February 29, 2016
Canada is making suicide a public service. Have we lost our way as a society?
By Andrew Coyne
Assisted suicide has gone, in the space of a year, from a crime, to something to be tolerated in exceptional circumstances, to a public service
When the Supreme Court, overturning Section 241(b) of the Criminal
Code, several votes of the House of Commons and its own previous ruling,
legalized assisted suicide last year, it did so on a particular
understanding of to whom and under what circumstances the new regime
would apply.
It would permit a physician, normally obliged by the code of his profession to save life, to take a life instead, at the request of 1, an adult who is 2, mentally competent and 3, clearly consents, in cases of 4, a "grievous and irremediable" medical condition that imposes 5, suffering that is "intolerable to the individual."
On its own, this made it legal to assist in suicide in a much broader set of circumstances than had previously been contemplated. The emphasis in all previous discussion - the basis of the apparent widespread public support for legalization - had been on persons who suffered, not just from an irremediable, but a terminal condition, such that suicide would merely hasten the inevitable; who were in acute physical pain, rather than enduring subjectively "intolerable" suffering, which the court was clear could be physical or psychological; and who were, or feared they might become, physically unable to kill themselves on their own.
So the court not only opened the door to assisted suicide, but opened it a little wider than it had been asked to. Nonetheless, it remained confident that the door would open no further. Indeed, the ruling arguably depended on it. The Crown's case for retaining the prohibition, after all, had rested on the concern that the logic of assisted suicide would not permit it to be limited to the sort of narrow circumstances the court had in mind. Expert testimony was called on the experience in Belgium and other countries, where eligibility for assisted suicide has been extended to children, the mentally incompetent, and others.
The court found this sort of "anecdotal" evidence unpersuasive. These countries, it said, had a very different "medico-legal culture" than ours. In Canada, the "risks" of legalized killing could be limited "through a carefully designed and monitored system of safeguards."
That was a year ago. The court's ruling has not yet taken effect, and already we have the report of an all-party joint committee on "physician-assisted dying" recommending legislation that would go far beyond what the court prescribed.
To be sure, the report builds on the court's foundations. It would apply to both terminal and non-terminal conditions, physical and psychological, debilitating or otherwise. But its definition of a competent adult would not exclude people with mental illnesses - which is to say virtually all current suicides - nor people who had previously expressed the wish to be killed in the event they should later become mentally incompetent. Moreover, after a three-year trial period, it recommends extending the practice to what it calls "mature minors," a term left undefined.
Not only would "assisted dying" be legalized, under the committee's recommendation, it would be publicly funded.
Not only would doctors be permitted to kill their patients on
request, they would be obliged to, or provide "effective referral" to
others who will. And while the committee suggests that those seeking
assistance in killing themselves should be required to get two doctors
to certify they met the criteria, the criteria are so open-ended it is
hard to see in what circumstances they could say no. In any event: the
consent of two doctors? Where have we heard that before? What if none
are available? How long could it be before the Supreme Court rules on
the inequity of denying "access" on these grounds?
Indeed, no sooner had the report been released than advocates were pushing to expand its bounds. For example, should eligibility be restricted to "mature" minors? Could it, in law or conscience? As Dr. Derrick Smith, chair of the physicians' advisory council of Dying with Dignity Canada, told the CBC, "obviously a five-year-old is not going to be able to give consent for something like that, but should we allow a substitute decision maker like the parent to say, 'Johnny's had enough suffering. I think it's time that we assist him to terminate the suffering.' "
Well, of course. Once you have normalized suicide, from a tragedy we should seek to prevent to a release from suffering we should seek to assist, it is logically incoherent - indeed, it is morally intolerable - to restrict its benefits to some, while condemning others to suffer interminably, merely on the grounds that they are incapable of giving consent. So it is that assisted suicide has gone, in the space of a year, from a crime, to something to be tolerated in exceptional circumstances, to a public service. Perhaps you see this as progress. But I cannot help feeling that a society that can contemplate putting children to death has somehow lost its way.
It would permit a physician, normally obliged by the code of his profession to save life, to take a life instead, at the request of 1, an adult who is 2, mentally competent and 3, clearly consents, in cases of 4, a "grievous and irremediable" medical condition that imposes 5, suffering that is "intolerable to the individual."
On its own, this made it legal to assist in suicide in a much broader set of circumstances than had previously been contemplated. The emphasis in all previous discussion - the basis of the apparent widespread public support for legalization - had been on persons who suffered, not just from an irremediable, but a terminal condition, such that suicide would merely hasten the inevitable; who were in acute physical pain, rather than enduring subjectively "intolerable" suffering, which the court was clear could be physical or psychological; and who were, or feared they might become, physically unable to kill themselves on their own.
Assisted suicide was presented, paradoxically, as a way of extending lifeAssisted suicide was thus presented, paradoxically, as a way of extending life, rather than shortening it, sparing patients from what the court called the "cruel choice" to which they would otherwise be subject: kill themselves while they were able, at the cost perhaps of several years of life, rather than endure the pain and indignity that might come with waiting for nature to take its course. Yet the court's decision did not depend upon this dilemma being present. It was enough that a competent adult was suffering, intolerably and irremediably, and wanted help killing himself. The necessity of the assistance was not at issue.
So the court not only opened the door to assisted suicide, but opened it a little wider than it had been asked to. Nonetheless, it remained confident that the door would open no further. Indeed, the ruling arguably depended on it. The Crown's case for retaining the prohibition, after all, had rested on the concern that the logic of assisted suicide would not permit it to be limited to the sort of narrow circumstances the court had in mind. Expert testimony was called on the experience in Belgium and other countries, where eligibility for assisted suicide has been extended to children, the mentally incompetent, and others.
The court found this sort of "anecdotal" evidence unpersuasive. These countries, it said, had a very different "medico-legal culture" than ours. In Canada, the "risks" of legalized killing could be limited "through a carefully designed and monitored system of safeguards."
That was a year ago. The court's ruling has not yet taken effect, and already we have the report of an all-party joint committee on "physician-assisted dying" recommending legislation that would go far beyond what the court prescribed.
To be sure, the report builds on the court's foundations. It would apply to both terminal and non-terminal conditions, physical and psychological, debilitating or otherwise. But its definition of a competent adult would not exclude people with mental illnesses - which is to say virtually all current suicides - nor people who had previously expressed the wish to be killed in the event they should later become mentally incompetent. Moreover, after a three-year trial period, it recommends extending the practice to what it calls "mature minors," a term left undefined.
Not only would "assisted dying" be legalized, under the committee's recommendation, it would be publicly funded.
Fred Dufour/Getty Images
An all-party committee on assisted dying is recommending that it be publicly funded.
Indeed, no sooner had the report been released than advocates were pushing to expand its bounds. For example, should eligibility be restricted to "mature" minors? Could it, in law or conscience? As Dr. Derrick Smith, chair of the physicians' advisory council of Dying with Dignity Canada, told the CBC, "obviously a five-year-old is not going to be able to give consent for something like that, but should we allow a substitute decision maker like the parent to say, 'Johnny's had enough suffering. I think it's time that we assist him to terminate the suffering.' "
Well, of course. Once you have normalized suicide, from a tragedy we should seek to prevent to a release from suffering we should seek to assist, it is logically incoherent - indeed, it is morally intolerable - to restrict its benefits to some, while condemning others to suffer interminably, merely on the grounds that they are incapable of giving consent. So it is that assisted suicide has gone, in the space of a year, from a crime, to something to be tolerated in exceptional circumstances, to a public service. Perhaps you see this as progress. But I cannot help feeling that a society that can contemplate putting children to death has somehow lost its way.
