter criteria for euthanasia and
physician assisted suicide
A1.1 In February, 2015, the Supreme Court of Canada struck down the criminal
law to the extent that it prohibits physician assisted suicide and
euthanasia in circumstances defined by the Court.1
A1.2 The ruling requires that physician assisted suicide and euthanasia be
limited to competent adults who clearly consent to the procedure.2 The use of
the present tense suggests that consent cannot be established by an advance
directive or provided by a substitute medical decision maker if the patient
is otherwise unable to express valid consent.3
A1.3 According to Carter, the condition need not be terminal, but the patient
must have "a grievous and irremediable medical condition (including an
illness, disease or disability)."4 The word "including" used here means that
assisted suicide and euthanasia may be provided not only for "illness,
disease or disability," but for other medical conditions - frailty, for
example.5
A1.4 While the Court notes that "minor medical conditions" would not qualify6
and that the medical condition must be "grievous," these are vague terms.
Moreover, the Court does not specify whether it is the patient or the
physician who determines that a condition is grievous. The medical condition
must be "irremediable"; in oral argument, the appellants suggested this
could be understood as "incurable."7 However, the Court further states that
individuals are entitled to refuse any treatments they find unacceptable,8 so
the ruling actually means that even treatable and curable medical conditions
can be considered irremediable and incurable if the patient refuses
treatment.
A1.5 Mental illness is a medical condition, and some kinds of mental illness
are thought not to affect decisional capacity or competence. In passing, the
Court remarks that the parameters they would propose in the reasons would
not apply to "persons with psychiatric disorders."9 However, the parameters
actually laid out do not explicitly exclude mental illness, so, on this
point, the ruling is ambiguous.
A1.6 Finally, the medical condition must cause "enduring suffering that is
intolerable to the individual."10 The Court does not specify that the
suffering must be physical. Since it acknowledges the distinction between
physical and psychological suffering11 and pain and suffering,12 the reference
to intolerable suffering can be understood to mean both. Although the ruling
does not say so, it is generally understood that suffering is subjectively
assessed by the individual experiencing it.
A2. Carter and the criminal law
A2.1 If all of these criteria are met, a physician who
kills a patient or helps him commit suicide cannot be charged for murder or
assisted suicide or any other offence. However, Carter did not entirely
strike down murder and assisted suicide laws. They were invalidated only to
the extent that they prevent homicide and assisted suicide by physicians
adhering to the Court's guidelines.
A2.2 In the absence of legislation, the appropriate
historical reference point for understanding the legal effect of Carter is
the period between the 1938 case of R. v. Bourne and Canada's 1969 abortion
law reform. Bourne was an English case that established a defence for
physicians who provided abortions deemed necessary to preserve the life of
the mother.13
A2.3 Though this condition was broadly construed,
physicians were still liable to prosecution if the abortion were shown not
to be required for that purpose. In 1967, CMA representatives told a
parliamentary committee that "uncertainty about transgression of the law"
was one of the reasons the Association supported reform of the abortion law.14
Physicians wanted more than a defence to a charge. They wanted positive
assurance that they would not be prosecuted.
A2.4 That assurance came when the Supreme Court of
Canada struck down the abortion law entirely in the Morgentaler case.
Physicians cannot be charged for providing abortions no matter what the
circumstances.
A2.5 However, even with legislation - but particularly
without it - it is difficult to see how physicians who are parties to
homicide and suicide can entirely avoid some "uncertainty about
transgression of the law." In the first place, the law against counselling
suicide still stands [241(a) Criminal Code], so, while physicians may assist
with suicide under the Carter guidelines, they can be charged if they
recommend it.
A2.6 Second, as a matter of public policy, complete
immunity from prosecution for murder or manslaughter can be safely
guaranteed only for public executioners acting in the course of their
duties. Thus, while the Carter ruling means that the state cannot prevent
qualified patients from obtaining therapeutic homicide and suicide from
physicians, it also means that physicians who fail to follow the Carter
guidelines can be charged for first or second degree murder,15,16 or
manslaughter,17 or administering a noxious substance.18
A2.7 Further, in such cases it would be a crime to
conspire with the physician,19 to do or omit to do anything for the purpose of
aiding the physician,20 to abet the physician,21 or to counsel, procure, solicit
or incite a physician to violate the Carter guidelines,22 even if a patient is
not ultimately killed.23 Thus, anyone who deliberately participates in or
facilitates euthanasia or assisted suicide by "effective referral" or
similar means is liable to be charged unless the act is exempted by Carter
from prosecution.
A2.8 The ruling itself is limited to the constitutional
validity of the criminal law. It does not impose a legal duty on the state
or upon anyone else to pay for euthanasia or assisted suicide or to provide
or participate in them.
A3. Carter and freedom of conscience and religion
A3.1 That is essentially what the judges themselves
state in Carter.
In our view, nothing in the declaration of invalidity
which we propose to issue would compel physicians to
provide assistance in
dying. The declaration simply renders the criminal prohibition invalid. What
follows is in the hands of the physicians' colleges, Parliament, and the
provincial legislatures (para. 132). (Emphasis added)
A3.2 Note that the Court here referred to "physicians"
(plural), not "a physician" (singular). This passage indicates that striking
down the criminal prohibition did not, in the Court's view, create any
obligation on the part of physicians (individually or collectively) to
provide assisted suicide or euthanasia. The statement is limited to
providing - doing the killing or providing the lethal prescription.
A3.3 However, the Court included the broader term - participate - and the
singular - physician - as it continued:
. . . we note - as did Beetz J. in addressing the
topic of physician participation in abortion in R. v. Morgentaler -- that
a
physician's decision to participate in assisted dying is a matter of
conscience and, in some cases, of religious belief (pp. 95-96). In making
this observation, we do not wish to pre-empt the legislative and regulatory
response to this judgment. Rather, we underline that the Charter rights of
patients and physicians will need to be reconciled (para. 132). (Emphasis
added)
A3.4 To suggest that this reconciliation is to be
accomplished by forcing unwilling physicians to become parties to homicide
and suicide is inconsistent with the comments of Justice Beetz in Morgentaler, cited with approval by the full bench of the Court in
Carter:
Nothing in the Criminal Code obliges the board of an
eligible hospital to appoint therapeutic abortion committees. Indeed, a
board is entitled to refuse . . . in a hospital that would otherwise qualify
to perform abortions, and boards often do so in Canada. Given that the
decision to appoint a committee is, in part, one of conscience, and, in some
cases, one which affects religious beliefs, a law cannot force a board to
appoint a committee any more than it could force a physician to perform an
abortion.24 (Emphasis added)
A3.5 Note that Justice Beetz, while distinguishing
between appointing a committee and performing an abortion, nonetheless
considered both acts to involve judgements of conscience and religious
belief, and the legal suppression of one to be the equivalent of the legal
suppression of the other.
A3.6 Therapeutic abortion committees did not provide
abortions. In fact, members of therapeutic abortion committees were
prohibited from doing so.25 The committees facilitated abortions by
authorizing them. The refusal of boards to approve the formation of such
committees was a refusal to become part of (participate in) a chain of
causation culminating in abortion, even if not every case brought to a
committee resulted in abortion.
A3.7 Thus, Justice Beetz' comments, affirmed by Carter,
are authority for the proposition that the state is precluded from forcing
individuals or institutions to provide morally contested procedures or to
participate indirectly in them by referral or other forms of causal
facilitation.
A3.8 At the very least, this passage indicates that the
suppression or restriction of freedom of conscience or religion by
compelling indirect participation in a morally contested procedure is
legally equivalent to compelling direct participation, a conclusion wholly
consonant with the law on criminal responsibility and civil liability. The
same constitutional standard applies, whether the state means to force
unwilling physicians to kill patients themselves, or to force them to
arrange for patients to be killed by someone else.
A3.9 Put another way, compelling indirect participation
in a morally contested act is not a constitutionally valid 'solution' for
the 'problem' that arises from being unable to compel direct participation.
A3.10 The Court's statement that "the Charter
rights of patients and physicians will need to be reconciled" is not, as
some seem to think, a warrant for the suppression of freedom of conscience
and religion among health care workers.
A3.11 The Charter right of patients clearly
established by Carter is a legal right not to be impeded or
obstructed by the state in seeking euthanasia and assisted suicide in
accordance with the Court's guidelines from willing physicians, except to
the extent that impediments or obstructions can be demonstrably justified in
a free and democratic society.
A3.12 The Charter right of physicians clearly
established by Carter is their legal right not to be to impeded or
obstructed by the state in providing euthanasia and assisted suicide in
accordance with the Court's guidelines, except to the extent that
impediments or obstructions can be demonstrably justified in a free and
democratic society.
A3.13 Any additional rights claims are derived by
reading into the ruling what the judges either did not address, or
purposefully and expressly left out.
Notes:
1. Carter v. Canada (Attorney General), 2015
SCC 5 (Hereinafter "Carter") (Accessed 2015-02-07)
2. Carter, para. 4, 127, 147
3. This interpretation has
been adopted by others. The College of Physicians and
Surgeons of Alberta recently released a policy on
euthanasia and assisted suicide that states, "PAD cannot
be provided to patients who lack the capacity to make
the decision, including when consent can only be
provided by an alternate decision maker, is known by
patient wishes or is provided through a personal
directive." (Emphasis in the original). College of
Physicians and Surgeons of Alberta,
Physician Assisted Death (December, 2015)
(Accessed 2015-12-18)
4. Carter, para. 4, 127, 147
5.
Cimons M.
"Frailty Is a Medical Condition, Not an Inevitable Result of Aging
(Op-Ed)." Livescience, 29 November, 2013. (Accessed
2015-06-28).
6. Carter, para. 111
7. "We are limiting our case to people whose
condition is irremediable, or incurable if you want to use that language,
because it, assisted dying should only be allowed in the most serious cases.
And not just because somebody wants to. It's because their condition is not
going to get any better." Supreme Court of Canada, Webcast of the Hearing on
2014-10-15, 35591, Lee Carter, et al. v. Attorney General of Canada, et al
(British Columbia) (Civil) (By Leave).
Joseph Arvay, Oral Submission, 113:35/491:20 - 114:50/491:20
(Accessed 2015-06-28)
8. Carter, para. 127
9. Carter, para. 111
10. Carter, para. 4, 127, 147
11. Carter, para 40 , 64
12. Carter, para. 68
13. R. v Bourne (1939) 1KB 687
14. "'We don't like being lawbreakers,' Dr. Aitken
told the committee in partial explanation of the C.M.A's motivation in
supporting the move to expunge the Criminal Code's prohibition of
abortion. Dr. Gray commented that while he knew of no doctor having been
prosecuted for performing an abortion openly in a hospital, there was still
the uncertainty about transgression of the law. Dr. Cannell reported there
were 262 therapeutic abortions performed in Canadian hospitals between 1954
and 1965." Waring G. "Report from Ottawa." CMAJ Nov. 11, 1967, vol.
97, 1233
15. Criminal Code (R.S.C., 1985, c. C-46)
(Hereinafter "CC"),
Section 229;
Section
231(1) (Accessed 2014-07-25)
16. CC,
Section
229;
Section 231(7) (Accessed 2014-07-25)
17. CC,
Section
232(1) (Accessed 2014-07-25)
18. CC,
Section
245. (Accessed 2014-07-25)
19. CC,
Section
465. (Accessed 2014-07-25)
20. CC,
Section 21(b). (Accessed 2014-07-25)
21. CC,
Section
21(c). (Accessed 2014-07-25)
22. CC,
Section
22 (Accessed 2014-07-25)
23. CC,
Section
464. (Accessed 2014-07-25)
24.
R.
v. Morgentaler (1988)1 S.C.R 30 (Supreme Court of Canada) p.
95-96. (Accessed 2015-02-26)
25. CC,
Section 287(4)a.
(Accessed 2015-06-27).
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