Friday, June 17, 2016

The Carter decision and what it says

What does Carter really say about terminal illness?

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.
1 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, paras. 126 and 127.
2 Ibid. para. 69.
3 Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII), para 164.
4 Ibid. para. 317.
5 Ibid. para. 335
6 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 66.

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