Critiques of Assisted Suicide
paulami saha2018
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Abstract
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The paper critiques the implications and societal impacts of assisted suicide following the Carter decision by the Supreme Court of Canada. It highlights concerns over the lack of public consultation, the contentious nature of the legislation, and the potential for unintended consequences, particularly in the context of healthcare cost reduction. The article argues that important minority perspectives have been overlooked and warns of the dangers associated with framing assisted suicide within economic constraints.
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A Right to Voluntary Euthanasia? Confusion in Canada in Carter
Notre Dame Journal of Law Ethics Public Policy, 2014
In Carter v. Canada (Attorney General), Justice Lynn Smith held that the Canadian Criminal Code's prohibitions on murder and assisting suicide infringe Sections 7 and 15 of the Canadian Charter of Rights and Freedoms to the extent that those prohibitions outlaw voluntary, active euthanasia and physician-assisted suicide. This Article suggests the judgment is defective in at least four key respects: misunderstanding the principle of the inviolability of human life; concluding that laws against assisting suicide discriminate against those physically incapable of committing suicide; evading the logical "slippery slope" argument; and (as the Irish High Court has since concluded in Fleming v. Ireland) misinterpreting the evidence from jurisdictions with relaxed laws. Although the judgment of Justice Smith has been reversed by the British Columbia Court of Appeal, the reversal turned on questions of constitutional law, not on these four criticisms. These criticisms remain important, not least as the case is to be heard by the Supreme Court of Canada.
Balancing Autonomy And Beneficence: The Legal, Sociopolitical, and Philosophical History of and Support for Legalizing Assisted Suicide
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Supreme Court of Canada orders legalization of physician assisted suicide and euthanasia
This paper offers a retrospective analysis of the Supreme Court of Canada decision legalizing physician-assisted suicide and physician-administered euthanasia (EAS). The analysis is informed by later controversy about providing EAS for mental disorders and by the development of practice environments increasingly hostile to objecting practitioners. It explores the meaning of irremediablilty in the trial court and Supreme Court decisions, the contested status of EAS in relation to medical practice and health care, and claims that Canadian courts have determined that there is no ethical difference beween EAS and accepted contemporaneous end-of-life practices like withdrawing inefficacious or disproportionately burdensome treatment.
Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications
This paper takes a general approach by examining foundational issues, and the primary focus is on a single jurisdiction: Canada. It outlines the current legal criteria for euthanasia and assisted suicide in Canada, identifying differences in criteria for the procedures set by the Supreme Court of Canada, Quebec’s unique provincial euthanasia law, and the Criminal Code. Commentary drawing from anecdotal reports from eight dissenting physicians offers some insight into their experience since legalization of the procedures. Material from the public record provides additional context, and the commentary is informed by difficulties that have arisen in relation to morally contested procedures. The experience of dissenting physicians is affected by a number of variables, including cultural and social dynamics, differing beliefs, differing moral and social sensitivity and individual personalities. Four sources of stress are identified: the demand for collaboration in killing, the prospect of punishment, the continuing need to distinguish between cooperation and collaboration, and concern for their patients. Particular concerns of palliative care physicians are discussed, as well as concerns shared by other dissenting physicians. A detailed review of the moral underpinnings of the trial court decision in Carter v. Canada demonstrates that morality precedes and drives law. From this it is argued that a judge will either assume or construct a moral justification that supports a decision, even if this is not explicitly articulated in legal reasoning. These assertions are tested against the ruling of the Irish High Court in Fleming v. Ireland &Ors, which came to radically different conclusions about the risks presented by legalization of assisted suicide and euthanasia. An extensive discussion distinguishes the obligation to kill from the more familiar authorization or justification of killing. An obligation to kill can be based upon a contract model of obligation, a social contract (professional) model, and a fiduciary model, each with increasingly serious consequences. To allow the state to enforce an obligation to kill under any of the three models is subversive of life, liberty and security of the person, even before issues of freedom of conscience and religion are considered. In addition, the implications of an obligation to kill suggest that, in the long term, assisted-suicide only regimes are likely to be unstable. Legislative developments demonstrate that the government of Canada supports totalitarian claims seeking total domination of will and intellect in moral decision-making, even in matters of life and death. The ground for this was prepared by demands that dissenting physicians should be forced to refer for abortion and contraception, which established popular support for the erroneous and incoherent principle that there can be a moral duty to do what one believes to be wrong. The Carter ruling formally ratified a new establishment orthodoxy, according to which refusing to at least collaborate in killing in circumstances defined by Carter is unacceptable. This new orthodoxy can be expected to operate at a foundational level, exerting a significant influence that may not be immediately obvious. A defense of freedom of conscience and religion must take this into account. In particular, the medico-legal establishment sees the exercise of freedom of conscience and religion through the dogmatic lens of the new orthodoxy. Dissenting physicians are viewed as heretics threatening an establishment theory of social contract. This is dogmatic moral imperialism, and not less so because the dogmatists are not ecclesiastical theorists and functionaries. It should be identified as such. Again, foundational moral beliefs shape jurisprudence. Judges should be challenged to candidly acknowledge and precisely articulate the philosophical or moral premises underpinning their positions. Similarly, what lies at the root of current controversies about freedom of conscience and religion is fundamental disagreement about the nature of the human person. Thus, judges should clearly acknowledge the credal concept of the human person that informs the evaluation of evidence and legal reasoning.
Submission to the Standing Committee on Justice and Human Rights, Parliament of Canada: Amendment to Bill C-7: An Act to amend the Criminal Code (medical assistance in dying)
This submission includes an amendment to Bill C-7 that would add a section to the general provisions of the Criminal Code concerning homicide and suicide (Appendix “A”). It uses the language of the criminal law: inflicting death, homicide, suicide and the well-established and well-understood criminal concept of "parties" to acts. The proposed amendment would establish that, as a matter of law and national public policy, no one can be compelled to become a party to homicide or suicide, or punished or disadvantaged for refusing to do so. The amendment would not prevent the provision of euthanasia or assisted suicide by willing practitioners, nor rational arguments aimed at persuading practitioners to participate, nor the offer of incentives to encourage participation. It is an addition that does not otherwise change the text of Bill C-7. Nor does it touch the eligibility criteria proposed by the Supreme Court and subsequent cases. However, the amendment would prevent state institutions or anyone else from attempting to force unwilling citizens to be parties to killing someone or aiding in suicide. It would prevent those in positions of power and influence from harassing, punishing or disadvantaging anyone who refuses to be a party to inflicting death on others.
The Supreme Court and terminal sedation: rejecting assisted suicide, embracing euthanasia
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Law and human dignity at odds over assisted suicide : feature
2015
Respect for and protection of each individual's inherent human dignity as envisaged by 10 of the Constitution is a foundational principle in our law. It has, therefore, come as no surprise that Fabricius J recently found in Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP) that the common law sanction against assisted suicide, infringes the right to human dignity of patients who find themselves in a state of constant, unbearable pain as a result of a terminal illness. This brave and ground-breaking judgment may be the first step in paving the way for the legalisation of assisted suicide in our law.
Euthanasia and Assisted Suicide in Canada
This paper draws attention to euthanasia, which is illegal in Canada, and highlights efforts that have been taken for a few decades to legalize it and, based on foreign experience on legal euthanasia, explains what implications legalization might entail. The arguments voiced in support of legal euthanasia are not persuasive since it seems that critical patients in most cases want pain relief through whatever means, but not at the price of their lives. However, by using misinformation and scare tactics, proponents may misguide people and lure them into supporting legal euthanasia. The paper concludes that the government should pursue more clear and decisive measures aimed at keeping euthanasia illegal and proposes some steps to be taken in the healthcare system that would discourage further advances of the euthanasia movement.
Deciding life and death in the courtroom. From Quinlan to Cruzan, Glucksberg, and Vacco--a brief history and analysis of constitutional protection of the 'right to die
JAMA: The Journal of the American Medical Association, 1997
This article analyzes judicial determinations on the "right to die" from Quinlan to Cruzan, Glucksberg, and Vacco. The body of law known as right-to-die cases extends ordinary treatment refusal doctrine to end-of-life decisions. The courts, having affirmed a right to refuse life-sustaining treatment, held that certain categorical distinctions that had been drawn lacked a rational basis. No rational distinction could be made between competent vs incompetent patients, withholding vs withdrawing treatment, and ordinary vs extraordinary treatment. The courts, however, had persistently affirmed one categorical distinction: between withdrawing life-sustaining treament on the one hand and active euthanasia or physician-assisted dying on the other. In Washington v Glucksberg and Vacco v Quill, the Supreme Court unanimously held that physician-assisted suicide is not a fundamental liberty interest protected by the Constitution. Notably, five members of the Court wrote or joined in concurring opinions that took a more liberal view. The Court powerfully approved aggressive palliation of pain. The Supreme Court, hinting that it would find state legalization of physician-assisted suicide constitutional, invited the nation to pursue an earnest debate on physician assistance in the dying process.
Related papers
Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada
In 2012 a British Columbia Supreme Court Justice struck down Canada's absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. The decision pertained only to cases of physician-assisted suicide or homicide. She suspended the ruling for a year to give the government time to decide how to respond, but, in the interim, ruled that a physician could help one of the plaintiffs to commit suicide or provide her with therapeutic homicide. The decision was ultimately appealed to the Supreme Court of Canada and decided in the fall of 2014.
Towards the right to be killed?: Treatment refusal, assisted suicide and euthanasia in the United States and Canada
British Medical Bulletin, 1996
This chapter describes some dominant trends of American and Canadian law in relation to treatment refusal, physician-assisted suicide and euthanasia Although common law in both countries recognizes the right of patients to refuse treatment, problems have arisen, especially in the US, over treatment refusal on behalf of incompetent patients.One response has been to enact advance-directive legislation, promoting the use of living wills and proxy appointments. Courts have also specified criteria for withholding and withdrawing treatment from incompetent patients.The notion of a 'right to die' developed in court cases on treatment refusal, is now being invoked to support the legalization of assisted suicide. Courts are generally reluctant to recognize an extention of this right Debates and court cases following the recent initiative to legalize assisted suicide in Oregon and the Sue Rodriguez case in Canada's Supreme Court which resulted in a special report of a Canadian Senate Committee, are of major importance for the development of law in this area.
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The article analyses the ramifications of the Supreme Court’s 2014 Nicklinson judgment. It argues that the majority approach to a declaration of incompatibility as judicial incursion into legislative territory does not rest convincingly on the distribution of power envisaged by the Human Rights Act. Contrasting the domestic courts’ wider prerogatives to develop human rights with the self-restraint of the Strasbourg Court, driven by the margin of appreciation, the author contends that the judgment fails to protect the right to personal autonomy. Unlike the Strasbourg Court, reserved in matters pertaining to the sensitive field of bioethics, where no European consensus can legitimise progressive judgments, domestic courts have more leeway to signal to the legislature that the manner in which discretion was exercised does not strike a fair balance between competing interests. A development in this direction would find support in the general Strasbourg approach to blanket bans in other ...
Canadian Medical Association and euthanasia and assisted suicide in Canada: Critical review of CMA approach to changes in policy and law
In December, 2013, the Canadian Medical Association (CMA) Board of Directors decided to shape the debate and law concerning euthanasia and assisted suicide and revisit CMA policy opposing physician participation in the procedures. By the summer of 2014 it was clear that the overwhelming majority of physicians supported the existing policy. However, it appears that the Board decided the policy should be changed before the Supreme Court of Canada decided the case of Carter v. Canada. The Board sponsored an ostensibly neutral resolution affirming support for the right of physicians to follow their conscience in deciding whether or not to provide euthanasia/assisted suicide if the law changed. The resolution was overwhelmingly approved. Unnoticed at the time was that the resolution was not conditional upon eligibility criteria, such as decision-making capacity or terminal illness. The CMA intervention at the Supreme Court of Canada in the Carter case emphasized that existing CMA policy against euthanasia and assisted suicide would be changed to reflect the resolution. It conveyed the message that the Association would support physicians who decided to participate in euthanasia or assisted suicide no matter how broadly the Court or legislatures might cast the rules governing the procedures. The Board reversed CMA policy about two months before the Court ruled. It formally approved physician assisted suicide and euthanasia, subject only to legal constraints. The policy did not exclude minors, the incompetent or the mentally ill, nor did it limit euthanasia and assisted suicide to the terminally ill or those with uncontrollable pain. It classified both as "end of life care," promising support for patient access to the procedures should they be legalized. Support for physicians refusing to participate in euthanasia or assisted suicide was qualified by the statement that there should be no "undue delay" in providing them. Implicit in all of this was a new ethical paradigm: that in some circumstances, physicians have a professional obligation to kill patients or to help them kill themselves. The new policy effectively wrote a blank cheque for the Supreme Court of Canada to legalize euthanasia and physician assisted suicide on any terms acceptable to the judges. After the Court struck down the law CMA officials expressed concern about the criteria set by the Court. It was implied that the Supreme Court was to blame for anxiety and profound discomfort among Canadian physicians because it had imposed upon them an obligation to kill, contrary to centuries of medical ethics and practice. However, the concerns voiced by CMA officials after the Carter ruling existed when the CMA intervened in the case, and the CMA did not raise them then. In fact, the Supreme Court gave legal effect to a policy the CMA had already adopted, and the criteria the Court set for the procedures were actually more restrictive than anything the CMA had proposed. The Court cannot be blamed because CMA leaders were ill-prepared to deal with the consequences of a ruling entirely consistent with their own policy. The consequences fell most heavily upon physicians who refused, for reasons of conscience, to provide euthanasia and assisted suicide or to collaborate in providing the services by referral or other means. Since Carter, the debate in Canada has been largely about whether or under what circumstances physicians and institutions should be allowed to refuse to provide or facilitate the services. While it is generally agreed that physicians should not be compelled to personally provide them, there are strident demands that physicians unwilling to kill their patients or help them commit suicide should be forced to refer patients to someone who will. This review demonstrates that the CMA Board of Directors focus in 2014 was on the role physicians would play in providing euthanasia and assisted suicide should the law change. The Board knew that the overwhelming majority of Canadian physicians would refuse to participate in euthanasia or assisted suicide. The fundamental conflict presented by imposing an obligation to kill upon unwilling physicians was foreseeable and had been foreseen by CMA officials. Attacks upon physician freedom of conscience, particularly with respect to referral, were predictable. However, the Board failed to consider physician freedom of conscience in relation to assisted suicide and euthanasia except the extent that it could be used to further its policy goals. As a result, after the Carter ruling, CMA officials were quite unprepared to mount a cogent, articulate and persuasive defence of physician freedom of conscience, especially in relation to referral. They discovered that state authorities and the public were often unreceptive and even hostile to physicians unwilling to arrange for patients to be killed by someone else. Negotiating at a significant disadvantage of their own making, they were desperate to find a policy "acceptable to the regulators" and to objecting physicians whose fundamental freedoms they had rashly jeopardized. The CMA has since produced a strong defence of physician freedom of conscience in relation to referral for euthanasia and assisted suicide, and sound protection of conscience provisions have been incorporated into a revised CMA policy on the procedures. However, by the time these statements appeared, objecting physicians were on the defensive in a treacherous and even hostile environment, compelled to launch an expensive constitutional challenge to defend fundamental freedoms of conscience and religion. The outcome of that case will determine if they will be able to continue to practise medicine if they refuse to collaborate in killing their patients. The World Medical Association (WMA) national medical associations are free to decide to change their policies on physician participation in euthanasia or assisted suicide. This review demonstrates that they should not follow the example of the Canadian Medical Association if they wish to safeguard the fundamental freedoms of physicians and health care workers.
Stransham-Ford v. Minister of Justice and Correctional Services and Others: Can active voluntary euthanasia and doctor-assisted suicide be legally justified and are they consistent with the biomedical ethical principles? Some suggested guidelines for doct
South African Journal of Bioethics and Law, 2015
Slow down on assisted suicide
2010
If Canadians do not take positive steps to carefully, comprehensively and respectfully discuss the assisted suicide issue, we may well fall victim to the other impending slippery slope that is, the legalistic logic that displaces suffering and compassion in favour of autonomy as ...
The Legalization of Physician Assisted Suicide: A Very Modest Revolution
Boston College Law Review, 1997
The Case Against Euthanasia and Assisted Suicide
2016
The arguments in favour of legalising voluntary euthanasia and doctor-assisted suicide initially appear convincing. We should, it is said, respect people’s autonomy, euthanasia is a compassionate response to unbearable suffering, it has (supposedly) worked well in those nations that have implemented it, and so on. But on closer analysis, the arguments are far less persuasive. Such a new law is unnecessary given the current legal ability of all but the most incapacitated to take their own life and the availability of palliative care. Any euthanasia law — even one carefully drafted with requisite safeguards — is susceptible to noncompliance and vulnerable to abuse. Moreover, any law would face the ineradicable reality of self-imposed pressure the vulnerable experience to “do the right thing”. This article sets out ten reasons why euthanasia should not be legalised and contends that the case for decriminalising it has not been made out by the proponents of it.
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