Supreme Court’s decision should legalize physician-assisted suicide for those who seek it, including the mentally ill

I remember, years ago, when my 25-year-old pony, Smokey, was put to sleep. I remember watching his last breaths, his body suddenly looking small and delicate, his bones showing through his white winter coat and his chest slowing. My mom had hugged me while I cried with the deep heaving pain of a child’s first experience with death. “This is the nicest thing we can do for our animal friends,” she told me. “He’ll never feel pain again.”

If Smokey could tell us that he was ready to go, whose right would it have been to deny him the choice? Of course, he lacked the human capacity for reasonable decision-making, but until recently even people with that capacity were denied their right to die.

Now that the Supreme Court has struck down Section 241 of the Canadian Criminal Code — which made aiding, abetting or counseling a suicide an indictable offence — there are many questions being raised. Parliament’s next step should be to introduce policies surrounding physician-assisted suicide that will eliminate the potential for ambiguity and limited access.

The Supreme Court’s landmark decision didn’t come out of nowhere. In fact, the criminalized act of assisted suicide has been a point of discontent for many years. In 1992, 42-year-old Sue Rodriguez from Victoria made a plea to the Supreme Court through an emotionally charged video. Her ALS symptoms rendered her too weak to travel to Ottawa. Her direct and emotional questions about “who owns my life?” didn’t change the Criminal Code, but they did spark a national conversation about the choices Canadians should have when it comes to end-of-life care.

Over 20 years later, Vancouverite Kay Carter, with the help of the British Columbia Civil Liberties Association, began advocating for her right to a physician-assisted death. In the winter of 2010, Carter became the 10th known Canadian to die of assisted suicide in Zurich, Switzerland — where physician-assisted death is legal as long as it follows a process of strict medical protocols.

After her death, Carter’s case has been at the heart of the unanimous decision from the Supreme Court that inhibiting an individual’s right to assisted suicide is a breach of the Canadian Charter of Rights and Freedoms under the Section 7 rights to life, liberty and security of person; as well as Section 15(1) equality rights to be free of discrimination based on physical disability.Photo courtesy of Flickr

The Supreme Court’s decision was a huge step toward achieving a fundamental right that has been left out of the Canadian narrative. Euthanasia and assisted suicide are no longer illegal, but now it’s the government’s turn to take the next step.

With the possibility of an election looming this spring, policies on end-of-life legislation or lack thereof may be a part of candidates’ platforms. But politics shouldn’t get in the way of human rights, and there must be legislation to protect the Supreme Court’s decision.

Physician assisted suicide isn’t just for those who physically cannot end their lives but wish to. It is also for those who are living in only the literal sense, each day made miserable, and unbearable by untreatable illness. It can prevent the slow physical and mental decline that often precedes death and provides an end that is painless, and dignified in offering choice and freedom.

The Supreme Court’s decision provides a right to live and die by one’s own wishes – and to deny it to anyone is to me, an overwhelmingly unjustifiable denial of basic human dignity.

The slippery slope argument that assisted suicide ignores the sanctity of life and denies the importance of the collective is often founded in over-simplifying, puritanical values. Where opposition groups are likely to gain footing is in the lack of regulatory dialogue around this now-ambiguous legal area, which, left open-ended, will be entirely without legal parameters for the actual act of assisted suicide.

The unanimous judgment from the Supreme Court states, “Assisted suicide should be available to a competent adult who clearly consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstance of his or her condition.”

What bothers some is that this language appears to open the door to people with treatment-resistant depression or other mental health disorders.

A Forum Research survey published in the National Post in 2011 indicated that 65 per cent of Canadians then supported physician-assisted suicide for the terminally ill, the keyword being terminal. But the research neglected to demonstrate the ethical struggle of assisting death to those who some believe may get better. And when looking at death from depression, the struggle becomes increasingly prevalent. Studies done by The Canadian Mental Health Association approximate that one in five adult Canadians, about 21.3 per cent, will suffer a mental disorder in their lives. Even more disturbingly, their studies indicate that Canada-wide, suicide is the leading cause of death for males between the ages of 10 and 49, and the fourth leading cause for women.

With the field of psychiatry constantly advancing toward new medical and therapeutic treatments, some might view assisted death like handing a depressed person a loaded gun.

Depression itself won’t physically kill people, but if it is entirely resistant to treatment, it can leave a person with a life of misery and pain. In a recent interview with the National Post, Dr. Udo Schunklenk, a leading Canadian bioethicist asserted “It would be unreasonable in Canada to deny patients with prolonged, intractable depression medical aid in dying based on a hunch that a successful treatment might come around soon.”

Depression does not render people entirely incapable of making decisions about their own lives. Jocelyn Downie, an associate professor of Law at Dalhousie University, who specializes in bioethics and health policy, says the public’s ethical struggles are due to a lack of understanding about the effects of depression on competence.

“They either don’t realize that you can assess competence, and we have to — or that having depression means you’re incompetent, which it doesn’t,” She believes that it’s not an area that should go unregulated. “We need to have clear, procedural guidelines, we need safeguards, we need reporting, and we need to be able to track what’s going on.”

Increasingly, people are becoming aware of mental illness as a more tangible sickness — like they might see cancer or diabetes.

And whether a person is suffering from incessant mental anguish or inescapable physical pain, it is the government’s place to ensure there are laws that allow all competent Canadians the choice to live or die.Photo courtesy of Flickr

If Parliament takes on a passive approach to the Supreme Court’s progressive ruling and resists federal legislation as was done when abortion laws were struck down in the Supreme Court in 1988, we may see varying regulations that create ambiguity and difficulties for patient access.

Jennifer Geary, the spokesperson for Justice Minister Peter MacKay, explained that the government has yet to make any decisions on its next step, and in an emailed statement said the ministry is planning to take the time needed to consult with Canadians on the best way forward.

When I think back to that day with Smokey, I remember wishing that he could just tell me what he wanted, how much it hurt, if he was ready to go. And anyone who has made the choice to put down a beloved pet knows this feeling.

Unfortunately animals can’t tell us what they want, but this near-universal analogy is but one indication of how ridiculous it is to ignore the wishes of a human articulating that they are ready to end their suffering.

As free Canadians, lets use our voices to advocate for end-of-life choices. We should call on our government for progressive movements in law-making that work towards compassion and liberty in the name of individual autonomy.

ngrossman@cjournal.ca

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