Assisted Suicide

What is assisted suicide?

Assisted suicide is the act of intentionally killing oneself with the assistance of another who provides the knowledge, means, or both.

What is the difference between assisted suicide and euthanasia?

Assisted suicide and euthanasia are different.  Assisted suicide is providing another with the knowledge or means to intentionally end his or her own life; euthanasia is deliberate action undertaken by one person with the intention of ending the life of another person to relieve that person’s suffering where that act is the cause of death.  An example of assisted suicide is a physician who prescribes barbiturates to a patient with advanced amyotrophic lateral sclerosis (ALS) who uses the drugs to kill herself.  An example of euthanasia is a physician who administers a lethal dose of barbiturates to a woman suffering from severe dementia with the intention of ending her life in order to relieve the pain and suffering caused by her condition where the barbiturates cause death.

Is assisted suicide legal in Canada?

Assisted suicide is an offense under s. 241 of Canada’s Criminal Code:

Suicide
Counselling or aiding suicide
241. Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

However, on June 15, 2012, Justice Lynn Smith struck down the Criminal Code prohibition of assisted suicide (Carter v Canada (Attorney General), 2012 BCSC 886). She found that it violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Her declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the government time to fix the law. The government appealed and Justice Smith’s decision was overturned by the British Columbia Court of Appeal in 2013 (Carter v Canada (Attorney General)).  The majority (2:1) allowed the appeal on the grounds of stare decisis (that the issue had been decided by the Supreme Court of Canada in Rodriguez v British Columbia (Attorney General) in 1993).  The Supreme Court of Canada heard the appeal on this case in October 2014 and released its decision on February 6, 2015 (Carter v Canada (Attorney General)).  The Supreme Court (unanimously and with a decision authored by “The Court”) found that the prohibition on assisted suicide violates section 7 of the Canadian Charter of Rights and Freedoms.  The Court’s declaration of invalidity of s.241(b) of the Criminal Code was suspended for twelve months to give the federal/provincial/territorial governments time to revise existing or craft new laws if they chose to do so.  However, in October 2015, the Conservative Government was defeated and, in December 2015, the new Liberal Government made a motion for a six-month extension to the suspension of the declaration of invalidity.  On January 15, 2016, (Carter v Canada (Attorney General)) the Supreme Court granted a four-month extension, giving the governments an additional four months within which to make any changes to the law.  The Supreme Court also granted an exemption for Quebec meaning that the permissive Quebec regime could continue to operate and individuals in Quebec could legally access medical aid in dying even during the period of the extension.  The Supreme Court also established that individuals throughout Canada could access physician-assisted dying without fear of criminal liability for those who assist them by applying to a court for a constitutional exemption based on a demonstration that they meet the criteria set out in earlier decision in Carter v Canada (Attorney General).

As a result of the Supreme Court of Canada decision, by June 6, 2016, assisted suicide will be legal at the very least 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 means that the condition cannot be alleviated by means acceptable to the person).

In August 2015, a Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying was created by provincial-territorial governments across Canada. Its mandate was “to provide non-binding advice to participating Provincial-Territorial Ministers of Health and Justice on issues related to physician-assisted dying. The advice is meant to assist provinces and territories in deciding what policies and procedures should be implemented within their jurisdictions in response to the Supreme Court’s decision in Carter.”  The Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying delivered its final report on November 30, 2015.  It made 43 recommendations for how federal, provincial, territorial governments (and other relevant actors) should implement a regulatory framework for physician-assisted dying in Canada.

In December 2015, a Special Joint Committee on Physician-Assisted Dying was appointed by Parliament.  Its mandate was “to review the report of the External Panel on Options for a Legislative Response to Carter v. Canada and other recent relevant consultation activities and studies, to consult with Canadians, experts and stakeholders, and make recommendations on the framework of a federal response on physician-assisted dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.” The Special Joint Committee delivered its final report on February 25, 2016. It made 21 recommendations for a regulatory framework for medical assistance in dying and related initiatives.

Federal, provincial, and territorial governments now have until June 2016 to design and implement the regulatory framework for physician-assisted dying in Canada. If no legislation is passed by June 2016, medical assistance in dying will be regulated by the Supreme Court of Canada’s decision in Carter v Canada (Attorney General) (2015) and the provincial/territorial Colleges of Physicians and Surgeons:

Is assisted suicide legal elsewhere in the world?

Yes.  Click on a country or state below for a description of its permissive stance re: assisted suicide.  Wherever possible, we have excerpted the description from an authoritative source (e.g., Justice Smith’s decision in Carter v Canada (Attorney General) or the Royal Society of Canada Expert Panel on End-of-Life Decision Making) as these descriptions are the result of evidence being presented by experts and tested in a court of law (Justice Smith) or reviewed by a panel of experts appointed by a neutral body (Royal Society of Canada Panel). We have also included links to official government sources for legislation and data.

Belgium

Official sources

Legislation

Note that although suicide is not mentioned in the legislation, the Act has been interpreted to include suicide.

Colombia
Netherlands

Official sources

New Mexico
Switzerland

Official sources

Legislation

Switzerland does not have legislation that decriminalizes assisted suicide. Rather, Article 115 of Switzerland’s Penal Code, SR 311.0 states that “any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty”. Therefore, assisted suicide is not a criminal offence where the assister lacks a selfish motive.

See page 55 of the Penal Code.

Does legalization of assisted suicide have a negative impact on availability or quality of palliative care?

In answering this question, we present the findings of Justice Smith in Carter v Canada (Attorney General) and the National Assembly of Quebec Select Committee on Dying with Dignity as these findings are the result of evidence being presented by experts and tested in a court of law (Justice Smith) or presented by experts in Canada and in the Permissive jurisdictions to an all-party committee of parliamentarians (Quebec Committee).

Reliable evidence does not support the claim that legalization of assisted suicide has a negative impact on either availability or quality of palliative care.  The evidence does not demonstrate a reduction in availability or quality of palliative care post-legalization.  Furthermore, availability and quality of palliative care are better in some countries that permit assisted suicide than in others that prohibit assisted suicide.  For example, Belgium and the Netherlands rank higher than Canada for quality end-of-life care.

After reviewing evidence relating to the relationship between legalizing assisted suicide and the quality and availability of palliative care, Justice Smith for the Supreme Court of British Columbia made the following remarks (at 731-736):

My review of the evidence regarding Oregon, the Netherlands and Belgium suggests that in those jurisdictions, legalization of assisted death has not undermined palliative care; on the contrary, palliative care provision has improved since legalization by some measures.

Few conclusions, however, can be reached about the possible impact on palliative care from a change in Canadian law regarding physician-assisted death.

First, as Canada points out, palliative care is a developing field; it may be assumed that it is improving not only in permissive jurisdictions but also in jurisdictions that continue to prohibit physician-assisted death.

Second, there are differences in the history, culture and modes of medical practice among the jurisdictions.

Third, further improvements in palliative care in Canada would require commitment of public resources, since health care in Canada is largely delivered through a public system.  Some of the debate in the United States has raised the question whether health insurers would refuse to fund palliative care when assisted death was available; no evidence was provided to show that that fear has become reality in Oregon or Washington.  It is difficult to imagine that Canadian politicians, public officials or health care providers, if physician-assisted death were legal, would reduce resources for palliative care services for that reason.

In summary, having reviewed the evidence and the submissions on this point, I conclude that while a change in the law to permit physician-assisted death could affect the palliative care system, predictions as to how would be speculative.  I find that the evidence establishes that the effects would not necessarily be negative.

For Justice Smith’s full discussion of evidence on the impact of legalizing assisted suicide upon the quality of and access to palliative care, click here.

Similarly, in addressing the concern that the practice of euthanasia could hinder the development of palliative care (in its Report at 69), the National Assembly of Quebec Select Committee on Dying with Dignity found that:

Legitimate as this fear may be, this has not yet happened in the European countries where euthanasia has been legalized. Perhaps surprisingly, the exact opposite has occurred. The legalization of euthanasia has boosted the development of palliative care. the social consensus was to openly accept this practice as long as palliative care was accessible to more patients. Consequently, Belgium and the Netherlands have quality palliative care, much of which is offered at home.

These findings find support in data recently published in two reports:

  • The Quality of Death: Ranking end-of-life care across the world, a 2010 report produced by the Economist Intelligence unit offers an overall ranking of the quality of end-of-life care across forty countries.  Belgium and the Netherlands respectively ranked higher than Canada in the report’s overall ranking of end-of-life care services.
  • Palliative Care Development in Countries with a Euthanasia Law, a 2011 report authored by the European Association for Palliative Care for the United Kingdom Commission on Assisted Dying, investigates the impact that legalizing assisted suicide and/or euthanasia has had upon the development of palliative care in Belgium, the Netherlands and Switzerland, where assisted suicide and/or euthanasia has been legalized.  Based on an analysis of available data, this report suggests that palliative care appears to be developing within the Netherlands, Belgium and Switzerland at a rate comparable to that of other European countries where assisted suicide and euthanasia are not legal.  From a review of relevant scientific literature, the report also suggests that the quality of palliative care within the Netherlands and Belgium after the legalization of assisted suicide and euthanasia has remained comparable to the quality of palliative care available within European countries where assisted suicide and euthanasia remain illegal.

Does legalization of assisted suicide put vulnerable people at heightened risk of non-voluntary or involuntary euthanasia?

In answering this question, we present the findings of Justice Smith in Carter v Canada (Attorney General), the National Assembly of Quebec Select Committee on Dying with Dignity, and the Royal Society of Canada Expert Panel on End-of-Life Decision Making as these findings are the result of evidence being presented by experts in a court of law (Justice Smith), presented by experts in Canada and in the permissive jurisdictions to an all-party committee of parliamentarians (Quebec Committee), or reviewed by a panel of experts appointed by a neutral body (Royal Society of Canada Panel).

Reliable evidence supports the conclusion that legalization of assisted suicide does not put vulnerable people at heightened risk of non-voluntary or involuntary euthanasia.  In the Carter case, Justice Smith of the British Columbia Supreme Court made the following remarks on this point:

I have considered the study, the critique and the cross-examinations, as well as other evidence (such as that of Ms. Jackson, Dr. Bentz and others) bearing on whether the experience in Oregon and the Netherlands supports the fears of those who argue that the availability of consensual assisted death will lead to the imposition of assisted death on vulnerable persons.

 

I accept that the conclusions stated in the Battin et al. Study are soundly based on the data. I find that the empirical evidence gathered in the two jurisdictions does not support the hypothesis that physician-assisted death has imposed a particular risk to socially vulnerable populations.  The evidence does support Dr. van Delden’s position that it is possible for a state to design a system that both permits some individuals to access physician-assisted death and socially protects vulnerable individuals and groups. (at 667)

 

I accept that elderly persons are vulnerable to abuse and that the assessment of voluntariness of elderly people must incorporate an understanding of that reality.  As discussed earlier, however, there is no evidence that the elderly access physician-assisted dying in disproportionate numbers in permissive jurisdictions (Professor Battin, Dr. Ganzini, Dr. van Delden, Professor Deliens), and Professor Deliens observed that the number of patients over the age of 80 whose deaths resulted from LAWER in Belgium was not disproportionate. (at 847)

 

However, there is no evidence that persons with disabilities are at heightened risk of accessing physician-assisted dying in jurisdictions where it is permitted. … (at 852)

 

My review of the evidence in this section, and in the preceding section on the experience in permissive jurisdictions, leads me to conclude that the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced. (at 883)

For a full discussion from Justice Smith on the issue of whether legalizing assisted suicide puts vulnerable people at risk, click here.

The SCC in Carter v Canada (Attorney General) affirmed Justice Smith’s remarks on the issue:

[3] The trial judge found that the prohibition violates the s.7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition. She concluded that this infringement is not justified under s. 1 of the Charter. We agree. The trial judge’s findings were based on an exhaustive review of the extensive record before her. The evidence supports her conclusion that the violation of the right to life, liberty and security of the person guaranteed by s. 7 of the Charter is severe. It also supports her finding that a properly administered regulatory regime is capable of protecting the vulnerable from abuse or error.

 

The SCC also highlighted the success of jurisdictions with permissive regimes: Oregon, Colombia, Montana, Washington, Switzerland, Luxembourg, Belgium and the Netherlands. The court noted that “Together, these regimes have produced a body of evidence about the practical and legal workings of physician-assisted death and the efficacy of safeguards for the vulnerable” (at 8).

After assessing  evidence from the Netherlands and Belgium on the issue of whether a more permissive stance toward assisted dying would lead to abuse, the National Assembly of Quebec’s Select Committee on Dying with Dignity stated that: “these risks can be eliminated by defining clear and strict guidelines” (National Assembly of Quebec Select Committee Report Dying with Dignity, Report (2012) at 74).

For the Select Committee’s full discussion on this point, click here.

Similarly, The Royal Society of Canada Expert Panel: End-of-Life Decision Making reviewed evidence from permissive jurisdictions concerning the relationship between legal assisted suicide and protecting the vulnerable, and concluded the following:

In sum, there is no evidence from the Netherlands supporting the concern that society’s vulnerable would be at increased risk of abuse if a more permissive regime were implemented in Canada.

[...]

Despite the fears of opponents, it is also clear that the much-feared slippery slope has not emerged following decriminalization, at least not in those jurisdictions for which evidence is available. Nor is there evidence to support the claim that permitting doctors to participate in bringing about the death of a patient has harmed the doctor/patient relationship. What has emerged is evidence that the law is capable of managing the decriminalization of assisted dying and that state policies on this issue can reassure citizens of their safety and well-being. (at 89 and 90)

To view an excerpt of the full discussion of the issue of whether legalization of assisted suicide puts vulnerable people at risk from Royal Society of Canada Expert Panel on End-of-Life Decision Making, click here.

 

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