In Carter v. Canada (Attorney General), the Court held that there are some circumstances in which the Constitution requires that a person be permitted to obtain assistance in bringing about their own death.
One thing which struck me as I thought about the decision is that the Court does not really give us a good name for the circumstances in which assistance in dying must be permitted. “Assisted suicide” does not really work, since it also applies to the circumstances in which such assistance can be forbidden. The phrase the Court uses most often is “physician-assisted dying.” However, it’s not as though all physician-assisted dying must be permitted either—it is one of the criteria, rather than a name for the whole.
So, what name ought we give to that subset of assisted suicide which the Constitution requires us to permit? My modest proposal is “death therapy.”
To select this name suggests that it is essential to reasoning in Carter that death be considered therapeutic in some cases. I do think this is a necessary premise for the Court’s conclusion, and I may write up the argument from that angle yet.
However, for the moment, I would like to test the suitability of the name “death therapy” from another angle. I would like to consider what would qualify a person to obtain assistance in dying under Carter, and how that differs from access to other, more familiar, types of therapy. If the qualifications are similar in structure—that is, if considering assisted-suicide-which-must-be-permitted as a form of therapy helps account for the criteria for identifying such cases—then that would suggest that “death therapy” is a good name. Of course, any differences will also be interesting!
As an example of another therapy to which we might compare assisted suicide, consider the amputation of a leg. It is no criminal offence to amputate your own leg—just as it is no longer a criminal offence to commit suicide. However, it is ordinarily an offence to amputate someone else’s leg—even if the other person has given consent, since you ordinarily cannot consent to grievous bodily harm. Yet if the amputation of the leg is therapeutic in nature—that is, if it is being done as a necessary step to avoid something worse—then it is possible to consent to it, with certain qualifications.
So, one way of asking the question is this: of the various qualifications which the Court requires for the kind of assisted suicide that must be permitted, which of those qualifications would also apply to the other grievous forms of therapy, such as the amputation of a leg?
What, then, qualifies a person for death therapy? A reasonable starting point is the text of the declaration given by the Court, which summarizes the Court’s reasons (even though it should not actually do that) (at para. 147):
Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit 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.
There are additional potential qualifications elsewhere in the Court’s decision, and there are some noteworthy absences. All of these qualifications can, I think, be usefully divided into three general categories:
- Qualifications relating to the therapist
- Qualifications relating to the patient’s capacity and state of mind
- Qualifications relating to the therapeutic situation
Qualifications relating to the therapist
Several of the possible qualifications for death therapy relate to the identity, methods and state of mind of the therapist. How do these qualifications relate to the usual qualifications for grievous therapy (such as the amputation of a leg)?
Physican-assisted dying
The phrase the Court uses throughout its judgment to identify the subject matter of the case is “physician-assisted dying”—which, it reports, the appellants had defined in the following manner (at para. 40):
For the purposes of their claim, the appellants use “physician-assisted death” and “physician-assisted dying” to describe the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient.
Curiously, the Court does not explicitly adopt this definition for its own. However, this is the only internal evidence of what the Court means by the phrase, so presumably it is what they had in mind.
At first glance, I wondered whether “physician-assisted dying” was essentially euphemistic in nature. However, on reflection, there are two distinct situations covered by s. 14 and s. 241(b): assistance in suicide (e.g. providing deadly medication), on the one hand; and doing something which would constitute homicide (e.g. administering deadly medication), on the other. So, some phrase is needed to cover both scenarios, and “physician-assisted dying” seems as good as any.
Does this mean that death therapy must be administered by a physician? To put it another way, would Parliament be entitled to restrict the administration of death therapy to physicians? It may be so, since the Court’s s. 1 analysis relies on the expertise of physicians in assessing “decisional capacity” with respect to end of life decisions (see para. 106 and para. 116). Thus, if Parliament were to take the view that the dangers of death therapy can only be avoided with the involvement of physicians, then it appears that the Court would be inclined to agree.
However, there is not necessarily anything special about the requirement that death therapy be performed by a physician. For instance, could the amputation of a leg be performed by a non-physician without criminal liability, even if it were otherwise therapeutic and had been consented to?
I have not previously had occasion to delve very deeply into medical law, so I could go off track here. However, consider s. 216 of the Criminal Code, which reads as follows:
Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.
This suggests that (barring necessity) consent and a therapeutic situation may not, by themselves, be sufficient to allow an amputation to be performed without criminal liability. Instead, it would also be necessary to have “reasonable knowledge, skill and care.”
Of course, this does not refer to a physician specifically. However, that may be more of a drafting detail than anything else. The question of who is a “physician” is, after all, a matter of provincial law. Therefore, a federal statute which referred directly to physicians would be complicated to draft. So, requiring someone to have (and not just “use”) “reasonable knowledge, skill and care” is similar to a requirement that a person be a physician (and, ordinarily, would amount to exactly that requirement).
In fact, in cases where death therapy is permitted by the Court’s decision in Carter, would s. 216 not actually apply, according to its own terms? Death therapy is, after all, something which endangers the life of another person. One would, therefore, be required by s. 216 to have “reasonable knowledge, skill and care” in order to provide death therapy without criminal liability. (If it seems absurd that one would need reasonable knowledge, skill and care to cause death, then consider the reports of American cases in which efforts to bring about the death of condemned prisoners have been performed by persons who lacked reasonable knowledge, skill and care.)
Provides or administers medication
The Court’s definition of “physician-assisted dying” (quoted above) also uses the phrase “provides or administers medication.” Does this mean that Parliament would be entitled to limit death therapy to the provision or administration of medication (as opposed to other means of causing death)?
The question may be largely moot, since medication may typically be the most humane way in which to administer death therapy anyway (so that no one would consent to some other method). However, if Parliament were to restrict death therapy to medication, then an interesting division of powers question would arise. It is one thing, it might be said, to use the criminal law power to define the conditions under which death is a permissible therapeutic goal. It is, perhaps, quite another to regulate the permissible therapeutic techniques—something which might be thought to lie close to the core of the provincial power to regulate health care. Could, for instance, the criminal law be used to regulate the manner in which a leg is amputated (assuming that there is more than one medically-accepted technique)?
Compassion
One potential qualification relating to the therapist which is notable by its absence is any requirement for a special mental attitude on the part of the therapist. It is, for instance, not necessary for the therapist to be acting out of compassion—at least not in any special sense. No doubt the administration of death therapy ought to be done with compassion, but it is not the presence of compassion which excuses criminal liability (nor would the absence of compassion create it).
This is, in fact, one of the reasons why “death therapy” is a good name for the kind of assisted suicide which the Court decides must be permitted. The Court approaches the question of assisted suicide not as something which attracts diminished responsibility due to a special mental state, but rather as an ordinary case of legitimate therapy, if with some special features. (Well, presumably it will eventually seem ordinary).
Qualifications relating to the patient’s capacity and state of mind
Other qualifications for death therapy relate to the capacity and state of mind of the patient.
At the request of the patient
In the Court’s definition of physician-assisted dying (quoted above), it is said that the therapist‘s action must be “at the request of the patient.” How does this differ from the ordinary consent requirement for grievous therapy, such as the amputation of a leg?
Ordinarily, the law will permit consent to be presumed in certain situations. For instance, if a person is brought to the hospital unconcious, and an amputation is necessary to save the person’s life, and it must be performed before the patient regains consciousness, and there is no substitute decision maker available, and there is no actual knowledge that consent has been refused, then it is possible to presume consent and go ahead with the procedure without criminal liability.
If one took “at the request of the patient” literally, then it may be taken to imply that consent to death therapy should never be presumed. It would, in this way, differ from other grievous therapies.
Competent adult persons
The Court’s declaration limits death therapy to “competent adult persons.” This would represent another difference from the law applicable to other grievous therapies. For children, or the incompetent, substitute decision makers are able (at least in some circumstances) to provide consent to therapies such as the amputation of a leg.
It will be interesting to see whether the limitation of death therapy to competent adult persons holds over time, especially if a patient request is always also required. Consider the most sympathetic case that might arise: for instance, a sixteen-year old who is in the kind of therapeutic situation which makes assisted suicide attractive, who makes a request for assisted suicide, and whose substitute decision maker concurs with the request. Would the Court really condemn such a person to the kind of suffering it describes in Carter, by refusing to require that death therapy be permitted?
It seems doubtful.
However, there could still be a difference between death therapy and other grievous therapies, if patient consent is also required. Ordinarily, a substitute decision maker can, at least in some circumstances, consent to grievous therapy even against the wishes of the patient. Imagine, for instance, a young child facing amputation in order to save the child’s life. A parent, in that situation, could provide consent even against the child’s wishes. However, if we always require patient consent for death therapy, then the subsitute decision maker‘s consent would not, by itself, be sufficient for death therapy. It would merely be an additional requirement, for children and the incompetent, in addition to the actual request of the patient.
Clearly consents to the termination of life
The Court’s declaration requires that a person “clearly consent” to the termination of the person’s life in order to qualify for death therapy. How does this differ from the consent requirement for other grievous therapies? (You would, after all, want to be pretty sure about consent before an amputation, too).
Ordinary consent or informed consent?
One curious question which arises in this context is the distinction between ordinary consent and informed consent. This is another area where I could easily go astray, given my lack of experience in medical law. However, I offer the following line of argument for your consideration.
In the realm of tort liability, I take it that Reibl v. Hughes stands for the proposition that informed consent is only relevant to an action in negligence—not an action in battery, for which ordinary consent is sufficient. Thus, if you perform an amputation even though the patient has not consented to an amputation, then you can be sued in battery. However, if the patient has consented to amputation, but would not have consented had you fulfilled your duty to inform, then you can only be sued in negligence.
Now, it would seem to follow from this that the criminal liability of a physician would also depend on ordinary consent, rather than a heightened standard of informed consent. At least, it would seem odd if you could be convicted criminally in circumstances in which you could not be found liable civilly in battery. However, I have not (with admittedly limited effort) found a case that stands for that precise proposition.
Of course, fraud is capable of vitiating consent, and there are cases in which the failure to provide information is held to be fraud in the context of criminal assault (e.g. the HIV transmission cases such as R. v. Cuerrier and R. v. Mabior). However, intuitively it would seem that the informed consent requirement in medical negligence would require more scrupulous provision of information than needed to avoid vitiating consent via fraud.
So, what kind of consent is required to avoid criminal liability for administering death therapy? Is it ordinary consent, or informed consent?
The language of the declaration itself (“clearly consent to the termination of life”) actually sounds more like ordinary consent (subject, of course, to being vitiated by fraud) than informed consent. Yet, elsewhere in the judgment, the Court appears to be relying on a higher standard of consent. For instance, the Court refers to informed consent when analyzing the possible dangers of death therapy (see para. 106 and para. 115). Furthermore, it intuitively seems that informed consent ought to be an important element in the administration of death therapy. It would, for instance, be horrifying if someone were to consent to death therapy in circumstances in which, had they been properly informed of their prognosis or the availability of alternative therapies, they would have made a different choice.
However, it is possible that the Court is merely relying on the fact that death therapy will be subject to informed consent (for civil purposes), rather than making it a requirement for avoiding criminal liability. The precise requirements of informed consent can be subtle, since they vary to a degree from one patient to another. If a physician gets informed consent wrong, but meets the standard for ordinary consent, would it be right for the consequence to be a criminal conviction? (The trial judge alluded to a similar problem at para. 756). Now, the mens rea requirement may deal with part of the problem, depending on exactly how it would apply. However, the Court might think that informed consent is sufficient to reassure us about the application of death therapy, even if the enforcement of informed consent is only a civil matter.
The clarity of consent
The requirement that the patient clearly consent might be taken to require some special inquiry into whether the consent is real. Indeed, the Court refers to such questions as coercion, undue influence, and ambivalence (see para. 106).
However, this does not necessarily represent a different principle than would be applied in the case of other therapies. Given the particularly grievous consequences of death therapy, one would want to inquire particularly carefully into these matters. Yet the factors that should be considered are not fundamentally different. It is just that the level of inquiry will vary depending on the gravity of the circumstances, with death therapy at one end of a continuum.
Qualifications relating to the therapeutic situation
While the consent of the patient is a necessary condition for death therapy, it is not a sufficient condition. Instead, the patient must also be in a certain type of therapeutic situation. What kind of situation is required, and how is it different from the situation required for other grievous therapies?
Must the alternatives be worse than death?
In its declaration, the Court uses a variety of phrases to characterize the therapeutic situation which qualifies for death therapy: for instance, “grievous,” “irremediable,” “enduring suffering,” “intolerable.” The Court does not spend very much time telling us exactly what it means by this cluster of concepts. While each of these phrases comes at the question from a particular angle, I would suggest that the general requirement at work here is that the therapeutic situation must be worse than death—that is, death must be better than the alternatives.
How does this compare to other grievous therapies? For instance, to perform an amputation without criminal liability, is it necessary for the alternatives to be worse? Note that an amputation fulfills all of the elements of the offence of assault causing bodily harm, unless it has been consented to. Thus, the question becomes whether it is necessary, in order to give effective consent to an amputation, that the alternatives to amputation are worse?
We do know that there are significant limits to the legal capacity to consent to serious bodily harm (not only death, as explicitly provided for in s. 14 of the Criminal Code). For instance, in R. v. Jobidon, the Court decided that it is not possible to consent to the infliction of serious bodily harm in the context of a brawl.
Of course, the Court did observe that this would not prevent consent to medical procedures. However, it did so on the following basis:
There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well.
The reference to “appropriate” surgical interventions, “positive social value” and “social benefit” implies that the ability to consent to bodily harm, even in an apparently medical context, has some limits.
This is, I suppose, only logical. We know, from Jobidon, that personal autonomy (that is, consent alone) is insufficient to permit the infliction of grievous bodily harm without criminal liability. So, something else must be present. Of course, the “something else” need not always be therapeutic benefit. However, in the context of something like the amputation of a leg, what else could it be?
I would, therefore, suggest that the requirement that death therapy be therapeutic—that is, better than the alternatives—is not distinct from other grievous therapies, which must also be therapeutic in order to be consented to for the purposes of criminal liability.
Do we need to agree?
This leaves the question of exactly who must form the opinion that death is preferable to the alternatives. You might be tempted to argue that it is the patient who must form this opinion. However, in that case, the whole matter would turn on the patient’s consent, and we know that it does not—that is, we know from Jobidon that something else is required in addition to the patient’s consent.
Now, the Court does give the patient’s perspective some privilege when it discusses the requirement that the troublesome condition be irremediable (at para. 127)
“Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.
Yet the same question could arise in the context of other grievous therapies, and I expect it would be resolved in the same way. Consider, for instance, a condition which could be remedied by a treatment which seems sensible to the physician, but which the patient is unwilling, for whatever reason, to undergo. Suppose that the only other alternative is an amputation. We cannot force the patient to undergo the “better” treatment, so the amputation may still be better than the alternatives actually available to the physician.
Is it, then, sufficient that the physician agree? It seems that it would be necessary that the physician agree, since otherwise death therapy would not be in accordance with professional ethics (consider, for comparison, a situation in which a person wanted to have their leg amputated, but the physician felt that there was no medical reason to do so). But is it sufficient that the physician agree?
In practice, one suspects that physicians will be given a fair bit of latitude in these matters. If, for instance, the patient’s condition is of a kind which the law agrees could be considered worse than death, then it is unlikely to second-guess the physician’s judgment too closely. However, in principle, it is still up to the law to decide what type of conditions can be considered worse than death, permitting effective consent to death therapy under Jobidon.
Must death otherwise be near?
It is worth noting, in passing, that nothing in Carter turns on whether death would otherwise be near. In order to qualify for death therapy, you do not need to demonstrate that death would occur soon in any event.
This is actually consistent with the qualifications for other grievous therapies. For instance, in order to qualify for the amputation of a leg, you do not need to demonstrate that your leg would soon fall off on its own. You merely need to demonstrate that the alternatives to amputation are worse.
Indeed, if the alternatives are worse than death, then the fact that death is not coming soon makes death therapy easier to justify, not harder, since one would otherwise endure conditions worse than death for a long time, rather than a short time.
Must the patient be unable to obtain death without help?
The Court’s s. 7 analysis turns, at least in part, on a scenario in which the patient anticipates, at a later stage of their illness, being unable to bring about their own death. The Court accepted the trial judge’s finding that some patients in this situation commit suicide earlier than they would if they knew that help doing so would be available later. On this basis, the Court found a deprivation of the right to life (thus requiring an analysis of whether the deprivation was in accordance with principles of fundamental justice) (see para. 57 and 58).
Does this mean that it is only those persons who would be unable to obtain death without assistance who qualify for death therapy? To put it another way, if Parliament were to restrict death therapy to those who cannot commit suicide without help, would that be constitutionally valid?
If this were so, then it would be a serious divergence from the law which applies to other grievous therapies—so much so that I would no longer suggest that “death therapy” is an appropriate name for what the Court allows. After all, we do not limit amputations to those persons who are unable to remove their own legs. Well, I suppose few of us are able to remove our own legs, but you see my point—the inability of the patient to perform the therapy without help is no part of the logic for permitting other grievous therapies to be legally performed.
However, the Court’s analysis is not limited to the right to life. Instead, it also holds that the prohibition of death therapy restricts liberty and security of the person under s. 7 (at para. 66)
An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people like Ms. Taylor to endure intolerable suffering, it impinges on their security of the person.
In the Court’s discussion of liberty and security of the person, there is no explicit suggestion that anything turns on whether the patient is able to take their own life. I suppose that you could argue that persons who are able to take their own lives are not left, by the law, to “endure intolerable suffering,” since they can end that suffering by themselves. However, it seems unlikely that the Court would look at it that way: for instance, at para. 15, the Court refers (in a sympathetic tone) to the predicament of those who find unpalatable the means available to them for committing suicide, but would desire the assistance of a physician to end their lives more gracefully.
How different is death therapy from other grievous therapies?
Where, then, does this leave our original question, namely: of the various qualifications which the Court requires for the kind of assisted suicide that must be permitted, which of those qualifications would also apply to the other grievous forms of therapy, such as the amputation of a leg?
Death therapy must be performed by a physician. Other grievous therapies must be performed by someone who has “reasonable knowledge, skill and care.” This is essentially a similar requirement.
The Court refers to the administration of medication when defining “physician-assisted dying.” However, it is not clear that this is intended to limit death therapy to the administration of medication. If it were meant to do so, that would represent a difference with other grievous therapies, since the criminal law would typically be focused more on the result than the exact medical technique.
Nothing turns on any special quality of compassion in the physican’s motivation. This is consistent with other grievous therapies.
The patient must, in all cases, actually request death therapy. This is unlike other grievous therapies, for which there are limited circumstances in which consent may be presumed.
Death therapy is limited to competent, adult patients. This is unlike other grievous therapies, since a substitute decision maker can normally provide consent for children or the incompetent, at least in some cases. However, I would argue that the Court, in a sympathetic case, would be likely to require death therapy to be permitted if patient makes an actual request and the substitute decision maker agrees.
The Court does not make it entirely clear whether death therapy is subject to an informed consent requirement for criminal law purposes. If informed consent were required to avoid criminal liability, that would be distinct from other grievous therapies, for which informed consent is only relevant to civil actions.
The clarity of consent—e.g. matters such as coercion, undue influence and ambivalence—is to be evaluated in a manner which is essentially similar to other grievous therapies, though with particular care, given the particularly grievous nature of death therapy.
Death must be therapeutic, given the patient’s condition—that is, it must be better than the available alternatives. This is essentially similar to the law which applies to criminal liability for other grievous therapies.
There is no need for death to otherwise be near. This is consistent with the law relating to other grievous therapies.
The better view is that the Court does not require that the patient be unable to obtain death on their own, though it is not absolutely clear. If the patient did need to be unable to obtain death on their own, this would be fundamentally inconsistent with the law that applies to other grievous therapies.
On the whole, it seems to me that the name “death therapy” works pretty well for what the Court decides must be allowed. The structure of the qualifications for death therapy under the criminal law are substantially similar to those that apply to other grievous therapies. Of the differences, the clearest are that the patient must always request death therapy, and that death therapy is only available to competent adults. The former—that the patient must always request death therapy—is wholly justified, in my view, and in practice represents the key difference between death therapy and other grievous therapies. The latter is an understandable safeguard, but one which I suspect the Court may well relax in a sympathetic case, so long as both an actual patient request and the concurrence of a substitute decision maker is required.