Georgia Supreme Court Strikes Law: Final Exit Network Broke No Law

Posted on February 6, 2012 by Farewell Foundation

Claire Blehr & Ted Goodwin April 1, 2010

On February 6, 2012 The Georgia Supreme Court struck down the state’s assisted-suicide law on grounds that it violates free speech clauses of the Georgia and U.S. Constitutions.

The ruling arises from arrests in 2009 of four members of the Final Exit Network who were later indicted on charges of aiding the suicide of a man in 2008.  Ted Goodwin, Dr. Larry Egbert, Nicholas Sheridan and Claire Blehr faced up to 5 years in prison under a Georgia law that prohibited anyone “who publicly advertises, offers or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose.”

Writing for the court in a unanimous decision, Justice Hugh Thompson said  “The State has failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech rights. Absent a more particularized State interest and more narrowly tailored statute, we hold the State may not, consistent with the United States and Georgia Constitutions, make the public advertisement or offer to assist in a suicide a criminal offense.”

Ted Goodwin, former president of the Final Exit Network was quoted in the Atlanta Journal Constitution paper saying he was relieved by the ruling. “This is a bittersweet victory, because I’m saddened by what we’ve been put through. … I’m also sad for all the
people who would have benefited from our compassionate presence at their life’s bitter end over the last three years.”

The 8-page ruling of the Georgia Supreme Court is available at this link:  http://www.gasupreme.us/sc-op/pdf/s11a1960.pdf

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Ginette Leblanc: New Right to Die Case in Québec

Posted on January 31, 2012 by Farewell Foundation
Ginette Leblanc

Ginette Leblanc from Trois-Rivières, PQ, has initiated her constitutional challenge to s. 241(b) of the Criminal Code.  Ms Leblanc has ALS and is represented by Mr. René Duval.

On January 27th AQDMD (Association Québécoise Pour le Droit de Mourir dans la Dignité) filed its application to intervene in support of Ms Leblanc.  The Christian Legal Fellowship and the Euthanasia Prevention Coalition intend to intervene to oppose the case.
It is expected that the expert evidence for the case will be filed by April 2012.

 

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Majority Support Assisted Suicide in Canada: December 2011 Poll

Posted on December 29, 2011 by Farewell Foundation

Toronto, December 16th, 2011 – In a recent survey conducted by Forum Research across Canada among residents 18 years or older, it was found that the strong majority are in favour of making physician-assisted suicide legal in Canada for the terminally ill (67% are in favour, 21% are opposed, and 12% have yet to form an opinion). The poll found that support for the measure was strongest among those residents living in Quebec (81%), followed by British Columbia (65%), Ontario (60%), and the Prairies (60%). It was also found that approval was significantly higher among residents younger than 65 years of age when compared to those aged 65 and older (68% 18-34, 69% 35 to 44, 71% 45 to 54, 69% 55 to 64, 56% 65+). When party preference was taken into account, it was found that respondents who voted for the NDP in the 2011 federal election were significantly more likely to back the measure (78%; compared to 63% Liberal, and 60% Conservative).

“Though there is currently a great deal of public debate over physician-assisted suicide for the terminally ill, the data illustrates that the majority of Canadians support an increase in patient autonomy.” said Forum Research president Dr. Lorne Bozinoff. “The results of this study indicate that Canadian public opinion is largely beginning to shift towards legalizing physician-assisted and the models put in place in countries such as Switzerland.”

The full media release is available at this link: Assisted Suicide in Canada (Forum Research) (20111216)11

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Carter Trial Day 21: December 16, 2011 (Final Day)

Posted on December 23, 2011 by Farewell Foundation

This Farewell Foundation Report covers the Carter Trial for Dec. 16, 2011

Friday, December 16th, was the final day in this summary trial.

Court commenced at 09:00, one hour earlier than usual to ensure everything could be completed before the Court started the Christmas break.  The day began with the AG Canada registering an objection over the 160 page document delivered by the plaintiffs
that morning.  The previous day the plaintiffs had provided a 30 page submission on their s.1 Charter argument.  S.1 is the clause of the Charter that allows the government to put certain limits on rights guaranteed to Canadians.  For example, free speech can be limited if it is deemed hate speech.

Canada’s Donnaree Nygard objected that the 130 pages added overnight to the plaintiff’s submission was either not a proper reply or amounted to the plaintiffs “splitting their
case.”  She said there had been no opportunity to read the massive last minute submission and she requested time to respond.

The plaintiff’s counsel, Joe Arvay, said that Canada had a “lot of nerve” since Canada and British Columbia had given him more than 300 pages of argument and he believed his reply was entirely appropriate.

In the end, Justice Smith allowed the hearing to continue and she gave Ms Nygard until January 13th to provide a written submission on the parts of the plaintiff’s that Canada
deemed not appropriate.  Justice Smith also said that she would allow Canada to make a further submission to supplement its s.1 Charter submission, if necessary.

Stare Decisis

Both Canada and BC contend there are not sufficient reasons to allow a trial court to overrule Rodriguez.  In response, the plaintiffs rely on a recent Ontario decision in—Bedford—which concerns Canada’s laws against prostitution.  In Bedford the law was found to be unconstitutional and is now under appeal.  The plaintiffs say that the situation facing Justice Himel in the Bedford case was same as that in this BC Court.  Just as Justice Susan Himel was not bound by an earlier Supreme Court of Canada decision, neither is Justice Lynn Smith in British Columbia, say the plaintiffs.

Standing

The standing of two of the plaintiffs, Dr. Shoichet and the BC Civil Liberties Association,
was unchallenged until the final days of the trial.  The defendants now seek to strike their standing in the case.  Joe Arvay says the standing of the BCCLA as a named plaintiff is critically important to fundraising to cover the extraordinary costs in this case, and if Gloria Taylor dies it is important to have the BCCLA continue to represent her interests.  Arvay said Dr. Shoichet could have applied for private interest standing if the defendants had challenged his standing in the beginning.

Zero-Tolerance for Wrongful Death

Joe Arvay submitted that Canada’s closing argument amounts to a “zero-tolerance” policy
because it says Parliament can’t enact a law that “might create even the ‘risk’ that one person might die who should not have died.”  Arvay said Canada’s counsel is “simply wrong” and clarified that Parliament could “leave the matter unregulated as a private matter between the physician and patient” but he hoped government would create some sort of law to regulate assisted death. Justice Smith pointed out that Canada did not have capital punishment because of the risk that one wrongful death of an innocent person is too many.  “What do you say to that?” She asked.

Mr. Arvay answered “Let us put to rest once and for all the complete red herring of
capital punishment…. Canada says capital punishment was abolished ‘precisely because even the best justice system in the world makes mistakes that, if capital punishment were an option, would result in the death of innocent individuals.’ … It need hardly be mentioned that we can assume that everyone on death row wants to live and is being killed involuntarily.  Involuntary death is not only not sought in this case, it is the polar
opposite of what is sought in this case – the right to control one’s own life and death.”

Justice Smith seemed sceptical at Mr. Arvay’s argument.  She pointed out that some voluntary deaths may involve people who do not really mean to die.  In answer, Arvay said that the risks had to be reconciled somehow, that we don’t live in a totally risk free world and that the Court should look at the risks that are already inherent in the medical system every day.  Arvay said that if Justice Smith chose to strike the law, the federal parliament had the option of crafting the best law humanely possible.

Safeguards

Sheila Tucker introduced a number of safeguards that the plaintiffs believed would address concerns about voluntariness.  These included a psychiatric evaluation, a formal written request, repeated requests, variable waiting periods depending on medical condition, assignment of a patient advocate, a requirement that the patient self-administer lethal medication, and that voluntary euthanasia only be permitted in cases where a patient is physically incapable.

Donnaree Nygard objected to Ms Tucker’s proposed safeguards on grounds that these should have been identified in the plaintiff’s original submissions and to present them at the end of the hearing did not constitute a proper reply.  “The plaintiffs had an obligation to put their full case forward at the start,” she said.

Ms Nygard argued that the plaintiffs had mischaracterised Canada’s statement about the
purpose of the prohibition on assisted suicide and euthanasia.  She repeated her previous oral and written submissions that the prohibition “reflects the state’s interest in preserving life by not condoning the taking of another’s life.”  She said the plaintiffs were wrong to suggest that Canada’s objective is “the preservation of life, without qualification or the
preservation of life in any absolute sense.”

Ms Nygard said that the protection of vulnerable individuals who might be induced to suicide is just one of the harms that Canada seeks to prevent.  She said that Parliament has identified additional harms to individuals and to society, including negative social messaging that some lives are less valued, harm to the doctor-patient relationship, and a weakening of palliative care.

In closing, Ms Nygard said that the beneficial effect of the law is the prevention of harm.  She said Canada had put forward evidence from other jurisdictions that wrongful deaths have occurred.  While the plaintiffs have argued that there is a greater danger in prohibition because it contributes to underground assisted death, Nygard said there is no evidence put to the court that regulation would change that.

Next Steps

Canada will provide Justice Smith with a written submission on January 13, 2012, to identify which parts of the plaintiff’s reply should not be allowed.  Subsequent to those
submissions, Justice Smith will adjourn to consider her disposition.  While there’s no indication when a ruling will be delivered, it is certain to be appealed to the BC Court of Appeal.

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Carter Trial Day 20, December 14, 2011

Posted on December 18, 2011 by Farewell Foundation

This Farewell Foundation Report covers the Carter Trial for December 14, 2011

Day 20: Wednesday December 14, 2011 (The Opposing Interveners)

December 14th was reserved for the interveners, the Christian Legal Fellowship and the euthanasia Prevention Coalition.

THE CHRISTIAN LEGAL FELLOWSHIP

Bradley Miller, professor of law at University of Western Ontario, presented the argument on behalf of the CLF.  The CLF intervened in the Carter case to argue the legal and moral principle of the inviolability of life found in the Canadian Charter of Rights and Freedoms.  It says that the prohibition on physician assisted suicide and euthanasia exists to protect the most vulnerable in Canada.

The CLF warned Justice Smith in “exercising the right to make a life and death decision, this Court would do well to not risk … damage … (what) it cannot repair.”  The CLF said that the physician oath to do no harm applies equally to judges.

Mr. Miller invoked the “principle of inviolability” which he said is the same concept as the “sanctity of life” to assert that the lives of all people are “intrinsically and equally valuable, and, without exception, the intentional taking of innocent human life is always wrong.”  He said that autonomy arguments of the plaintiffs would require doctors and society at large to endorse the judgement of a patient that his or her life is no longer worth living, has no value and that continued life is a harm.  Miller said that accepting such an argument put at risk the lives of people who are not asking for help to die.

The CLF argued that without a prohibition against assisted suicide, the disabled community would be subject to subtle pressures from family, doctors, and society to agree to have physician-assisted suicide.  Miller said that prohibition is necessary to support the existing medical and ethical culture against killing.  He said the ethic against killing is an internalized ethic supported by the law and that it must not be dismantled.  To do so would harm medicine, palliative care, and society.

In the CLF’s concluding statement, Mr. Miller said that the Court should not strike down the law because of the principle of inviolability and because such matters of public policy belong to parliament, not the courts.  He said the court simply “does not have the benefit of the wide ranging consultations that are available to government.”  With reference to the cases of Sue Rodriguez and Robert Latimer, the CLF said every time it has had to consider assisted suicide and euthanasia, the Supreme Court of Canada has chosen to side with life.

EUTHANASIA PREVENTION COALITION

Hugh Scher presented the argument on behalf of the EPC.  The EPC submission said that “(b)y legalizing euthanasia and assisted suicide, society crosses over that line that maintains human life as inviolable, i.e. of intrinsic worth and value.”  To cross that line would make society’s most vulnerable people, seniors, and the disabled, “fair game” to be killed.

Mr. Scher said that any constitutional exemption to allow assisted death would amount to a “lethal form of discrimination.”  Safeguards, he said, are not sufficient and people “who participate in these intentional killings are lesser for it and make the community less.”

“Negative messaging,” an issue already identified by Canada was also argued by Mr. Scher.  He said that people with disabilities are too often the “victims of experiments in social engineering that undermine their inherent dignity and humanity.”  He cited forced sterilization, medical experimentation and eugenics as examples.

Mr. Scher said that suicide is never a rational act, it is a cry for help.  Quoting from the 1995 Senate Report “Of Life and Death,” Scher repeated the words of Gary McPherson who spoke on behalf of the Alberta Premier’s Council on the Status of Persons with disabilities:

“Canada has identified a suicide problem among its youth, and we have responded ‘How can we prevent it?’  Canada has identified a suicide problem among Aboriginal peoples and we have responded ‘How can we prevent it?’  Canada has identified a suicide problem among people with disabilities and we have responded ‘How can we assist them to kill themselves?’” (G. McPherson, Sept 30, 1994, oral submission to Senate Committee)

In closing, the EPC asked that the Court dismiss the Carter claim on terms that would enhance equality for Canada’s seniors and people with disabilities and to reduce prejudice and disadvantage and support the intrinsic value of all life.

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Carter Trial Day 16 -19, December 8 – 13, 2011

Posted on December 16, 2011 by Farewell Foundation

This Farewell Foundation Report covers the Carter Trial December 8-13, 2011

Day 16-19: Thursday December 8 – 13, 2011: The Defendant’s Arguments

THE ATTORNEY GENERAL OF CANADA

Donnaree Nygard presented Canada’s position over the course of three and a half days. When she was finished, George Copley presented the argument for the Attorney General of BC on the afternoon of December 13th.

Ms Nygard explained to the court that she did not have time to write a short argument, so she was providing a long one — 198 pages.  She said that the issue of assisted suicide and euthanasia is an “incredibly difficult policy issue” and expressed shock at the previous day’s submissions by the interveners, in particular the Farewell Foundation.  She said that while Canada appreciated that the Farewell Foundations rights-based analysis of autonomy was a principled position, the Carter plaintiffs were not seeking an autonomy
right.  Rather, Carter was asking for a policy change for people suffering grievous and irremediable illness.  Such a policy, she said, was the responsibility of parliament and not the courts.

Nygard’s first argument was that the doctrine of stare decisis does not permit the Court to reconsider the prohibition against assisted suicide since the Supreme Court of Canada found that the prohibition is constitutional and in accordance with the principles of fundamental justice.  In Rodriguez the SCC rejected the claim that a terminally ill person has a right to assistance to suicide, even when the person is suffering and cannot do so without assistance.  Canada says the Rodriguez ruling is binding on the Court and that should be the end of the matter.

The Attorney General of Canada also says that the blanket prohibition on assisted suicide and euthanasia is still the norm in Western democracies and while the plaintiffs say there is a trend toward the decriminalization or legalisation of assisted suicide and euthanasia, this is not actually the case.  While some jurisdictions have allowed assisted suicide or euthanasia since the Rodriguez ruling, Canada says that “many more Western jurisdictions have rejected attempts to legalise assisted suicide or euthanasia or have actually enacted legislation to strengthen or re-affirm the existing prohibitions on these practices.”

Ms Nygard reviewed the history of the criminal law against assistance with suicide, since Canada’s first Criminal Code took effect on July 1, 1893.  She said the prohibition of  assisted suicide and euthanasia expresses the fundamental value of preserving human life and “the state’s interest in preserving life by not condoning the taking of another’s life. It
reflects the policy of the state that the value of human life should not be depreciated by allowing life to be taken by another.”

Justice Smith asked Nygard how, if the state does not condone the taking of life, we explain killing in self-defence, or sending people to war?  Nygard said that those situations are different, they are not about condoning the taking of life but about exceptions to the taking of life with a different set of rules.  For example, said Nygard, self-defence is a narrow excuse for killing in a situation where there would be a loss of life anyway.

Nygard said Canada’s parliament has repeatedly rejected legalization of assisted suicide and euthanasia.  Since 1991 nine private members bills at the House of Commons have either been defeated or were not debated.  Last year Bill C-384, An Act to Amend the Criminal Code (Right to Die with Dignity) was defeated by a vote of 228 – 59.  She noted that one reason Canada had rejected capital punishment was because even the best justice systems make mistakes and this results in wrongful executions, and that legalizing assisted
death would have the same risks.

Nygard said that courts in the USA, England, and Europe have upheld the prohibition of assisted death, and that the BC Supreme Court should do the same.  She also argued that medical associations around the world opposed physician assistance in dying, and emphasized that the New Zealand Medical Association held that even if the law were to change in that country, the NZMA would continue to regard the practice as unethical.

With regard to people with physical disabilities, Nygard said persons with “complete disability are in a different situation than individuals without physical disabilities with respect to their ability to end their lives without contravening the criminal law.”  However, even a person with severe disabilities can still end his or her own life without assistance, either by refusing medical treatment or stopping eating and drinking.

Canada’s position is that the absolute prohibition against assistance in suicide is “based on the understanding that all people who are considering suicide, with or without physical disability, are vulnerable and in need of protection from the interventions of others. In enacting a blanket prohibition, Parliament has adjudged that all persons who might wish to end their lives are vulnerable to abuses, coercion, and subtle pressures and has legislated accordingly.”  The law, said Nygard, may be paternalistic but in that respect it is “equally paternalistic to the able-bodied and the disabled.”

In closing, Canada’s position was that “the taking of a life represents the most serious crime in Canadian law.”  Prohibition is “consistent with Canadian values and the state’s interest in preserving life by not condoning the taking of another’s life.”

ATTORNEY GENERAL OF BRITISH COLUMBIA

On December 13th George Copley presented the argument for the BC Attorney General, as he did in the case of Sue Rodriguez nearly 20 years ago.  Mr. Copley reviewed the record or the Rodriguez case and compared it to the case presented by the plaintiffs.  He said the arguments Gloria Taylor are essentially the same as those for Sue Rodriguez, therefore
the principle of stare decisis applied and the court should reject her claim.

Copley rejected the claimant’s case that things had changed since Rodriguez.  He said that the blanket prohibition against assisted death was still the norm around the world.  Just because a new law had been enacted in Oregon, Washington, and Belgium, and that the Netherlands had codified what was previously a policy for doctors, this did not change the fact that the norm around the world is still prohibition.

Copley submitted that the plaintiff’s claim that there is no ethical distinction between withdrawal of treatment that causes death and a positive act to hasten death is no different than the one put forward in Rodriguez.  The Supreme Court of Canada rejected that argument in 1993 and Copley believed it would do so today.

The spectre of a “made in Canada slippery slope” was raised.  Copley said the Canadian Medical Association had expressed concern that if euthanasia or assisted suicide were permitted for “competent, suffering, terminally ill patients,” then courts might extend this to people who are not competent, not suffering, and not terminally ill.  Copley warned that “reliance on the autonomy principle alone leads logically and inevitably to physician assisted death on demand.”

Picking up on Canada’s argument that severely disabled people can still end their lives,
Copley said “the able bodied and the disabled can equally commit suicide by refusing to eat or drink or by refusing provision of artificial nutrition or hydration. Decriminalization of suicide does not in purpose or effect make a distinction between the able-bodied and the disabled. All that s. 241(b) does is remove one means of committing suicide … (an) able-bodied person may have more possible choices as to means of committing suicide but the means of committing suicide is not a benefit conferred by government.”

Justice Smith commented that refusal of food and drink as method of suicide seemed “harsh.”  Copley replied that a doctor could ethically treat the suffering of a patient who chooses to die that way [see note below **].

Similar to the position presented by Canada, British Columbia said legalization is an “exceedingly complex social issue” that would be better left to parliament to decide, because it could choose from a wider range of alternatives than the courts.  “(A) blanket prohibition on assisting suicide, and … euthanasia, is necessary to achieve the objective of protecting vulnerable persons in a real and substantial manner. Nothing less will suffice.”

[** Farewell Foundation notes that Canadian courts have not considered the refusal of life-support and artificial nutrition/hydration to constitute suicide, as is now suggested by both Canada and British Columbia.  Case law, Zsiros (2003) and Martens (2004), has said that aiding suicide includes actions that “move the process of suicide along.”  If, as suggested by the Attorney General for BC, a doctor can treat the suffering of a patient who has stopped eating or drinking, then it would seem that the government is saying that the
doctor can ethically move the process of some forms of suicide along.]

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Carter Trial Day 15, December 7, 2011 (Interveners)

Posted on December 14, 2011 by Farewell Foundation

This Farewell Foundation Report covers the Carter Trial December 7, 2011  

Day 15:  Wednesday December 7, 2011

On December 7th the three interveners in support of the plaintiffs gave oral and written submissions to the Court.

CANADIAN UNITARIAN COUNCIL

Canadian Unitarian Council lawyer Tim Dickson said the CUC supported the plaintiffs entirely but would focus entirely on s.7 of the Charter right to life, liberty and security of the person because it helped to expose the fundamental injustice of preventing “seriously and terminally ill persons from making choices of profound importance to them for reasons that are irrational and grossly heavy-handed.”  Dickson referred to Chief Justice McEachern’s dissent in Rodriguez in the BC Court of Appeal, “death and the way we die is a part of life itself,”  and he argued that how a person dies is a “critical part of the narrative of his life,” and that it is profoundly intrusive to limit the manner and timing of a person’s death.

Dickson reminded the Court that all the judges who addressed security of the person in Rodriguez found that her security of the person was infringed by the law against assisted suicide but principles of fundamental justice deprived her of any right to assistance.  Dickson said that this Court should also find that the plaintiff’s autonomy interests are infringed, and that the law must be struck down because it is overbroad: “It condemns them to living for weeks, months or years in a state of such poor quality that they would prefer death. For some, like Gloria Taylor, the impugned provisions impose enormous anxiety as they wait for, and then experience, the degradation of their bodies. The impugned provisions plainly and obviously limit these persons’ security interests.”

The Canadian Unitarian Council’s submission covered three main points. First, the CUC said that the current legal framework for medical decision-making and Charter values require that a competent, informed and voluntary choice for assisted dying must be respected because such decisions are not incompatible with the fundamental norms of our law.  Second, the slippery slope arguments by the defenders of the law are “entirely addressed by a rigorous application of the ordinary legal standard for all medical decision-making: the standard of informed consent.”  Since that standard is sufficient for a decision to withdraw life-sustaining medical treatment when the consequence is death there is no
compelling reason that the same standard should not be applied to the context of physician-assisted dying.  Therefore a total ban is overbroad. Third, the “active/passive” distinction between physician-assisted dying and the withdrawal of life-sustaining treatment is contrary to the state’s true objective: Dickson argued that it is “obviously inconsistent with this overarching objective of protecting informed consent on matters of such fundamental personal importance. Not only is the ban unnecessary to achieving
that objective, it indeed thwarts it for persons like Gloria Taylor.”

AD HOC COALITION OF PEOPLE WITH DISABILITIES WHO ARE SUPPORTIVE OF PHYSICIAN-ASSISTED DYING

Appearing on behalf of the Ad Hoc Coalition were lawyers Angus Gunn and Sarah
Hudson.  The Coalition’s members say that their disabilities might leave them unable to end their lives without assistance, so the assistance of a physician is necessary for a dignified death. All of the Coalition’s members “support freedom of choice in end-of-life decisions, including the freedom to choose physician-assisted dying for qualifying adults of sound mind, as a step forward for the disability rights movement that is consistent with the principles of autonomy and self-determination.”

The Coalition drew from the recent Royal Society of Canada Report and noted that it is illogical to criminalize physician-assisted dying out of fear that some deaths will not be freely chosen. “This logic is…premised on a faulty assumption, namely that the status quo is itself without costs or risks, and that the only costs and risks to be factored into our deliberations concerning the desirability of moving away from the status quo are the ones that accompany the move away from [it]”. The Coalition said that the evidence in the Carter case has established that assisted death occurs even under prohibition with no
procedural safeguards.

The Coalition argued that vulnerable persons would be better protected in a system
that allows choice in assisted dying with specified safeguards, rather “than under the cloud of an absolute prohibition. On a review of restrictive and permissive regimes around the world, the Royal Society similarly offered the hypothesis that it may be the case that an open and liberal policy, as opposed to a restrictive regime, leads to a reduction in non-voluntary assisted dying.”

The Court was urged to consider the how the Canada’s law perpetuates prejudice and
paternalism: “an absolute prohibition prejudicially deems as vulnerable all persons with disabilities and paternalistically blankets those who do not need and do not wish the state’s protection in a way that disrespects their autonomy.”

FAREWELL FOUNDATION

The written submission of the Farewell Foundation is posted at www.farewellfoundation.ca/docs/Memorandum_of_Argument_December_3_2011_Farewell_Foundation_Intervener.pdf

Counsel Jason Gratl told the Court that Farewell Foundation generally supported the Charter of Rights arguments of the plaintiffs but it sought a different remedy that distinguishes the Foundation from the plaintiffs.

First, the Farewell Foundation does not support a restriction on medical autonomy that requires a doctor to determine that person suffers from a condition that is “grievous or irremediable or both.”  The second distinction is that the Foundation does not see the involvement of doctors as necessary to every part of an individual’s decision to end his or her life. Gratl argued that doctors are indispensable to confirming the decisional capacity of a person and they are also indispensable to ensure that a choice to bring one’s life to its end is fully informed with regard to diagnosis, prognosis, palliative and medical treatments, and social environmental options that might improve a person’s circumstances.

But, argued Gratl, the practice of documenting a request for assistance to die and the procedures to document that assisted dying is free from undue influence are not medical matters.  The evidence led in the Court about the Swiss model employed by organizations such as Dignitas and EXIT provide the framework for regulation of assistance that farewell Foundation believes is optimal for protecting against the involuntary ending of life.  For example, Canada’s witness Dr. Jose Pereira told the court that the regulations for the Swiss hospital in which he worked were quite reasonable criteria.

Gratl argued there are three categories of individual who need protection: a) those who  lack the capacity to make decisions, b) those who have not consented, either by silence or refusal, and c) those who are not fully informed about alternative options to assistance with dying.  Mr. Gratl said the right to self-determination and autonomy turns on the ability to distinguish between persons with capacity or without capacity, persons who consent or do not consent, and persons who are informed or not informed.  Farewell Foundation said there was no reason that these standards could not be legislated into practice:

“If we are serious about freedom in Canada and serious about medical autonomy we shouldn’t have to ask a doctor for permission to end our own lives or to obtain assistance in ending our lives. Of course complicated by the reality of obtaining assistance according to some levels of description include assessment of the decisional capacity and provision of diagnosis and prognosis and potential palliative and medical treatments in the context where a doctor knows an individual wants to end their own lives.”

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Carter Trial: Day 12-14, December 2-6, 2011

Posted on December 11, 2011 by Farewell Foundation

This Report covers the Carter Trial December 2 – 6, 2011  

On Friday December 2nd the plaintiff’s counsel Joe Arvay commenced his s.15 Charter of Rights argument that the criminal prohibition against aiding suicide discriminates against people with disabilities.  Section 15 says:

“Every individual is equal before and under the law and has the right to the equal  protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Similar to the 1993 Rodriguez case, it is argued that people with severe disabilities are denied the option of ending their lives without assistance, but this option is available to other people, hence there is a burden or disadvantage resulting from the law.  The Court  heard evidence about individuals who wish to end their lives because of a disabling grievous and irremediable illness, but who they say they cannot do so without assistance.

It was also argued that part of the burden imposed on disabled persons is the stereotype that they are not capable of making autonomous choices and that disability rights groups had fed into that stereotypical thinking.  The Court was told that many people fail to recognize that disabled people are capable of exercising authority in their decisions, including the decision to end their lives.  Joe Arvey said that the belief that disabled people
don’t have enough autonomy or agency to end their lives and that they would only do so if they are coerced or unduly influenced is incredibly insulting, patronizing, and infantilizing.

Continuing for the plaintiff’s, Sheila Tucker took over from Joe Arvay on Friday afternoon
through to Monday afternoon to argue that the law was overbroad because “the complete prohibition of physician-assisted dying under force of the criminal law goes far beyond what is necessary to protect (the state’s interest in protecting life).”  She pointed out that for every problem that had been identified (e.g. diagnosis of serious illness, consent, capacity, voluntariness, treatment alternatives, and depression) a possible safeguard was
available.

Justice Smith asked what Sheila Tucker believed the government’s objective should be
and Tucker say that the line should be drawn at protecting those individuals who might be induced to suicide with assistance in the absence of an explicit desire to die.

On December 6th Joe Arvay resumed at the lectern to argue that the law is arbitrary.  The first step in determining whether a law is arbitrary is to identify the purpose of the law in the first place.  In the Rodriguez ruling, the Supreme Court of Canada said that the  purpose of the law was “the protection of the vulnerable who might be induced in moments of weakness to commit suicide.”  Arvay said that this would have been a correct analysis, except that the Court went further and seemed to discover a new principle of
fundamental justice that all “human life must be respected and we must not
undermine the institutions that protect it.”

To summarize his point that the Supreme Court of Canada got it wrong in Rodriguez, Arvay said that the protection of all human life is not a fundamental principle
of justice:

“[T]here is no real connection in fact and theory between the absolute prohibition of physician-assisted dying and the protection of the vulnerable because the absolute prohibition is based on there being a moral or ethical distinction between what is compendiously referred to as ‘active and passive euthanasia’ when there is no such distinction in ethics that such a distinction exists.  Indeed we submit that to maintain such a distinction in law is ‘manifestly unfair.’  Even if the alternative formulation of the arbitrariness principle were to be deployed, we say that the absolute prohibition of physician-assisted dying is inconsistent with the state interest in protecting the vulnerable because there is no ethical distinction between those end-of-life treatments that are lawful and those that are made a crime.”

In other words, the state does not criminalize medical decisions that end life through the cessation of treatment, so it is arbitrary to criminalize the administration of a treatment that will end life.

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Farewell Foundation Intervener Submission in Carter Trial

Posted on December 4, 2011 by Farewell Foundation

Here is the link to Farewell Foundation’s written submission as intervener in the Carter case. Memorandum_of_Argument_December_3_2011_Farewell_Foundation_Intervener

On Wednesday December 7th the Farewell Foundation will give its oral argument.  Jason Gratl, our counsel, will present the Foundation’s argument, along with the two other interveners that support the Carter plaintiffs (Canadian Unitarian Council and the Ad Hoc Coalition of People with Disabilities who are Supportive of Physician-Assisted Dying).

The arguments of the interveners will be heard in Courtroom 44, at 10:00 a.m., 800 Smithe Street, Vancouver, December 7, 2011.

The Farewell Foundation believes procedures used by DIGNITAS and EXIT offer the least restrictive access to self-chosen death, with optimal accountability to public authorities,
including prosecutors, police, and coroners.

Farewell Foundation is asking the Court to adopt a definition of physician-assistance that recognizes the role of doctors in assessment of medical diagnosis and decisional capacity, but does not require that only doctors provide assistance at the end of life.  In Switzerland, non-medical persons provide assistance people who request self-chosen death and we believe a similar approach would work very well in Canada.

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Carter Trial, Day 11, December 1, 2011

Posted on December 2, 2011 by Farewell Foundation

This Report covers the Carter Trial December 1, 2011

Day 11: Thursday, December 01,  2011

Counsel for the plaintiffs, Joe Arvay, began the first day of what will be several days of  argument.   He told the court that the case involves the rights of unfortunate Canadians who have irremediable medical conditions that cause intolerable suffering, such as “ALS, Huntington’s, ravaging cancer … but also those with rarer conditions, like the bluntly but aptly named “Locked-In Syndrome” – a condition capable of transforming the body into the breathing equivalent of a medieval dungeon.”  He said that there are those who “believe there are states of being that are literally worse than death, and who wish to embrace the latter in the time, manner and circumstances of their own choosing.”

The first legal point to address was the 1993 Supreme Court of Canada ruling that denied Sue Rodriguez the right to assistance to die.  Arvay argued that the Rodriguez ruling was not binding on the BC Supreme Court because the facts in this case differ from those in Rodriguez, there are new developments in law that undermine any precedent, and foundational principles of human rights are involved.

Section 7 of the Charter of Rights—the right to life, liberty, and security of the person—comprised the bulk of the day’s argument.  The Court was told that the right to life was deprived when individuals are denied the “right to make and carry out the decision to end one’s own life.”  The right to liberty is harmed by “state interference with the right of the individual to a protected sphere of autonomy over decisions of fundamental personal importance.”  And, security of the person is harmed “by state-imposed restrictions on the right and ability of an individual to make and act upon decisions concerning his or her own body, to exercise control over matters fundamental to his or her physical, emotional and psychological integrity, and by the resultant impairment to his or her human dignity.”

The Court was also informed physician assisted dying can be safely regulated and that other end-of-life medical decisions such as refusal, withholding or withdrawal of medical treatment are subject to much less rigorous oversight.  Currently, these decisions are not subject to any formal review process: “In the context of refusal or withdrawal, there is not only no process for vetting the patient’s decision, the life-ending act need not even be reported as such. The practice of terminal sedation, which on the evidence can also hasten death, is also carried on in the absence of regulation and oversight. Further, in both of these contexts, the decision may be made by a substituted decision-maker – adding yet another significant level of risk.”

Gloria Taylor was in court to hear the evidence.  From Taylor’s affidavit, the Court heard Taylor express her concern about a double standard with regard to choosing to die from withdrawal of treatment versus physician assistance:

“I also cannot understand why it is permissible for my friend, who is on kidney dialysis, to say ‘enough is enough’ and make the decision to die. I cannot understand why the law respects his wish and decision to die, but does not do the same for me. We are equally competent. I do not understand how or why it is the role of government to say that his choice results in a “natural” death, but my choice would not.”

The Court was also told that while palliative care is an option for many, it is paternalistic for Canada and British Columbia to insist that it knows what kind of care is good for patients, and to say that palliative sedation is the answer to assisted death.  Quoting from her affidavit, the Court heard what Gloria Taylor thinks of palliative sedation:

“While I appreciate that others may feel differently about it, personally, I find the idea of terminal sedation repugnant. I do not understand how anyone could assert that it is a viable alternative to  physician-assisted dying. I cannot believe that any rational person would want that end for themselves or anyone they care about. I can understand that, if you allow a person’s suffering to become completely overwhelming, there will be a point where terminal sedation is better than soldiering on, but I cannot see how anyone, approaching death rationally and while still able to evaluate their options, could choose to die that way. It is not rational to choose to waste away slowly while unconscious, but still alive. There is no closure in that, no dignity.

The idea that I might, even though in an induced coma, be able to hear people and things going on around me as I lay wasting is a terrifying thought to me. And if it is correct to say that I would not have any sensation at all of being alive while in that coma, then I do not see why I cannot instead have the dignity and closure of actually being dead.

I do not want my last conscious thought to be worrying about what will happen – to my body and my family – once I am in the coma. I believe terminal sedation would horrify and traumatize my 11 year old granddaughter. We are extremely close and I believe that if I was not dead but rather sedated, she would insist on visiting and staying with me and, if denied the right to do so, would feel guilty about not staying and resentful of those who prevented her from doing so. Either way, her mind would be filled with visions of my body wasting away while I was “alive.” I cannot stand the idea of putting her through that. I believe that would be cruel to my granddaughter. I could not feel at peace knowing that that was what I was leaving her, and my other family members, to go through.”

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