May 20, 2015
After the Supreme Court decision in Carter, what comes next?
Open Letter to the Government of Canada re.
Supreme Court Decision in the Carter Case
While some political leaders are eager to apply the Supreme Court ruling and legislate as quickly as possible, we and those we represent across Canada are grateful that the Conservative government will at least “listen to Canadians from all backgrounds”. As Mr. Harper has correctly acknowledged, this court decision is “very delicate and very divisive among Canadians”.
We thank the Government for taking the time to listen to the concerns of Canadians, in a spirit of democracy.
LifeCanada, the organizations and the individuals that we represent are extremely concerned about the Supreme Court decision, which has found Sections 241 and 14 of the Criminal Code to be in violation of the Charter.
The dignity of human life is not a subjective reality, but an inherent aspect of our human nature that must be upheld in law, as one of its primary objectives. Ours has become a secular society, and the duty of affirming and protecting human life falls on both law and medicine to maintain the inherent and inestimable value of that life.
What the Supreme Court has done in the Carter Decision is to render that dignity subject to individual autonomy and self-determination. It is asking the law to allow killing, something that has always been prohibited, even with consent, and it is asking medicine to be the means of inflicting that death. Ultimately it asks society to endorse the notion that there is such a thing as a life unworthy to be lived.
We believe that this decision, if accepted by Parliament, will have serious ramifications for all Canadians, today and in the decades to come. We agree with the ethicist and legal scholar Margaret Somerville (Canadian Press, Feb. 6/15):
This is not an incremental change but a seismic shift in one of our most important foundational values – respect for human life at both the individual and societal levels. I believe that future generations will look back on this ruling, in light of its future consequences, as one of the important, harmful and regrettable ethical, legal and public policy decisions of the 21st century.
One of the first areas to suffer will be good palliative care. In a recent opinion piece by Dr. Harvey Max Chochinov, he notes the following:
Despite the impressive strides that palliative care has taken — in areas such as pain and symptom management, and sensitivities to the psychosocial, existential and spiritual challenges facing dying patients and their families — at their time of licensure, physicians have been taught less about pain management than those graduating from veterinary medicine. Once in practice, most physicians have knowledge deficiencies that can significantly impair their ability to manage cancer pain.
What is truly concerning about this decision is that doctors who have “knowledge deficiencies” in proper pain management and end of life care will, nevertheless, be licensed to kill. Dr. Chochinov states that,
It should be noted that the authority to provide a hastened death will be conferred on physicians, many of whom lack core competencies to care for patients nearing death.
To be clear, dying badly in Canada will rarely be the fallout of not having access to a lethal overdose or injection, and will almost invariably be the result of inadequate or substandard end-of-life care.
Consequently, society will be prioritizing the ending of life over caring for life in its final stages. We submit that this is misguided. Like many we believe palliative care is the right of all Canadians, and should be accessible to all before procured death is even considered.
Of the many serious implications of the Supreme Court decision, there is none that concerns us more than the “suicide creep” argument, given that so many lives will now be at stake. Legislation that will allow for physician inflicted death will invariably send a strong message to the public that this action is a human right, prompting many to feel that they can demand and receive it according to their wishes, irrespective of what the law outlines.
Dr. Theo Boer, professor of health care ethics and a member of the Euthanasia Review Committee for the Dutch Government noted that laws allowing assisted suicide created a strong sense of entitlement among the population.
Whereas the law sees assisted suicide and euthanasia as an exception, public opinion is shifting towards considering them rights, with corresponding duties on doctors to act. A new law is in the making that obliges doctors who refuse to provide assisted dying to refer their patients to a ‘willing’ colleague. Pressure on doctors to conform to patients’ (or in some cases relatives’) wishes can be intense.
How will the law prohibit people who are not terminally ill but who want to die, from requesting and receiving death at the hand of a physician? How will the courts, having established suicide as a constitutional right on the basis of individual autonomy, argue against those who see assisted suicide as a universal right that must be administered on demand?
A look at legislation around the world shows that abuse is possible in every jurisdiction where the practice is legal, that the law itself can never guarantee that innocent lives will not be taken without consent, and that the list of conditions and situations in which people can request and receive medically induced death only widens.
Studies in the Canadian Medical Association Journal (June, 2010) indicated that the law in Belgium was widely abused. Almost one-third of euthanasia deaths were illegally performed without patient consent. And half of nurses administering euthanasia did so without the patient’s knowledge or consent. Nearly half of the nurses in the study – 120 of 248 – admitted they acted without patient consent.
“The nurses in our study operated beyond the legal margins of their profession,” said the report’s authors.
A study in the New England Journal of Medicine (March 2015) found that euthanasia deaths in Belgium have more than doubled from 2007 to 2013.
Studies coming out of Oregon show that since 2005, the number of deaths by assisted suicide has doubled. Prescriptions to kill patients grew by 76 percent, whereas the population grew by only seven percent. (OR Death With Dignity Act 2013)
Washington State legislators have determined that their assisted suicide law is too restrictive. As suspected they want to make assisted suicide available to those who judge their suffering unbearable but are not terminally ill, as well as those who are not competent but have previously asked for assisted suicide in an advanced directive.
Interestingly, between 2009 and 2012, the number of deaths by assisted suicide grew by 130 percent while Washington’s population grew only 18 percent. (WA Death With Dignity Act 2013)
And in the Netherlands, the number of deaths by euthanasia doubled between 2008 and 2013. Under the Groningen Protocol for physicians, the right to medically induced death has expanded to include babies. This protocol regulates the process of killing infants with life threatening illness and/or the prospect of great suffering. (2013 Netherlands Euthanasia Report)
In Quebec, where Bill 52 legalizing voluntary euthanasia for those over 18 was adopted last year, the secretary of the College of Physicians already sees the legislation as “only one step:”
As Quebecers become accustomed to doctors administering lethal injections to dying patients, the questions will not be about who is receiving euthanasia but who is being denied it. We will have to think about that, not only for [incapable] adults but obviously for youngsters who face terminal diseases. (Yves Robert, cited in National Post Feb. 14/14)
Prime Minister Stephen Harper has stated in the past, once assisted suicide or euthanasia is legalized, there will be no guarantee that innocent lives will not be taken. It was on these grounds that the Conservative government did not open up this debate in Parliament and rightfully so.
Unfortunately the time constraints required by the Carter ruling do not allow the people’s representatives sufficient time to deliberate these weighty matters. We therefore call upon the government to do all that it can, including employing the use of Section 33, the notwithstanding clause, to forestall precipitous legislation and protect the lives of Canadians from this disastrous Supreme Court decision. We believe Section 33, which gives both Parliament and provincial Legislatures final discretion over how some Charter rights are interpreted, and which some provinces have exercised, was placed in our Constitution for just such a situation as this.
We trust that the government will listen to the voices of Canadians who have shown in our annual national polling, to be consistently wary of legalized physician death. We invite you to view our polls at www.lifecanada.org/services/national-polls.
On behalf of the Board of Directors of LifeCanada
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