The Supreme Court of Canada’s decision in Carter raises a number of difficult questions: In what circumstances might it be morally acceptable to deliberately and prematurely end another’s life? How should it be done? And by whom?

As we debate such questions, it is important to understand what Carter actually decided. The Court ruled that the criminal prohibition against assisted suicide infringed the Charter right to “life, liberty, and security of the person” in the factual circumstances of the case, and that protecting vulnerable people from error and abuse did not necessitate a complete ban.

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But the fact that the Court found the complete ban to be overkill, so to speak, does not transform assisted suicide from a crime in 2015 to a public health care service in 2016. The Provincial/Territorial Expert Advisory Group’s Report on the issue is wrong to assert that, as a result of Carter, “all provinces and territories must ensure access to physician-assisted dying.” “Assisted death” is not a constitutionally mandated service, as some have characterized it. To permit is not to mandate.

The Court did not say a physician should, or even could, be required to participate in assisted suicide. The Court nowhere states that the medical profession or the government has an obligation to ensure that physicians are available to provide such assistance. There is no Charter right to compel a person – physician or otherwise – to end one’s life or arrange for someone else to do so. In fact, the Court said that nothing in its decision “would compel physicians to provide assistance in dying”.

Carter determined only that the law could not prohibit Gloria Taylor (the main plaintiff, a patient with ALS) and persons in her position from receiving “assistance in dying” from a willing physician. Ms. Taylor found such a physician, who was also named as one of the parties in the case. That is one reason we’re all now talking about physician-assisted suicide, but the key legal reason is this: the complete prohibition was found to be unnecessary for protecting the vulnerable where physicians are involved because physicians are uniquely capable of detecting a person’s vulnerability in these situations. Had the Court lacked confidence that there are persons who can reliably assess the vulnerability and competence of severely ill people, it would have had to uphold the prohibition.

The Court did not say that the medical profession must now embrace assisted suicide as a medical solution to suffering. Nor did Carter say that assisted suicide or euthanasia is in any patient’s best interest. Many if not most physicians believe it is not. A recent poll of Canadian physicians conducted by the Canadian Medical Association (CMA) revealed that 63% would not even consider providing it.

Many physicians do not regard assisted suicide or euthanasia as health care at all. The World Medical Association “strongly encourages all National Medical Associations and physicians to refrain from participating in euthanasia, even if national law allows it.” The CMA stated in 2007 that “a fundamental reconsideration of traditional medical ethics would be required” in order for the medical profession to participate. A CMA consultation in 2014 concluded that the majority of its members did not endorse reversing the CMA’s opposition to physician assisted-dying, though the CMA has since stated that it “may be appropriate” in rare circumstances.

Most palliative care specialists, who dedicate themselves to maximizing the quality of life of patients facing life-threatening illness, wish to keep assisted suicide and euthanasia out of their discipline. The CMA’s General Council recently passed a motion recognizing that the “practice of assisted death as defined by the Supreme Court of Canada is distinct from the practice of palliative care”.

Canadian anesthesiologists recently warned about potential complications, saying patients could experience convulsions and awakenings while the fatal drugs take effect.  A recent editorial in the Canadian Journal of Anesthesia questioned the legitimacy of Carter’s “nomination of physicians as the exclusive purveyors of a non-medical practice, particularly when the ethos of medicine has historically forbidden participation in this very act.”

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Whatever one’s views on assisted suicide and euthanasia, Canadians should not force a revolution in medical ethics onto unwilling physicians. Carter did not “medicalize” assisted suicide or demand that physicians participate. We shouldn’t either.

The factual claims are based on the following documents:

Canadian Society of Palliative Care Physicians – Position on Assisted Suicide and Euthanasia

Brokering trust: estimating the cost of physician-assisted death” (Can J. Anesth)

Many doctors won’t provide assisted dying” (CMAJ)

World Medical Association – Resolution on Euthanasia

Canadian Medical Association – End of Life Care and Emerging Issues Consent Motions

End of Life Care” (CMA Member Consultation Report, July 2014)

Derek Ross
Derek Ross is a constitutional lawyer and executive director of Christian Legal Fellowship, a national legal association that has intervened as a friend of the court in cases related to assisted death and the Charter.
John Sikkema
John Sikkema is Associate Counsel with Christian Legal Fellowship (CLF). John works on CLF's judicial interventions, policy consultations, publications and programs. John is also an Executive Committee Member of Advocates for the Rule of Law, a Canadian legal think tank.

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