Nothing is more important than life itself.
It is tragic then that a woman in a grievous and irremediable medical condition may contemplate bringing her life to an end. That she must turn to family, friends and her doctor to assist in that undertaking, adds even more to her burden.
And with the dilemma that those surrounding people could face severe criminal sanctions, her plight verges on untenable.
Undeniably, these are issues of great public importance, sufficiently so for the Supreme Court of Canada (SCC) to agree to hear this case that began in British Columbia. On February 6, 2015, the Court struck down the Criminal Code provisions that prohibit a physician’s assistance in terminating life.
The lives involved
In 2009, Gloria Taylor was diagnosed with amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness. Patients first lose the use of their limbs, then speaking and eating functions, and eventually their breathing. It is the same condition suffered by Sue Rodriquez, who unsuccessfully challenged the law on physician-assisted death at the Supreme Court in 1993.
Ms. Taylor launched this challenge in British Columbia, succeeding at trial. However, she succumbed to her condition in the intervening time before the matter reached the SCC.
In 2008, Kay Carter was diagnosed with spinal stenosis, a painful and progressive condition that compresses the spinal cord. As she described to her family, she did not want to live out her life as an “ironing board” lying flat in bed. In 2010, with the secret assistance of her daughter and son-in-law, she traveled to a clinic in Switzerland, where she administered to herself a prescribed dose of sodium pentobarbital.
After Ms. Carter’s death, her daughter and son-in-law joined Ms. Taylor in her court action to press for the legalization of physician-assisted death in Canada.
Supreme Court of Canada rules
Relying on the Rodriguez decision, the BC Court of Appeal overturned the trial judge, leading the plaintiffs to appeal to the SCC. In addition to the Attorneys General of Canada and British Columbia as respondents, the case attracted over 24 intervenor parties.
Interestingly, the only judge remaining on the court since Rodriguez is current Chief Justice McLachlin, who was then in the minority. In this current unanimous decision, the Court commented that the legislative landscape had changed since 1993. Eight jurisdictions (including 3 US states) now permit some form of assisted dying, reflecting an evolution in public sentiment. Concurrently, these can serve as models to inform Canadian policy, particularly when considering the key issue of safeguards.
All parties and intervenors agreed on the object of the prohibition, being to protect vulnerable persons from being induced to commit suicide at a time of weakness.
However, the Court concluded that these particular provisions infringed a person’s right to life, liberty and security of the person under the Charter. She may feel compelled to take her life while she is physically capable of doing so, even though she expects to continue to enjoy life after those particular physical controls have left her. In sum, “she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”
Criminal Code sections 14 and 241(b) were ruled void, but the finding was suspended for 12 months from the date of judgment, allowing the government to consider its response.
A call to financial advisors
To be clear, this case is not an authorization of euthanasia of the ill or aged. The Court emphasized that the impugned provisions offended the rights of a competent adult in a “grievous and irremediable medical condition” who is clearly capable of giving his or her own consent to a physician.
Beyond the patient and doctor, this does not expand the authority of someone currently acting under a power of attorney, nor does it mean that such decisions may now be delegated under a newly executed document. It should however prompt a frank discussion with a lawyer about the importance and coordination of powers of attorney, advance health directives and do-not-resuscitate (DNR) orders.
Outside the core legal concerns, financial advisors – particularly insurance advisors – have a central role to play in bringing some critical information to the table.
The item that immediately comes to mind is the potential effect on life insurance. A common contract term purports to void coverage if the insured dies by suicide shortly after a policy is issued. A person should be aware of the potential lost proceeds that may have been assumed to be going to surviving family. For certainty in the interpretation of such contract terms, a legal opinion would be most prudent.
Though a less common type of coverage, critical illness insurance could also be affected. CI policies usually require that the insured survives for a certain period of time in order for the proceeds to pay out. This may be as brief as 30 days, or as long as six months or more. (If the person dies earlier, the claim may be limited to a return of premiums.) Entitlement could depend on timing and nature of diagnosis, especially where a claim is premised upon impairment of activities of daily living, or ADLs.
It is important that these potential problems are brought to light, and in a timely manner, should it become apparent that a client faces a challenging medical situation. Delicate though it may be to raise initially, handled properly this can open a dialogue not only with the client directly, but (with appropriate permission) among all the person’s key professional advisors – financial, legal, medical and spiritual.
And finally, general communication with family and friends is essential. To the extent of a person’s comfort level — and with the assistance and guidance of experienced counsellors — this can lead to better understanding for all involved, needed support at critical times, and as comfortable and dignified a death as can be managed.
—
Stricken sections of the Criminal Code:
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
241(b). Every one who … (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.