Last week ended on a high note for death with dignity advocates, when the Supreme Court of Canada held that the prohibition on physician-assisted suicide was unconstitutional, thus making way for doctor-assisted suicide across the country. So what’s left to consider?
The decision was a reversal of the Court’s previous decision on assisted suicide in 1993. Soon, Canadian residents who are eligible—namely where competent adults with a “grievous and irremediable” medical condition consent to the end of their lives— will be able to start the act of assisted suicide. Canada’s Supreme Court unanimously struck down the law that was in place, and no matter how much of the Canadian population is behind this, there’s still a lot to sort through.
1. What will the new law look like?
Prior to last week’s ruling, a conviction of taking part in some sort of assisted suicide (successful or no) could result in up to 14 years in prison. With the new decision, the Supreme Court of Canada (SCC) has so gutted the previous law that Peter Roberts of Western Canada Business Litigation Blog says it’s no surprise they gave parliament a year to sort out a new one:
Given all this, the current law could not be saved. The SCC thus granted a declaration that the law was invalid. Specifically, the Criminal Code provisions:
“are void insofar as 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. “Irremediable” . . . does not require the patient to undertake treatments that are not acceptable to the individual.”
You can be certain the precise meaning and scope of these words will be closely dissected in the coming months and years, particularly by parliamentarians and the medical profession as they wrestle to come up with the “appropriate remedy”. It will not be an easy task. That is likely why the SCC suspended the effect of this declaration for one year in order to give Parliament “the opportunity to craft an appropriate remedy.”
The Canadian government will have 12 months to draft a replacement law, and until then there will simply be no law on the books (much like how there is currently no law prohibiting abortion). Theoretically, the federal government could also override the court’s decision, but so far there’s no sign of that happening.
2. Estate law:
The new law— whatever it will look like— will also open up questions about how folks prepare their estate to be passed on. Since the law calls for competent adults to make the decisions for themselves, the can be no power of attorney used in the process. And that’s just the beginning of what people need to start sorting out in their legal plans. As Ian Hull writes for the Toronto Estate Law Blog:
The changes pose novel considerations for estate practitioners and individuals undertaking end of life planning. As only competent individuals may consent to such treatment, Powers of Attorney for Personal Care may now need to include, or be updated to include, a provision relating to assisted suicide.
Paul Trudelle has previously blogged on some additional estate planning considerations relating doctor-assisted suicide including the impact such an election could have on life insurance. He notes that most life insurance policies have a contestability clause that provides insurance proceeds will not be paid out if the policy holder commits suicide within two years. Thus, an insurer may be entitled to withhold the proceeds of a policy in the case of assisted suicide.
3. What’s next for their southern neighbors?
Assisted suicide was a hot topic in United States last fall, when Brittany Maynard made a highly public move to Oregon so she could choose euthanasia. Since then more states have been making the push for similar laws. Oregon is one of the five states that currently offers assisted suicide in the country, and actually won its own Supreme Court case in favor of assisted suicide in 2006.
It’s unclear as of now how or if this law will play into what many disability groups in the U.S. fear, that anyone with a disability could be pressured into suicide. Like a post on the HealthLawProf blog notes, the Canadian law is not bound to terminal illnesses like most U.S. laws have been:
It extends its reasoning to anyone in “intolerable suffering as the result of illness, disease, or disability.” But the Court also said that Canada has an interest in protecting the vulnerable that could justify statutory limits on aid in dying. The difficulty with the existing statutes was that they are a complete ban, and thus in the view of the Court not proportional to the state’s legitimate goal. Here, the Court cited evidence from other jurisdictions that statutes permitting aid in dying, with appropriate safeguards, have not resulted in evidence of abuse.
As of now U.S. laws have been very narrow and cautious in how they approach doctor-assisted suicide, often requiring multiple physicians to confirm the diagnosis. Whether now courts will be more open to looser laws like Canada’s remains to be seen.