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In February 2015, the Supreme Court of Canada released this landmark decision holding that it violates Charter rights to deny access to physician-assisted suicide to a competent adult person, who clearly consents to the termination of their life in the face of a grievous and irremediable medical condition that causes intolerable suffering. The Court noted, however, that a physician cannot be compelled to assist with suicide.

Those opposed to the ruling argue that this right may be abused or put vulnerable persons at risk. This article summarizes the rationale behind the Court’s decision and looks at what means are in place to ensure protection of impacted rights and freedoms.

Carter v. Canada, 2015 SCC 5

In the decision, the Court found that the right to life, liberty and security of the person was infringed by denying some individuals access to physician-assisted suicide. The Court noted that the denial would have the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable1, thus infringing on the right to life. The Court further held that an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy and denying people in this situation the right to make decisions concerning their bodily integrity and medical care infringes on their right to liberty. Finally, the Court found that by leaving individuals to endure intolerable suffering, it impinges on their right of security of the person.

Importantly, the Court held that the object of the prohibition is not to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness2. The Court held that a total ban on assisted suicide was overbroad and not necessary to meet that objective. A permissive regime with properly designed and administered safeguards, such as those used in the current assessment of informed consent and decision capacity, was deemed capable of protecting vulnerable people from abuse and error.

Determining Whether Someone Falls Within the Definition

The Court was careful to place stringent safeguards on their approval of physician-assisted suicide. As discussed above, only those people who meet the definition of “a competent adult person, (1) who clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition3” will be able to avail themselves of this right.

The first half of this definition requires that the patient be a “competent adult person” who “clearly consents” to the termination of life. The ideas of competency, capacity and consent are not new to the medical community. In Ontario, competent persons are already able to consent to or refuse medical treatment even if the possible outcomes include death4. Unlike physician-assisted suicide, in Ontario, the ability to consent or refuse medical treatment is not restricted to ‘adults’ if the individual is found to have capacity even if they are under the age of majority.

Indeed, Ontario already has mechanisms available to determine competency and whether an individual has the capacity to consent, such as the Consent and Capacity Board. Additionally, physicians are trained to make an assessments of whether a patient is capable and can consent to a treatment, or if they need to be assessed by a specially trained capacity assessor. These mechanisms have arguably been successful within the current framework and the situation of physician-assisted suicide could be considered an extension of these powers.

The second half of the definition requires that a person suffer from a grievous and irremediable medical condition that is intolerable in the circumstances of their condition. There is both a subjective and objective component to this requirement. The individual must subjectively find the condition intolerable in their circumstances, and, objectively, the condition must be grievous and irremediable. This safeguard aims to protect those who may have a temporary or remediable condition from availing themselves of physician-assisted suicide in a moment of weakness. As discussed above, physicians are well educated, knowledgeable and able to determine whether a condition is grievous and irremediable. Additionally, one could apply to the court for a determination on this point if there is a disagreement or uncertainty as to whether a particular condition meets this definition.

Going Forward

The Court has given a twelve month stay before their judgment comes into effect in order to allow Parliament and the provincial legislatures to determine how they will deal with this matter. We will have to wait and see what regulations or legislation are put forward on this issue, but it is likely that they will have further safeguards and ideally, another mechanism to aid with the determination of if a patient fits the definition established by the Supreme Court of Canada.

1 Carter v Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5, at paras 57 and 58

2 Ibid at para 84

3 Ibid at para 70

4 Health Care Consent Act, 1996, S.O. 1996, c.2

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