It’s Your Life (And Death): Supreme Court Of Canada Permits Physician-Assisted Death In Carter v. Canada (Attorney General)

In September 2012 we reported on a ruling by Madam Justice Smith of the British Columbia Supreme Court which held that a prohibition on physician-assisted death is unconstitutional and should be permitted in certain circumstances.1 In a unanimous ruling last Friday, our nation's highest court upheld that decision with respect to section 7 of the Charter of Rights and Freedoms and made the following declaration of invalidity, which it suspended for 12 months:

Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 [life, liberty and security of the person] of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) 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 condition.2

In our view, this means that there are several pre-conditions which must be met before a physician-assisted death would not violate the Criminal Code in 12 months' time:

The request must be made by a competent adult person. Adults who do not have the ability to understand and appreciate the consequences of their actions (such as those with certain cognitive disabilities) and youth cannot legally receive a physician-assisted death. A physician must assess the adult's capacity to consent; The competent adult must be clearly consenting to the specific intervention. It must be the individual herself, and not a substitute decision maker, who makes the request. We also note that consent is an ongoing process and there should be no question that this is what the individual wishes to occur at that moment in time; An irremediable condition does not require that the patient undertake treatment which is not acceptable to the individual.3 For example, chemotherapy could be theoretically be available to a cancer patient, but a competent adult is able to refuse that treatment, even though that refusal may lead to their death. Physician-assisted death may still be available to this person, even though the chemotherapy is available as a treatment; and The medical condition which is causing the competent adult to make the request must be irreversible and one which is causing intolerable and enduring suffering to her. Not all permanent medical conditions will meet this threshold. Notably...