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.”