End-of-Life Choice, Palliative Care and Counseling

Matt Gurney: Court strikes the right balance on assisted suicideby Jay

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By Matt Gurney
National Post
June 18, 2012

In British Columbia last Friday, Gloria Taylor got a piece of welcome news. Taylor, a 64-year-old grandmother, suffers from ALS, commonly known as Lou Gehrig’s Disease. ALS gradually shuts down the body’s motor neurons, making it impossible for the person to control many of their own muscles. It is progressive and always fatal.Taylor has already begun to lose the use of her hands and feet. Walking anything other than short distances, and fine motor functions with her hands, are no longer feasible. In the last few months, she has begun to lose her ability to swallow.

Sometime soon, the muscles in her chest that allow her rib cage to expand and contract will wither and atrophy. This will make it first difficult, then impossible, for her to breathe. It is impossible to say with any certainty when this will happen — indeed, Taylor has already beaten several medical estimates for her likely lifespan. But when it does, Taylor will either be left entirely dependent on machines to sustain her life or will effectively drown, unable to gasp the air that surrounds her. But the brain is generally spared. Taylor will be aware of her body’s slow shutdown.

Taylor challenged the sections of Canadian law that forbid her from seeking a doctor’s assistance in ending her life. The Supreme Court of British Columbia has found that Taylor has the right to seek that treatment, finding two reasons that blocking her access to legal assisted suicide limits her freedoms under the Charter.

First, the Court ruled Taylor’s disease constitutes a disability. Suicide is not illegal in Canada. The Court found that a person who is disabled to the point that they are unable to kill themselves is denied something available to the able bodied, as their only other option is forbidden by the section of the Criminal Code that prevents anyone from counselling (or aiding) the suicide of another. The Court ruled that this violates S. 15 of the Charter, which declares that all are equal, notwithstanding a variety of factors, including physical disability. The Court also found that since the current prohibition of assisted suicide may force those facing degenerative disease to kill themselves while they are still able, but before they would die if assisted suicide were available, the S. 7 protections of life, liberty and security of the person are also violated by the current laws. It’s an enormous ruling — almost 400 printed pages — but it makes the right decision.

Opponents of euthanasia or assisted suicide fear that once it becomes legally available, those who do not really wish to die may be pushed into it by family members tired of caring for them or impatient to receive their inheritance. There is also the risk of errors seeing someone killed when they did not desire it, or after they had originally asked for assisted suicide but changed their mind. In the nightmares of assisted suicide opponents, making it legal to some today will see the sick killed off tomorrow to save the healthcare system money.

It seems far-fetched to think that would happen in Canada, but it is reasonable to raise the concern. And the Court in B.C. obliged opponents, ruling that the legitimate concerns of opponents care more fairly addressed by building a robust system of safeguards than simply ruling assisted suicide always illegal, for everyone. That is entirely reasonable. What is not reasonable is the position taken by opponents of assisted suicide, who argue that people like Gloria Taylor tough it out and suffer because building a legal framework to end their life would be too complicated and fraught with tricky ethical questions.

The ruling is suspended for one year — the Court has given parliament that long to develop protocols to enable lawful assisted suicide. In the meantime, it has also ruled that Taylor may seek a lawful assisted suicide — under strict conditions that verify her medical prognosis and sound judgment — during that time. Taylor has not yet said if she intends to do so within those 12 months, but it’s a good thing she has the option. This ruling will almost certainly be appealed. So while it’s too early to declare this a total victory for all those who may seek a dignified death at the time of their own choosing, it is, at least, a victory for Taylor. And a step in the right direction.