Canada's Supreme Court just announced that Canadians do not have a duty to live. Why do New Zealanders?

Let's say you are living in Canada. You are suffering from some nasty incurable disease that may or may not kill you, but certainly will give you a future of pain, indignity and despair. What are your options?

Well, one option is to soldier on through the travails of the illness until death takes you at its own time. A perfectly honourable, maybe even "courageous" choice. But let's say you don't want to do that. You think a life under the disease is worse than no life at all. So you want to end your suffering and gain a death on your own terms and by your own choosing.

In that case you can refuse to eat, drink or accept medical help and let your body slowly shut down over several days of quite excruciating pain. Or, if you are still mobile and dexterous enough, you can fashion your own means of death with pills/plastic bags/etc and hope that you get it right and don't end up in a brain damaged coma instead. What you couldn't legally do, however, was get the help of another person to provide you with, or even apply, the means of your death. In particular, you couldn't (legally) get a health professional who agreed that you ought to be given release from your pain and suffering to help you do so.

Until now, that is.

Because the Canadian Supreme Court, in a 9-0 decision issued in the name of "The Court" (thus giving it even greater authority), just announced that if and when you decide that you want to end your own life you have a right to receive assistance from a doctor. (Provided the doctor is willing to give that assistance, of course!) What is more, because the law that presently says everyone who aids or abets a person in committing suicide commits a crime that is punishable by jail time unjustifiably limits that right, it will cease to apply in a year's time:

insofar as [it prohibits] physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.

The one-year delay then allows Canada's Parliament to create new legislation that is consistent with the right the court identifies, if it wants to. Of course, Parliament could in theory use s.33 of the Charter to override the Court's decision and re-criminalise all forms of physician-assisted death. But it won't, because this power is never used (by Canada's federal Parliament, anyway). And Parliament also could choose to do nothing and leave the issue to be regulated solely by the medical profession through its own code of ethics. Which would be the cowards way out.

So that's great for Canada! What does it mean for us here in New Zealand, though? At one level nothing - Canadian law obviously doesn't apply to us. Which is lucky, otherwise pretending to be a witch would be illegal here. But at a deeper level it does have important implications.

Because here's what Canada's Charter of Rights and Freedoms says that every Canadian enjoys:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

And here's why the Supreme Court says that imposing criminal penalties on medical professionals who help another person who is suffering with no hope of remission from ending their own life breaches that right:

The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition [on doctor assisted death] deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.

Then consider the right that the New Zealand Bill of Rights Act guarantees to us all:

No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

This section was deliberately lifted from the Canadian model. And so I'm going to go out on a (not very long) limb and say that if and when a New Zealand court were ever to look at this right in the context of New Zealand's criminal prohibition on "aid[ing] or abett[ing] any person in the commission of suicide", it also would conclude that this blanket prohibition unjustifiably limits an individual's right to life. The fact that Canada's highest court unanimously ruled that the model for our law has this meaning and effect is going to be so persuasive that a New Zealand court is near certain to do likewise.

But, and here's the big but, what does that prediction mean? Well, at one level it means that New Zealand's existing law imposes an unjustifiable limit on the individual rights of some members of our society (those with some nasty incurable disease that may or may not kill them, but certainly will give them a future of pain, indignity and despair). Obviously that's not a good look for our law.

On another level, however, this fact means nothing at all. For unlike Canada, our Bill of Rights Act does not allow a court to invalidate or "strike down" the law. So irrespective of what a judge (or panel of judges) may think of the criminal law's effect on rights, it stays on the books. Which makes taking the matter to court a bit of a waste of time, and instead throws it back into the legislative arena. If the unjustifiable limit that Canada's Supreme Court has identified is to be fixed here in New Zealand, the only people who can do so are the MPs in our Parliament.

Which is something that they seem deeply disinterested in doing for the moment. Although John Key (to his credit) has repeatedly voiced support for some reform to the law in this area, and voted in favour of it back in 2003, there seems little appetite to make it government policy. And late last year the only other vehicle for change, a members bill sponsored by Labour's Ian Lees-Galloway, got yanked from the ballot in order to spare his party any more controversies over social policy issues.

But while our current MPs may be too chicken to take the matter on, it's a change that is going to come. First, as the Canadian Supreme Court noted, the winds of change  are beginning to blow internationally:

By 2010, however, eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia. The process of legalization began in 1994, when Oregon, as a result of a citizens’ initiative, altered its laws to permit medical aid in dying for a person suffering from a terminal disease. court. Colombia followed in 1997, after a decision of the constitutional The Dutch Parliament established a regulatory regime for assisted dying in 2002; Belgium quickly adopted a similar regime, with Luxembourg joining in 2009.

To this list we can add Vermont, whose state legislature enacted a law in 2013 that has legalized physician-assisted suicide for terminally ill patients who want to end their lives, and now (of course) Canada itself.

Second, demographics are on the side of this issue. By that I mean that we have an aging cohort of baby boomers who are used to getting what they want and don't like being told that they can't have it. So at some time in the future, some party or politician is going to see this issue as not only desirable in principle but also politically advantageous and make the change needed. There is, after all, only so long that a law some 80% of the population disagree with can remain in place.

It's just to bad that until that happens, any New Zealander suffering from some nasty incurable disease that may or may not kill you, but certainly will give you a future of pain, indignity and despair, will just have to take care of themselves.

Comments (11)

by Lee Churchman on February 07, 2015
Lee Churchman

I'd love to have that witch law here. 

by Cushla McKinney on February 08, 2015
Cushla McKinney

While I agree in principle, I think the devil will be in the detail. What about patient who may or may not be competent and for whom treatment is withheld on the grounds of treatment futility. Would/should it be legal to hasten their death, especially if they express a desire for assistance? Several women I know have been allowed to die because chronic anorexia (and the available treatment for it)  rendered their lives intolerable and it was been decided further treatment is unlikely to be successful, and I'm sure there are other examples, especially in the area of mental health. I have strong views on the subject because I could potentially have found myself in the same position as my friends, (I would probably have satisfied the prerequisite criteria had I not been in another country when I finally received effective compulsory treatment, but I would be interested in your thoughts on the matter.

by Cushla McKinney on February 08, 2015
Cushla McKinney

I also apologise if my post above is inappropriate and please take it down if you think it is likely to cause offence.

 

by Colin Gavaghan on February 08, 2015
Colin Gavaghan

Cushla's point is an important one - ascertaining the competence of candidates for assisted suicide is very important and inherently challenging. I'm not sure, though, that it's any more important or more challenging than the decisions we already face. As Andrew notes at they start, competent patients can already choose to die by declining life-prolonging treatment. This will frequently involve difficult decisions as to whether the patient is indeed competent. I'm not sure I see why it would be any more difficult to make such a decision in the content of 'active' assistance.

 

by Megan Pledger on February 09, 2015
Megan Pledger

It will be interesting if the doctors get on board with that.  Or if they resist due to it being the opposite of their professional purpose.

by Stewart Hawkins on February 09, 2015
Stewart Hawkins

There are plenty of doctors willing to help patients die. I have come across hundreds of elderly people in my career who have told me they would like to die. I accept this is not quite the same as actually asking someone who is empowered to kill but most if not all of these people have been genuine and tired of life and the torment that age brings.

The Canadian situation is interesting and thank you to Andrew for highlighting the Court has brought about this change yet here in NZ we wait for the, generally spineless, politicians to stand up for any principles at all. The law will change here as Andrew suggests but I do not believe that political parties do themselves any credit by hiding from this most important and topical conversation.

by Andrew Geddis on February 10, 2015
Andrew Geddis

@Cushla,

Trigger warning: discussion of eating disorder and treatment follows.

I don't really feel able to comment on the specific issues you raise, except to echo Colin's point that there are grey areas/line drawing problems throughout this area. Take, for example, the differing approaches taken in this case (where a court ordered the force-feeding of a woman suffering from Anorexia) and this case (where a court backed a medical decision not to force-feed). So adding in the question of whether people should be able to get assistance to end life in such situations doesn't seem any harder (or easier) to answer.

@Megan,

Yes - there is a real debate amongst the medical profession as to the appropriateness of being involved in such decisions/offering such "services". I guess it comes down to what "their professional purpose" is. It can't be to always cure/keep people alive - we know that sometimes the best medical option is to let a person go. But does that then mean that actively aiding a person to die is consistent with a doctor's role? Like I say, that's hotly debated ... see here for background on it.

 

by Cushla McKinney on February 10, 2015
Cushla McKinney

Hi Andrew,

I agree that these issues are already extremely difficult, and I use anorexia as an exemplar of a class of difficult situations about which people are likely to have very strong feelings. However I do think there is an additional complication introduced in situations where treatment is withheld from a person (for whatever reason) because it is deemed futile and where we could conceivably accept their request to be assisted to end their life if we judged them competent but deny them that same request if we consider them incompetent. Having made the decision that we are going to let them die,  it could be argued that  the same arguments about the cruelty of prolonging life still applies regardless whether their competency but most people would draw a line an even stronger line against euthanasia in this case, not least because of the perceived vulnerability of the patient and the fear it will be the start of a slippery slope. There is also the question of chronic but not (immediately) terminal illnesses such as Alzheimers etc; a person can obviously make a living will, which presumably would be used as a guideline in decision-making, but the point at which they might want their wishes respected might be after they lose competence but before their physical condition deteriorates significantly. Again I think the unease that people who object to voluntary euthanasia or assisted suicide feel about actively intervening will be even stronger.

As before I apologise if anything I have written upsets or offends anybody, it is not my intention and I am not advocating one way or the other, but I think that the final shape and fate of any laws and their acceptance by the public on the issue may well rest on difficult questions like this and they deserve discussion. 

On the other hand, I also think your assessment of John Key's disinterest, so I suspect  it will be a while before there is any serious consideration of the subject.

 

 

by Stewart Hawkins on February 10, 2015
Stewart Hawkins

 "Disinterested" does not mean "uninterested".

Today I spent around $4000 in disposable equipment treating pain in a very elderly Alzheimers patient. The pain will return in a few months and the doctor caring for her will request the procedure again. Another $4000. And on. The patient does not know who she is or where she is. Is this the medical profession's role? Alleviating suffering for no quality of life? If she had a potentailly fatal condition perfectly treatable by $30,000 of disposables and a team of twenty specialist staff to likely treat successfully are we all Ok about treating her, yet denying more "elective" healthcare through rationing to others?

The spiralling cost of healthcare and the impending Alzheimer's explosion are very real problems. Active involvement in death must become part of every doctors role in the medium term. How we get there will be an interesting path.

 

by Colin Gavaghan on February 10, 2015
Colin Gavaghan

Hi Cushla, 

Ah, right, I see what you mean now. 

From one point of view, if a decision has been made that will inevitably result in someone's death in the very near future, then the right thing would be to take whatever steps are necessary to ensure that death is as comfortable and dignified as possible. But you're quite right that, for those who regard "acts" as inherently more problematic than "omissions", it adds an extra layer of complexity.

That said, the acts/omissions boundary has already become quite fuzzy, in relation, for example, to "terminal sedation" and the "active" termination of life-prolonging mechanisms (withdrawing ventilatory support, for instance). I don't think there's a way to avoid the fact that there are always going to be hard cases at the margins, unfortunately. 

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