End of life decisions in Canada
By Holly LeValliant, Basman Smith LLP
An area of considerable public debate in Canada recently is the withdrawal of life support from terminally ill patients. This topic touches deep emotions and conflicting cultural and religious values for many. The legal justice system in Canada has been the primary battleground as our society attempts to wrestle with this issue.
The Supreme Court of Canada dismissed an appeal by doctors at a Toronto hospital in 2013 who sought to withdraw medical treatment from a patient with severe brain damage who they said had no hope of recovery. Hassan Rasouli’s doctors believed that keeping him on the ventilator was not in his best interests, and that he was likely to die from complications related to being confined permanently in a hospital bed.
Mr. Rasouli’s wife was Mr. Rasouli’s Attorney for Personal Care. In the province of Ontario, Attorneys for Personal Care are governed by the Substitute Decisions Act. A Power of Attorney for Personal Care enables the grantor to appoint a person to make personal care decisions on his behalf in the event that he is found to be incapable of being able to do so on his own. Mr. Rasouli was not capable of directing his personal care because he was unable to understand information relevant to his health care or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision related to his health care. As a result, his wife made decisions on his behalf.
Mr. Rasouli’s wife objected to the doctors removing him from life support. She and her daughters argued that as he was in a minimally conscious state, responded to stimulation, and appeared able to communicate with them, life support should be continued. Two lower courts agreed with Mr. Rasouli’s family. They found that under the Health Care Consent Act, Mr. Rasouli’s Attorney for Personal Care had to consent to withdraw life support. Rather than going to the Ontario Consent and Capacity Board, the doctors appealed the decision to the Supreme Court of Canada, arguing that consent to withdraw life support was not necessary when medical treatment is futile.
The Health Care Consent Act is premised on the public policy rule that medical treatment cannot be administered without consent. The primary legal issue was therefore whether the decision to withdraw life support for a terminally ill patient would be considered “treatment.” The Court found that the withdrawal of life support would be considered treatment, because it falls within the definition of being “therapeutic” and “preventive.” Withdrawing life support from someone like Mr. Rasouli would impact his autonomy in the most fundamental way. As a result, the Court held that a patient cannot be taken off of life support without the consent of the patient or their substitute decision-maker.
Another area of contentious debate in Canada is physician-assisted suicide. In 2014, Edward Hung, a Toronto criminal lawyer suffering from ALS, a terminal, incurable disease, argued posthumously in a letter to his friends and colleagues that Canada’s laws against physician-assisted suicide are unjust. Shortly after he composed the letter, he travelled to Switzerland for assistance in ending his life.
In his letter, which he titled Approaching Death, he said, “at the time of writing, I have lost the functioning of both my hands. The disease will continue to attack other parts of my body and my legs are starting to feel weak. I also have trouble breathing when I am lying down. I have lost twenty-five pounds (from 155 to 130 lbs) in just two and a half months. I have always been independent when I was healthy but now I have lost all my independence and become just an observer of life, not a participant. Given the nature of the disease, it makes sense to me to determine for myself when to leave the world to end my suffering. I believe that, once I know how far death is from me, I would then know how to approach it. My goal is to approach death with a purpose. In fact, having a goal has given me the peace of mind and has diminished my suffering by distraction.”
As assisted suicide would have been against the law in Canada, he went through an extensive and costly process to qualify for assisted suicide in Switzerland. He stated, “At the time of writing, I have finally satisfied all the requirements for suicide and it is a great relief. However, my pride as a Canadian has somewhat diminished after having been on my knees begging to die in another country. This is not fair and I certainly do not wish it upon any of my fellow Canadians.”
The British Columbia Civil Liberties Association filed a lawsuit to challenge the constitutionality of the criminalization of physician-assisted suicide for competent, seriously ill patients in Carter v. Canada. They argued that the prohibition against physician-assisted suicide violates the Canadian Charter of Rights and Freedoms, specifically section 7 (that protects the right to life, liberty, and security of the person) and section 15 (that protects the right to equality before and under law and equal protection and benefit of law) by discriminating against people with disabilities who lack the physical means to end their lives without assistance, and by causing those who wish to end their suffering to do so earlier than they would want, before they lose the physical capacity to end their own life. The Supreme Court of British Columbia ruled that the right to die with dignity is protected by the Charter, but suspended the effect of the declaration for one year. The Attorney General of Canada appealed the order, arguing that the Supreme Court of British Columbia was bound by a previous decision on the issue of physician-assisted suicide. The British Columbia Court of Appeal allowed the appeal against the section 15 order, but dismissed the appeal against the section 7 order. The Supreme Court heard this case on October 15, 2014, but at the time of writing this article, the decision had not yet been released.
The stories of Mr. Hung and others in his predicament have sparked passionate debate in Canada. What comes next may be a legislative change. On March 27, 2014, Manitoba Member of Parliament Steven Fletcher tabled private member’s Bill C-581 that would amend the Criminal Code to allow physician-assisted suicide.
“We can keep people alive,” according to Mr. Fletcher, “We can’t always allow people to live.” Mr. Fletcher is quadriplegic and offers a unique perspective on the issue. “At the end of the day,” he said, “I want to be in power to make the best decisions for myself. I’m a disabled Canadian, I don’t want someone telling me what I can or cannot do. Actually, it doesn’t even matter if I’m disabled. If I was an able-bodied Canadian, I wouldn’t want people to tell me what I can or cannot do. Life can be very tough. And when you can’t breathe, can’t speak and you can’t move, fully conscious — I’ve gone through that, for months. I knew I was going to get better, but if it was going to go the other way — yeah, I would ask for [physician-assisted suicide]”.
Basman Smith LLP, Toronto, Ontario, Canada
published: November 2014