by Barbara Maloney
The federal government’s Bill C-14
has been loudly criticized for limiting “medical assistance in
dying” (MAID) to those whose death is “reasonably foreseeable.”
Critics say that in Carter the Supreme Court did not limit
“physician-assisted death” (PAD) to those with a terminal illness
and to do so in C-14 is unconstitutional. They point out that Kay
Carter, mother of one of the plaintiffs, was not terminally ill and
so would not qualify for MAID under Bill C-14.
However, importantly, the Supreme
Court was silent on whether Kay Carter would have qualified for PAD.
That’s because Kay Carter’s
right to seek PAD was not at issue in Carter. Gloria Taylor’s
right was. The court expressly stated it was pronouncing only on the
rights of Ms. Taylor and “people like Ms. Taylor” and only in the
“factual circumstances in this case. We make no pronouncement on
other situations where physician-assisted dying may be sought.”1
And Ms. Taylor did have a
terminal illness.
(Kay Carter’s daughter, Lee
Carter, challenged the law prohibiting assisted suicide as a
violation of her right to liberty, it putting her at risk of criminal
prosecution for assisting in someone else’s suicide. The
Supreme Court did not deal with this issue but confined its decision
“to the rights of those who seek assistance in dying, rather than
of those who might provide such assistance.”2
)
Consequently, whether or not Kay
Carter would be eligible for MAID under bill C-14 is irrelevant to a
discussion of the bill’s constitutionality.
What is relevant is whether
or not the Supreme Court intended that PAD must be available to those
who were not “terminally ill” / at the “end of life” (however
imprecise those terms may be). While the court did not explicitly
state that PAD may be restricted to those with a terminal condition,
it is reasonable to conclude that the court implied this,
based on the trial judge’s ethical analysis of PAD. The trial
judgment is of particular relevance because the Supreme Court relied
on it so heavily and unequivocally affirmed it.
The trial judge, Justice Smith, said
that a central question in this case “is whether it is ethical for
physicians to provide [PAD].”3
The ethical debate is relevant, she said, because “both legal and
constitutional principles are derived from and shaped by societal
values.”4
Her lengthy ethical analysis was
based on a comparison between PAD and existing end-of-life practices
which are lawful, such as withdrawal or refusal of life-sustaining
/life-saving treatments. She was persuaded by the ethicists who said
there is “no ethical distinction” between PAD and these other
“end-of-life practices whose outcome is highly likely to be
death.”5
It is important to note that Justice
Smith’s ethical analysis involved only a category of people who
would, without treatment, die. In short, her ethical analysis and the
analogy she relies on are only applicable to people at or near the
“end of life.” One cannot, therefore, assume that Justice Smith
(or the Supreme Court) would have applied the same ethical analysis
or arrived at the same conclusion with respect to people who were not
terminally ill.
It is entirely
reasonable to assume that the Supreme Court was considering only
that category of patients whom Justice Smith was considering in her
ethical analysis, that is, those who, but for a
life-sustaining/life-saving treatment, would die.
A further hint that the Supreme
Court was contemplating only terminal/end-of-life patients can be
found in its discussion about the types of treatments that those with
a “grievous and irremediable medical condition” are currently
allowed to request or refuse: the same treatments applicable to
end-of-life patients that formed the basis of Justice Smith’s
ethical analysis.6
Thus a reasonable reading of the
Supreme Court’s Carter decision permits Parliament to
restrict MAID to those who are terminally ill /nearing the end of
life. Parliament could choose, of course, not to require terminal
illness, but requiring it would not be contrary to Carter.
Barbara Maloney is a freelance
writer living in Nepean, Ontario.
2
Ibid.
para. 69.
3
Carter v. Canada
(Attorney General),
2012 BCSC 886 (CanLII), para 164.
4
Ibid. para. 317.
5
Ibid. para. 335