“The prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where the person affected clearly consents the termination of life; and the person 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 circumstance in his or her condition.”

With a clear declaration on the unconstitutionality of laws against physician-assisted dying the supreme overturned the prohibitive legislative framework. The court granted a one-year suspension of their decision to allow the federal government adequate time to develop legislation. The deadline for this allowance is quickly approaching and our country is rapidly heading into a policy vacuum with no framework to guide patients, families and physicians.
Carter v Canada
Supreme Court of Canada, 2015

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Physician Assisted Dying and Public Health
The World Health Organization defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”²  Although there is debate³ about this definition, there is a consensus any definition of health should be more inclusive than simply the lack of illness.  Death is an unfortunate universal eventuality that all people must endure.  Traumatic and intentional deaths make up a small minority of the ultimate cause of dying in Canada.  Most die from cancer and other chronic diseases.⁴  For most people the period preceding end of life represents a time of rapidly declining heath.  Health spending peaks during last year of life⁵.   This period often includes symptoms related to end stage disease (pain, dyspnea, nausea, fatigue, etc…), dependence on others for instrumental activities of living (eating, dressing, toileting, etc …) or psychological suffering (often relating to feelings of burden on others)⁶.  The universality of death and the declining health that precedes it implies the end of life care options available have significant implications to public health.

Supreme Court Decision
Prior to the Supreme Court decisions, prohibitions against physician-assisted dying are contained under federal criminal code⁷.  Specifically:

• No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given
• Every one who counsels a person to commit suicide, or aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence

No stipulations for treatment of the terminally ill are included in the criminal code.  Gloria Taylor, a patient with amyotrophic lateral sclerosis (ALS) – a fatal neurodegenerative disease, challenged the constitutionality of the law.  Ms. Taylor did “not want to die slowly, piece by piece” or “wracked with pain.”  She stated she desired “the legal right to die peacefully, at the time of my own choosing, in the embrace of family and friends¹.”  The supreme court listened to arguments that weighed  the “autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition” against the “sanctity of life and the need to protect the vulnerable¹.”

Right to Life
The Supreme Court considered whether physician assisted dying violated Canadian Charter of Rights and Freedoms’⁸ right to life. Although the sanctity of life is a foundational societal value, the justices articulated the right to life did not create a duty to live.    A duty to live would undermine a person’s ability to choose or not choose life-sustaining treatment and undermine society’s approach to humane palliation to the terminally ill¹.

Right to Liberty and Security of the Person
The court also considered whether laws against physician assisted dying undermined the Charter’s Right to Liberty and Security of the Person.  The current legal framework gives an individual a wide variety of options for end of life care including refusal of hydration and nutrition, removal of life sustaining medical equipment and access to palliative sedation.  However even with these options denying the right to physician assisted dying could force a patient to accept intolerable suffering and intrude on their security of person¹.

Principals of Fundamental Justice
Finally, the protection of vulnerable people – the primary purpose for prohibiting physician assisted dying – was considered.  The court concluded that while protecting vulnerable people is important, the effect of a complete prohibition is a grossly disproportionate response. The court did not believe  this prohibition could justify condemning people to intolerable suffering and limiting the right of self determination of one’s own body¹.

Final Conclusion
Finally, the protection of vulnerable people – the primary purpose for prohibiting physician assisted dying – was considered.  The court concluded that while protecting vulnerable people is important, the effect of a complete prohibition is a grossly disproportionate response. The court did not believe  this prohibition could justify condemning people to intolerable suffering and limiting the right of self determination of one’s own body¹.

Policy Jurisdiction
The jurisdiction of regulating physician assisted dying is shared jointly in Canada between the federal and provincial governments.  As per the constitution, the federal government has control over justice where the provincial government regulate health care⁸.  Nonetheless, the federal government has considerable input into healthcare delivery across the country as the constitution requires approximately equivalent levels of services to be available from coast to coast.  As well the through the Canada Health Act⁹ and transfer payments the federal government has significant input into the funding of health care in this country.  Given this any ultimate decision involving physician assisted dying would require the input of both levels of government.

Federal Political Parties
Canada is currently in a federal election that has been dominated by discussion around the economy¹⁰, foreign policy¹¹ and the right to a wear niqab¹².  The pending policy decisions this country will need to make to implement the Supreme Court’s ruling have been minimally discussed.  The federal government committees began discussing this issue prior to the election but the pending vote has caused these groups to temporarily disband¹³.  There is all party consensus from the Conservatives, Liberals and NDP to implement this decision.  None has proposed using the notwithstanding clause of the Charter to overrule the Supreme Court’s decision.  None of the parties have vocalized any specific polices about implementation and all have kept their distance from the topic during the election.  There have been multiple concerns raised about whether there will be adequate time to have a framework in place by the courts deadline of February 6, 2016¹⁴.

Interest Groups
People with Disabilities
The Council of Canadians with Disabilities (CCD) is a Canadian human rights organization representing people living with disabilities.  Their focus is on advocating for creating an inclusive and accessible country¹⁵.  The CCD expressed deep disappointment and concern about the Supreme Court’s decision due to the potential harm this policy change can cause their members.  People living with disabilities are often in positions of decreased power and control compared to people without disabilities.  Many with disabilities can be dependent on others for basic activities of living.  Given this disempowerment the CCD is very worried about putting protections in place to ensure their members are not pushed into accessing physician assisted dying against their wishes.  Especially troubling for their organization is the vagueness of the decision.  Terms used in the court decision such as “intolerable suffering” give a fair breadth of interpretation.  As well the judgement stated physician assisted dying could be accessed for any grievous and irremediable medical condition rather than a terminal condition leading to worries about potential permissive use in the medical system outside of patients receiving palliative care.  The CCD is deeply concerned this will fundamentally alter the relationship their members have with health care professionals as dying could be viewed as common and realistic treatment option as opposed to living¹⁶.

Canadian Medical Association
The Canadian Medical Association (CMA) national association of physicians that advocate on behalf of its members for the high quality care for the Canadian people¹⁷.  In preparation of the court decision the CMA released an internal policy in 2014¹⁸ representing the physician perspective on the subject.  A new draft policy was released 2015 ¹⁹  to deal with the new landscape created by the supreme court decision.  The CMA advocated for:

1. Respect for patient autonomy
2. Equitable access to medical aid in dying
3. Respect for physician values – no one should be compelled to provide assistance in dying
4. Consent and capacity for patients
5. Dignity for the dying
6. Protection of vulnerable person
7. Oversight and reporting to ensure due process

The CMA further suggested a formalized process be put into place to access patient capacity, voluntariness and informed decision making.  The process recommended a series of cool down periods to allow for reconsideration given the finality of death.

The Canadian Public
There has been a recent shift in public mood about physician assisted dying.  The aging population of Canada has moved the topic from an abstract concept to an unfortunate eventuality in the public’s mind.  Many baby boomers are watching the suffering of their parents and wish to avoid a similar fate.  A recent poll has shown that 77% of Canadians are in favour of physician assisted dying²⁰.  The Supreme Court decision can be seen as belated acknowledgement of rapidly changing Canadian sentiments on this issue.

Policy in Other Jurisdictions
The Netherlands has had legal physician assisted suicide and euthanasia since 2001.  Their framework allows anyone aged 16 and over to make their own decision while children between the ages of 12 to 16 can access physician assisted dying with parental consent²¹.  The rate of physician assisted dying has grown dramatically over the last decade and half.  In 2013, 4289 people access this medical service, triple the number in 2002²².   Other European countries have allowed physician assisted dying over the last decade.  Notably Belgium has removed all age restrictions in 2014²³.  The right to assisted death in the United States was first introduced in Oregon in 1994 after receiving approval in a state ballot.  The American law gave patients the right to access a lethal prescription from a physician but explicitly prohibits the physician from administering the lethal dose.  Patients must be terminally ill, competent and aged 18 or over.  The percentage of deaths involving physician assistance has remained steady since the law was introduced at roughly 0.5-0.9%²¹.

Personal Interests
This topic has significance to me on both a personal and professional level.  Approximately three years ago my grandmother discontinued dialysis – the life sustaining treatment for her chronic kidney disease.  Her care providers indicated her life expectancy would like be between days to weeks.  She was told over this time the kidney disease would make her drowsy and cause her to peacefully fall asleep. This was not the case.  Her life continued for multiple months.  Over this period her basic functions and abilities were taken from her in a prolonged manner.  I witness a strong women robbed of independence and dignity.  I do not know whether she would have taken advantage of assisted dying if available nor do I know how I would feel if she did.  I do know the last months of her life were painful for her and everyone who loved her.

Given that I am a physician; this issue has great impact on me professionally as well.  I worry about how this will foundationally alter my relationship with my patients.  I worry this will undermine my role as an advocate.  The present goal of my patient encounters is to provide compassionate care.  I have only begun to consider the implications of being part of the system that allows patients to choose death even if I am not the last person in the chain with the proverbial needle.  I worry my patients will no longer view me as an ally as I care for their problems.  Being able to end life is a terrifying power and I worry about all the unintended consequences it may cause.

Work Cited

1. Carter L, Johnson H, Shoichet W, Carter L, Johnson H, Shoichet W. Carter v Canada. Ottawa; 2015. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do.
2. Organization WH. WHO definition of Health. 1948. http://www.who.int/about/definition/en/print.html. Accessed October 6, 2015.
3. Huber M, Knottnerus J a., Green L, et al. How should we define health? Bmj. 2011;343(jul26 2):d4163-d4163. doi:10.1136/bmj.d4163.
4. The 10 leading causes of death, 2011. Stat Canada. http://www.statcan.gc.ca/pub/82-625-x/2014001/article/11896-eng.htm. Accessed October 6, 2015.
5. Fowler R, Hammer M. End-of-Life Care in Canada. Clin Invest Med. 2013;36(3):127-132. http://www.cahs-acss.ca/wp-content/uploads/2013/08/End-of-Life-Care-in-Canada.pdf.
6. Emanuel LL. Facing requests for physician-assisted suicide: toward a practical and principled clinical skill set. JAMA. 1998;280(7):643-647. doi:10.1001/jama.280.7.643.
7. Justice Laws Website. http://laws-lois.justice.gc.ca/eng/acts/C-46/. Accessed October 6, 2015.
8. Canada G of. CONSTITUTION ACT, 1982. 1982. http://laws-lois.justice.gc.ca/eng/Const/page-15.html. Accessed October 7, 2015.
9. Canada Health Act. http://laws-lois.justice.gc.ca/eng/acts/c-6/. Accessed October 8, 2015.
10. Whittington L. Pacific Rim trade deal reignites economy as election issue.http://www.thestar.com/news/canada/2015/10/05/what-the-trans-pacific-trade-deal-means-for-canada.html. Published October 5, 2015.
11. Chase S. Federal leaders clash over Canadian values, security in lively debate. Globe and Mail. http://www.theglobeandmail.com/news/politics/harper-trudeau-mulcair-step-it-up-a-notch-in-foreign-policy-debate/article26580458/. Published September 29, 2015.
12. Hamilton G. Conservatives surging in Quebec as NDP fades over niqab issue. National Post. http://news.nationalpost.com/news/canada/canadian-politics/conservatives-surging-in-quebec-as-ndp-fades-over-niqab-issue. Published October 8, 2015.
13. Paperny AM. Election 2015: Is Canada ready for physician-assisted death? Glob News. 2015. http://globalnews.ca/news/2213196/election-2015-is-canada-ready-for-physician-assisted-death/. Accessed October 8, 2015.
14. Martin S. When it comes to assisted dying, whose choice is it?http://www.theglobeandmail.com/life/health-and-fitness/health/when-it-comes-to-assisted-dying-whose-choice-is-it/article26721554/. Published October 8, 2015.
15. Canadian Council with Disabilities. http://www.ccdonline.ca/en/. Accessed October 7, 2015.
16. Commentary on SCC Assisted Suicide Judgment in Carter v. Canada – Key Concerns. http://www.ccdonline.ca/en/humanrights/endoflife/media-release-key-concerns-6Feb2015. Accessed October 7, 2015.
17. CMA – History, mission, vision and values. History, mission, vision and values. Accessed October 7, 2015.
18. Cma. Euthanasia and Assisted Death. C Policy. 2011;(2014 Update):1-4.
19. Court S. PRINCIPLES-BASED APPROACH TO ASSISTED DYING IN CANADA. 2015:1-12.
20. Picard A. All parties’ voters support assisted death. So where’s the debate? Globe and Mail. http://www.theglobeandmail.com/news/politics/globe-politics-insider/all-parties-voters-support-physician-assisted-death-so-wheres-the-debate/article26197651/. Published September 2, 2015.
21. Patel K. Euthanasia and physician-assisted suicide policy in The Netherlands and Oregon: a comparative analysis. J Health Soc Policy. 2004;19(1):37-55. doi:10.1300/J045v19n01_02.
22. Ross W. Dying Dutch: Euthanasia Spreads Across Europe. Newsweek. February 2015. http://www.newsweek.com/2015/02/20/choosing-die-netherlands-euthanasia-debate-306223.html.
23. Watson R. Belgium extends euthanasia law to children. Bmj. 2014;348(feb18 6):g1633-g1633. doi:10.1136/bmj.g1633.