(5/28/2015) Unanimity on Death with Dignity


In February 2015, Canada legalized physician-assisted dying — a first among countries with common-law systems, in which law is often developed by judges through case decisions and precedent. The Supreme Court of Canada issued the decision in Carter v. Canada, and its reasoning and implications for clinical practice bear examination…

Physician-assisted dying is ethically and legally controversial, and few countries or states have embraced it (see timeline). Yet Canadians apparently overwhelmingly believe that its time has come. Strikingly, the Court’s nine justices ruled unanimously, without dissent…

Ruling for extubation, Lord Goff of Chieveley rightly foresaw “a charge of hypocrisy, because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies.”

In public health, this would be called a harm-reduction argument. And Canada’s Supreme Court is fond of harm reduction. Since 2011, unanimous judgments have invoked the Charter’s right to “life, liberty and security of the person” in legalizing supervised injection centers for drug addicts and brothels for prostitutes, because evidence showed that injecting drugs and selling sex are safer with oversight and shelter than without. Similarly, regarding physician-assisted dying, the Court reasoned that traditional methods of suicide infringed patients’ “security of the person” more than clinical methods pursued under a physician’s watch.

The justices then went further, observing that when the Criminal Code thwarts a person’s ability to make decisions about something so personal as his or her own death or bodily integrity, this deprivation of autonomy causes psychological harm and distress, infringing the Charter’s right to liberty. “An individual’s response to a grievous and irremediable medical condition,” the Court writes, “is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition or hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty.” …

The judgment probably portends changes outside Canada. Imitation is a feature of the common-law world, and if physician-assisted dying is litigated in England, India, or South Africa, for example, odds are high that judges would draw on the Canadian Court’s reasoning…

These developments will trouble people who instinctively find legalized physician-assisted dying repellent. But increasingly, society is acknowledging that denying people the right to die with dignity and safety is even more repellent.

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