Toward a Healthy Society

LexView 68.0 - Creating a Right to Death with Flawed Safeguards

From the Archived "LexView" Series

At the end of the day, we must as a society determine whether we err on the side of preserving life. Our law has always erred in this direction since cheapening human life has dire and unforeseen consequences. We derivate from such fundamental principles of the common law and common wisdom at our peril. No safeguards will be adequate to avoid making tragic mistakes. In addition, allowing the practice of euthanasia could result in serious negative societal incentives that work against finding new treatments and ways to alleviate pain, both physical and mental.

An Act to Amend the Criminal Code (Right to Die with Dignity)
Bill C-384
Private Members Bill—Parliament of Canada

Date of Issue: April 19, 2010

In this issue:

  1. Key Terms
  2. Summary and Status of Proposed Legislation
  3. LexView Commentary

Key Terms:

Euthanasia, assisted suicide, Criminal Code, homicide, section 7, Charter of Rights & Freedoms, palliative care, severe pain, terminal illness, medical practitioner

Summary and Status of Proposed Legislation:

Ms. Francine Lalonde is a Bloc Québécois Member of Parliament for La Pointe-de-l'Île. She introduced and is advancing a private member's bill (Bill C-384) in the House of Commons to amend the Criminal Code to allow medical practitioners to "aid a person to die with dignity" (s.2) without committing homicide. She refers to the bill as creating the "right to die with dignity."

Status of Bill C-384

On October 2, 2009, Bill C-384 was debated for second reading in the House of Commons. Neither debate nor second reading has been concluded.

As most people are aware, Parliament was prorogued on December 30, 2009 until March 3, 2010. Unlike government bills, prorogation does not kill Bill C-384 because it is a private member's bill. Since 2003, prorogation has had almost no practical effect on Private Members' Business, which continues from session to session. As such, Bill C-384 can be expected to be debated further in Parliament.

Summary of Bill C-384

Bill C-384 will create an exemption to the law of homicide and provide that a medical practitioner will not be guilty of homicide if he or she "aids a person to die with dignity" and:

  • The person who dies is at least 18 years old;
  • The person either suffers: (a) "severe physical or mental pain without any prospect of relief" after trying or refusing available treatments; or (b) from a terminal illness;
  • The person has provided two written requests stating their "free and informed consent to opt to die" at least 10 days apart. The written requests must be made "while appearing to be lucid";
  • The person has designated, before two witnesses, another person to act on his or her behalf when he or she is not lucid;
  • The medical practitioner has received confirmation of the diagnosis from another medical practitioner;
  • The medical practitioner has no grounds to believe that the written requests were made under duress;
  • The medical practitioner has informed the person of the consequences of his or her requests;
  • The medical practitioner acts in the manner indicated by the person; and
  • The coroner is provided a copy of the confirmation of diagnosis (listed above at point 5).

If all of those conditions are met, the physician may assist in the person's suicide or directly cause the death of the person.

A number of provisions of Criminal Code impact on the topic of euthanasia and assisted suicide, including provisions dealing with surgical procedures (s.45), the duty to provide necessities (s.215), and homicide (s.222). Of particular note is section 14, which states that no person is entitled to consent to have death inflicted on him or her. People cannot consent to be killed in Canada.

Bill C-384 would amend s.14 and s.222, creating an exception to the prohibition on consenting to be killed and an exception to homicide when a person is intentionally killed.

In other words, if this bill were passed into law, euthanasia and physician assisted suicide would be decriminalized in Canada.

LexView Commentary:

This is an unusual commentary for LexView, which has always addressed and commented on the decisions of courts and administrative tribunals. Previous cases addressed by LexView include those dealing with medical care and euthanasia (see, for example, LexView 23.0, LexView 24.0, and LexView 67.0).

In R v. Rodriguez, a majority of the Supreme Court of Canada held that the Criminal Code prohibition on physician assisted suicide did not breach the Charter of Rights and Freedoms. As such, this issue is now one handed to Parliament, if the law is to change.

It may well occur that Bill C-384 never becomes law. However, this is the third time that MP Lalonde has introduced the issue. This issue will not go away soon. It is an important topic and one on which LexView should comment.

Since the Charter was enacted in 1982, there has been an increased libertarian impulse in Canadian society and a greater focus on individual rights and liberties. This is laudable, from the perspective of limiting the ability of the state to meddle in personal affairs or limit fundamental rights, such as freedom of expression and freedom of conscience and religion. However, care must be taken not to conflate the concept of liberty and being libertine.

There are appropriate constraints on human behaviour. Conduct is appropriately restricted when it negatively impacts the life and fundamental freedoms of others. This is why, it is often said, freedom of expression does not allow a person to yell "fire" in a crowded theatre.

The state has a legitimate interest in human life and preserving its sanctity. This is, in many respects, a fundamental aspect of the role of the state in our lives. The state pays for and provides police and military protection of its citizens. The state interest in preserving life also, in part, justifies criminalizing homicide and manslaughter. Any limits on the restrictions placed on taking the life of another human must necessarily be exceedingly narrow.

(a) The State's Interest in Protecting Human Life

It is a well-recognized principle of Canadian law that human life should be protected and preserved. In Rodriguez, Sopinka J. rightly correlated this principle with the policy that the value of human life is depreciated when we allow it to be taken. As he stated:

This policy finds expression not only in the provisions of our Criminal Code which prohibit murder and other violent acts against others notwithstanding the consent of the victim, but also in the policy against capital punishment and, until its repeal, attempted suicide. This is not only a policy of the state, however, but is part of our fundamental conception of the sanctity of human life.

This does not mean that human life will be preserved in all circumstances and at all costs. Modern concepts of quality of life, dignity and personal autonomy have come to create limits on the preservation of life that our society and our law have deemed acceptable.

As Sopinka J. noted, attempted suicide is no longer a criminal offence (although he also noted that the offence was removed from the Criminal Code because criminalization was an ineffectual and inappropriate tool for dealing with suicide attempts, not because society no longer wished to prevent suicide). The right of individuals to refuse and control life-saving medical treatment was an accepted tenet of the common law and is now a feature of our constitutional jurisprudence.

These exceptions to the broad general rule preserving human life are grounded in the idea that people should control their own destiny and have a fundamental personal interest in their own life and bodies. This idea is often cited as a premise upon which euthanasia and assisted suicide should be permitted.

However, there is no fundamental "right to die". Death will eventually meet us all and most people have it within their power to cause this to occur prematurely. This was made clear in Rodriguez, in that the majority held that preventing assisted suicide does not run afoul of the constitutional protection of life, liberty and security of the person.

While the state, through the common law and now the Charter, has limited its own ability to prevent death in some circumstances out of respect for personal autonomy, this limitation must itself be carefully constrained.

Allowing people to die is not the same as causing their death. Bill C-384 would do more than allow people to individually control their personal autonomy and physical destiny. It would involve third parties in the destruction of human life. No adequate safeguards can be created to effectively stop abuses and mistakes. In the Netherlands, assisted suicide and voluntary active euthanasia are officially illegal, but prosecutions are not brought when there is compliance with medically established guidelines. Critics of this approach point to instances of involuntary active euthanasia where the guidelines have been followed.

(b) Inadequate Safeguards

Even if one were to accept that voluntary active euthanasia were acceptable and then assume that it were possible to craft adequate safeguards to prevent involuntary killing, those proposed in Bill C-384 are woefully inadequate. There are many problems with the criteria set out in the bill, some of which are summarized below.

(i) Chronic Depression

The draft legislation would permit euthanasia where there is "severe physical or mental pain". There is no definition of "mental pain", but presumably this would include severe and chronic mental suffering. This may well be closely tied to mental illness, which requires treatment. Allowing euthanasia in the circumstance of "mental pain" opens the door to extinguishing the life of persons when the pain from which they wish to escape is a treatable mental illness. This is not compassion, but a simpler way out of a difficult diagnosis. These are people who direly need the protection the law currently provides. Those suffering from mental anguish and pain and chronic depression are vulnerable and need protection.

It has been argued that many, if not the majority, of patients who request euthanasia do so while suffering from depression (see LexView 24.0). Others feel they are a burden to loved ones and request it out of guilt. These facts directly undermine the notion that informed and voluntary consent to be killed by another is even possible. The fact that "mental pain" is an accepted ground for permitting euthanasia in this proposed legislation is therefore particularly offensive.

(ii) Refusal of Treatment

As noted, the law permits individuals to refuse medical treatment, even in life-threatening circumstances. There are limits placed on this. For example, the Supreme Court of Canada has accepted limits based on the age of the patient, as even an older child or teenager may be sufficiently mature to arrive at an informed decision (see LexView 66.0).

Bill C-348 incorporates this concept by permitting a person to request euthanasia "after trying or expressly refusing the appropriate treatments available". As such, a person can be suffering from mental pain and refuse to treat it. Since without treatment there may be little prospect of relief, the person can meet the criteria and be euthanized.

As a civilized society that truly values human life, we should abhor the idea of killing someone who does not try to be healed or have his or her symptoms moderated. We may permit the refusal of treatment, but allowing the next step of killing the person is too simple a solution. We should instead take whatever steps are necessary to advance a meaningful solution to the problem of pain, continuing to value the life being lived.

(iii) The Problem of Pain

The medical professions have become very capable of moderating, controlling and in fortunate cases, eliminating pain. Modern palliative care has substantially improved over the decades. Medical progress is full of promise and it can be expected that palliative care will continue to improve.

Euthanizing those in pain may well negate the need and desire to continue improvement in palliative care. If the terminally ill and those in pain are killed, there is less need to seek out new treatments and new drugs to allow a more progressive and dignified end to life. This will not serve those for whom voluntary euthanasia is not an acceptable option.

Pain, and particularly "mental pain" can be mitigated. The law should always err on the side of allowing physicians to improve life, not end it.

(iv) Consent May be Superficial

Bill C-348 only protects in the case of voluntary euthanasia and provides for numerous written consents before the protection against a homicide charge is effective. The fact that the consents are obtained does not eliminate the possibility that something other than a bona fide desire to die was in play.

Chronic depression (which may be caused by physical pain) or a desire to please others may motivate the consent to be euthanized. It is also not outside of the realm of possibility that patients may be convinced to permit their own killing. While the proposed legislation vitiates consent if duress is involved, it does not preclude a medical professional or family member from lobbying a person to give their consent.

This is, in part, why section 14 of the Criminal Code expressly prohibits allowing people to consent to their own death. Additionally, mistakes may be made in terms of the information provided, which may negate the extent to which consent is informed and truly voluntary. Since it cannot be verified after the person is dead, disallowing consent to be killed is the only acceptable option.

Additionally, the bill requires only that a person "appear to be lucid", not that they actually be lucid. In this respect, irreversible errors could be made.

(v) Differences in Diagnosis

Bill C-348 requires that medical practitioners must receive written confirmation of their diagnosis from another medical practitioner. This is an inadequate safeguard, because it does not require that there be no reasonable alternative view of a person's diagnosis or prognosis.

In the worst case scenario, two medical practitioners may agree that a person suffers from a terminal illness, but most of the rest of the medical world may take a different view and believe that a person could be healed. The process of differential diagnosis is not perfect. Allowing the death of a person in circumstances where there could be hope of recovery or of the elimination or reduction of pain is simply not acceptable in a society that values human life.

Additionally, medical knowledge and technology continue to progress. Diseases that inevitably caused death 50 years ago can now be cured. Truncating the lives of those suffering from diseases now understood to be terminal may remove the possibility of the next miracle cure. People may ask to be killed, not knowing that a new treatment is just around the corner.

(vi) Mistakes and Abuses

Euthanasia opens the door for medical mistakes and abuses. There is no doubt that the vast majority of physicians are well-meaning and preserve life at all costs. There have been instances where this is not the case.

For example, Sawatsky v. Riverview Health Centre (see LexView 23.0) involved a do not resuscitate order made by a doctor against the wishes of a family. The court ordered it withdrawn. If this situation involved a positive act to extinguish life, as opposed to a passive order not to provide treatment, the death may well have intervened before the court. As noted above, critics of Dutch practices have documented instances of involuntary euthanasia. The passage of Bill C-348 may, in rare circumstances, allow similar abuses in Canada.

(c) Conclusion

At the end of the day, we must as a society determine whether we err on the side of preserving life. Our law has always erred in this direction since cheapening human life has dire and unforeseen consequences. We derivate from such fundamental principles of the common law and common wisdom at our peril.

Euthanasia is truly a Pandora's Box, into which we peer only at significant risk. The drafters of this proposed legislation must appreciate this; otherwise the proposed safeguards around the practice would be unnecessary. The proposed safeguards are fundamentally flawed in many ways, some of which have been referenced in this LexView.

At the end of the day, no safeguards will be adequate to avoid making tragic mistakes. In addition, allowing the practice of euthanasia could result in serious negative societal incentives that work against finding new treatments and ways to alleviate pain, both physical and mental.

The alleviation of human suffering does not justify one person deliberately ending the life of another. Even if this were not so, the risk of abuses and errors is too high. Allowing euthanasia, howsoever laudable the objective of ending human suffering may be, would devalue us all. The challenge and selfless giving involved in helping one another pass from this life with dignity creates greater respect and value for life and enhances our society as whole.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.

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