In this brief, the B.C. Civil Liberties Association first argues that the complete ban in Canada on assisted suicide and active voluntary euthanasia is not morally defensible. We then survey the possible options for the federal government in legislating in this area, and describe the advantages and disadvantages of various aspects of a regulatory scheme.
In Part A, we argue that there is a strong prima facie case for allowing persons who are facing intractable pain or indignities in the final stages of their lives to determine for themselves when life is no longer worth living, and, where necessary, receive assistance in ending their lives. This prima facie case is constructed from the principles of liberty, autonomy and equality; from the value of preventing unnecessary suffering and preserving the dignity of the individual; and from the inconsistency between legally allowing suicide and passive voluntary euthanasia while denying legal space to assisted suicide and active voluntary euthanasia. If we are to continue legally to bar these practices, there must be a compelling reason for doing so.
The BCCLA then argues that none of the reasons that have been put forward for continuing the current absolute ban on assisted suicide and active voluntary euthanasia is compelling. We consider separately each of these arguments, which include: the sanctity of life and the moral wrongness of killing; the possibility of an incorrect diagnosis or a miracle cure; the alleged inability to know that voluntary informed consent has been obtained; the “slippery slope” argument; and the ability of modern medicine to control pain.
Since none of the arguments against prohibiting assisted suicide and active voluntary euthanasia is compelling, the strong prima facie case for the legalization of these practices must prevail. We note that, although the objections are not compelling, they do raise concerns which must be addressed in making legal provision for aid in dying.
In Part B of the Brief, the BCCLA surveys the policy options available to the government in making legal space for these practices.
The first is selective enforcement, whereby Attorneys General would decide when prosecutions would take place.
We argue that this option would involve apparently intractable problems: the protection offered physicians would be unsure, resulting in uneven access to assisted suicide and active voluntary euthanasia; the application of the policy would differ both from province to province and at different times, depending on the strength of the public pressure to prosecute; and the Rodriguezdecision would make it difficult for Attorneys General to ignore the plain language of the Criminal Code, and might foster litigation from those who oppose the practices.
The second option is to amend the Criminal Code, either by creating an absolute defence to a criminal charge, or by mitigating the penalties associated with the offence.
We argue that the mitigation option is problematic, since we do not think that assisted suicide or active voluntary euthanasia ought to be considered wrong as a matter of law.
We further argue that the provision for an absolute defence has one major drawback: only after the fact would it provide for individualized determination of whether the necessary conditions have been met (whereas a regulatory scheme would do so in advance). This uncertainty would seriously affect the willingness of physicians to provide aid in dying to their patients.
The third option, which we favour, is to provide a regulatory scheme which provides for prior authorization for assisted suicide and active voluntary euthanasia.
In Part C, the BCCLA surveys the options open to government in creating such a regulatory scheme. From both practical and principled viewpoints, we discuss the specific conditions under which a person would be allowed to offer aid-in-dying assistance to a patient. Among the conditions discussed are: eligibility, the requirement for consultation, how to specify “informed consent”, who may provide assistance, waiting periods, review of the decision, and documentation requirements.
It is not our aim to argue for any particular answer to these important questions, but rather to spell out the factors which must be addressed in answering them. In our discussion, the concerns raised by the objections in Part A inform the assessment of various options.
Modern medicine has been enormously successful in saving and extending lives. No one can reasonably regret this, but it exacerbates a problem which has always been with us, namely, how to treat those who are alive, but not living lives they think worthwhile, and have no prospects for anything better.
Under current Canadian law, patients who want to die can either commit suicide, or, if they are competent, refuse all treatment necessary for life. But patients do not always have the ability and opportunity to do the former, and the latter does not always bring about a gentle and easy death for either them or their loved ones. The question thus arises as to whether we should make legal provision for assisted suicide—providing the means of suicide—and active voluntary euthanasia—killing patients on request.
In Part A of this brief we provide a general argument that legal provision should be made for assisted suicide and active voluntary euthanasia. In Part B we outline the various policy options open to government and address the appropriateness of each of these. In Part C we survey the issues which arise in any attempt to regulate access to these practices, and comment on the strengths and weaknesses of various responses to each.
We wish to stress at the outset that we do not argue that legal access to assisted suicide and active voluntary euthanasia should be wide open. On the other hand, we reject the idea that there should be a blanket ban on access to these practices. What follows from our argument in Part A is that there aresome situations where assisted suicide and active voluntary euthanasia should be legally available to patients. How liberal or conservative this access should be is one of the main questions to be decided, and we return to it in Part C.
Current legal situation1
At one time, it was not unusual to find suicide and attempted suicide among criminal offences in civilized countries. For example, under English law, suicide was regarded as a felony, punishable by interment in a highway with a stake driven through the body and the forfeiture of lands, goods, and chattels to the king.
France was the first country in Europe to legalize suicide in 1790, and Germany soon followed suit, as did the rest of the continent.
In England, however, the law persisted until 1914, when sanctions against the body and property of a suicide were removed, but the attempt to commit suicide was still regarded as an attempt to commit a criminal offence and punishable by fine or up to two years imprisonment.
In 1961, England legalized suicide and attempted suicide, and Canada did the same in 1972.
Suicide was illegal in several American colonies, requiring governmental forfeiture of a suicide’s personal estate,2 and until early in this century, many states still deemed suicide illegal or felonious.3
Today suicide is not illegal in any state,4 but attempted suicide continues to be in a few.5 This, however, is commonly regarded as an anachronism, not a law to be taken seriously. In modern times, both suicide and attempted suicide are not criminal events in any civilized society.
The matter stands differently with assisted suicide and active voluntary euthanasia.
(a) Assisted suicide
Comparative law on assisted suicide reveals the full spectrum of possible opinions. In France and Germany, assisted suicide is not criminal. If it is not a crime to commit suicide, so the legislators there argued, it could not be a crime to assist one in doing so. In Switzerland, assisted suicide is punishable if it is caused by “selfish motives”, but not by altruistic ones.6 In Italy, and according to the New York Penal Code, assisted suicide is criminal whatever the motive, but punishable more heavily if the suicide is successful.7 Finally, in Canada and (with the exception of Texas)8the United States, assisted suicide is equally criminal regardless of motive and success of outcome.
In Canada assisted suicide is a grave crime, punishable by up to fourteen years imprisonment. In the United States, it is also typically regarded as a serious offence, and treated either as murder,9voluntary manslaughter,10 or a separate crime.11 Some state legislatures which have characterized assisted suicide as a separate crime treat the crime as involuntary manslaughter,12others treat it as a minor offence and require only the payment of a fine.13
(b) Active voluntary euthanasia
We likewise meet a variety of different legal attitudes to active voluntary euthanasia throughout the world. Continental Europe has moved away from judging crimes exclusively by the type of act done, and towards taking into account the type of actor who does the deed. Thus the motive which prompted the act and manner of its performance become relevant as aggravating or mitigating elements, and out of this has arisen a classification of different types of homicide. A homicide done from a highly reprehensible motive or in a particularly reprehensible way indicates a bad character in the actor, and is most severely punished; where these features are absent, or if (as in the typical case of active voluntary euthanasia) the motive is altruistic and the delivery of death humane, the punishment is more lenient.
This approach is taken by the legal systems of Switzerland and Germany. Under Swiss law, judges are vested with broad discretion to classify cases with the various types of homicide the law specifies. Under German law, the statutes enumerate motives which bring acts within graver or milder types of homicide.
Both these codes also allow for reduction in penalty in the case of mitigating circumstances, and mercy killers are likely to benefit from this as well.14
Neither of the German and Swiss provisions, however, specifies that the motive of mercy or the patient’s condition is a mitigating factor in crime or punishment. But other countries have done this.
The Norwegian Penal Code of 1902 treats the mercy-motivated killing of a hopelessly ill person like killing on request. The penalty is not specified, but the judge is given discretion to reduce the punishment below the minimum which would otherwise be applicable.15 Similar reductions in penalty are allowed in the Russian Penal Code of 190316 and the Polish Penal Code of 1932.17ThePenal Code of Uruguay of 1933 goes further than any of the above, and allows for a total exculpation.18
In sharp contrast to the above approaches, the law of homicide in North America, along with that of Great Britain and Australia, depends entirely on the factors of premeditation and deliberation; motive and the request of the victim are irrelevant to both the classification of the murder and degree of punishment. Thus active voluntary euthanasia, being usually a deliberate and premeditated act, will typically constitute the gravest type of homicide.
In practice, however, the law on the books is flouted: in cases of active voluntary euthanasia (as well as assisted suicide), we find clear legal subterfuges such as lack of proof of causation and temporary insanity given decisive weight, officials slow to indict, courts reluctant to convict, and judges lenient in sentencing.19
(c) Law reform
We must now ask whether the law in Canada on active voluntary euthanasia and assisted suicide should be brought into line with the actual behaviour of courts and law enforcement agencies.
The Netherlands has taken the lead in doing this. Euthanasia is prohibited there under the criminal code as a separate crime from homicide or manslaughter, carrying a maximum 12 year prison sentence. Nonetheless, courts have winked at the practice since 1970, and between 6,000 and 10,000 of Holland’s 120,000 deaths each year are estimated to be doctor-assisted suicide or euthanasia.20 In 1993 the Dutch Parliament formalized the practice by making legal exceptions to the criminal law. While the euthanasia law remains on the books, physicians will not be charged if they notify coroners of their actions and follow certain guidelines.
These guidelines stipulate that the patient must:
- be mentally competent
- be suffering unbearable pain which cannot be averted by any accepted medical treatment, and
- repeatedly request euthanasia.
They also stipulate that
- the physician must go through full consultation with the patient, the patient’s family, and at least one other doctor. 21
Should Canada follow this lead of narrowing the gap between law and practice, and if so, how exactly should the legal accommodation be made?
The logic of the debate is this: There is, we will contend, and as is generally admitted, a prima faciecase for legalizing assisted suicide and active voluntary euthanasia. There is, similarly uncontroversially, a long list of objections to doing so. If all the objections can be answered, the pro-legalization case will be left in sole possession of the field, and Canada should act accordingly. On the other hand, if any of the objections is good, that case will be cancelled, and Canada should keep the legal door to the practices in question shut. We will argue that none of the objections is good.
Our rejection of the objections to legalizing these practices does not mean that the objections cease to function at all. In Part C we spell out more explicitly our belief that some of the objections function as limits on access to these practices, and form the rationale for procedural requirements designed to ensure that access to these practices is not abused.
But let us begin by providing the prima facie case for assisted suicide and active voluntary euthanasia. There are five arguments designed to do this.
The first and simplest argument appeals to the value of liberty. Freedom, qua freedom, is a good; restraint, qua restraint, an evil.22 This forms the basis of the common view that individuals can do as they want unless there are weighty reasons which dictate otherwise. Restrictions on liberty are certainly sometimes justifiable, but the onus of justification always lies on their defenders.
Thus, given that prohibiting assisted suicide and active voluntary euthanasia are restrictions on liberty—patients are prevented from getting what they want, and physicians from providing it—there is a standing prima facie case for legalizing those practices, and it is up to their opponents to show why they should be forbidden.23
(b) Prevention of suffering and the dignity of the individual
This prima facie case can be strengthened by appealing to two other equally uncontroversial values: the prevention of suffering and the dignity of the individual. Patients sometimes are in medical conditions for which there is no relief, and awaiting them is a future filled with suffering, or the indignity of the disintegration of their bodily and mental functions, or both. They often want to avoid these evils, and shield loved ones from their sight. It is also sometimes the case that the only way to do this is to die, and the only way to do that is to receive some assistance in the form of help in committing suicide or active voluntary euthanasia.
If we now grant, as we surely must, that people have a prima facie right to preserve their dignity and minimize their suffering and that of others, we again get a strong presumption in favour of making some kind of legal allowance for assisted suicide and active voluntary euthanasia.24
(c) The principle of equality
The principle of equality supports a further prima facie argument, which has been set out by Chief Justice Anthony Lamer in his dissenting opinion in Rodriguez v British Columbia (Attorney General).25 He argued that the prohibition against assisted suicide creates an inequality since it prevents persons physically unable to end their lives unassisted from choosing suicide, when that option is open to others. Although the blanket prohibition on assisted suicide appears to treat all persons equally, its actual effect is to deprive persons who are unable to commit suicide without assistance of the ability to commit suicide in any way that is lawful.
(d) Consistency with legal passive voluntary euthanasia
Finally, we turn to a pair of arguments which proceed by alleging there is an inconsistency between what the law permits and prohibits, and since it is right to permit what it does, the prohibition should be removed.
The first of these begins with the fact that passive voluntary euthanasia is allowed by the law: a competent and fully informed person may, for whatever reason, appropriately refuse any treatment necessary for life.26 Thus, if active voluntary euthanasia is to be legally proscribed, there must be some relevant difference between killing and letting die.
It is, however, not clear there is: if both the intention—to bring about a death—and the certainty of outcome—death coming about—are the same in each, it is hard to see how there could be any morally relevant difference between killing patients and letting them die.27
It does not follow that we can appropriately aid persons in securing death whenever they can refuse treatment, for they may refuse treatment for bad reasons, and while there may be nothing immoral or properly preventable about them harming themselves, there is something wrong in our assisting them in doing so. However, it does follow that if they have a good reason for refusing treatment—if, say, their future is brief and only holds pain and indignity—there is a presumption that there is nothing wrong with our assisting them, and the law should not stand in our way either to help them kill themselves or to kill them on their authority.28
(e) Consistency with legal suicide
Our second argument runs along exactly similar lines, and begins with the fact that suicide is not a criminal offence. This does not mean we should not prevent suicide when we can. In most cases we certainly should, for suicides typically have very bad reasons for wanting to die, and need our help. But suicide cannot be properly prevented in all cases. If persons have a good reason for death—if, for instance, they are elderly and terminal and suffering—it would be unspeakably meddlesome to interfere. But if so, we get the presumption that in just those circumstances in which we should not prevent persons from bringing about their own death, we can appropriately help them do so by either assisting their suicide or delivering active voluntary euthanasia.
If persons have a good reason to die, and do not have the means to commit suicide, they should,prima facie, be legally allowed to request and receive those means from those willing to provide them, and if they are too weak to swallow a pill or inject themselves, to authorize others to deliver the fatal dose. Thus under certain conditions the right to suicide entails the prima facieright to assisted suicide and active voluntary euthanasia.29
This completes the prima facie case for the legalization of assisted suicide and active voluntary euthanasia. Insofar as we value liberty, the prevention of suffering, and dignity, and admit that sometimes people have a good reason for wanting to die and need help to do so—all surely uncontroversial claims—there is no avoiding the conclusion that the burden of proof lies on those who wish to oppose legalizing the practices in question. But this is also a burden which opponents have taken up, and they have provided a formidable list of obstacles to those practices. It is to these that we must now turn.
(a) The sanctity of life and the wrongness of killing
One objection to assisted suicide and active voluntary euthanasia is that they involve killing, and all killing is morally wrong. This principle may be based on religious views (e.g., the sixth commandment) or maintained on purely secular grounds. But whatever its basis, we cannot appeal to this unqualified principle to condemn the practices in question unless we are prepared to condemn, for example, the killing of steers for food, fish for sport, trees for paper, weeds to beautify a garden, mosquitoes for comfort, and so forth.
Few are prepared to accept such consequences. But if we are not, our task is find some version of the sanctity of life principle which will allow instances of killing we want to allow, while at the same time excluding assisted suicide and active voluntary euthanasia.
This, however, is not easy to do. One might try to avoid the above repugnant consequences by restricting the principle to human beings. The question immediately arises as to whether this is an arbitrary restriction, but we will not pursue that here.30 It is sufficient to notice that the restricted principle still excludes too much, prohibiting as it does killing in self-defense and to protect the defenceless. Nor would it help to stipulate that it is the killing of innocent human beings which is morally prohibited. For not only is it strained to morally proscribe assisted suicide and active voluntary euthanasia because they involve “taking an innocent life”, the principle itself is problematical. We do not want to disallow killing insane (and therefore presumably innocent) attackers, and it is highly controversial to condemn bombing enemy civilian populations in wartime when not doing so would result in the heavier bombing of our own.
One could continue doing moral carpentry, and tack further qualifications onto the sanctity of life principle to secure just the conclusions one wants. One could, for example, specify further that killing innocent but insane aggressors and innocent civilians in wartime are not absolutely prohibited, but that assisted suicide and active voluntary euthanasia nonetheless are. But then the principle starts to appear to arbitrarily exclude those practices, and we must ask what reason there is for excluding them at all.
(b) Duties to God, to oneself and to others
There are three possible reasons: assisted suicide and active voluntary euthanasia violate some duty to God, or to ourself, or to others. We will take each in turn.
There exist both strongly held and intellectually coherent religious reasons for a demand on the part of some people that the current legal prohibitions on assisted suicide and active voluntary euthanasia be retained or even strengthened. However, in Canadian society we do not use the criminal law to enforce the religious views held by some people on others who do not share these views. This is not a denigration of those religious views, but an assertion of the principle that a state which respects the right of its citizens to choose their own religious values cannot use the criminal law to enforce such views.31
The claim that we have duties to ourselves is conceptually incoherent. For, given that duties give rise to rights, to say that I have a duty to myself is to say that I have a right against myself. And since I can always waive my rights, but can never release myself from a duty, it is contradictory to speak of duties to oneself: I have something from which I both can and cannot release myself.
It is hard to see what duties to others could be exacted from realistic candidates for assisted death. Such patients are not typically going to be in a position to render very many services to others, and even if they were, it is plausible to suggest that their medical distress cancels any duty to provide them.
Much more could be said about all these grounds for claiming that assisted suicide and active voluntary euthanasia are immoral. But we need not dilate on them. For even if assisted suicide and active voluntary euthanasia were shown to be immoral in any of the above senses, it would not follow without considerable further argument that they should be illegal. We might view them as many currently do homosexuality and adultery: immoral, perhaps, but nonetheless not the law’s business.
(c) Practical objections to legalization
On the other hand, we cannot infer from the fact that assisted suicide and active voluntary euthanasia are not in themselves immoral that they should be legalized, for it may be that their legalization will not serve its intended purpose, or will be unnecessary, or attended with countervailing dangers and drawbacks. It is on precisely such considerations that most legal writers who oppose the practices in question rely, and we now turn to the objections which have been assembled under this head.
Objection 1 There is always the possibility of an incorrect diagnosis or the discovery of a treatment which will permit either survival or recovery.32
Reply While these things cannot be ruled out as absolutely impossible, they can often be ruled out as impossible for all practical purposes. It is frequently beyond all reasonable doubt that the diagnosis is mistaken or some cure will not be discovered in time to help, and it is not clear why this should not be sufficient. The law has never taken a “pigs might fly” attitude towards the risks attendant on any activity. We only need to establish “guilt beyond reasonable doubt” to send a person to prison or even to his execution, and it is not possible to require more without making the enforcement of the law impossible. Why a more stringent standard should be demanded in the cases of assisted suicide and active voluntary euthanasia needs to be explained.
Moreover, when the likelihood of being restored to what one would regard as a worthwhile life is small, and that of enormous pain and degradation relievable only by death great, no one can plausibly say that the decision to die is an unreasonable one. But if so, respect for the autonomy of the individual requires that we not prohibit him from authorizing others to help put it into effect.33
Objection 2 We can never be absolutely sure that we have voluntary and informed consent. If the request is made prior to patients’ coming to be in a desperately bad way—say in the form of a living will—it cannot be considered binding because it is insufficiently informed. On the other hand, if the request is made when patients are in a bad way, then the pain and drugs prevent them from making a fully rational decision. In either case, it is not possible to secure a death-request which would justify the deed.34
Reply For reasons given in the Reply to Objection 1, the demand for absolute certainty with which this objection begins is too strong. But even if we purge the complaint of that feature, it is still not good. It is indeed true that prior request ought not always be considered binding. Certainly it should not be if individuals subsequently renounce their decisions. Again, if individuals alternately reaffirm and renounce their decisions we may be in a quandary about what to do. But it cannot reasonably be claimed that a prior request can never be binding because it is always insufficiently informed. If individuals reaffirm their decisions under pain, after the first shock of it has passed, we have very good grounds for claiming to know their fixed and settled desires.
Again, if individuals fall into a state which does not permit them to either reaffirm or renounce their decisions, and are not expected to recover from that state, then we have the same reason to act on their prior death-requests as we would subsequently have to distribute their estates in accordance with their wills. In both cases, such decisions are momentous, irrevocable, and ones that might not have been made if the persons could have foreseen their futures. But to deny the bindingness of such requests is to say that persons should not be permitted to make such decisions, and that is surely unacceptable.
Where the individuals make the death-requests in pain and under the influence of narcotics, it must be admitted that they are not in the best condition to make a fully rational decision. But it must also be granted that they are in an excellent position to say whether or not they wants to continue living in such a state.
It may also be that such an existence is the best they can expect, and there will come a time when it is quite unreasonable to tell patients that they will adjust to their condition, and a time when it is unreasonable to hold out any hope for any improvement. It is hard to see why the appropriate facts of this sort, conjoined with the patients’ judgment that their present state is intolerable, should not yield a request for death that is sufficient to justify action.35
Objection 3 The chronically and terminally ill are often vulnerable and feel themselves to be (and often are) a burden to others. Many of the ill, however, are not tired of life and do not want to die. But if assisted suicide and active voluntary euthanasia were readily available, they might feel obligated to opt for death, and relatives or others in whose care they are, who often would just as soon be rid of the burden, may consciously or unconsciously exert pressures, in a way difficult to detect and avoid, to request assistance in committing suicide or active voluntary euthanasia.36
Reply It is unrealistic to suppose that some such tragedies will not occur. But that should not be taken as a decisive objection to the practices in question. We allow policemen to carry guns and young people to choose their marriage partners, and tragedies result from these too. But we accept such tragedies, however regretfully, as a part of the price of policies which are on the whole beneficial, and a similar line is plausible in the case of assisted suicide and active voluntary euthanasia.
It is a mistake to think that if we do not liberalize the law no tragedies will occur. The pain and degradation which euthanasia laws address will continue; the sick will continue occasionally to attempt suicide in ways which are neither painless to themselves or others nor always successful; friends and relatives will be faced with the terrible choice of either standing by and watching the suffering and disintegration of a loved one, or acting in a way which is contrary to law and for which they have no expertise.
We must also be careful not to exaggerate the susceptibility of persons. Persons who are competent to make a legally binding death-requests will also typically be able to resist the pressures in question; if they cannot do the latter, they will not typically be able to do the former. Nor should we presuppose that the pressures in question cannot be adequately counteracted by informal means such as counselling and discussion. If they can be—and there is no reason to think otherwise—it would certainly be more appropriate to so control them, for we do not thereby deprive everyone of the right to death in order to protect a few who could be protected in some other way.
Objection 4 Legalizing assisted suicide and active voluntary euthanasia today will lead to active nonvoluntary euthanasia tomorrow, and that will lead to active involuntary euthanasia the day after: the antisocial, the ethnically unattractive, the politically deviant, the aged, etc., will all become potential victims. Thus if we do not draw the line where it is, we will not be able to prevent substantial harm to others. This is the famous slippery slope or wedge or camel’s Nose argument.37
Reply This argument is singularly implausible if one who makes it means that there is alogicalconnection between the killings in question such that one who endorses the first cannot without inconsistency refuse to endorse the last.38 The fact that in one case a person is killed in his own interest because he requests it, whereas in the other a person is killed in the interest of others without (or contrary to) his consent, is surely a morally relevant difference. Since this is so, the question “How can we draw the line?” should not perplex one for long. No one thinks that making killing in self-defense an exception to criminal homicide starts one on a slippery slope which logically must end in the abolition of the crime of murder; no one should think the same about legalizing voluntary euthanasia.
A more common and plausible way of understanding the objection is to take it as alleging anempirical connection between the killings in question.39 If, however, the claim is an empirical one, it stands in need of evidence. What is the evidence that a policy of allowing death on request, begun in good faith and motivated by compassion, will lead to unwanted killings?
Two items of evidence are commonly alleged. The first is the Nazi experience.40 However, there is no parity between the cases; all they have in common is the name “euthanasia”. In these cases, the name stands for quite different policies. The Nazi program of “euthanasia” was neither voluntary nor based on compassion; it was, rather, motivated by the desire to remove “useless eaters” and preserve the purity of the Volk, and hence was the result of a vicious and racist ideology already firmly in place, not the unwanted and unexpected upshot of an intrinsically desirable social reform.41
The second, which is currently attracting the most attention, is the Netherlands experience. In the Netherlands we have a living laboratory in which the euthanasia experiment in being conducted, and it is claimed that active nonvoluntary and involuntary euthanasia are openly practiced there, exactly as predicted by the slippery slope argument.42
The claim of the open and common practice of involuntary euthanasia has been often repeated (e.g., see comments by Mr. Justice Sopinka in Rodriguez),43 but has never been substantiated, and indeed has been repeatedly challenged.44
There is, however, firm evidence of a significant incidence of nonvoluntary euthanasia. The Remmelink Commission (1991) reports that of Holland’s 130,000 deaths in 1990, 0.8% (1000 cases) were as a result of active nonvoluntary euthanasia,45 and there is no reason to doubt that this is a minimum figure. But we cannot immediately infer that a slippery slope has taken place, or that it was a mistake (which we should not repeat in Canada) to legalize assisted suicide and active voluntary euthanasia.
To begin with, to say that a slippery slope has taken place is to make a causal claim to the effect that legalizing assisted suicide and active voluntary euthanasia caused an increase in the incidence of active nonvoluntary euthanasia. But a high incidence rate does not, in itself, establish causation.
Nor can one argue for causation on the ground that legalizing assisted suicide and active voluntary euthanasia was followed by an increase in active nonvoluntary euthanasia. For even if there were evidence for this (which there is not), that would commit the post hoc ergo propter hoc fallacy. It would be like arguing that the growth of teeth in infants is caused by the growth of hair, because the former follows the latter. To establish causation, it is necessary to show that if assisted suicide and active voluntary euthanasia were not legalized, then there would not have been an increase in incidence of active nonvoluntary euthanasia. However, there is no evidence to support this, and hence no evidence for a slippery slope having taken place in Holland.
Moreover, even if a slippery slope were demonstrated, the wrongness of legalizing assisted suicide and active voluntary euthanasia would not follow without considerable further argument. Two defenses are open to defenders of legalization.
First, one can argue that the occurrence of that incidence of active nonvoluntary euthanasia is a regrettable but acceptable consequence of an on-balance beneficial policy. This is the argument invoked in the Reply to Objection 3, which accepts the downside alleged, but contends that there is a countervailing upside.
Second, one can take the line that the incidence of active nonvoluntary euthanasia is acceptable and not regrettable. The cases of active nonvoluntary euthanasia which comprise the bulk of those which occurred in Holland involved severely defective newborns or debilitated elders (many of whom had made a prior request for euthanasia, but not in a way which satisfied the stringent consent requirements laid down in Dutch law). Further, some Dutch physicians argue that active nonvoluntary euthanasia is more humane and dignified for all concerned than the alternatives of keeping the patient alive or letting nature take its course.
But let us now suppose that all the above is mistaken; let us suppose, that is, that slippery slope has taken place in Holland, and that this is unacceptable. The question still remains whether this provides compelling evidence that a slippery slope would certainly or likely occur if assisted suicide and active voluntary euthanasia were legalized in Canada.
There is a difference between the two cultures which makes that inference problematic.46 There also may be ways of making legal space for those practices—say with greater safeguards or stiffer penalties—which will prevent unacceptable results. Even if Holland’s way of legalizing assisted suicide and active voluntary euthanasia led to active nonvoluntary euthanasia there, that provides no evidence for saying that other means of legalizing those practices will lead to that consequence elsewhere.
The upshot of the above is that we do not have convincing evidence that legalizing assisted suicide or active voluntary euthanasia will certainly or probably lead to unacceptable consequences. Thus the empirical version of the slippery slope argument fares no better than the logical version.
There is one final version of the slippery slope argument to be considered. It is sometimes argued that while there is no evidence for a slippery slope taking place, it is something which everyone must admit is possible, and do we want to take that chance?
This argument assumes that things are just fine now. The problem with the argument is that the assumption is false. There are the Sue Rodriguezes of the world whose autonomy is violated and suffering is unmitigated; as indicated in the Reply to Objection 3, one should not think that there is no down-side to maintaining the status quo. We know that legalizing assisted suicide and active voluntary euthanasia will help. We do not have any evidence that bad consequences will ensue. Put this way, which we submit is the accurate way, the gamble seems eminently reasonable.
Objection 5 The proposed legislation would make it easier to commit malevolent homicide. Many people want, and badly want, to be rid of others, and the deaths of those persons could be brought about under the cover of voluntary euthanasia.47
Reply This objection applies with equal force to allowing killing in self-defense as non-criminal homicide. So, insofar as it is not used to advocate the repeal of that classification, its application to the case of voluntary euthanasia is unsound and discriminatory.
With certain safeguards (e.g., suitable witnessing procedures such as those discussed in Part C), it would also be difficult to pass off murder as euthanasia. Certainly that would be no easier—and probably a good deal harder—to do than to pass of murder as self-defense or suicide. Since this is so, it is unlikely that legalizing voluntary euthanasia will cause an increase in the incidence of murder or of undetected murder.48
Objection 6 Patients seeking assisted suicide or active voluntary euthanasia clearly do not wish to prolong their agony, but seeks a quick end to their suffering. Yet any proposal for the legalization of these practices must necessarily include some process of ensuring that their decision is voluntary and informed. Any such procedures would have to be carefully followed and the results painstakingly confirmed. All this would demand time, and by wrapping the decision-making process in red tape, create the very delays which those who advocate the practices seek to avoid.49
Reply To ensure that assisted suicide and active voluntary euthanasia are not misapplied, time consuming procedures must be followed. But to conclude from this that these practices should not be legalized is like arguing that no one should get a driver’s licence or unemployment benefits, because it would be irresponsible to hand them out without verifying the information, and that means that people cannot get them as speedily as they wish.
The unavoidable necessity of delaying assisted suicide and active voluntary euthanasia is no reason for denying them altogether. We must also not exaggerate the time and red tape that need be involved in following procedures which are reasonable safeguards against misuse and abuse.50 (See Part C for a discussion of these.)
Objection 7 The medical profession exists to provide important professional services, and neither wants to be nor should be involved in the kind of bureaucratic activity involved in responsibly administering the delivery of assisted suicide and active voluntary euthanasia.51
Reply This objection begs the question by assuming that assisted suicide and active voluntary euthanasia are not “important professional services.” But that is false. It is important to most people to die painlessly and with dignity, and engineering such a death by way of assisting suicide or delivering active voluntary euthanasia is a matter calling for medical expertise. Grant this, and the objection that we should not legalize the practices because of the paperwork involved—which could not be any greater than that involved in determinations of competency—is embarrassingly lame.
Objection 8 The extraordinary development of palliative care and pain control in recent years is a more positive and safer response to the problems than assisted suicide or active voluntary euthanasia.52
Reply The hospice movement and advances in pain control are certainly welcome developments which do something to reduce the need for legalizing assisted suicide and active voluntary euthanasia. But they do not remove it altogether, and we should not view these things as alternatives.
There are indeed drugs which, if properly administered, can control pain. Nonetheless, insofar as the patient remains conscious, there are other forms of distress such as the terror of breathlessness, uncontrollable vomiting, paralysis, incontinence, inability to swallow and sheer weakness and helplessness which cannot always be adequately controlled. We must also remember that it is often difficult to arrive at and maintain the correct dosage of drugs under the most conscientious surveillance of patients, and the practical realities of contemporary medical care mean the patients often get less than this.
However, even if pain and distress were not a problem, there is frequently a strong fear on the part of patients of the abject dependency and degradation involved in the loss of bodily and mental functions which often accompany the dying process, and no amount of care services can remove these.53
Objection 9 The legalization of assisted suicide and active voluntary euthanasia will discourage the search for new cures and treatments for the terminally ill patient.54
Reply Mill once commented that there is no difficulty in showing any policy to work ill if we conjoin idiocy with it; and if we suppose that people will accept assisted suicide and active voluntary euthanasia as substitutes for treatments and cures, there is no difficulty in showing a serious problem with their legalization. But if one is to look askance at these practices for this reason, one must do so at a host of other things as well, such as improvements in palliative care, fire and theft insurance, and airbags in automobiles.
But this is surely absurd. There is no reason to think these mitigating measures have that effect, and it remains to be shown why we should think that legalizing assisted suicide and active voluntary euthanasia would have it either.
Objection 10 Patients who struggle to recover have better recovery rates than those who have given up hope. The availability of assisted suicide and active voluntary euthanasia will encourage patients to give up, and so significantly decrease their chances for recovery.55
Reply On the face of it, this argument applies with equal force against allowing people to divorce, drop out of college, or refuse medical treatment, for removing those options would likewise make people struggle with sometimes good effect. But even if we limit the scope of the argument to assisted suicide and active voluntary euthanasia, it is not a good one.
One cannot argue that the struggle would be beneficial in all cases. Nor could one realistically argue that medical prognoses are so fallible that it may be valuable in any given case. The prohibition must therefore be based on the claim that it would be beneficial on the whole. There is, however, no evidence to suppose that this is so. But even if there were, criminalizing the conduct for this reason relies on a questionable theory of interference.
Certainly, society may interfere to prevent individuals from harming others. It is more problematical, but also arguable, that it may interfere to prevent unencumbered individuals from harming themselves. This argument, however, depends on the still more controversial view that society can prevent some unencumbered individuals from acting in their interest in order to prevent other unencumbered individuals from acting to their detriment, and this principle seems impossibly strong.
This brings us to an end of our review of the arguments for and against assisted suicide and active voluntary euthanasia.56
Two things are evident: the arguments against these practices are very weak, and each applies with equal force against some other entrenched practice or practices, most notably passive voluntary euthanasia (all except Objection 5) and killing in self-defense (Objections 4 and 5). Given the latter, if we do not allow the arguments to rule out those practices, we should not let them rule out assisted suicide and active voluntary euthanasia. And, given the former, we should not allow the arguments to rule out those practices. Thus we have failed to find any objection sufficient to cancel the prima faciecase in favour of assisted suicide and active voluntary euthanasia. Unless some such objection is produced, legal provision should be made for those practices.
In the first part of this paper we sketched out the main lines of argument that have been used in Canada and elsewhere by those who have thought seriously about when, if at all, the law should permit one human being to assist another human being in ending that person’s life.
We drew one broad conclusion from this review. Canadian law as it currently stands unjustifiably prohibits individuals from offering forms of assistance that ought to be available to people who have made deliberate and rational decisions to end their own lives. This issue involves a central principle of civil liberties, supported by a reasonably broad social consensus.
We also noted that there are good reasons for retaining some legal limits on the kinds of situations in which assistance can be given to those who express a desire to end their own lives. Again, it is our view that at least some such limits can be identified as a matter of both principle and social consensus, though it is much more problematic to specify the exact point at which broad social consensus about particular issues of principle begins to dissolve.
These views should not come as any great surprise. They are implicit both in the various judgments in the Rodriguez57 case and in the public reaction to the issues of principle that underlay the legal pronouncements in that case.
A point of further clarification is useful, however, before we go on to address the implications for public policy of these views. We are not asserting that general dissatisfaction with the current state of the law can be translated easily into a comparable degree of support for any particular measure that might be chosen to replace the current law. But we are confident that the current state of the law does not permit a proper response to legitimate demands for lawful assistance in suicide. The law should be changed to accept the legitimacy of that demand, however difficult the process may be.
Broadly speaking, there are three approaches that can be taken to the creation of space for some forms of assistance to individuals who have decided to end their own lives.
The first is to maintain the current state of the law as a matter of form but to ensure, as a matter of practice, that the law will not be enforced in certain types of situations, although presumably the law would be enforced in other situations.
The second is to change the law to create either a defence to criminal prosecution or, less satisfactorily, to reduce penalties for certain types of assistance to those who wish to end their own lives in appropriate circumstances. The third is to adopt a broader regulatory approach to the problem of striking the balance between the need to create space for the legitimate provision of assistance in suicide and the need to prevent the abuse of this opportunity, particularly as it affects vulnerable individuals.
It is our view that the first approach is very significant flawed and that the second, while deserving of some attention, remains unsatisfactory. We will briefly set out our reasons for this view, and then go on in Part C of this brief to outline the considerations that need to be addressed if a workable regulatory scheme is to be implemented. Although we will identify what we believe are the issues that have to be addressed in the creation of a regulatory scheme, we will not seek to make recommendations on which choices are most appropriate, since we see that as being the subject of a separate paper.
We start with the observation that, on the surface at least, selective enforcement of the current legal prohibitions on assisted suicide, found in s. 241(b) of the Criminal Code and elsewhere, seems to represent the current state of affairs.
This is not to say that the legal system currently acknowledges a right to provide suicide assistance, but if Mr. Russell Ogden’s research58 is to be believed (and we have no reason to doubt its reliability), a practice of assisted suicide is developing and prosecutions do not seem to be forthcoming, despite the existence of some degree of public knowledge of the practice.
As long as official policy on the exercise of prosecutorial discretion59 acknowledges the legitimacy of the current law (and in the face of the Rodriguez decision it is difficult for us to see how it could do otherwise), there will be ongoing pressure to prosecute people who provide assistance in suicide even if the government would prefer, as a matter of policy, not to prosecute at least some of the people who are providing such assistance. The uncertainty of this situation will inevitably mean that some people who would be prepared to provide suicide assistance in appropriate circumstances will be unwilling to do so because of the fear of prosecution. In turn, such assistance for those who have a legitimate need for it is likely to be restricted or, at best, very uneven.
Moreover, when a blind eye is turned to assisted suicide and active voluntary euthanasia despite official proscription, it is impossible to prevent abuses.
If those who are well qualified to provide effective suicide assistance are unwilling to do so, their place is likely to be filled in some instances by well-meaning but incompetent individuals who will actually increase the suffering of those who wish to end their lives. We are then faced with the dilemma of either prosecuting these individuals, thereby enhancing concerns about the risk of prosecution in the minds of those who are qualified to provide such a service competently, or recognizing, in effect, the law’s inability to prevent the harms flowing from the incompetent provision of suicide assistance. In addition, and perhaps most importantly, this either/or approach prevents individuals, or society, from addressing in a rational way the proper limits that should be placed on assisted suicide.
One way of addressing these difficulties would be for provincial Attorneys General to abandon any pretence of enforcing the current law and overtly engage in an exercise of announcing under what conditions assisted suicide will be prosecuted and under what conditions the current laws will not be enforced.60 This approach raises several easily identified problems, both for citizens and for the federal government.
From the point of view of citizens, as long as a criminal law is in place, an assurance from the current provincial Attorney General that prosecutions will not take place offers insufficient assurance for those who are prepared to provide suicide assistance, thus failing to alleviate the concerns raised above.
Moreover, such a policy pronouncement is likely to invite litigation from those who object to easing the restrictions on assisted suicide. Even if it were difficult for such individuals to obtain standing to challenge the policy, the potential providers of suicide assistance would have reason to believe that the publicity attendant upon such litigation might weaken the province’s resolve to refrain from prosecuting such cases. Furthermore, any policy based in ignoring specific laws undermines respect for laws in general.
From the federal government’s point of view, allowing the control exercised by provincial Attorneys General over the administration of justice to effectively undermine Parliament’s exclusive jurisdiction over the criminal law would set an extremely dangerous precedent.
Further, in so controversial an area, it is not clear that all provinces would agree to a uniform set of prosecutorial guidelines. Finally, as noted above, it seems unlikely that provincial Attorneys General will be prepared simply to ignore the plain meaning of section 241(b) of the Criminal Code after it is has so recently withstood constitutional challenge in the Supreme Court of Canada.
For all of these reasons, it seems to us that whatever political advantages one might see in imitating the Dutch experience of developing room for assisted suicide and voluntary active euthanasia through the overt exercise of discretion not to prosecute, this approach will not prove to be satisfactory in Canada.
There are two broad approaches to providing defences against criminal prosecution in cases of assisted suicide or voluntary active euthanasia.
The first approach is to provide an absolute defence to a criminal charge in a defined set of circumstances.
The second is to mitigate the penalties associated with the offence in a defined set of circumstances, either by creating a new offence that incorporates what are perceived to be mitigating factors and attaching lesser penalties to that offence, or by allowing the mitigating factors to influence judicial discretion in sentencing. The fundamental difference between these two approaches is that the first concedes that what was done was not wrong as a matter of law, whereas the second retains the notion of wrongfulness but concedes that the nature of the wrong is not as serious as it might be in other circumstances.
Our difficulty with the second variation is that it seems to us highly problematic to make a determination that assisted suicide or voluntary active euthanasia, when done in an appropriately limited range of situations, ought to be considered wrong as a matter of law. Killing in self-defence is not deemed to be wrongful, even though one may regret the death of the person who was killed and even though one may justifiably be cautious about expanding the range of situations that can be defined as permitting killing in self-defence.
In our view, therefore, the mitigation approach does not address the legitimate need for legal space in which appropriately limited acts of assisted suicide and voluntary active euthanasia can take place. Accordingly, we will not explore this option further, but will turn to the creation of a full defence to criminal prosecution for certain acts of assisted suicide and voluntary active euthanasia.
In one respect, this type of defence has to be integrated into the regulatory scheme we propose under the third option set out below. Since we recognize the potential for serious abuse of assisted suicide and voluntary active euthanasia, it is necessary to retain serious penalties for such abuses.
What is needed, therefore, is a vehicle for drawing reasonably clear distinctions between situations in which we are prepared to accept the practice of assisted suicide and voluntary active euthanasia from those situations in which such. The fundamental difference between the use of a criminal defence to establish that boundary and the use of a regulatory approach is that the regulatory approach seeks to provide an individualized determination of whether the necessary conditions have been met in advance of any action being taken to end a person’s life, whereas the criminal defence approach makes that individualized determination only after the fact, in the context of a criminal prosecution carries substantial penalties.
In our view, it is better to make advance determinations in individual situations rather than after the fact determinations.
First of all, the prior authorization provides a higher level of comfort for those in suicide assistance or voluntary active euthanasia. As a consequence, they will make their services more readily available to those who have a legitimate claim.
Secondly, and of equal importance, a regulatory mechanism offers the potential for more effective controls on abuse. We expect that the availability of prior authorization will tend to channel cases of assisted suicide and voluntary active euthanasia through the regulatory system so we can get a better sense of what is actually happening in society. As long as the threat of prosecution exists, these practices are likely to continue to be secretive, with all the attendant difficulties in gathering evidence about and prosecuting those who go beyond the legitimate boundaries on suicide assistance and voluntary active euthanasia.
Aside from the design of the system of prior authorization itself, most of the considerations that have to be addressed in the context of a regulatory system are also relevant to the design of a criminal defence.61
In other words, even if the federal government decided to create a defence to criminal prosecution rather than a regulatory apparatus to deal with assisted suicide and voluntary active euthanasia, the decisions on the proper limits to the defence will force the government to address most of the questions that we raise as issues to be addressed in the design of a regulatory scheme. Accordingly, we will not attempt to canvass these issues here, but will do so in the context of our discussion of a regulatory scheme.
As we noted above, a system of prior authorization for certain forms of suicide assistance and voluntary active euthanasia provides the most effective vehicle for achieving the twin goals of recognizing the legitimacy of the demand of some Canadians for access to these end-of-life options and for restricting abuse, particularly of those who might be especially vulnerable. Here we will outline the framework of questions that need to be addressed in designing such a regulatory scheme. We will consider each of the elements in more detail in Part C of this brief.
The regulatory scheme must address the following questions at a level of principle:
1. Who is eligible to ask for assistance in suicide or voluntary active euthanasia?
Should we impose qualifications such as requiring that the person be terminally ill, that the person be in severe pain, that the person be physically incapacitated and thus unable to take action to end his or her own life, etc.?
2. How do we determine voluntariness?
What measures are needed to ensure that those who are vulnerable are not subjected to improper influences in deciding to end their own lives?
3. Who should be allowed to provide suicide assistance or voluntary active euthanasia?
Should we restrict the practice to those who, because of their medical training, are in a position to ensure that death will be swift and painless?
4. What mechanisms should be put in place for ensuring that the necessary conditions are met before steps are taken to end a person’s life?
In addition there are a number of practical administrative questions, involving such things as:
- what mechanisms, if any, should be put in place to review decisions to grant or withhold aid-in-dying;
- should government seek to regulate the method to be used to provide aid-in-dying; and
- what mechanisms should be established for record keeping and analysis of social trends in relation to assisted suicide and voluntary active euthanasia.
A more detailed discussion of the range of plausible approaches to each of these issues is set out below.
The question of who qualifies for assisted suicide and active voluntary euthanasia is perhaps the most critical issue to be addressed.
If the question were to be settled simply by determining who has a good reason for death, access to these practices should be widely liberalized. Life cannot be regarded as an unconditional good, but rather as something which is valuable only if one has the possibility of wanted experiences. If a person cannot have any wanted experiences, or if continuing to live requires unwanted experiences which overbalance the wanted experiences, then that person has a good reason to die. The class of patients who have a good reason to die would include those who have non-terminal and even curable impairments, either physical or mental, and would include the young and the incompetent as well as the adult and competent.
However, we cannot settle the question of who should be eligible for aid-in-dying simply by settling the question of who has a good reason for death. In considering legislation in this area, we must also take into account the very real potential for mistakes and abuse, and these increase dramatically the more eligibility is liberalized. For example, to allow assisted suicide and active voluntary euthanasia on children or those with a mental illness significantly increases the potential for abuse.
We thus find ourselves pushed to a liberal answer by considering who has a good reason to end their life, and to a conservative answer by considering the potential for abuses and mistakes. Below are some of the issues which need to be considered when deciding who is eligible.
(a) Must death be imminent?
Some proposals restrict eligibility to those whose prognosis is for imminent death (say, within six months).62 This minimizes the consequences of abuse and mistakes, for the obvious reason that the patient would have died soon anyway.
However, there are problems with creating such an eligibility requirement. It is often difficult for physicians to provide an accurate prognosis regarding how long the patient has left to live. The restriction seems arbitrary since it is not clear why the remoteness of death should be a determining factor. And it would exclude persons with incurable, but not imminently terminal, progressive illnesses. The perpetual suffering of persons who are not close to death may be of even greater consequence than that of persons whose death is imminent.
(b) Must the condition be terminal?
Several proposals restrict eligibility to those with a terminal illness.63 Such a restriction removes the problematic six-month limitation, but retains some of the appearance of limiting the negative consequences of mistakes and abuses (i.e., the disease will kill the person sooner or later).
It is not clear why a person with an illness that is not terminal ought to be barred from access to aid-in-dying. Non-terminal illnesses such as Alzheimer’s can lead to virtual total impairment of mental or physical capacities, and can progress to a point where the patient can no longer end their life in a dignified and peaceful way without assistance, even though death from the disease may not be inevitable. Quadriplegia is another such condition. If the reasons for allowing aid-in-dying rest on the patient’s judgement that their life is no longer worth living, and if there is no significant increase in the potential for abuse or mistakes attached to such medical conditions, it is questionable why such a limitation should be placed on patient’s access to aid-in-dying.
(c) Must the condition be incurable or irreversible?
There is a plain and obvious reason why this should be a condition of access to aid-in-dying: if the condition which is producing the suffering can be cured or reversed, the patient’s reason for preferring death to life will likely disappear.
However, there may occur circumstances where, in the patient’s view, the cure is worse than the disease. The treatment may be of doubtful efficacy, prolonged, painful, and have such serious side effects that it would not be unreasonable for the patient to prefer death to living with the condition untreated or suffering through the treatment with no guarantee of success. A requirement for counselling, and consultation with another physician, would address most of the concern that allowing access by such persons to assistance in dying would increase the potential for abuse or mistakes. To argue otherwise, evidence of an increased likelihood of abuse or mistakes would need to be produced in order for the presumption of honouring patient autonomy to be overridden.
A point needs to be made here: the more one liberalizes access to aid-in-dying, the greater the number of patients who will seek assistance, and the sheer number of these will inevitably increase the number of abuses and mistakes. But this should not by itself be sufficient to restrict access.
For example, if the likelihood of abuse for patients with terminal illnesses is 1% and the likelihood of abuse for patients with non-terminal but incurable illness is 1%, then a further reason must be presented in order to exclude the latter, despite the fact that including the latter will inevitably increase the number of abuses and mistakes.
(d) Must intolerable pain be present?
We naturally think of intolerable physical pain as a paradigm for access to aid-in-dying since its presence clearly makes continuing to live a burden, and it is to some extent verifiable, thus apparently providing a more objective standard. Some proposals include pain as a criterion.64
Yet there is an inherent problem in including pain as a criterion. It is not only difficult to measure pain, but especially difficult to measure “intolerable” pain, or pain “so great that its elimination would render the patient unconscious”.65 Patients’ reaction to pain is highly individual and subjective, and descriptions of pain (“intolerable” or “unbearable”) admit of no objective standards.
Moreover, it is not obvious why physical pain should be a standard at all. The distress that some patients experience as their mental and physical capacities decay, the indignities caused by the loss of bodily functions and the insertion into their bodies of medical appliances, the terror of breathlessness or uncontrolled vomiting, and so on are mental states worthy of recognition in this matter, as much so as pain whose cause is physical in origin.
Some proposals include technological dependence as a criterion.66 Here, a patient whose prognosis involves continued reliance on the administration of life-sustaining treatment without any reasonable expectation of living without that treatment would qualify for aid-in-dying. It needs to be shown why the hopelessness, distress and indignity that such a life can bring should not bring the patient within the scope of this legislation.
It is important to remember that in limiting legal space for aid-in-dying, Parliament is not be in the business of characterizing certain lives as not worth living and others as worth living. The task in legislating in this area is to provide legal space for aid-in-dying to those whose own view of their lives is that life is not worth living, and who may need assistance in ending an intolerable existence. There will be many who qualify for aid-in-dying but who have no wish to end their lives. The criteria should not reflect society’s view of whether a such a life is worth living, but rather should reflect the point past which the potential for mistakes and abuse overrides the presumption that it should be up to the patient to make such a momentous decision.
(e) Need the patient be physically incapacitated?
What is contemplated in such legislation is provision for assisted suicide and active voluntary euthanasia for those patients who are unable to avail themselves of the means to end their lives in an easy and painless manner.
In this regard we normally think of patients who are physically incapacitated to the point where they cannot swallow a pill or inject themselves. However, the question arises whether other patients should have access to these practices. It is equally against the law to intentionally supply persons with the means to kill themselves, even where the persons are unable to obtain those means by themselves. One thinks here of bedridden patients who could swallow a pill if they could obtain one, but cannot obtain one by themselves. The argument is that it would be unfair to such patients to legally bar them from having someone assist them by supplying the means to commit suicide while at the same time making legal space for incapacitated patients to have assistance in dying.
There would likely be an enormous increase in abuses and mistakes if anyone could legally supply a person with the means to commit suicide. However, if the practice was restricted to physicians, and if the procedural requirements applicable to incapacitated patients were applied in these cases, there is little reason to think that the potential for abuse or mistakes would be any greater in the cases at hand. If such patients are to be barred from aid-in-dying, the evidence for increased potential for abuse or mistakes needs to be presented.
In discussing the creation of legal space for assisted suicide and active voluntary euthanasia, we cannot emphasize too strongly that we are speaking of situations where people themselves have chosen to end their lives. In our view, the most significant concern that policy makers need to address in opening up access to assisted suicide and active voluntary euthanasia is the possibility that the choice of death is not a voluntary one, whether because of improper pressure being placed on the patient or for any other reason.
We consider this issue in our discussion of procedural requirements, and in particular in the context of possible requirements for a waiting period [IV(b)] and patient counselling [IV(c)]. The requirement of voluntariness gives rise not only to issues of undue influence, but also to issues of competence. In our view, a choice cannot be said to be voluntary in any meaningful sense unless it is made by someone whom we are prepared to recognize as having the capacity to understand the nature and consequences of the choice. A regulatory scheme must therefore address the issue of competence to make such a choice.
Most proposals limit access to the competent.67
If patients are not competent to make treatment decisions for themselves, they require a substitute decision maker to make treatment decisions for them, or to confirm such decisions. To make legal space for the incompetent to choose aid-in-dying is then to place the decision to live or die in the hands of the substitute decision maker. Such a provision would substantially increase the potential for abuse and mistakes.
Not allowing the incompetent access to aid-in-dying will result in some patients being forced to continue living hopeless, painful lives which they may not want to continue. Patients do not suffer any the less for being unable to make treatment decisions. However strong the presumption is in favour of competent patients determining when to end their lives, a presumption of the same strength applies to the incompetent. The question is whether the increased potential for abuse and mistakes is enough to outweigh that presumption. The drafters of most proposals have concluded that it is, and we would strongly endorse this view.
(b) Determination of Competence
If competence is regarded as a necessary condition for access to aid-in-dying, the question arises whether the legislation should set out the manner in which is to be determined. Many proposals include such a provision. Among the proposals are: that a mental health evaluation be conducted;68that a skilled counsellor (in conjunction with the attending physician) assess competency;69 that where there is a question about the competence of a patient, it should be resolved by a psychiatrist;70and that the attending physician determines competence.71
Under “normal” conditions, competency is left up to the attending physician to decide. However, where aid-in-dying has been requested, the conditions are often not “normal”: the patient may be near the end of a long series of invasive or painful treatments, under heavy doses of pain medication, and potentially clinically depressed. It is difficult in such circumstances to make an accurate assessment of the patient’s competency.
A provision for the opinion of a mental health professional has distinct advantages. Such a professional will be skilled is assessing competence, and bring an objective view to the assessment, thus lowering the risk that the patient has made the request during a period of temporary, treatable depression. The attending physician may be inexperienced in the diagnosis and treatment of depression.
On the other hand, there will be circumstances where there is no doubt that the patient is competent, and the injection into the process of a mental health evaluation is costly, and may unnecessarily lengthen the time during which the patient must suffer. In addition, the assessment of competence and even of clinical depression in difficult circumstances is not an exact science, so the gain in accuracy may be marginal. Even without special skills, the attending physician (who will likely have spent considerable time with the patient) may often be in the best position to make such an assessment.
The decision whether to require an independent assessment of competency is a difficult one. If it is left to the physician to request an independent assessment when he or she is unsure, the risk is that some incompetent patients may receive aid-in-dying. If an independent assessment is mandatory, the risk is that some, perhaps many, competent patient’s agony will be unnecessarily prolonged.
(c) Should access be restricted to adults?
Most proposals restrict access to adults.72 While this restriction may preclude otherwise compelling requests for assisted death, the vulnerability of children as a class points in favour of their being protected from abuse.
On the other hand, it is not obvious why age by itself should be a criterion. Patients who are 17 or 15 or even 13 years of age are allowed some degree of control over treatment decisions, and they may equally be as competent as any adult to understand the nature and consequences of a request for aid-in-dying. Certainly they do not suffer any the less. A strong argument can be made that some age limit must be set (no seven-year old should be allowed to make such a decision), but it is at least questionable whether the age of majority is the appropriate legal limit.
One alternative would be to require that the patient be competent, then specify that those under a certain age (say, 17) are presumed not to be competent. A decision of incompetency based on this age limit could then be appealed in the courts.
(d) Challenges to ineligibility
Provision could be made in the legislation for a patient to challenge a decision either by the physician or by a review panel that he or she is ineligible for aid-in-dying. Although the initial appeal of a physician’s decision could be to a review panel, it makes sense that the patient ultimately have access to the courts for a review of the decision. Such an appeal should probably be on the facts.
Most legislative proposals restrict the practice of euthanasia to physicians.73 Such a restriction has important benefits to the patient and to others. Physicians have the expertise to assure a painless, dignified death. In addition, physicians would inevitably be involved in the procedural safeguards necessary for a defensible practice. These include seeing that the patient is informed about their condition, prognosis and possible treatments, and ensuring that all possible steps have been taken to improve the quality of the patient’s life. Open discussion and involvement with a physician may also bring to light other options. One necessary protection against abuse of the practice is to limit the persons given authority to perform it, so that they can be held accountable for their exercise of that authority. Physicians are an appropriate group of persons to whom the practice may be restricted.
Some proposals further limit the practice to those physicians who are specially trained and certified in administering aid-in-dying.74 This would create a new “specialty” of physicians who are skilled in relieving suffering and, when necessary, terminating life painlessly. It would have the advantage that patients would avoid being shuffled from physician to physician trying to find one who is willing to assist in death. Some might regard the specialty as “ghoulish” or as transforming aid-in-dying into a “factory-like” practice. It is suggested that this is an issue that need not be addressed in legislation, but could be left to the medical profession.
Other proposals limit aid-in-dying to the practising physician who is currently responsible for the patient’s care. This assures that the person administering aid-in-dying knows most about the patient and his or her condition, and that the practice would be carried out in the context of a meaningful doctor-patient relationship. However, it has the distinct disadvantage that the attending physician may be opposed to physician-assisted death, and could preclude some patients from being able to access a legal and desperately wanted medical treatment.
Finally, there are proposals which would allow persons other than physicians to administer aid-in-dying, so long as they act under the supervision of a physician.75 This would give patients greater control over their own death. However, it has two major disadvantages. Those administering aid-in-dying might not have the knowledge or skill to do so properly, and this could lead to botched attempts. And by widening the number of persons administering aid-in dying, it increases the difficulty of effectively monitoring and regulating the practice.
Whichever proposal is accepted, physicians are going to be involved in the process. This raises the problem of those physicians who on grounds of conscience oppose the practice. Under current law, and under the medical profession’s Code of Ethics, no physician is required to perform any medical procedure to which they are opposed either for ethical or medical reasons. It is clear that such a liberty ought to be extended to aid-in-dying procedures. If doing so requires legislative stipulation, it should be so stipulated.
But then the problem of patients’ access to aid-in-dying is raised, since an attending physician may be opposed on grounds of conscience to the procedure, and may refuse a patient’s request for assistance in ending their life. One suggestion would be not to limit aid-in-dying to the attending physician, and to stipulate in the legislation that when an attending physician who is opposed on grounds of conscience to aid-in-dying receives a request for aid-in-dying, the physician must refer the patient to another physician who is not opposed to such a procedure. Another suggestion would be simply to limit aid-in-dying to physicians, and then leave regulation of this matter up to the medical community.
(a) Form of the request
Most proposals contain a requirement that there be a stipulated form for requests for aid-in-dying, and that patients sign this form in the presence of witnesses.76
There is much to be said for such a form being incorporated in the legislation. This would ensure that the substance of the formal request for aid-in-dying, and so the protections offered both to patients and to physicians, would reflect Parliament’s concerns in this matter and be standard across Canada. Provision could be made for patients who are physically incapable of signing such a form. One suggestion is that patients may designate third parties to sign the forms for them, where the designation and the signing are carried out in the presence of the same witnesses.
Some proposals also require that the two witnesses to the signing of a form of request for aid-in-dying be “independent” or “disinterested”. This requirement is intended to lower the potential for undue influence or subtle coercion on the part of family members or others who may be affected by the patients’ death, or who may have too close a relationship with the physicians.
It has been suggested that “disinterested” means a person “not related by blood or marriage and who will receive no portion of the patient’s estate upon the patient’s death”.77
“Independent” has been taken to mean that “a witness may not be (i) related to the declarant by blood or marriage; (ii) entitled to any part of the estate of the declarant; (iii) directly, financially responsible for the declarant’s medical care, and (iv) the attending physician, or an employee of the attending physician, or an employee of a health care facility in which the declarant is a patient”.78 The problem of knowing who will receive a portion of a patient’s estate could perhaps be overcome by having the witnesses sign a declaration as to their independent or disinterested status, which includes “to the best of my knowledge, I will not receive any portion of the patient’s estate”.
It is probably best that in witnessing the patient’s signature, the witnesses only attest that the signature on the request for aid-in-dying form is that of the patient, i.e., that it matches the patient’s name. It would likely be unduly onerous for the witnesses to have to satisfy themselves that the patient is of sound mind, not under duress or undue influence, and so on. In any case, they would not often have the expertise to make such a determination in any meaningful manner. But if that is all they are attesting to, it is questionable whether they need to be either “disinterested” or “independent” as these are defined above.
(b) Waiting period
A waiting period between the time of the request and the time of the procedure is sometimes recommended in order to ensure that patients have not decided too quickly that they want to die.79Such a requirement seeks to confirm that the request is not a transient product of depression, of impulse, or of judgement distorted by pain.
Any such requirement must strike a balance between the need to ensure that the request flows from a firm decision, and the need not to unnecessarily prolong suffering. One option is to require a specified time period between the signing of the request form and the administration of aid-in-dying, say 30 days. Another is to require that the patient “clearly and repeatedly” request to die. A third is to specify no such time period or sign of a firm decision, once the other requirements of the legislation have been met.80
The advantage of the first option is that patients do not have to keep on asking for death; rather they simply have to show no indication that they have changed their minds. The requirement for repeatedly asking for death sets up an artificial situation where patients would have to be informed that this is a requirement, and the requests would flow from the patients’ knowledge of the requirement. On the other hand, a specified waiting period risks putting patients through unnecessary suffering when their decision has been firm from the time of the request. The third option, which specifies no waiting period, answers both these problems, but takes no notice of the possibility that patients might, if given time, hesitate or change their minds.
There is probably no perfect solution to this problem. Parliament should remember that a requirement for counselling of patients will have addressed the question of whether there is a firm and settled desire for death, and there should be a clear specification that if at any time up to the last moment a patient wavers, the procedure is suspended. Beyond these safeguards, any waiting period of more than a few days would likely result in unnecessary suffering. Given enough time, any patient may waver regarding such a momentous decision, but that does not show that a quick death was a mistake. Patient autonomy, and the terrible toll of such suffering, bear much weight.
Although it is assumed that as part of their professional responsibilities attending physicians will have discussed the patient’s diagnosis, prognosis and options for relieving pain and discomfort with the patient and the patient’s family, there is much to be said for including in the legislation a requirement for patient and family counselling prior to a signed request for death becoming valid. In light ofObjection 3, Part A, it might be appropriate for there to be a stipulation that counselling include discussion of the patient feeling themselves to be a burden to others, and any pressure that they feel from others to access the aid-in-dying option.
It is in our view fundamental to the legality of assisted suicide and active voluntary euthanasia that the patient was fully informed of all the factors relevant to a decision to request assistance in dying and that they were capable of understanding and appreciating these. There should be no doubt in a physician’s mind what the legal requirements are regarding an informed decision to request death, and the best way to ensure this is to set it out in the legislation. Where the patient has no family members involved in treatment decisions, their absence should be noted by the physician in the documentation.
Many proposals require that the attending physician consult with another physician to confirm the diagnosis and prognosis,81 although some require only that consultation take place when the attending physician is uncertain about the patient’s condition or prognosis.82
There is a pronounced advantage to a requirement for consultation in all cases. One of the concerns expressed by the majority of objectors to legalizing these practices is the potential for a misdiagnosis or prognosis. (see Part A, Objection 1, on page 16). An unnecessary death is irreversible and a tragedy. Further, there is no question but that most patients and their loved ones would want to be as certain as possible that a diagnosis of a terminal illness is correct. The concern here is not unreasonable. The legislation might include a requirement that the physician consulted be independent (i.e., not a colleague of the attending physician and not previously involved in the patient’s care), that he or she conduct their own examination of the patient, and certify in writing that the diagnosis and prognosis are confirmed. This would address the concern that it might be too easy to find a “complaisant” colleague who merely “approves” the diagnosis as a formality. The legislation might also require that the consulted physician be experienced in the area of the diagnosis.
The disadvantage of such a requirement is that there are time and cost factors involved in having another physician examine the patient. In some cases a second opinion might have already been obtained. In others, especially in the final stages of an illness, there may be no real question about the nature and course of the illness.
Many proposals require that an aid-in-dying request be submitted to a panel for review, such as an Aid-In-Dying Board, a tribunal, or a hospital Ethics Committee.83 Others provide for a review only when the physician feels it necessary.84 And amongst these proposals there is disagreement as to whether the panel or Board should have the power to veto a patient’s request for aid-in-dying, or rather simply assure that all procedural requirements have been met. It has been suggested that membership in such panels or Boards should consist of representatives from a cross-section of professional backgrounds, and include a representative from the field of ethics or civil liberties.85
This proposal flows from the view that independent review before the assisted death is carried out is an essential safeguard against wrongdoing or possible errors in judgement. Errors here can have tragic and irreversible results. Moreover, there is a need to ensure the integrity of the process of aid-in-dying, given the concern about it which has been expressed in some quarters.
The difficulty with such a proposal is that administrative delays and obstruction may result from the institutional inertia of requiring a procedural review. Moreover, the physician will be well aware of their professional obligations, and of the necessity to satisfy all procedural requirements (on pain of aCriminal Code charge). As a result, there is little likelihood that these would not be satisfied. A requirement that the attending physician submit all documentation to the Coroner’s Office (see below) would further ensure that all procedural requirements were met.
Another difficulty is that, given legal liability, even a procedural review by a Board may in practice result in the Board having veto power. An alternative proposal which could answer this concern would be to require the physician to go over the procedural requirements in a case conference with members from a hospital’s ethics committee.
There is also a concern that aid-in-dying is essentially a matter between the patient and his or her physician, and should not be open to review by any panel or Board, whose members will have had no contact with the patient, and who may well reflect the biases of their respective disciplines rather than the interests of the patient and the community at large. Thus, a procedural review may not be necessary, and a substantive review would not be welcome.
In deciding this issue, Parliament will have to address two issues. Is it proper for a review panel to have the authority to approve or reject on substantive grounds an application for aid-in-dying—that is, to second guess a patient’s decision made in consultation with their physician? And does the need to ensure the integrity of the process outweigh the concern that a review on procedural grounds is both unnecessary and poses a risk of undue delays? Provision for a strict time limit (say, five days) could partially answer the second concern, and address the concern raised in Objection 6, Part A (page 26).
Some proposals stipulate conditions for the method to be used in aid-in-dying. For example, one proposal stipulates that the method must be the least active possible.86 Others stipulate that it may be any method which will terminate the life swiftly, painlessly and humanely.87 Some place the control of the method in the hands of the patient, others in the hands of the physician.
It is unclear why the activeness of the method is thought to be relevant to the decision. If the method needs to be characterized in the legislation at all, it should be characterized in terms of the case for aid-in-dying—that is, the one producing the easiest and most dignified death. There is much to be said for the choice of the method being placed in the hands of the patient. What is important is which method is “easiest” and “most dignified” in the eyes of the patient. If the method chosen by the patient is not acceptable to the physician, the physician always has the option not to administer the treatment. There is also much to be said for leaving this issue out of any legislation, and consider it as a matter best dealt with by the medical profession.
Some proposals contain stringent requirements for documentation and reporting by the physician in order to provide for a continuous monitoring of the practice, and as an additional check to safeguard against mistakes and abuses.
For example, the Netherlands requires that the physician maintain records of the patient’s request, the patient’s condition, counselling, the findings of the Aid-in-Dying Board, the name of the physician providing aid-in-dying, and the date and time of aid-in-dying. In addition, the physician must submit a report with supporting documents to the Coroner, who must review the report, determine the cause of death, and present a follow-up report to the Attorney General’s office.88
Documentation and reporting requirements are important. They can provide for a review of the physician’s conduct in the individual case, and provide the information for continuous study of the practice. We can see no good reason for excluding such requirements from the legislation.
Issues surrounding end of life decisions have become a persistent feature of the Canadian political landscape. Failure of a private member’s bill in the previous Parliament did not by any means bring this issue to a close. Sue Rodriguez’s tragic journey through the courts reemphasized the need for recognition of these issues which affect every Canadian in a visceral and heart wrenching fashion. Public opinion is now ready to grapple with these issues, and an open and frank discussion of the promise and problems surrounding the end of life now lies at the doorstep of the federal government, regardless of the political stripe of the party in power.
The threshold issue of whether to permit aid-in-dying at all will require religious and secular perspectives and a thorough review of the personal and professional issues, both for those seeking aid-in-dying and the professionals involved in the care of those who seek aid-in-dying. An effective and functional policy on these issues cannot evolve without some degree of consensus amongst the many voices in our society affected by such profoundly personal matters.
Our own perspective on the threshold issue of whether or not to allow aid-in-dying is clearly on the side of personal autonomy for the individual facing death. Practical policy constraints arise when one considers who should be eligible, how, and under what circumstances. The state must impose some reasonable constraints on eligibility and upon those performing the acts which result in the death of another. But once the state permits aid-in-dying, it has an obligation to ensure that such deaths will be timely, painless and with minimum anxiety arising from bureaucratic process. The state must ensure that the person requesting death is indeed an appropriate candidate, but once that is established, the state surely has an obligation to respect that wish for early death, rather than to encumber these most vulnerable and helpless people with red tape and administrative delay.
A functional regime for the regulation of assisted suicide and voluntary euthanasia will require that individuals be screened for eligibility in a timely and compassionate fashion, that they have the services of an appropriately skilled physician available for effective assistance in dying, and that there be effective reporting and monitoring of such deaths. Monitoring is essential to provide Canadians with assurances that abuses of the option for early death are minimal, that appropriate process is followed, and that inappropriate actions by families, care givers and the state itself are properly controlled, penalized or ended.
Once such a framework is in place, it must be well publicized. The goal of all of these policy building efforts must be to ensure that all Canadians, both lay and professional, have confidence that they can come to the end of life knowing what the rules are—and that they may therefore face death with less fear, knowing that a compassionate and reasonable approach to end of life decisions is available to them.
1. For a review of legislative positions on assisted suicide and active voluntary euthanasia, see Helen Silving, “Euthanasia: A Study in Comparative Criminal Law,” University of Pennsylvania Law Review, Vol. 103, No. 3 (1954), pp. 350-89, on which we have relied heavily.
4. Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law (St. Paul: West Publishing Co., 1972), sec. 74, pp. 568-569, write:
“In America today the forfeiture-of-goods and ignominious-burial forms of punishment have been abolished, so that no penalty attaches to a successful suicide; but some states [e.g. Alabama, Oregon and South Carolina] which retain common law crimes nevertheless speak of suicide as a “criminal” or “unlawful” act though, not being punishable, not strictly-speaking a crime…. In states which have abolished common law crimes… suicide can be no crime in the absence of a statute making it so…. No state has a statute making it so… No state has a statute making successful suicide a crime.”
5. See State v. Willis, 2556 N.C. 473, 121 S.E.2d. 854 (1961). North Carolina maintains attempted suicide as a misdemeanour. See also State v. Levelle, 34 S.C. 120, 12 S.E. 310 (1891). s.c. code Ann. secs 17-122 (Law. Co-op 1962) ascribes the common character of felony to attempted suicide.
6. swiss penal code art 115 provides: “Whoever, from selfish motives, induces another to commit suicide or assists him therein shall be punished, if the suicide was successful or attempted, by confinement in a penitentiary for not more than five years or by imprisonment.”
7. italian penal code art 580 reads: “Whoever instigates another to commit suicide or reinforces his intention to do so or in any manner promotes the execution of suicide shall be punished, where the suicide is successful, by confinement from five to twelve years. Where the suicide is not successful, such person shall be punished by confinement from one year to five years, provided that the attempt at suicide results in a serious or very grave personal injury.” new york penal law sections 2304, 2305 (1944) provides that assisting suicide is manslaughter in the first degree or just a felony depending on whether the suicide was successful or remained in the stage of an attempt.
8. The Texas legislature has determined that suicide is not a crime and, therefore, has decriminalized the act of assisting another in suicide. Aven v. State, 102 Tex. Crim. 478, 277 S.W. 1080 (1925). Defendant furnished the means for committing suicide but the court held no crime existed.
9. See, e.g., (1) McMahan v. State, 168 Ala. 70, 53 So. 89 (1910). Pursuant to a suicide pact, the deceased shot himself in the presence of the defendant; however, the defendant did not shoot himself. The court held that since suicide is self-murder, the defendant who encouraged was guilty as a principal to murder. Id.; (2) Burnett v. People, 204 Ill. 208, 68 N.E. 505 (1903). Both the deceased and the defendant admitted to having taken poison as a result of a suicide pact. The defendant survived. The court indicated that this would be murder on the defendant’s part; (3) Commonwealth v. Hicks, 118 Ky. 637, 82 S.W. 265 (1904). The court held that one who aided another in the commission of suicide was guilty of homicide as an accomplice; (4) Commonwealth v. Bowen, 13 Mass. 356 (1916). The defendant, a prisoner, advised a fellow prisoner who was to be executed the following day to “cheat” the hangman, i.e., to commit suicide. The Supreme Judicial Court instructed the jury that if the advice was the persuading element, then the fellow prisoner would be guilty of murder; (5) People v. Roberts, 211 Mich. 187 178 N.W. 690 (1920). The defendant-husband in this case prepared Paris greens (a poison) for his wife and placed it near her bedside at her request. The court convicted Roberts of murder as an accomplice to her suicide.
14. Article 63 of the swiss penal code provides: “The judge shall mete out punishment in accordance with the guilt of the actor; he shall consider the motives, the prior life and the personal circumstances of the guilty person.” And art. 64 allows: “The judge may mitigate the punishment… where the actor was induced to commit the act (acted) by honorable motives….” german penal code sec 213 provides: “Where the manslayer was aroused to anger by ill treatment or by a grave insult inflicted upon him or upon one of his relatives—without his fault—by the deceased and was thereby instantly moved to commit the act, or where there are other extenuating circumstances, the punishment shall be imprisonment for not less than six months.”
15. Norwegian penal code section 235 provides: “Punishment according to sections 228 and 229 (bodily injury and rendering a person unconscious) shall not be applied where the action was committed with consent of the victim. Where a person was killed or suffered considerable damage to his body or health with his own consent, or where an actor motivated by mercy takes the life of a hopelessly ill person, or assists in such act of killing, the punishment may be reduced below the minimum fixed by statute and a milder form of penalty may be imposed.”
16. Section 460 of that Code provided as follows: “A person guilty of homicide performed at the (urgent) request of the person killed and out of compassion for him shall be punished by confinement in a fortress [custodia honesta] for a term not exceeding three years.”
17. Polish penal code article 227 (1932) provides: “Whoever kills a human being at his request and under the influence of compassion for him shall be punished by imprisonment up to five years or by detention.”
18. Penal code of uruguay art 37 (Law No. 9155), promulgated Dec. 4, 1933, effective as of July 1, 1934, provides: “The judges are authorized to forego punishment of a person whose previous life has been honorable where he commits a homicide motivated by compassion, induced by repeated requests of the victim.”
22. John Stuart Mill gives an account of why all restraint, qua restraint, is an evil:
“To be prevented from doing what one is inclined to, or from acting according to one’s own judgment of what is desirable, is not only always irksome, but always tends, pro tanto, to starve the development of some portion of the bodily or mental, faculties, either sensitive or active….”Principles of Political Economy (London: Longmans, Green and Co., 1923), Bk. V, Ch. xi, sec. 2, p. 943.
26. The Canadian Law Reform Commission notes that a strict reading of section 199 of the CanadianCriminal Code, according to which anyone who undertakes medical treatment must continue providing it if failing to do so may threaten human life, implies that one cannot always refuse treatment. However, it argues that any treatment given against the patient’s wishes should constitute an assault in law, and recommends:
“That the ambiguity created by the provisions of section 199 of the present Criminal Code be resolved, and that the Criminal Code provide for the right of any competent person to refuse medical treatment or to ask for its suspension or termination, and that therefore no one shall be required to provide it against the patient’s wishes.”
Some Aspects of Medical Treatment and Criminal Law, supra note 1, p. 17. Fran Carnerie, “Euthanasia and Self-Determination: Is There a Charter Right to Die in Canada?’ McGill Law Journal, Vol. 32, No. 2 (1987), pp. 299-335, argues that subsection 2(a), and more precariously sections 7 and 12, of the Canadian Charter of Rights and Freedoms indirectly yield a constitutional right to choose death, when to refuse the patient’s request would effectively deny the right to life, liberty, and the security of the person, freedom of conscience, or the right to be free from cruel and unusual treatment.
27. There is a vast literature on the moral significance of the killing/letting die distinction. A collection of essays airing both sides of the question is Bonnie Steinbock, ed., Killing and Letting Die(Englewood Cliffs, N.J.: Prenctice- Hall, 1980). My sympathies lie with the argument first presented by James Rachels in “Active and Passive Euthanasia,” The New England Journal of Medicine, Vol. 292, No. 2 (Jan. 9, 1975), pp. 78-80, and developed further with replies to critics in his The End of Life: Euthanasia and Morality (Oxford: oup, 1986), Chs. 7 and 8, according to which the distinction is morally irrelevant. But a full defense of this view is too complex to undertake here. It is also unnecessary, for even if one rejects that view, and hence the prima facie case for active voluntary euthanasia based on it, there are still three other arguments which will make out such a case.
28. Steven J. Wolhandler “Voluntary Euthanasia for the Terminally Ill and the Constitutional Right to Privacy,” Cornell Law Review, Vol. 69, No. 2 (January 1984), pp. 363-83, presents this argument:
“It is legally inconsistent to honor a terminal patient’s request that life support equipment be removed, but to deny a similarly situated patient’s request for an immediate and painless end merely because a second party’s active assistance is needed to implement the latter request. Prohibiting a second party from helping a patient commit self-euthanasia by imposing legal sanctions on that party is effectively equivalent to denying the patient the right to make that decision in the first place.” (p. 369)
29. This argument is presented by Shari O’Brien, “Facilitating Euthanatic, Rational Suicide: Help Me Go Gentle into that Good Night,” Saint Louis University Law Journal, Vol. 31, No. 3(September,1987), pp. 655-71:
“Further, because the right to commit euthanatic suicide is constitutionally insulated from governmental intrusion, protection should extend to any third party assistance necessary to exercise that right. A corollary precept is that the dissemination of information (for example, on minimum, lethal dosages), which abets rational euthanatic suicide, also falls within the ambit of speech protected by the first amendment. In addition, the term ’necessary’ assistance need not be construed parsimoniously so as to exclude all but indispensable conduct and information from others. Many candidates might never opt for rational euthanatic suicide without the moral support of loved ones.” (pp. 670-1)
See also Wolhandler, supra note 28:
“The constitutional right to privacy protects a competent terminal patient’s right to determine for himself the time and manner of his death. It is inconsistent to recognize a terminal patient’s legally protected right to make a decision in favor of self-euthanasia but deny that patient the means of implementing that decision.” (p. 383)
32. This objection is presented by The Canadian Law Reform Commission in Euthanasia, Aiding Suicide and Cessation of Treatment, p. 46; also by Yale Kamisar, “Some Nonreligious Views against Proposed ’Mercy-Killing’ Legislation,” Minnesota Law Review, Vol. 42, No. 6 (1958), pp. 993-1005; see further Gregory Gelfand, “Euthanasia and the Terminally Ill,” Nebraska Law Review, Vol. 63, No. 4 (1984), pp. 759-60 (mistaken diagnosis) and p. 762 (new cures). Kamisar’s article, which was written in response to Glanville Williams’ The Sanctity of Life and the Criminal Law (London: Farber and Farber, 1958), is the locus classicus of the main objections to legalizing active voluntary euthanasia, and the Canadian Law Reform Commission relies heavily on it. Gelfand re-presses most of those objections, with some embellishments, and adds two new ones.
33. Glanville Williams replies to this objection in his Reply to Kamisar, supra note 24, pp. 5-8, as does Arval A. Morris, “Voluntary Euthanasia,” Washington Law Review, Vol. 45, No. 2 (1970). Morris, a proponent of legalizing active voluntary euthanasia, replies to the mistaken diagnosis objection on pp. 259-261, and to the possibility of new cures on pp. 261-2.
37. This is probably the most popular objection to legalizing active voluntary euthanasia. Among its many proponents are The Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, p. 46, Kamisar, supra note 32, pp. 1030-41, and Gelfand, supra note 32, pp. 763-6. On slippery slope arguments generally, see Frederick Shauer, “Slippery Slopes,” Harvard Law Review, Vol. 99, No. 2 (1985), pp. 361-82.
45. Paul J. van der Maas, Johannes J. M. val Delden, Loes Pijnenborg, Caspar W. N. Looman, “Euthanasia and Other Medical Decisions Concerning the End of Life,” The Lancet, Vol. 338: Sept. 14, 1991, pp. 669- 74.
56. Two useful surveys of objections and replies which cover roughly the same ground as the above are Anthony Flew, “The Principle of Euthanasia,” in A. B. Downing, ed., Euthanasia and the Right to Death (Los Angeles: Nash Publishing, 1969), pp. 30-48, and Russell, supra note 19, Ch. 8.
61. Glanville Williams, among others, has advocated the development of a criminal defence for voluntary active euthanasia (op. cit., notes 24 and 33), and most of the issues addressed in Part C of this paper are also addressed by him.
62. office of the secretary of state, Complete Text of Washington Initiative Measure 119, in voters pamphlet: State general election – November 5, 1991 [hereinafter Washington’s I-119]. See also, Proposition 161: Text of Proposed Law, in california ballot pamphlet: General election – November 3, 1992 [hereinafter California’s 161].
63. See Williams, supra note 61 above, as well as: Model Aid-in-Dying Act, The Hemlock Society U.S.A. (January 236, 1993); Michigan Death With Dignity Act, H.R. 5415, 86th Leg., Reg. Sess., Mich. (1992); and Model Aid-in-Dying Act, 75 Iowa L.Rev. 124 (1989).
64. See, for example, Michigan Death With Dignity Act, H.R. 5415, 86th Legl., Reg. Sess., Mich. (1992); Quill, T.E., Cassel, C.K., and Meier, D., Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide, New Eng. Jo. Med. (November 5, 1992) 1380; and Publiese, J., Don’t Ask–Don’t Tell: The Secret Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1281 (August, 1993).
67. See such various previously cited attempts as: Model Aid-in-Dying Act, The Hemlock Society U.S.A. (January 26, 1993); New Hampshire House Bill Number 395, Death With Dignity Act, (1992); Texas Senate Bill 1301 [A Bill to be Entitled], (March 22, 1993); Comment, The Right to Voluntary Euthanasia, 10 Whitter L. Rev. 490 (1988); and Note, Developments in the Law — Medical Technology and the Law, 103 Harv. L. Rev. 1519 (1990).
70. See, for example, Pugliese, J., Don’t Ask—Don’t Tell: The Secret Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1291 (August, 1993); Quill, T.E., et al., Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide, New Eng. Jo. Med. (November 5, 1992) 1380.
73. See, for example, California’s 161, and Benrubi, G., Euthanasia: The Need for Procedural Safeguards, 326 New Eng. Jo. Med., No. 3, 197 (January 16, 1993); Model Aid-in-Dying Act, 75 Iowa L. Rev. 124 (1989).
81. See, for example, Pugliese, J., Don’t Ask—Don’t Tell: The Secret Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1291 (August, 1993), and Comment, The Right to Voluntary Euthanasia, 10 Whittier L. Rev. 490 (1988).
83. See, for example, Pugliese, J., Don’t Ask—Don’t Tell: The Secret Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1291 (August, 1993); New Hampshire House Bill Number 395, Death with Dignity Act, (1992); Ogden, R., The Right to Die: A Policy Proposal for Euthanasia and Aid-in-Dying, Can. Public Policy, XX:11-25, (1994); and Model Aid-in-Dying Act, 75 Iowa L. Rev. 124 (1989).
88. For a discussion of the system in the Netherlands, see, for example, Fenigsen, R., The Netherlands: New Regulations Concerning Euthanasia, 9 Issues in Law & Medicine 167 (Number 2) (November 2, 1993). For discussion of a “euthanasia notification” procedure, see Helme, T. & Padfield, N., Setting Euthanasia on the Level, Liverpool L. Rev. Vol XV(1) 75 (1993).