Gloria Taylor is terminally ill with ALS, also known as Lou Gehrig’s Disease. Hollis Johnson and Lee Carter arranged a physician-assisted death in Switzerland for a member of their family who is also terminally ill. Together they applied to the BC Supreme Court seeking a court ruling that section 241 (b) of the Canadian Criminal Code, which prohibits anyone assisting a person to commit suicide on penalty of up to 14 years imprisonment, is unconstitutional.
The Plaintiffs’ argument was that the prohibition is overbroad and places an unfair burden on mentally capable disabled individuals who wish to control the end of their lives with the assistance of a physician. By reason of their disability, some individuals are unable to commit suicide on their own in the same way as able bodied individuals are legally able to do.
Madam Justice Smith of the Supreme Court of British Columbia agreed and found the law unconstitutional because it violates Sections 7 and 15 of the Charter of Rights and Freedoms. She noted that Ms. Taylor, for example, may have to end her life sooner than she would otherwise have done because she will lose function in her hands and will need assistance in committing suicide. The Judge suspended the effect of her judgment for one year to permit Parliament to change the law should it wish to do so. Canada is appealing her decision. Madam Justice Smith also granted Ms. Taylor a constitutional exemption to permit her the option of a physician-assisted death under certain conditions. These include a further application to the Court after an assessment that she is mentally competent, has been advised of palliative care options and is near death. Canada also appealed Ms. Taylor’s exemption and asked for a stay of its effect but the British Columbia Court of Appeal declined to issue the stay.
In her judgment, Madam Justice Smith took care to say that there must be properly designed and administered safeguards in any scheme that permits assisted suicide. She reviewed at considerable length expert evidence of the experience in other jurisdictions such as Oregon, Washington, the Netherlands, Belgium, Switzerland, Montana, and Colombia to assess what impact legalizing assisted-suicide (or recognizing patient consent as a defence) had had. She concluded that the safeguards in those jurisdictions were generally effective in preventing abuse. The evidence she reviewed included the frequency of euthanasia in the Netherlands. Between 1990 and 2005, physician assisted-suicide remained steady in that jurisdiction at between 0.1 and 0.2 percent of all deaths. In terms of demographics, 5 percent of the deaths were in patients under the age of 64 in 2001 and 3.5 percent in that age group in 2005. 3.3 percent were in patients aged 65 -79 in 2001 and 2.1 in that age range in 2005. In 2001, 1.4 percent were patients 80 years of age or older while in 2005 that percentage was 0.8. There were consistently more men than women requesting assisted-suicide and the underlying pathology tended to be cancer. In Belgium the highest percentage of euthanasia cases were in the 60-79 age group, the second highest being the in 40-59 age group. Not all patients in Belgium were terminally ill; of the non-terminal patients, 90.8 percent suffered from other illnesses including progressive neuromuscular disease.
The toughest legal hurdle this case will have going forward is the previous decision of the Supreme Court of Canada in the Sue Rodriguez case which was decided on similar facts. The majority in that case found the law on assisted suicide was not “arbitrary” and therefore did not breach Section 7 of the Charter. Madam Justice Smith said in distinguishing Rodriguez that the previous case did not mean the issues could not be re-visited because the law on the Charter had since “evolved” to include the “overbroad” characterization. In addition, at the time of the Rodriguez case, there was little expert evidence as to the effect of safeguards (or at least little such evidence was presented to the Court at that time). Madam Justice Smith considered a blanket prohibition on assisted suicide was overbroad because a properly designed system with well administered safeguards could, with a high degree of certainty, prevent vulnerable persons from being induced to commit suicide while permitting exceptions for competent, fully informed adults acting voluntarily. It is important to note that the Carter case does not apply to incompetent individuals although the evidence was that physician-assisted death has been carried out in instances involving incompetent patients. Nor does the exemption apply to any patient other than Ms. Taylor.
The Judge also concluded that participation in physician- assisted suicide is not inconsistent with the ethics of the medical profession in Canada although there is considerable debate on that point.
The criteria she set for the constitutional exemption for Ms. Taylor included the following (which may also form a basis for any legislated scheme):
- There must be a written request for a physician-assisted death;
- Her GP must attest that she has been (a) informed of her medical diagnosis and prognosis and found to be terminally ill with no hope of recovery and near death; (b) informed of reasonable alternative treatments including palliative care; (c) informed of the risks associated with physician-assisted dying and the probable result of the medications proposed for use in a physician-assisted death; (d) referred to a palliative care physician for a palliative care consultation; and (e) advised that she has a continuing right to change her mind about terminating her life.
- Her attending physician and a consulting psychiatrist each must attest that she is competent and her request is voluntary and non-ambivalent. If a physician or psychiatrist declines to provide that attestation that fact will be made known to subsequent physicians and the court.
- Her attending physician is to attest to the kind and amount of medication proposed to be used.
- Unless she becomes physically incapable, the mechanism of the physician-assisted death shall be one that involves her own unassisted act and not that of any other person.
Upon proof of the above to the British Columbia Supreme Court, the court shall order that a physician may provide Ms. Taylor with a physician-assisted death at a time of her choosing provided she is (i) suffering from enduring and serious physical and psychological distress that is intolerable to her and it cannot be alleviated by any medical or any other treatment acceptable to her; and (ii) competent and voluntarily seeking a physician-assisted death in the opinion of the assisting physician and a consulting psychiatrist.
This case will undoubtedly proceed through the British Columbia Court of Appeal to the Supreme Court of Canada. We will be keeping a close watch for new developments although we consider that a legislative change is unlikely. In the meantime, the case has engendered a renewed debate on these important issues.