IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Carter v. Canada (Attorney General),

 

2012 BCSC 886

Date: 20120615

Docket: S112688

Registry: Vancouver

Between:

Lee Carter, Hollis Johnson, Dr. William Shoichet,
The British Columbia Civil Liberties Association and Gloria Taylor

Plaintiffs

And

Attorney General of Canada

Defendant

And

Attorney General of British Columbia

Party pursuant to the Constitutional Question Act,
R.S.B.C. 1996, c. 68

And

Farewell Foundation for the Right to Die
-and-
The Christian Legal Fellowship
-and-
Canadian Unitarian Council
-and-
Euthanasia Prevention Coalition and
Euthanasia Prevention Coalition – British Columbia
-and-
Ad Hoc Coalition of People with Disabilities
Who are Supportive of Physician-Assisted Dying

Intervenors

Corrected Judgment:  The text of the judgment was corrected paras. 575 and 1368
and an amendment was made to the style of cause on August 14, 2012

Before: The Honourable Madam Justice Lynn Smith

Reasons for Judgment

Counsel for Plaintiffs

Joseph J.M. Arvay, Q.C.,
Sheila M. Tucker,  Alison M. Latimer,
and Grace M. Pastine

Counsel for Attorney General of Canada

Donnaree Nygard, Keith Reimer,
Toireasa Jespersen,  Melissa Nicolls,
Megan Volk and BJ Wray

Counsel for Attorney General of British Columbia

George H. Copley Q.C.
and Craig E. Jones, Q.C.

Counsel for Farewell Foundation for the Right to Die

Jason Gratl and Marius Adomnica

Counsel for Euthanasia Prevention Coalition

Hugh R. Scher, Joel V. Payne
and John A. Campion

Counsel for Christian Legal Fellowship

Gerald Chipeur, Q.C. Bradley Miller
and Michael Morawski

Counsel for Canadian Unitarian Counsel

Tim Dickson and Brent L. Rentiers

Counsel for The Ad Hoc Coalition of People with Disabilities Who are Supportive of Physician-Assisted Dying

Angus M. Gunn, Jr.
and Sarah F. Hudson

Place and Date of Hearing:

November 14-18, 21-25, 28,
December 1-2, 5-9, 12-14, 16, 2011,
April 16, 2012
Vancouver, B.C.

Place and Date of Judgment:

Vancouver, B.C.
June 15, 2012

 


 

Table of Contents

I.             SUMMARY.. 8

II.            INTRODUCTION.. 12

A.     Nature of the Claim.. 12

B.     Terminology. 16

III.           THE PLAINTIFFS.. 18

A.     Gloria Taylor 19

B.     Lee Carter and Hollis Johnson.. 22

C.    Dr. William Shoichet 24

D.    Standing of Dr. Shoichet and BCCLA.. 25

IV.          CRIMINAL CODE PROVISIONS AND THEIR HISTORY.. 30

A.     The Impugned Provisions. 30

B.     Legislative History. 32

C.    Private Members’ Bills and Senate Reports Since Rodriguez. 33

V.           EVIDENTIARY AND PROCEDURAL RULINGS.. 34

A.     Evidence. 34

1.     The Record. 34

2.     Evidence Admitted Past the Deadlines. 35

a)     The Royal Society Expert Panel Report and the Report of the Canadian Parliamentary Committee on Palliative and Compassionate Care. 35

b)     The Select Committee of the Assemblée Nationale de Québec. 37

B.     Summary and Expedited Trial 38

C.    Scope of Reply. 40

VI.          EXPERT OPINION EVIDENCE.. 42

VII.        MEDICAL ETHICS AND MEDICAL END-OF-LIFE PRACTICES.. 53

A.     Introduction.. 53

B.     Relevance of the Ethical Debate. 54

1.     Positions of the Parties. 55

2.     Analysis. 57

C.    Current State of the Law and Practice in Canada Regarding End-Of-Life Care. 58

1.     Palliative Care Practice. 59

2.     Assisted Suicide and Voluntary Euthanasia Practice. 63

3.     The Law.. 64

a)     The Informed Consent Requirement 64

b)     Potentially Life-Shortening Symptom Relief 69

c)     Palliative Sedation.. 69

d)     Withdrawal of Treatment against the Consent of Substitute Decision-Makers  69

e)     Summary. 70

D.    Evidence. 71

1.     Opinions of Ethicists. 71

2.     Evidence of Practitioners. 78

3.     Positions of Professional Bodies. 85

4.     Public Opinion.. 88

5.     Public Committees. 91

6.     Prosecution Policies. 93

E.     Analysis. 96

1.     Summary of the Ethical Debate. 96

2.     Conclusions about the Ethical Debate. 101

a)     Would Canadian physicians be willing to assist patients with hastening death if it were legal to do so?. 102

b)     Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible and is the distinction between suicide and assisted suicide ethically defensible?. 102

c)     Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?. 106

VIII.       EVIDENCE FROM OTHER JURISDICTIONS.. 111

A.     The Major Challenges to the Effectiveness of Safeguards. 113

B.     Review by Jurisdiction.. 117

1.     Oregon and Washington.. 117

2.     Netherlands. 139

3.     Belgium.. 152

4.     Switzerland. 174

5.     Luxembourg. 178

6.     Montana. 180

7.     Colombia. 182

C.    Impact of Legal Physician-Assisted Dying on Vulnerable Populations. 182

D.    Analysis of the Evidence about Effectiveness of Safeguards. 188

1.     What level of compliance have the permissive jurisdictions achieved with respect to their safeguards?. 188

2.     Do the safeguards effectively prevent abuse of vulnerable individuals?. 192

3.     What inferences can be drawn with respect to the likely effectiveness of comparable safeguards in Canada, given different cultural contexts?. 195

E.     Impact on Palliative Care. 197

F.     Impact on Physician-Patient Relationship. 209

IX.          SAFEGUARDS:  FEASIBILITY.. 213

A.     Introduction.. 213

B.     Areas of Risk. 215

1.     Competence. 215

a)     General 215

b)     Cognitive Impairment 218

c)     Depression.. 221

2.     Voluntariness. 224

3.     Informed Consent 228

4.     Ambivalence. 232

5.     Vulnerable Individuals. 234

a)     Elderly people. 234

b)     People with disabilities. 235

C.    Addressing the Risks. 237

D.    Conclusion.. 249

X.           IMPACT OF RODRIGUEZ v. BRITISH COLUMBIA.. 249

A.     General Principles Regarding Stare Decisis. 253

B.     What did Rodriguez Decide?. 257

C.    What Remains Open for Decision in This Case?. 264

1.     Section 7. 267

a)     Role for Consideration of Societal Interests in S. 7 Analysis; Relationship between S. 7 And S. 1. 267

b)     Later-Recognized Principles of Fundamental Justice. 273

i.       Overbreadth.. 273

ii.      Gross Disproportionality. 273

iii.    Analysis. 274

2.     Section 15. 277

3.     Section 1. 277

D.    Conclusion.. 281

XI.          EQUALITY.. 283

A.     Does the Law Create a Distinction Based on an Enumerated or Analogous Ground?  288

1.     Enumerated or Analogous Ground. 288

2.     Effects-Based Discrimination.. 289

3.     Comparisons. 293

4.     Benefit Provided by Law.. 296

5.     What counts as a “distinction”?. 301

6.     Conclusion.. 304

B.     Is the Distinction Discriminatory in that it Creates a Disadvantage by Perpetuating Prejudice or Stereotyping?. 305

1.     First Contextual Factor:  Pre-Existing Disadvantage. 311

2.     Second Contextual Factor:  Correspondence Between the Law and the Claimant’s Circumstances. 313

3.     Third Contextual Factor:  Ameliorative Purpose. 322

4.     Fourth Contextual Factor:  Nature of the Interest Affected. 325

C.    Conclusion.. 328

XII.        JUSTIFICATION.. 329

A.     The Rodriguez Conclusion on S. 1. 330

B.     The Analytical Framework. 331

C.    Burden and Standard of Proof, Deference and Context 331

D.    Are the Limits on Charter Rights Prescribed by Law?. 335

E.     Is the Purpose of the Legislation Pressing and Substantial?. 335

1.     What is the purpose of the legislation?. 335

2.     Is that purpose pressing and substantial?. 341

F.     Proportionality. 342

1.     Rational Connection.. 342

2.     Minimal Impairment 342

a)     Introduction.. 342

b)     Principles. 343

c)     Positions of the Parties. 344

d)     Analysis. 346

3.     Proportionality of Effects. 350

XIII.       LIFE, LIBERTY AND SECURITY OF THE PERSON.. 360

A.     Introduction.. 360

B.     Deprivation.. 361

1.     Liberty and Security of the Person.. 361

2.     Life. 365

3.     Nature of the Deprivation.. 368

C.    Principles of Fundamental Justice. 370

1.     Arbitrariness. 370

2.     Overbreadth.. 372

3.     Gross Disproportionality. 379

D.    Section 1 Justification.. 381

XIV.      REMEDY.. 383

A.     Declaratory Relief 383

B.     Constitutional Exemption.. 387

Table of Cases.. 393

 

 

I.              SUMMARY

[1]           The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms.  In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge.  They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.

[2]           Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year.  During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.

[3]           I will summarize, in brief, my findings of fact and legal reasoning.

[4]           Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering.  However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).

[5]           Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients.  Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation.  Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable.  Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.

[6]           Medical practitioners disagree about the ethics of physician-assisted death.  There are respected practitioners who would support legal change.  They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views.  However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.

[7]           Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death.  The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.

[8]           The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.

[9]           Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland).  Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation.  The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed.  Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions.  No evidence of inordinate impact on vulnerable populations appears in the research.  Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.

[10]        The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness.  The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.

[11]        I turn to the legal issues.

[12]        The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.

[13]        Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary.  It leaves open whether the legislation infringes Ms. Taylor’s right to life.  Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided.  Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.

[14]        Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter.  The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter.  Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.

[15]        The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide.  However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide.  The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability.  The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives.  The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.

[16]        The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter.  The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness.  That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it.  However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death.  Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible.  Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits.  For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.

[17]        The claimed infringement of s. 7 rights differs as among the plaintiffs.  With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez.  In addition, the legislation affects her right to life because it may shorten her life.  Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted.  With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.

[18]        The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice.  First, the legislation is overbroad.  Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish.  As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.

[19]        The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation.  For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension.  She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.

[20]        The parties may return to make submissions as to costs or to seek clarification, if necessary, of the Court’s Order.

[21]        I wish to acknowledge the excellent counsel work for all sides, which was of great assistance to the Court.

II.            INTRODUCTION

A.           Nature of the Claim

[22]        The plaintiffs challenge the assisted suicide prohibition in s. 241(b) of the Criminal Code, R.S.C. 1985, c. C‑46, together with a number of related provisions.  They argue that, to the extent that those provisions prohibit physician-assisted dying (as they define the term), they unjustifiably infringe ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter].

[23]        The plaintiffs define “physician assisted dying” as follows:

For purposes of this claim, “physician-assisted suicide” means an assisted suicide where assistance to obtain or administer medication or other treatment that intentionally brings about the patient’s own death is provided by a medical practitioner, as that terms is defined in s 29 of the Interpretation Act, R.S.B.C. 1996, c. 238, or by a person acting under the general supervision of a medical practitioner, to a grievously and irremediably ill patient in the context of a patient-physician relationship.

For purposes of this claim, “consensual physician-assisted death” means the administration of medication or other treatment that intentionally brings about  a patient’s death by the act of a medical practitioner, as that term is defined in s. 29 of the Interpretation Act, or by the act of a person acting under the general supervision of a medical practitioner, at the request of a grievously and irremediably ill patient in the context of a patient-physician relationship.

For purposes of this claim, “physician-assisted suicide” and “consensual physician-assisted death” will be collectively defined as “physician-assisted dying”.

[24]        They say that “grievously and irremediably ill” means the following:

1.  A person is “grievously and irremediably ill” when he or she has a serious medical condition that has been diagnosed as such by a medical practitioner and which:

a.  is without remedy, as determined by reference to treatment options acceptable to the person; and

b.  causes the person enduring physical, psychological or psychosocial suffering that:

i.  is intolerable to that person; and

ii.  cannot be alleviated by any medical treatment acceptable to that person.

2.  A “medical condition” means an illness, disease or disability, and includes a disability arising from traumatic injury.

[25]        The plaintiffs claim that to the extent that the impugned provisions prohibit competent, grievously and irremediably ill adult individuals who voluntarily seek physician-assisted dying on an informed basis from receiving such assistance, they deprive the plaintiffs of their rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, contrary to s. 7 of the Charter.

[26]        Arguing that the impugned provisions have a disproportionate impact on physically disabled persons, the plaintiffs say that they infringe s. 15 of the Charter to the extent that they prohibit competent, materially physically disabled, grievously and irremediably ill adult individuals who voluntarily seek physician-assisted dying on an informed basis from receiving such assistance.

[27]        The plaintiffs seek declarations of invalidity under s. 52 of the Charter, suspended for six months.  They also seek a constitutional exemption for Ms. Taylor and her physician during the period of suspension, and costs (including special costs).

[28]        The plaintiffs say that if the Court makes the declarations of invalidity that they seek, it will then be the proper institutional role of Parliament to draft legislation addressing the specific infringements in a constitutional manner.  To that end, they suggest that it would be helpful if the Court were to indicate with some specificity the basis upon which it finds the provisions unconstitutional, as well as what might make them constitutional.

[29]        Originally, the plaintiffs also advanced a claim for declaratory relief in reliance on the doctrine of interjurisdictional immunity, but did not argue that claim.

[30]        The defendant Canada opposes the granting of any of the relief sought by the plaintiffs.  It pleads that there is no reason to depart from the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 [Rodriguez] which affirms the constitutionality of s. 241(b) of the Criminal Code.  Further, it says that the plaintiffs are claiming a constitutionally protected right that is broader than that which was rejected by the Supreme Court of Canada in that decision, in the following ways:

(a)          The plaintiffs’ claim includes a right to both assisted suicide and euthanasia.

(b)          The plaintiffs’ claim may not be limited in a meaningful way to physician-assisted suicide or euthanasia because the plaintiffs’ definitions contemplate someone “acting under the general supervision of a medical practitioner” and there is nothing in the plaintiffs’ pleadings that limit who that person might be, or define what “acting under the general supervision of a medical practitioner” means.

(c)          The plaintiffs’ claim challenges not only s. 241(b), but also s. 241(a), the prohibition on counselling suicide.  Thus, Canada says, the plaintiffs’ claim would allow physicians to counsel a patient to commit suicide.

(d)          The plaintiffs’ claim relates not to individuals who are terminally ill, but rather to persons who are “grievously and irremediably ill”.

(e)          The plaintiffs’ claimed right is not limited to individuals who are experiencing intractable suffering; rather, the pleadings require only that the person be suffering “enduring physical, psychological or psychosocial suffering” that is intolerable to that person.  Canada says the test is thus entirely subjective and the plaintiffs’ pleadings do not require that all reasonable efforts, or even any efforts, have been made to try to relieve the person’s suffering.

(f)           The plaintiffs’ claim includes individuals who could commit suicide without assistance, and is not limited to persons who are or will become unable to end their own lives without assistance.

[31]        Canada submits that protecting against death does not infringe the right to life, liberty or security of the person, although it concedes that insofar as the individual plaintiffs’ actions may expose them to prosecution, their liberty interests are engaged.  Canada pleads that the individual plaintiffs’ life or security of the person interests are not affected, but submits that if they are, such effect is in accordance with the principles of fundamental justice.  Canada submits that the current laws are necessary to protect people in vulnerable circumstances, and that nothing short of the existing laws would achieve that goal.

[32]        With respect to the equality claim, Canada says that s. 15 of the Charter “is not engaged by the facts of this case”.  It argues that the laws do not draw a distinction in a manner contrary to s. 15, but rather uphold and promote human dignity; further, it says that persons who are ill and disabled require the protection of the laws against assisted suicide.

[33]        Finally, Canada submits that if the laws are found to infringe the rights of any individuals, then such infringement is justifiable in a free and democratic society and is saved by s. 1.

[34]        British Columbia responds to the plaintiffs’ claim in similar terms to those of Canada.  It argues that Rodriguez is binding and determinative. Further it submits that there is no infringement of the plaintiffs’ rights under ss. 7 or 15, and that if there is, such infringement is justified pursuant to s. 1.  In general throughout, British Columbia adopts Canada’s submissions.

[35]        Of the intervenors, the Farewell Foundation for the Right to Die, the Canadian Unitarian Counsel and the Ad Hoc Coalition of People with Disabilities who are Supportive of Physician-Assisted Dying are supportive of the plaintiff’s claim.  The Euthanasia Prevention Coalition and the Christian Legal Fellowship support the defendants’ position and oppose the plaintiffs’ claim.

B.           Terminology

[36]        It is important to define the terms related to assisted dying.  These Reasons will use the following definitions.

[37]        Assisted suicide” means the act of intentionally killing oneself with the assistance of another person who provides the knowledge, means or both.  “Physician-assisted suicide” means the act of intentionally killing oneself with the assistance of a medical practitioner, or person acting under the direction of a medical practitioner, who provides the knowledge, means, or both.

[38]        Euthanasia” means the intentional termination of the life of a person, by another person, in order to relieve the first person’s suffering.  According to the Shorter Oxford English Dictionary, it is derived from the Greek eu, meaning good, and thanatos meaning death, and so means “a quiet and easy death”.  Although the Nazi use of “euthanasia” to refer to some of their atrocities has led some to avoid the term, others continue to utilize it in its original sense and I will do so in these Reasons.  In the context of the issues in this case, I will use “euthanasia” to mean the intentional termination of the life of a patient by a physician, or someone acting under the direction of a physician, at the patient’s request, for compassionate reasons.  Euthanasia can be voluntary, non-voluntary or involuntary.  “Voluntary euthanasia” means euthanasia performed in accordance with the wishes of a competent individual, whether those wishes have been made known personally or by a valid, written advance directive.  “Non-voluntary euthanasia” means euthanasia performed without knowledge of the wishes expressed by a competent person or through a valid advance directive.  “Involuntary euthanasia” means euthanasia performed against the wishes expressed by a competent person or through a valid advance directive.

[39]        Assisted dying” and “assisted death” are generic terms used to describe both assisted suicide and voluntary euthanasia.  “Physician-assisted death” and “physician-assisted dying” are likewise generic terms that encompass physician-assisted suicide and voluntary euthanasia that is performed by a medical practitioner or a person acting under the direction of a medical practitioner.  Other medical practices that physicians employ at the end of a patient’s life do not fall within the terms “assisted death” or “assisted dying” as used in these Reasons.

[40]        Withdrawal of potentially life-sustaining treatment” means ceasing treatment that has the potential to sustain a person’s life.  “Withholding potentially life-sustaining treatment” means intentionally refraining from commencing treatment that has the potential to sustain a person’s life.

[41]        Palliative care” means care provided to people of all ages who have a life-limiting illness, with little or no prospect of cure, and for whom the primary treatment goal is quality of life. The treatment is aimed at alleviating suffering – physical, emotional, psychological, or spiritual – rather than curing.  It aims neither to hasten nor to postpone death, but affirms life and regards dying as a normal process.  It recognizes the special needs of patients and families at the end of life, and offers a support system to help them cope.

[42]        Palliative sedation” means the intentional administration of sedative medication to reduce a patient’s level of consciousness, with the intent to alleviate suffering at the end of life.  It includes both intermittent and continuous sedation, as well as both superficial and deep sedation.  It may be accompanied by the withdrawal of artificial hydration and nutrition.  The phrase “terminal sedation” is occasionally used synonymously with palliative sedation.

[43]        Terms related to consent and capacity are also central to any discussion of assisted dying.  In the health law context, “informed consent” means an intelligent choice as to treatment options made after the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment and other available options (Malette v. Shulman (1990), 67 D.L.R. (4th) 321 (Ont. C.A.) [Malette] at 327).  “Competence” and “capacity” mean the ability to understand the subject-matter in respect of which a decision must be made, and the ability to appreciate the consequences of that decision.  When a patient is competent, he or she is said to have “decisional capacity”, which means the ability to make a subjective treatment decision based on an understanding of the medical facts provided by the doctor and on an assessment of one’s own personal circumstances (Malette at 327-28).

III.           THE PLAINTIFFS

[44]        Gloria Taylor has a fatal neurodegenerative disease.  She would like to know that she can have a physician-assisted death if and when continued life becomes unbearable to her.  Lee Carter and her husband, Hollis Johnson, helped Ms. Carter’s mother, Kathleen Carter, to arrange an assisted death in Switzerland.  Dr. William Shoichet is a family physician in British Columbia who would be willing to participate in physician-assisted dying if it were no longer prohibited.

[45]        The British Columbia Civil Liberties Association (“BCCLA”) is also a plaintiff.  The BCCLA has had a long-standing interest in matters of patients’ rights and health policy, and has conducted advocacy and education with respect to end-of-life choices, including assisted suicide and voluntary euthanasia.

A.           Gloria Taylor

[46]        Gloria Taylor is the divorced mother of two grown sons.  She has an 11-year-old granddaughter with whom she is extremely close.

[47]        Ms. Taylor has amyotrophic lateral sclerosis (“ALS”), also known as Lou Gehrig’s disease.  ALS is a neurodegenerative disorder that causes progressive muscle weakness and eventually progresses to near total paralysis.  As neurologists Dr. Sharon Cohen and Dr. Scott Meckling explain, while cognition and sensation remain generally intact, ALS patients become increasingly incapacitated.  They lose the ability to use their hands and feet; the ability to walk, to chew and to swallow; the ability to make their speech intelligible to others; and, ultimately, the ability to breathe.  The average time from diagnosis to death is three years.

[48]        Ms. Taylor began to experience cramping in her hands, feet and limbs in 2003.  It was not until December 2009 that she was diagnosed with ALS.  By that time, her muscles had begun to atrophy.  She had difficulty walking and suffered generalized body weakness.  In January 2010, her neurologist told her that she would likely be paralyzed in six months and would likely die within the year.

[49]        However, Ms. Taylor fared better than predicted, and her condition plateaued for a period.  Nevertheless, in most respects, her condition has continued to deteriorate steadily since diagnosis.  Muscle atrophy in her hands and wrists makes fine motor tasks very difficult.  Muscle atrophy in her feet makes walking a challenge.  She uses a walker but requires a wheelchair for anything more than a short distance.  She cannot move the wheelchair herself due to the loss of strength in her arms and hands, and her inability to use her hands effectively.  She has pain from muscle deterioration for which she takes medication.

[50]        Home support workers assist Ms. Taylor with daily tasks every morning and evening.  Having strangers assist her with personal matters such as showering every day is something she experiences as an assault on her privacy, dignity and self-esteem.

[51]        Ms. Taylor has been a strong and independent person throughout her life.  True to form, she continues to live on her own and as independently as possible despite her illness.  She is able to fulfil her role as part-time property manager for the mobile home park where she lives and continues to have a busy life, visiting family and friends or communicating with them using the telephone or a special voice-activated computer.  Ms. Taylor is committed to a number of causes and remains actively involved in them.  For example, she is a board member of the Interior BC Chapter of the Association for Injured Motorcyclists, which she set up years earlier while an avid motorcyclist.  She also belongs to a support group for people living with ALS and their caregivers, which she founded upon discovering that no such group existed in Kelowna where she lives.

[52]        Nevertheless, Ms. Taylor’s illness is steadily impacting her ability to do these things.  She is fearful about the progression of her disease and about which of her body’s functions will be affected next.  She says that one of her greatest fears is to be reduced to a condition where she must rely on others for all of her needs.  She does not wish “to live in bedridden state, stripped of dignity and independence”.  She states:

I want to be very clear:  I do not believe that my family considers me a burden.  Nor am I concerned that as I get more and more ill they will begin to do so.  When I told my family and friends that I wanted a physician-assisted death, my concern was that they might be disappointed in me for not trying to hold on and stay with them until the last possible moment.  But I do want to express the fact that I, myself, will be greatly distressed by living in a state where I have no function or functionality that requires others to attend to all of my needs and thereby effectively oblige my family to bear witness to the final steps of the process of my dying with the indignity a slow death from ALS will entail.  I do not, in particular, want to be the cause of my 11 year old granddaughter’s sitting vigil as I die an ugly death, and I believe that is what she will do, because she loves me.  I do not want to be a burden, not because I fear my family does or would resent me – I do not think that – rather, I do not want to be a burden because I know they love me.

[53]        Ms. Taylor has informed her family and close friends of her desire to have a physician-assisted death.  She says her sons, granddaughter, mother, sisters and closest friends all strongly support her right to make the decision to die, and have told her that they do not wish to see her suffer.  Although she is aware that assisted suicide is legal in Switzerland, she is not financially able to travel and obtain the services there.  Moreover, it is important to her to have her family around her when she dies.

[54]        In her affidavit, Ms. Taylor describes some of her hopes and fears regarding her death, as follows:

I do not want my life to end violently.  I do not want my mode of death to be traumatic for my family members.  I want the legal right to die peacefully, at the time of my own choosing, in the embrace of my family and friends.

I know that I am dying, but I am far from depressed.  I have some down time – that is part and parcel of the experience of knowing that you are terminal.  But there is still a lot of good in my life; there are still things, like special times with my granddaughter and family, that bring me extreme joy.  I will not waste any of my remaining time being depressed.  I intend to get every bit of happiness I can wring from what is left of my life so long as it remains a life of quality; but I do not want to live a life without quality.  There will come a point when I will know that enough is enough.  I cannot say precisely when that time will be.  It is not a question of “when I can’t walk” or “when I can’t talk”.  There is no pre-set trigger moment.  I just know that, globally, there will be some point in time when I will be able to say – “this is it, this is the point where life is just not worthwhile”.  When that time comes, I want to be able to call my family together, tell them of my decision, say a dignified good-bye and obtain final closure – for me and for them.

My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that “enough is enough” moment arrives.  I live in apprehension that my death will be slow, difficult, unpleasant, painful, undignified and inconsistent with the values and principles I have tried to live by.  I am proud to be dedicating the final days of my life trying to change the law in this respect.  It is my hope that my actions in being a plaintiff in this case will bring others the peace of mind and sense of control that the law is presently denying me.

[55]        Ms. Taylor finds the idea of palliative sedation to be repugnant and does not consider it a viable alternative to physician-assisted dying.

[56]        In conclusion, Ms. Taylor deposes:

I am dying.  I do not want to, but I am going to die; that is a fact.  I can accept death because I recognize it as a part of life.  What I fear is a death that negates, as opposed to concludes, my life.  I do not want to die slowly, piece by piece.  I do not want to waste away unconscious in a hospital bed.  I do not want to die wracked with pain.  It is very important to me that my family, and my granddaughter in particular, have final memories that capture me as I really am – not as someone I cannot identify with and have no desire to become.

I have pre-arranged my cremation.  I have chosen songs I would like played at my service and am designing a memorial program.  I am working on a eulogy, which my cousin has agreed to read aloud for me at the service.  We create ourselves through our lives.  These acts are part of my creation of the person I want to be and the person I want others to see and remember me as.  I want my death to be part of that creation as well.  As Sue Rodriguez asked before me – whose life is it anyway?

B.           Lee Carter and Hollis Johnson

[57]        In 2008, Lee Carter’s mother, Kathleen (“Kay”) Carter, was diagnosed with spinal stenosis, a condition involving progressive compression of the spinal cord.  Kay was advised that surgery could relieve some of the compression of her spine, but she declined due to the significant operative risks.

[58]        Kay’s physical condition deteriorated steadily over the ensuing months, though her mental faculties remained intact.  By August 2009, she required assistance for virtually all of her daily activities, including eating and toileting.  She had extremely limited movement in her hands.  She was confined to a wheelchair, and could not move it herself.  If lying flat, she required assistance to sit up.  Kay suffered chronic pain, and was prescribed medication at increasing levels as her condition deteriorated.

[59]        Hollis Johnson describes his mother-in-law as intellectually curious and an independent thinker.  However, with her failing body, she was no longer able to hold a newspaper, change television channels or turn on the radio.  Her physical limitations deprived her of the intellectual and social stimulation that had previously given her great pleasure.

[60]        Ms. Carter states that her mother, a strong-willed and independent person, repeatedly expressed how her condition made her feel trapped in her own body and stripped of her independence.  On a number of occasions, Kay told her daughter that she did not wish to live her life in that condition, as an “ironing board” lying flat in a bed.

[61]        In late July 2009, Kay decided that she wished to terminate her own life as soon as possible by means of physician-assisted suicide.

[62]        Kay informed each of her children separately of her wish.  Ms. Carter deposes that given the way Kay had lived her life, she was not surprised that her mother found complete dependence and loss of control to be intolerable indignities.  Mr. Johnson also was not surprised at his mother-in-law’s decision, as it was consistent with the values and principles she had always espoused.

[63]        Kay wanted to end her life in Canada but was aware that assisting suicide was a criminal offence.  She asked Ms. Carter and Mr. Johnson to support and assist her in arranging an assisted suicide in Switzerland and to travel there with her for that purpose.  Although aware that assisting Kay could expose them to prosecution in Canada, they both resolved without hesitation to assume that risk and to assist Kay to end her life in the manner she wished.

[64]        Ms. Carter undertook the necessary research at Kay’s direction.  Kay decided that she wished to apply to DIGNITAS, a Swiss organization that offers its “death with dignity” services to non-residents.  Ms. Carter and Mr. Johnson then proceeded with the extensive preparatory work entailed in an application to DIGNITAS.

[65]        The application and approval process took considerable time, causing Kay increasing concern that she might not physically be able to travel to Switzerland given her rapidly deteriorating condition.  Eventually, in November 2009, the date of January 15, 2010 was determined.  Ms. Carter and Mr. Johnson made the arrangements necessary for Kay to travel to Switzerland.

[66]        Both Ms. Carter and Mr. Johnson found the planning and arrangement process extremely trying.  Because their activities possibly constituted an offence in Canada, they had to take considerable care to keep the plan and arrangements covert.  Kay’s care facility, for example, was misled about the nature of her departure, which deprived staff, residents and Kay of the opportunity to say final goodbyes to one another.

[67]        Ms. Carter, two of her siblings and Mr. Johnson accompanied Kay to Switzerland and to the DIGNITAS clinic.

[68]        At the clinic, a staff member gave Kay medication to settle her stomach.  After about 30 minutes, she was moved from her wheelchair to a bed.  The members of Kay’s family positioned themselves around her, entwining their arms around Kay and each other.  The staff member brought the prescribed dose of sodium pentobarbital to Kay in a small glass, and assisted her to drink the medication with a straw.  Kay became unconscious within minutes, and after about 20 minutes, she passed away.  She was 89 years of age.

[69]        Ms. Carter deposes that she believes her mother died exactly as she wanted and that, as a result, she (Ms. Carter) was happy for her and at peace.

[70]        The financial costs incurred in travel, accommodations, medical consultations and the services of DIGNITAS totalled approximately $32,000.  Kay paid this amount from her remaining life’s savings.

[71]        Ms. Carter and Mr. Johnson express the view that Kay ought to have been able to obtain a physician-assisted suicide in Vancouver, surrounded by as many of her family and friends as she wished, and that she ought not to have been required to go through the gruelling stress and uncertainty involved in arranging for the procedure in Switzerland.  They both also wish to have the option of legally obtaining physician-assisted dying in Canada for themselves, each other, and others they love.

C.           Dr. William Shoichet

[72]        Dr. William Shoichet is a family physician practising in Victoria.

[73]        In the course of his practice, Dr. Shoichet has provided medical care to a number of patients suffering from grievous and irremediable illnesses, such as cancer and certain degenerative neurological conditions.  Some of these patients suffered greatly from the effects of their illnesses, and experienced severe or chronic pain, inability to take care of their own basic physical needs and desires, inability to act independently, and severe loss of dignity and privacy.

[74]        Dr. Shoichet says that palliative care has not always been a viable option for his patients.  Some have told him that, in their view, palliative care involves unduly prolonging a fate that cannot be avoided.  Further, while palliative care can eliminate most physical pain, it cannot always do so.

[75]        Dr. Shoichet considers end-of-life care to be an important part of his compassionate, moral, ethical and professional duty as a physician treating grievously and irremediably ill patients.  He further considers the ability to participate in physician-assisted dying on request, in appropriate circumstances and with necessary safeguards in place, to be an important component of the provision of health care to grievously and irremediably ill patients.

[76]        In the event the current prohibition of physician-assisted suicide were to be changed or struck down, Dr. Shoichet would be willing to assist a patient who requested such end-of-life care where he was satisfied that it constituted appropriate medical care in the circumstances.

D.           Standing of Dr. Shoichet and BCCLA

[77]        Both defendant governments challenge the standing of the BCCLA.  British Columbia challenges the standing of Dr. Shoichet.

[78]        The plaintiffs answer that neither government pleaded that Dr. Shoichet lacks standing.  Further, they say that Dr. Shoichet qualifies for both private and public interest standing, and that the BCCLA qualifies for public interest standing.

[79]        The plaintiffs also submit that, given that the claim has been fully argued and that the BCCLA and Dr. Shoichet could have applied for and likely would have been granted intervenor standing, the question of standing is moot, academic and unnecessary to decide in this case.

[80]        I note that a similar question arose in Bedford v. Canada (Attorney General), 2010 ONSC 4264 [Bedford SC], varied on appeal in Canada (Attorney General) v. Bedford, 2012 ONCA 186 [Bedford], where the private interest standing of one plaintiff was conceded, while the standing of two others was disputed by Canada.  The Court of Appeal majority wrote at para. 50:

There is a simple reality here.  Ms. Lebovitch has private interest standing to challenge the three Criminal Code provisions.  Neither appellant says otherwise.  This placed all the constitutional issues squarely before the application judge and now places them before this court.  Accordingly, the issue of Ms. Bedford’s and Ms. Scott’s standing is irrelevant.  We decline to address it.

[81]        Although I believe that there is some relevance to the question of public interest standing for the BCCLA, because of the plaintiffs’ argument that the BCCLA should remain part of this litigation in order to see it through, I can see no relevance to the question of Dr. Shoichet’s standing.  The plaintiffs Gloria Taylor, Lee Carter and Hollis Johnson all indisputably have private interest standing; the constitutional issues are before the Court and all have been fully argued.  Neither defendant pleaded that Dr. Shoichet lacked standing.  For those reasons, I decline to address the question of Dr. Shoichet’s standing.

[82]        With respect to the standing of the BCCLA, I will begin with a brief review of the legal principles governing public interest standing.

[83]        The Supreme Court addressed public interest standing in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 [Canadian Counsel of Churches].  Justice Cory, writing for the Court, observed that the purpose of public interest standing is to prevent the immunization of legislation or public acts from challenge.  Accordingly, public interest standing is not required when, on a balance of probabilities, it can be shown that the measure in question will be challenged by a private litigant.  The decision whether to grant public interest standing is a discretionary one.  Nevertheless, when exercising the discretion, the court should interpret the applicable principles in a liberal and generous manner.

[84]        The principles that guide the exercise of the court’s discretion are these (at 253):

(a)    Is there a serious issue raised as to the invalidity of the legislation in question?

(b)    Has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity?

(c)     Is there another reasonable and effective way to bring the issue before the court?

[85]        This third aspect of the test lies at the heart of the discretion to grant public interest standing:  Hy and Zel’s Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675 at 692.

[86]        The BCCLA is a large, well-established organization.  It has been extensively involved in advocacy and education regarding end-of-life choices, including assisted suicide and voluntary euthanasia.  It says that the issue of whether there is a constitutional right to physician-assisted dying is relevant to all Canadians.  In addition, the BCCLA says that it has thousands of members who may wish to have physician-assisted dying services.

[87]        The BCCLA says that it is unreasonable to expect grievously and irremediably, and often terminally, ill persons to bring on and carry through to completion a lengthy and involved constitutional challenge.

[88]        The affidavit of John Dixon, a board director of the BCCLA, expands upon these points:

Both my personal experience and my experience as a BCCLA board director have underscored my understanding that it is critically important to have the involvement of an institutional litigant in Charter cases. Indeed, it has been my experience, through my nearly 30 years of active involvement in the work of the BCCLA, that the BCCLA often ends up being the institutional “anchor” in Charter cases, because mortality, financial considerations, or the loss of emotional energy and commitment often ends the continued participation of individuals.

Dying patients who desire medical assistance in easing their passing have a limited ability to litigate for years on end to secure the right to a physician-assisted death. Such persons are by their very nature vulnerable, and due to their illness may lack the physical and emotional resources necessary for litigation. Most importantly, they often lack sufficient time before death to litigate the predictably long march of a case through the appellate courts.

[89]        Mr. Arvay, counsel for the plaintiffs, adds that in the event Ms. Taylor’s death should occur during the course of these proceedings, it is important that the BCCLA be a party so that it may continue representing her interests.  Further, he says that the presence of the BCCLA as a named plaintiff can reasonably be said to have attracted the participation of witnesses, both lay and expert, as well as interest from the media (and allowed the fundraising necessary to cover legal costs and, thus, access to justice, in this case).  Finally, Mr. Arvay submits that there is no evidence to suggest that the individual plaintiffs in this case could, or would, have pursued this claim without the BCCLA’s participation.

[90]        With respect to the first criterion for public interest standing, British Columbia concedes that a serious issue has been raised with respect to the invalidity of the impugned provisions, by the other plaintiffs who have standing.  Canada, on the other hand, says that no serious issue exists since the constitutionality of the assisted suicide prohibition was decided in Rodriguez.

[91]        For the reasons I set out in the section of these Reasons addressing the impact of Rodriguez and stare decisis, I find there is a serious issue to be tried.

[92]        As for the second criterion, the defendants both concede, properly in my view, that the BCCLA has a genuine interest in the validity of the impugned legislation.

[93]        As for the third criterion, both defendant governments submit that the claims of the individual plaintiffs amply bring the case forward, and that the BCCLA’s claims add nothing to their challenge.  Accordingly, the defendants say, the BCCLA’s participation is not necessary in order to have the constitutional validity of the impugned legislation tested before the court.

[94]        In my view, timing matters in this case in assessing whether there is another reasonable and effective way to bring the issue before the court.  The defendants did not apply at the outset of the proceedings to have the BCCLA struck from the claim for want of standing.  Now that the case is closed, it is easy to say, as the defendants do, that the claims of the individual plaintiffs reasonably and effectively bring the issue before the court.  What is less clear is whether the individual plaintiffs would ever have initiated their claims without the participation of the BCCLA.

[95]        In deciding how to exercise my discretion, I am guided by the rationales for restricting public interest standing and the need to strike a balance between ensuring access to the courts and preserving judicial resources, as stated in Canadian Council of Churches (at 252).

[96]        The support of an organization such as the BCCLA may be necessary, in practical terms, to permit individuals to mount challenges to legislation such as this, and to have access to justice.  I note the comments in Chaoulli v. Québec (Attorney General), 2005 SCC 35 [Chaoulli] of Binnie and LeBel JJ. (Fish J. concurring), in dissent but not on this point.  They referred to the unlikelihood that seriously ill persons would bring a systemic challenge to legislation affecting them (at para. 189).

[97]        Further, to the extent that concerns about preserving judicial resources, especially from marginal or redundant suits, animate the principles that guide the granting of public interest standing, those concerns simply do not arise here.  All of the evidence has been tendered and the claim fully argued; there is, accordingly, no judicial economy to be found in striking the BCCLA as a party at this late stage.

[98]        Finally, and most importantly, the BCCLA is involved as a co-plaintiff, in support of plaintiffs who have private standing.  The issue is very different than it would be if the BCCLA were attempting to bring a separate action; in that case, the existence of an action by Ms. Carter, Mr. Johnson and Ms. Taylor might provide a strong argument that the BCCLA lacked standing to advance its own separate claim.

[99]        Ultimately, public interest standing is a matter of judicial discretion.  In my view, this is an appropriate case in which to exercise my discretion to grant public interest standing to the BCCLA.

IV.          CRIMINAL CODE PROVISIONS AND THEIR HISTORY

A.           The Impugned Provisions

[100]      The plaintiffs challenge the constitutionality of ss. 14, 21, 22, 222 and 241 of the Criminal Code [the impugned provisions], which collectively prohibit physician-assisted dying.

[101]      The impugned provisions are as follows:

·         Section 241 of the Criminal Code provides:

Every one who

(a) counsels a person to commit suicide, or

(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.

·         Section 22(3) of the Criminal Code defines “counsel” to include “procure”.

·         Section 14 provides that 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.

·         Section 21(1)(b) renders a person who does or omits to do anything for purposes of aiding any person to commit an offence, a party to the offence.

·         Section 21(2) renders persons acting with a common intention to carry out an unlawful purpose and to assist each other in carrying out that purpose, parties to any offence if they knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose.

·         Section 22(1) provides that where a person counsels another person to be a party to an offence and that other person is otherwise a party to that offence, the person who counseled is also a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

·         Section 22(2) provides that a person who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

·         Section 222 of the Criminal Code defines homicide, and states:

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

(d) by wilfully frightening that human being, in the case of a child or sick person.

(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

B.           Legislative History

[102]      The common law considered suicide to be a form of homicide that offended against both God and the King’s interest in the life of his citizens.  As explained in Rodriguez (at 596-597), until 1823, English law provided that the property of the suicide would be forfeited and his body placed at the cross-roads of two highways with a stake driven through it.  Given the practical difficulties of prosecuting a successful suicide, most prosecutions centred on attempted suicide.

[103]      When Canada enacted its first comprehensive criminal code in 1892 (Criminal Code, S.C. 1892, c. 29), the offences of assisting suicide and attempting suicide were codified as ss. 237 and 238:

237.   Every one is guilty of an indictable offence and liable to imprisonment for  life who counsels or procures any person to commit suicide, actually  committed in consequence of such counselling or procurement, or who  aids or abets any person in the commission of suicide.

238.   Every one who attempts to commit suicide is guilty of an indictable offence and liable to two years’ imprisonment.

[104]      These two provisions remained substantially the same, aside from renumbering, until 1954 when the Criminal Code underwent a general overhaul.  At that time, the maximum penalty for assisting suicide was reduced from life imprisonment to 14 years.  Attempted suicide was converted to a summary conviction offence with a maximum penalty of six months imprisonment.

[105]      The most significant change to the suicide provisions occurred in 1972 when Parliament passed Bill C-2, an omnibus criminal law amendment bill.  Among other changes, it abolished the offence of attempted suicide.  As the Minister of Justice, the Honourable Otto Lang, explained when introducing the bill for Second Reading in the House of Commons:

We have removed, as well, the offence of attempted suicide, again on the philosophy that this is not a matter which requires a legal remedy, that it has its roots and its solutions in sciences outside of the law and that certainly deterrent under the legal system is unnecessary.

[House of Commons Debates, 28th Parl., 4th Sess., Vol. 2 (27 April 1972), at 1699]

[106]      The only other change of any substance saw “counsels and procures” in s. 241(a) amended to “counsels” in 1985.

[107]      Section 241 of the Criminal Code has not been amended since that time.

C.           Private Members’ Bills and Senate Reports Since Rodriguez

[108]      Assisted suicide and euthanasia have been the subject of substantial Parliamentary debate and study over the past 20 years.

[109]      Since 1991, nine private member’s bills have been introduced in the House of Commons seeking to amend the Criminal Code to decriminalize assisted suicide or euthanasia.  Three of these bills died with the prorogation of Parliament.  The remaining six, however, were debated in either the House of Commons or committee.

[110]      The most recent was Bill C-384, An Act to Amend the Criminal Code (right to die with dignity), 2nd Sess., 40th Parl., which was introduced in the House of Commons in May 2009.  The bill proposed to amend s. 222 of the Criminal Code, the homicide prohibition, by adding a provision stating that a medical practitioner does not commit homicide if he aids a person who is at least eighteen, and who meets a number of other conditions, to die with dignity.  It would also have amended s. 241(b) to permit a medical practitioner to assist in suicide under certain conditions.

[111]      Bill C-384 was debated at Second Reading (House of Commons Debates, 40th Parl., 2nd sess., No. 89, (2 October 2009) at 5518).  Its proponents spoke of the profound and fundamental importance of dignity, the legalization of the practice of physician-assisted death in other jurisdictions, and the limits of palliative care.  Among the concerns cited by its opponents were the inadequacy of safeguards and the inevitability of mistakes, the “slippery slope”, the potential for pressure on vulnerable Canadians, and the devaluing of human life.  Members of both sides of the debate related the personal stories of family members or constituents who had been seriously ill.

[112]      On April 21, 2010, the motion to advance Bill C-384 to Committee was defeated by a vote of 228 to 59.

[113]      The Senate, too, has considered assisted suicide and euthanasia.  In the wake of the Rodriguez decision, in 1994 a Special Senate Committee was appointed to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide.  The Committee heard testimony from over 130 non-governmental witnesses over 30 days of hearings and received and considered thousands of letters and briefs.  It issued its final report – Of Life and Death (Ottawa:  The Special Senate Committee on Euthanasia and Assisted Suicide) (Chair: Joan B. Neiman) [the Special Senate Committee Report] – in June 1995.  That report is described later, in the section on Medical Ethics and End-of-Life Decision Making.

V.           EVIDENTIARY AND PROCEDURAL RULINGS

A.           Evidence

1.            The Record

[114]      Although the parties were required to operate under fairly short timelines, they managed to assemble a very considerable evidentiary record.  It includes some 36 binders of affidavits, transcripts and documents entered through admission.  There were 116 affidavits filed.  Some of these run to hundreds of pages in length and attach as exhibits many secondary sources.  In addition, 18 witnesses were cross-examined on their affidavits, including 11 witnesses who were cross-examined on their affidavits before the Court.

[115]      The parties did a thorough and detailed job of reviewing the materials in their submissions.  Because of the extensive nature of the record, I will not refer to every affidavit or to every witness.  However, I have reviewed the entire record, and my conclusions are based upon all of the evidence before me, taken as a whole.

[116]      Where objection was taken to evidence and I ruled that it was admissible but would consider the objections in assessing its weight, I have done so.  Further, I have assessed the weight to be given to the expert opinion evidence, taking into consideration the particular expertise of the witness, whether the opinion was within that expert’s scope of expertise, the consistency of the opinion with that of other experts, and the apparent impartiality or partiality of the expert in question.

[117]      There was essentially no challenge to most of the evidence of the non-expert witnesses, and I have by and large taken that evidence at face value.

[118]      Finally, where there was objection to evidence on the basis that it came from secondary sources and was hearsay, I have taken those objections into account and have not accepted what was related for the truth of its contents.

2.            Evidence Admitted Past the Deadlines

[119]      The parties had deadlines for providing evidence to the other side.  In a few instances, evidence became available outside those deadlines, either during the hearing or after the hearing.  These are my rulings with respect to that evidence.

a)            The Royal Society Expert Panel Report and the Report of the Canadian Parliamentary Committee on Palliative and Compassionate Care

[120]      On November 23, 2011, the plaintiffs introduced, through cross-examination of one of the defendants’ witnesses, a recently-delivered report from an Expert Panel of the Royal Society of Canada:  End-of-Life Decision Making (Ottawa:  Royal Society of Canada, 2011) (Chair:  Udo Schuklenk) [the RSC Report].

[121]      The plaintiffs sought to have the RSC Report admitted in evidence.

[122]      Canada opposed its admission, essentially on two grounds.

[123]      First, in Canada’s view, the report is essentially argument on one side of the debate (and largely legal argument), rather than a balanced or comprehensive review of the issues.

[124]      Second, Canada urged, admission of the report would be unfair because three of the authors were expert witnesses for the plaintiffs (Dr. Johannes van Delden, Professor Sheila McLean and Dr. Ross Upshur), and a fourth author (Professor Jocelyn Downie) had been assisting the plaintiffs with instructing expert witnesses.  Ms. Nygard submitted that those witnesses were advancing their views a second time through the RSC Report, in addition to the opinion evidence set out in their affidavits.  Canada might have elected to cross-examine those witnesses, counsel argued, if this second version of the witnesses’ views had been available.

[125]      Counsel for the plaintiffs submitted that the RSC Report constituted completely new evidence, previously unavailable.  Counsel compared it to the Report of the Canadian Parliamentary Committee on Palliative and Compassionate Care (House of Commons, Not to be Forgotten:  Care of Vulnerable Canadians (November 2011) (Co-chairs:  Harold Albrecht, Joseph Comartin and Frank Valeriote) [the Canadian Parliamentary Committee Report]) which was also released during the hearing, and provided to the Court by Canada.

[126]      Plaintiffs’ counsel advised the Court that they had no information whatsoever as to the contents of the RSC Report until it was released to the public.  Counsel also described to the Court the process that the Royal Society of Canada uses to develop its expert panels, and to have expert panel reports peer reviewed.

[127]      The plaintiffs’ position was that the inability to cross-examine the authors of the RSC Report should go to its weight rather than its admissibility.

[128]      At the hearing, I admitted the evidence provisionally.   Canada then elicited comments about the report from one of its witnesses, Dr. Harvey Chochinov, who is a Fellow of the Royal Society of Canada.  In his view, the RSC Report reads as though it was written with a pre-ordained conclusion.  He further commented on the rapidity with which the panel had proceeded, and noted that the membership of the expert panel lacked representation from the palliative care community, and included persons who had previously expressed views supportive of physician-assisted dying.

[129]      I have now reviewed the RSC Report and have concluded that it will be admitted in evidence, in the main for the fact that the expert panel made the recommendations that it did.  I have not relied upon it as evidence on any contentious matters such as the efficacy of safeguards in jurisdictions that permit physician-assisted dying.  Its review of the legal landscape regarding end-of-life care in Canada is not evidence, but the equivalent of a law review article or a legal text.

[130]      I will also admit in evidence the Report of the Parliamentary Committee on Palliative and Compassionate Care, and similarly have not relied upon it as evidence with respect to any contentious matters, but as evidence that the Committee made certain recommendations.

b)           The Select Committee of the Assemblée Nationale de Québec

[131]      After the hearing, the plaintiffs applied to adduce further evidence.  They asked the Court to receive into the record the recommendations portion of the Report of the Select Committee of the Assemblée Nationale of Québec on “Dying with Dignity, Mourir dans la Dignité (March 2012) (Chair:  Maryse Gaudreault) [the Québec Select Committee Report].  This is my ruling on that application.

[132]      The plaintiffs provided evidence as to the composition of the Committee, its mandate, and its consultation document.  However, the plaintiffs request only that the Court receive evidence that the Select Committee made the recommendations it did.  They submit that the evidence is relevant, in part because of the defendants’ evidence regarding numerous committee reports and recommendations opposing a change in the law regarding assisted suicide and euthanasia.  They submit that the Québec Select Committee Report was not available earlier and that the Court should be aware that a committee of the legislative assembly of one Canadian province has recently considered the matter and made recommendations for change.

[133]      Both Canada and British Columbia are opposed to the reception of this evidence.  British Columbia submits that these are non-binding recommendations, constituting the opinion of the Committee alone.  It submits that other organizations have stated opinions with respect to the contents of the report that are not reflected in the recommendations; therefore, admitting only the recommendations would fail to provide the Court with a balanced picture.

[134]      Canada’s position is that if the plaintiffs’ case is to be reopened, it should be only for the limited purpose of adducing the fact that the Select Committee made certain recommendations and not for the truth of any of the materials considered by the Committee.

[135]      I conclude that the evidence should be received.  It was not available earlier and bears directly on the question of “societal consensus”, which was the subject of considerable evidence at the trial.

[136]      I will admit the recommendations for the fact that they were made by a Select Committee of the Assemblée Nationale.  I will also admit in evidence the affidavit of Ms. Nancy Reimer made on April 11, 2012, tendered by British Columbia.  It attaches pieces of commentary on the Select Committee recommendations.  Again, these are received not for the truth of their contents but for the fact that these comments were made.

B.           Summary and Expedited Trial

[137]      This matter proceeded by way of a summary trial application pursuant to Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, based on affidavit evidence.  However, all parties were able to require the attendance of deponents for the other side for cross-examination, either outside court or before the Court, and counsel had some opportunity to elicit evidence from their own deponents through examination in chief before the Court.

[138]      The timelines for the provision of evidence were, with counsel for the parties, developed at Case Management Conferences.

[139]      Counsel for the defendants submitted that the subject matter and the complexity of the issues meant that the matter was not suitable for summary trial under Rule 9-7 on short timelines, and that there should be a conventional trial with witnesses.

[140]      Rule 9-7(15) provides discretion for the Court to decline to grant judgment following a summary trial where the matter has proved unsuitable for summary trial:

(15) On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

[141]      The plaintiffs’ position was that the mode of summary trial, or a petition based on affidavit evidence, is commonly used in Charter cases where the record largely consists of legislative facts and expert opinion evidence.  They asked to proceed with a summary trial, taking the risk that at the end of the day the Court would conclude that it was not possible to find the facts necessary to decide the issues of fact or law, or that it would be unjust to decide the issues on this application.  As for the timing of the trial, counsel for the plaintiffs advanced two main reasons for proceeding on a relatively expedited basis:  (1) Ms. Taylor’s deteriorating physical condition; and (2) limits on counsel’s ability to represent the plaintiffs pro bono in an extended conventional trial.

[142]      The plaintiffs prevailed on this point, and the Court heard a summary trial, although one with the significant modifications I have described.

[143]      In their closing submissions, the defendants maintained their position that it is not in the interests of justice to determine the constitutional issues in this matter by way of a summary trial on short timelines, given both the nature and the importance of the issues as well as the volume and complexity of the evidence.

[144]      There is no doubt that the timelines under which all counsel worked were challenging.  Despite the timelines, in my view, a remarkably comprehensive and complete record was provided to the Court.

[145]      Significantly, counsel for the defendants did not point to any specific evidence that they would have provided to the Court, but for the timelines.

[146]      Having heard all of the evidence and submissions, I find that I am able, on the whole of the evidence, to find the facts necessary to decide the issues in this case.  There was no issue as to the credibility of any witness of fact.  Although some issues arose as to the reliability of expert witnesses and the weight that should be given to their opinions, none of those issues, in my view, was difficult or impossible to decide, particularly given that the parties had the opportunity to cross-examine the key witnesses on their affidavits before the Court, and did so.

[147]      In my opinion, it is not unjust to decide the issues on this application.

C.           Scope of Reply

[148]      At the conclusion of the hearing, an issue arose about the scope of the plaintiffs’ reply.  I considered the submissions and decided to receive the reply submissions.  These are my reasons for that decision.

[149]      Canada argued that the plaintiffs’ submissions did not constitute proper reply.  Canada submitted that the plaintiffs have split their case, making new arguments and new references to evidence in their reply, to which the defendants had no opportunity to respond.

[150]      In Canada’s submission, a plaintiff must make submissions in chief concerning arguments and issues that were or ought to have been anticipated.  Canada relies on Owners, Strata Plan LMS 1816 v. B.C. Hydro, 2002 BCSC 313 [Strata Plan LMS 1816] at para. 11 for the proposition that a reply is meant only to address new issues that the presenting party had no reason to anticipate, and must be responsive to the other party’s final submission.   Canada also argues that a plaintiff is required to exhaust its evidence in first instance, citing Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd; Patten and L.A. Corney Commercial Deliveries Ltd. v. Bernard and Dynamic Displays Ltd. , [1967] 1 O.R. 18 (Ont. C.A.).

[151]      Canada proposes that the appropriate response would be to disregard the improper submissions, citing Froom v. Canada (Minister of Justice), 2003 FC 1299 at paras. 11‑13.  In the alternative, Canada requests the opportunity to provide the Court with a brief sur-reply.

[152]      The plaintiffs argue that they anticipated and addressed the defendants’ argument to the extent reasonably possible in their detailed argument in chief.  However, they submit, they are entitled to reply to Canada’s submissions, including the ways in which Canada relies upon and interprets the evidence.

[153]      The plaintiffs further submit that it is proper both to address the respondent’s characterization of the evidence and to offer affirmative factual responses, relying on Strata Plan LMS 1816 at para. 7.  They note that addressing the evidence is particularly important in this case because the Court made it clear that it expected the parties to provide assistance in negotiating the extensive factual record.

[154]      The plaintiffs argue that the theory of reply advanced by Canada would require the plaintiffs to anticipate the defendant’s entire theory of the case and rebut it in advance of hearing it.  This, they say, would be unfair and unrealistic.  They cite Merck-Frosst v. Canada, 2009 FC 914 at paras. 29-30, for the proposition that the plaintiffs cannot be expected to deal with every argument they can anticipate because they cannot know which of the possible arguments the defendants will in fact advance.

[155]      The plaintiffs rely on Strata Plan LMS 1816 at paras. 4-5, 10-11 and 15-19 for the proposition that sur-reply is much narrower than reply, and should not be granted in this case; moreover, it would not further “the just, speedy and inexpensive determination of a proceeding on its merits” (Rule 1-3 of the Supreme Court Civil Rules) to allow the defendants to file a sur-reply.

[156]      I note that Strata Plan LMS 1816 in fact related to the propriety of filing sur-reply pleadings, rather than reply submissions as is the issue in this case.

[157]      In their reply submissions, the plaintiffs did not tender any new evidence, though they did draw to the Court’s attention aspects of the existing evidence that, in their view, responded to specific pieces of the evidence upon which Canada relied.  Nor did the plaintiffs advance new theories of the case or make arguments that were not responsive to arguments raised by the defendants.  For example, one aspect of the plaintiffs’ reply to which Canada objected was a section in which the plaintiffs set out what they said would be safeguards responding to the defendants’ submissions raising concerns about risks.  In my view, the plaintiffs could not have been expected to anticipate Canada’s very thorough and detailed argument about risks, and it was appropriate for them to respond with specific reference to the evidence.

[158]      Though the plaintiffs’ reply is lengthy and detailed, in my view it is proper reply under the Rules and practice of this Court, in the context of this case.

[159]      I have reviewed, and noted, Canada’s submissions regarding specific points as to which they say that the plaintiffs in their reply misstated Canada’s position.

VI.          EXPERT OPINION EVIDENCE

[160]      The Court had the benefit of expert opinion evidence from many academics, researchers and medical practitioners.  For convenience, the table below sets out, with respect to the expert witnesses, their names, a summary of their qualifications, and the identity of the party tendering their evidence.  I have adopted the convention, in these Reasons, of referring to medical doctors as “Dr.” and to university researchers (including those who hold doctorates) as “Professor”.

Witness

Summary of Qualifications

Evidence tendered by

Dr. Marcia Angell

A physician, Senior Lecturer on social medicine in the Division of Medical Ethics at Harvard Medical School in Boston, Massachusetts, and former Editor-in-Chief of the New England Journal of Medicine.  She specializes in medical ethics and social medicine.

Plaintiffs

Dr. Michael Ashby

A practicing specialist and Professor in palliative and pain medicine with the University of Tasmania in Australia.  He is also a consultant in palliative and pain medicine with the Department of Health and Human Service in Tasmania.

Plaintiffs

Professor Margaret Pabst Battin

A philosopher, bioethicist and Distinguished Professor of the Department of Philosophy at the University of Utah.  Her research focuses on physician-assisted death and related ethical, philosophical and empirical issues.

Plaintiffs

Dr. David Bell

A physician with a family practice with hospital privileges in Victoria, British Columbia. He has more than 30 years experience caring for patients at the end of their lives.

Plaintiffs

Dr. Charles Bentz

A practicing physician specialising in internal medicine, and Medical Director and Associate Professor at the School of Physician Assistant Studies at Pacific University, College of Health Professions in Oregon.  He previously served as Director of the End-of-Life Care Curriculum and member of the End-of-Life Quality Improvement Committee at St. Vincent Hospital, and the Program Chair for five state-wide palliative care conferences.

AG Canada

Dr. Eugene Bereza

A Montréal-based physician, clinical ethicist and Director of the Biomedical Ethics Unit at the McGill Faculty of Medicine; the Neuroethics Program at Montreal Neurological Institute and Hospital; the Medical Ethics Program, McGill Department of Family Medicine, and the Ethics Program at CSSS de la Montagne.  He practices in applied clinical ethics, research ethics and organizational ethics.

AG Canada

Dr. Jean Bernheim

A retired oncologist, researcher and Professor Emeritus of medicine at the Free University of Brussels in Oostende, Belgium.  His research focuses on the design and application of methods to evaluate “quality of life”, and epidemiological and conceptual end-of-life research.

Plaintiffs

Dr. Marcel Boisvert

An Associate Professor with the Department of Medicine at McGill University and a retired palliative care physician in Québec.  He has presented on palliative care to numerous conferences and government committees.

Plaintiffs

Dr. Georg Bosshard

A family physician, geriatrician and Associate Professor of clinical ethics at the University of Zurich in Switzerland.  He previously served as a research associate for medical law and ethics and has done research into end-of-life issues in Europe.

Plaintiffs

Dr. David Boyes

A retired physician who practiced in obstetrics, gynaecology and oncology in Vancouver, British Columbia.  He retired in 1987 as Director of the Cancer Control Agency of British Columbia, having become one of the world’s leading authorities on cervical cancer.

Plaintiffs

Professor Anne Bruce

A registered nurse and an Associate Professor in the Faculty of Human and Social Development with the School of Nursing at the University of Victoria in British Columbia. She authored a paper concerning palliative sedation.

Plaintiffs

Dr. Ryan Bystrom

A family physician in Westbank, British Columbia with active privileges at the Kelowna General Hospital.  He is also a clinical instructor with the University of British Columbia.  Dr. Bystrom is Ms. Taylor’s family physician.

Plaintiffs

Dr. Eric Cassell

A retired internist and palliative care physician in Miniskink Hills, Pennsylvania, and current Emeritus Professor of public health at Weill Medical College of Cornell University and Adjunct Professor of medicine at McGill University.  He has provided care to the dying and written on the subject for 40 years, and has held numerous commission and committee appointments in the area of bioethics and palliative care.

Plaintiffs

Dr. Harvey Chochinov

A Distinguished Professor of psychiatry at the University of Manitoba and Director of the Manitoba Palliative Care Research Unit, CancerCare Manitoba.  He holds the only Canada Research Chair in palliative care, and has published extensively in the psychosocial dimensions of palliation.

AG Canada

Dr. Sharon Cohen

A behavioural neurologist and Assistant Professor in the Division of Neurology at the University of Toronto, with a cross-appointment in the Graduate Department of Speech Language Pathology. Her practice focuses on disorders of cognition, mood and behaviour, including dementia and Huntington’s disease

Plaintiffs

Mr. Mark Connell

An attorney in Missoula, Montana who has served as Director of the Montana Trial Lawyers Association and the American Civil Liberties Union of Montana. He represented the plaintiffs in a case that resulted in the Supreme Court of Montana holding that a terminally ill patient’s consent to physician-assisted death constitutes a statutory defence to homicide charges against a physician.

Plaintiffs

Dr. Deborah Cook

A physician and Professor in the Departments of Medicine and Clinical Epidemiology & Biostatistics, and Academic Chair in Critical Care Medicine at McMaster University in Hamilton, Ontario.  She specialises in critical care medicine, including end-of-life care.

Plaintiffs

Professor Luc Deliens

A Belgium-based medical sociologist, Professor of public health and palliative care at Vrije Universiteit Amsterdam, and Professor and Director of the End-of-Life Care Research Group at Ghent Universiteit and Vrije University, Brussels.  He has published extensively on end-of-life care.

Plaintiffs

Dr. Martha Donnelly

A geriatric psychiatrist and Associate Professor at the University of British Columbia in Vancouver, where she is the Director of the Geriatric Psychiatry Program.  She has had extensive practical experience doing competency assessments, and teaches in that area.

Plaintiffs

Dr. G. Michael Downing

A palliative care physician and Research Director of Vancouver Island Health Authority’s Victoria Hospice, an internationally recognized centre for expertise in palliative pain and symptom management, education and research in palliative care in Victoria, British Columbia.

AG BC

Baroness Ilora Finlay of Llandaff

A palliative care physician who was involved in establishing palliative medicine as a recognized speciality in the United Kingdom, as well as an Honorary Professor of palliative medicine at Cardiff University and Groningen University.  She has served in the United Kingdom House of Lords since 2001, where she has been active in health-related legislation.

AG Canada

Professor Catherine Frazee

A Professor Emerita at the School of Disability Studies at Ryerson University in Ontario. She served as a Commissioner for Human Rights, and later as Chief Commissioner for the Ontario Human Rights Commission. She has done extensive work in human rights and disability rights, including research into the risks that physician-assisted dying poses for people with disabilities.

AG Canada

Dr. Romayne Gallagher

A Vancouver-based physician specializing in palliative care and chronic pain, and a Clinical Professor in the Division of Palliative Care at the University of British Columbia. She is currently the Head of the Divisions of Palliative and Residential Care in the Department of Family and Community Medicine, and Physician Program Director of the Palliative Care Program, for Providence Health Care.

AG Canada

Dr. Linda Ganzini

A geriatric psychiatrist, and Professor of psychiatry and medicine and Director of the Division of Geriatric Psychiatry at the Oregon Health and Science University.  She holds a Masters of Public Health degree with an emphasis in epidemiology and biostatistics.  Over some 15 years, Dr. Ganzini has co-authored numerous studies regarding different aspects of physician-assisted dying in Oregon.

Plaintiffs

Dr. N. Gregory Hamilton

A practicing psychiatrist who is a co-founder, past board member and past President of Physicians for Compassionate Care, a non-profit organization in Portland, Oregon that promotes compassionate care for severely ill patients without sanctioning or assisting their suicide.

AG Canada

Professor Marnin Heisel

A clinical psychologist, research scientist and Associate Professor at the Schulich School of Medicine and Dentistry, University of Western Ontario.  He has expertise in suicidology, with particular expertise in suicide prevention among older adults.

AG Canada

Dr. Herbert Hendin

A New York-based psychiatrist and researcher who studies and treats people who wish to end their lives, some of whom are terminally ill. He has served as CEO and Medical Director of the American Foundation for Suicide Prevention and has done research into the effects of legalizing physician-assisted dying in Oregon and the Netherlands.

AG Canada

Ms. Ann Jackson

A consultant to not-for-profit boards of directors who retired as the Executive Director and Chief Executive Officer of the Oregon Hospice Association in 2008.  She has been a primary spokesperson about end-of-life choices in Oregon and currently works with individuals and organizations on end-of-life decision making.

Plaintiffs

Professor John Keown

A Professor of law who holds the Rose Kennedy Chair of Christian Ethics at Georgetown University in Washington D.C.  He has specializes in medical ethics, and has spent more than 20 years researching, teaching, presenting and publishing on end-of-life issues.

AG Canada

Dr. Gerrit Kimsma

A Dutch family practitioner, and an Extern Associate Professor of medical ethics and philosophy at the Radbout University Medical Center in Nijmegen, the Netherlands.  He has been a program developer and instructor for the program in the Netherlands that provides support and consultation to physicians in connection with patient requests for euthanasia (“SCEN”).

Plaintiffs

Dr. Michael Klein

A family physician, paediatrician, neonatologist, maternity care researcher and maternity, primary care and organizational consultant in Vancouver who served as the head of family practice departments at several medical institutions, including the Children’s and Women’s Health Centre of British Columbia.

Plaintiffs

Professor Thomas Koch

A Toronto-based gerontologist specializing in chronic conditions and diseases, and an Adjunct Professor of medical geography at the University of British Columbia. He is a consulting medical ethicist to Alton Medical Centre (Toronto), Copeman Healthcare (Vancouver) and Perram House Hospice (Toronto). He has written and presented on issues of medical ethics and care.

AG Canada

Professor Johan Legemaate

A Professor of health law at the University of Amsterdam in the Netherlands who has served as legal counsel to several medical organizations and health-related advocacy groups.  He has published on a wide range of health law issues, including patients’ rights, the regulation of care and end-of-life decisions.

Plaintiffs

Professor Penney Lewis

A Professor of law at the King’s College London School of Law and Centre of Medical Law and Ethics in the United Kingdom. She has conducted comparative legal research in multiple jurisdictions, including comparative work on assisted dying.

Plaintiffs

Dr. S. Lawrence Librach

A Canadian palliative care physician and Director of the Joint Centre for Bioethics, and the Head of the Division of Palliative Care in the Department of Family and Community Medicine, at the University of Toronto.  He is a member of the board of directors and past President of the Canadian Hospice Palliative Care Association.

Plaintiffs

Dr. Douglas McGregor

A palliative care specialist, Clinical Assistant Professor in the Department of Family Practice at the University of British Columbia and the Regional Medical Director, Palliative Care for the Vancouver Coastal Health Authority. He has been active in developing guidelines on general approaches for physicians in various aspects of end-of-life care.

AG BC

Professor Sheila McLean

An Emeritus Professor of law and ethics in medicine at the University of Glasgow in Scotland, who also serves as a member and former Vice-Chairperson of the International Bioethics Committee of UNESCO. She has researched and published in the area of medical law and ethics for more than 30 years.

Plaintiffs

Dr. Scott K. Meckling

A practising neurologist in Kelowna, British Columbia, who is the Head of the Division of Neurology and Director of the Multiple Sclerosis Clinic at the Kelowna General Hospital.

Plaintiffs

Professor Sabine Michalowski

A Professor of law at the University of Essex, United Kingdom where she is director of the LL.M. in Health Care Law and Human Rights.  She has developed an expertise in Colombian law, including the practice of physician-assisted death in that country.

Plaintiffs

Professor Brian Mishara

A Québec-based Professor of psychology at the Université de Québec à Montréal, and the Director of the Centre for Research and Intervention on Suicide and Euthanasia. He has served as a special consultant to the World Health Organization to work with governments in the development of national suicide prevention strategies and policies.

AG Canada

Professor Richard Glynn Owens

A practicing psychologist and Professor of psychology at the University of Auckland in New Zealand with expertise in forensic psychology, health psychology and the psychology of death and dying.  He has provided clinical care to dying patients, and is a former member of the board of trustees of the South Auckland Hospice.

Plaintiffs

Dr. José Pereira

An Ottawa-based palliative care physician who has practiced in Canada and Switzerland, and the Head and Professor of palliative care in the Department of Medicine at the University of Ottawa.  He is also Medical Chief of the Department of Palliative Medicine at two Ottawa medical centres. He has a particular interest in medical education research around palliative care competencies and the use of palliative sedation.

AG Canada

Dr. Thomas Preston

A retired practicing cardiologist and Professor of medicine at the University of Washington, who now serves as Medical Director of Compassion & Choices in Seattle, Washington. In that capacity, he was involved with the coalition that passed the ballot initiative that legalised physician-assisted dying in Washington.

Plaintiffs

Dr. Peter Rasmussen

A retired Oregon palliative care physician who formed the first hospital-based palliative care team in Oregon.  He was a plaintiff in the United States Supreme Court decision that allowed Oregon’s assisted death legislation to take effect.

Plaintiffs

Dr. Gary Rodin

A Professor at the University of Toronto, Department of Psychiatry, and Head of the Department of Psychosocial Oncology and Palliative Care at the Princess Margaret Hospital, University Health Network.  He holds a University of Toronto/University Health Network Chair in psychosocial oncology and palliative care and has conducted research into the psychological aspects of advanced cancer and the quality of death and dying.

AG Canada

Professor Mary Shariff

An Assistant Professor with the Faculty of Law at the University of Manitoba who has conducted research on assisted death from a comparative law perspective, with particular focus on the construction of the principle of autonomy in the regulation of assisted death in the Netherlands, Belgium, Luxembourg, Switzerland and the United States.

AG Canada

Dr. Leslie J. Sheldon

A practising geriatric psychiatrist and Assistant Clinical Professor in the Geriatric Psychiatry Program and Instructor with the Faculty of Pharmaceutical Sciences at the University of British Columbia in Vancouver, who has extensive experience assessing cognitive capacity.

AG Canada

Ben Shimshon

A public opinion researcher who is a founding director of BritainThinks, a strategy and research agency that provides high-level communication and strategy advice to clients.  His agency conducted a poll on public opinion on “Dying in Dignity” in the United Kingdom in 2011.

Plaintiffs

Dr. Derryck Smith

A practising psychiatrist and a Clinical Professor of psychiatry at the University of British Columbia who has been involved in assessing and treating individuals with a broad range of psychiatric disorders including depressive disorders. He is experienced in assessing cognitive functioning and competence.

Plaintiffs

Professor Helene Starks

An Associate Professor and researcher at the University of Washington School of Medicine’s Department of Bioethics and Humanities in Seattle, with a Ph.D. in Health Services Research.  Much of her professional research has concerned decision-making around end-of-life care, including medically-assisted dying.

Plaintiffs

Professor Wayne Sumner

A Canadian philosopher and retired University Professor at the University of Toronto who specialized in ethical theory, applied ethics and bioethics.  During his teaching career, he served as Chair of the Department of Philosophy and was cross-appointed to the Faculty of Law, and was a founding member of the university’s Centre for Bioethics.

Plaintiffs

Dr. Rodney Syme

A Melbourne, Australia urologist who has knowingly provided advice to people about end-of-life decisions, and provided assistance that some have used to end their own lives. He has written and spoken widely on those matters, and published a book about his experience: A Good Death (Carlton, Australia: Melbourne University Press, 2008).

Plaintiffs

Dr. Ross Upshur

A physician and Professor at the Department of Family and Community Medicine and Dalla Lana School of Public Health at the University of Toronto. He is also the former Director of the University of Toronto Joint Centre for Bioethics and a Canada Research Chair in primary care research.  His research interests and teaching credentials include public health ethics, epidemiology and the philosophy of medicine.

Plaintiffs

Dr. Johannes J.M. van Delden

A Professor of medical ethics at the Medical School of Utrecht University and Director of Education at the Julius Center for Health Sciences and Primary Care at the University Medical Center in Utrecht, the Netherlands.  He has been involved in all of the major empirical studies into end-of-life care that have taken place in the Netherlands since 1990.

Plaintiffs

Dr. Philip Welch

A physician and medical geneticist at Dalhousie University in Halifax, Nova Scotia.  He specialises in treating and researching genetic disorders including Huntington’s Disease and Muscular Dystrophy.

Plaintiffs

Professor James Werth

A Professor of psychology and Director of the Doctor of Psychology Program in Counseling Psychology at Radford University in Virginia, and a licensed psychologist specializing in counselling persons with HIV/AIDS and other chronic and terminal illnesses.  He has served on all three of the American Psychological Association’s major groups addressing end-of-life issues.

Plaintiffs

Professor Laura Williamson

The Wellcome Trust Research Fellow at the Institute for Applied Health Research, Glasgow Caledonian University in Glasgow, Scotland. Her research interests lie in the area of public health ethics.

Plaintiffs

 

VII.         MEDICAL ETHICS AND MEDICAL END-OF-LIFE PRACTICES

A.           Introduction

[161]      The ethics of physician-assisted suicide and euthanasia have been vigorously debated by individual citizens, politicians, lawyers, philosophers and ethicists.  Canadian and international physicians and health-care providers who are closely affected by the issue have struggled with it too, both in theory and in practice.  The ethical debate, broadly speaking, is about two questions:  (1) If the law permitted it, would it ever be ethical, in an individual case, for a physician to assist a competent and informed patient who requests hastened death?  (2) Even if it were ethical to provide such assistance in an individual case considered in isolation, would a change in the existing law or policy pose a threat to other persons (particularly those who are vulnerable due to age or disability) or to broader societal values (such as general respect for human life, building a strong palliative care system and maintaining appropriate relationships between physicians and patients)?

[162]      In this section, I concentrate mainly on the first question regarding the ethics of physician-assisted death in an individual case.  With respect to the second question, evidence is available from jurisdictions where assisted death is permitted about the effectiveness of safeguards against abuse and the impact legalization has had on palliative care and physician-patient relationships.  As well, evidence is available from Canada that bears on the feasibility of systems of safeguards.  I will discuss that evidence in the next two sections.

[163]      The plaintiffs argue that the absolute prohibition against assisted death is arbitrary and infringes s. 7 because, among other reasons, it is ethically indistinguishable from currently accepted end-of-life practices.  Because Rodriguez held that the legislation is not arbitrary, I do not address the parties’ submissions about arbitrariness.  However, in this section I will review the evidence that the parties provided regarding the ethical debate and end-of-life medical practices.  Such a review also logically entails a brief description of the governing legal principles with respect to the informed consent requirement.  I do so both in order to create a record for higher courts and because this body of evidence and law has some relevance to other issues that are necessary for me to address.

B.           Relevance of the Ethical Debate

[164]      Ethics is a discipline consisting of rational inquiry into questions of right and wrong;  in this case, whether it is right, or wrong, to assist persons who request assistance in ending their lives and, if it is right to do so, in what circumstances.  Since this case concerns arguments for physician-assisted death, a central question is whether it is ethical for physicians to provide such assistance.

[165]      Ethical principles have shaped both the law and medical practice.  Ethical principles, similarly, enter into constitutional analysis (for example, Justice Sopinka referred to the positions of medical associations regarding the ethics of assisted suicide and euthanasia in his Reasons in Rodriguez (at 608)).

1.            Positions of the Parties

[166]      All of the parties and several of the intervenors address ethical principles and the role that they ought to play in resolving the issues in this case.

[167]      The plaintiffs argue that the ethical position can inform, but not determine, the legal analysis.  They submit, however, that in this case the legal resolution should mirror the ethical one.  They suggest that there is no societal consensus supporting a principle of the absolute sanctity of human life but that there is a societal consensus supporting the principle of a person’s autonomy over his or her own body.

[168]      Canada says that whatever one might conclude about the ethical position is irrelevant to the legal questions before the Court.  It criticizes the plaintiffs’ argument for attempting to raise one ethical view to the status of a principle of fundamental justice.  Nevertheless, Canada says that the preservation of human life is a fundamental value in Canadian society and that respect for life transcends individual, religious and diverse cultural values.  Canada does not assert a state interest in the absolute protection of all human life.  It says, however, that respect for this fundamental value is reflected in the state’s interest in not condoning the taking of human life, and embodied in the criminal law.

[169]      British Columbia, similarly, argues that the sanctity of life is a fundamental principle in our society.  It refers to United States of America v. Burns, 2001 SCC 7 [Burns] at para. 71, where the Court stated:

The distinction between “general public policy” on the one hand and “the inherent domain of the judiciary as guardian of the justice system” is of particular importance in a death penalty case. The broader aspects of the death penalty controversy, including the role of retribution and deterrence in society, and the view that capital punishment is inconsistent with the sanctity of human life, are embedded in the basic tenets of our legal system, but they also reflect philosophic positions informed by beliefs and social science evidence outside “the inherent domain of the judiciary”. ...

[Emphasis added.]

[170]      The Canadian Unitarian Council submits that there are many perspectives on how the sanctity of our lives is best honoured.  It submits that the only ethical principle with a broad consensus is informed consent which it says is “the touchstone of medical ethics and of the law pertaining to medical decision-making”.  It also argues that our society does regard some decisions to end one’s life intentionally (through termination or refusal of treatment) as worthy of respect and protection, even where the assistance of a physician is required.

[171]      The Christian Legal Fellowship (“CLF”) argues that the intentional taking of innocent human life is always wrong and that the principle of inviolability of life is a cornerstone of Western civilization.  It distinguishes this principle from “vitalism”, or the goal of preserving life at all costs.  Counsel for this intervenor argues that the strong medico-legal culture against killing needs this inviolability principle:  what prevents killing is the law, along with the internalized medical culture that draws a clear line against directly taking life.  Further, the CLF argues, physician-assisted death entails a conclusion by the physicians in question that a life is not worth living.  Thus, “what looks like patient autonomy is, in reality, a greatly expanded discretionary power over life and death to be given to physicians.”  It says that refusal or voluntary withdrawal of treatment is consistent with the inviolability principle because where the physician’s intention is to comply with a patient’s wishes to withdraw treatment, rather than to kill, the act is ethical and lawful.

[172]      The Euthanasia Prevention Coalition and the Euthanasia Prevention Coalition – British Columbia (“EPC”) similarly submit that human life is intrinsically valuable and inviolable.  They suggest that decisions about life should be seen both as individual and collective, and that personal autonomy is not absolute but is linked to interdependence.  These intervenors refer to the Hippocratic Oath which, they say, dictates as a matter of ethics that doctors are first to do no harm, and supports a distinction in end-of-life treatment based upon intention.  Their position is that a shift in medical ethics would adversely impact the fiduciary relationship between doctors and patients.  Pointing out that persons with disabilities have historically relied on principles of choice, autonomy and self-determination to fight devaluing stereotypes and prejudices, it says that those principles are inverted, without regard to the harmful consequences, when invoked to support a right for disabled people to die.

2.            Analysis

[173]      Actions may be ethical but not legal, and, conversely, may be legal but not ethical.  The question in this case, in any event, is not what is ethical or legal, but whether specific provisions of the Criminal Code are constitutional.  However, because the three realms (ethical, legal and constitutional) tend to converge even though they do not wholly coincide, my view is that the ethics of physician-assisted death are relevant to, although certainly not determinative of, the assessment of the constitutional issues in this case.

[174]      The ethical debate may bear on the issues in this case for at least three additional reasons.

[175]      First, the plaintiffs argue that their constitutional rights are infringed because physician-assisted death is not permitted.  It is therefore important to know whether at least some physicians believe that it would be ethical to respond positively to patients’ requests for assisted death if the law permitted them to do so.

[176]      Second, the plaintiffs argue that the current line drawn between permissible and impermissible end-of-life care is based upon distinctions that in reality have no practical ethical or moral force.  They also argue that there is no ethical distinction between the laws that permit suicide and those that prohibit physician-assisted suicide.

[177]      Third, the plaintiffs say that if the purpose of the law is to uphold a particular religious conception of morality (about which there is not a consensus in Canadian society), it is an invalid purpose.  They suggest that there is a societal consensus supportive of their claim.

[178]      For those reasons as well, though bearing in mind that the ethical and constitutional questions are distinct, it seems worthwhile to review the parameters of the ethical debate.

[179]      The plaintiffs’ claim in this matter relates to physician-assisted death.

[180]      In the context of the ethical debate about physician-assisted death, the focus is not on whether it is ethical for persons to make a request for assistance in death.  The ethics of suicide per se are not at issue, and it is clear that requesting assistance in death does not in and of itself contravene any law.

[181]      Rather, the relevant ethical debate is specifically focused on the ethics of physicians and on existing end-of-life practices.

[182]      I also recognize that other providers of health care, particularly palliative care, have ethical views that matter, as do family members and other persons, but because of the way in which this case is framed the focus is on physicians.

[183]      At this stage, I am reviewing the arguments for and against the proposition that it can ever be right for a physician to assist a patient with her own death, leaving aside (for the moment) the questions whether a legal system permitting such assistance might cause harm to vulnerable persons or to society, and whether our current legal prohibition against physician-assisted death is consistent with the Charter.

[184]      I will begin by reviewing Canadian law and medical practices as they pertain to end-of-life care, and will then turn to the evidence pertaining to the ethics of physician-assisted death.

C.           Current State of the Law and Practice in Canada Regarding End-Of-Life Care

[185]      End-of-life care for seriously ill patients very frequently involves decisions about whether to prolong life or instead to permit the patient’s disease to take its course.  Death of a patient may follow a decision by the patient or a surrogate decision-maker to withdraw life-sustaining treatment from the patient.  According to Dr. Deborah Cook, a specialist in critical care medicine, approximately 90% of deaths among critically ill patients in Canada occur following the withdrawal of some form of life-support, most commonly the withdrawal of medical ventilation, dialysis or inotrope medications.

[186]      One of the main arguments for the proposition that physician-assisted death can be an ethical practice is that physician-assisted death is ethically indistinguishable from conventionally ethical end-of-life practices such as withholding or withdrawing treatment or administering palliative sedation.

[187]      I will begin my analysis, for that reason, with a summary of what the evidence reveals regarding current end-of-life practices, and their legal and ethical status, in Canada.

1.            Palliative Care Practice

[188]      Palliative care has improved considerably in the past few decades, including with respect to pain management.

[189]      Adequate palliative care can reduce requests for euthanasia or lead to their retraction (according to Dr. Jean Bernheim in his cross-examination, and Dr. Chochinov, both palliative care specialists).  Expressions of a wish to die, even persistent expressions, may in fact reflect a wish for better treatment, in the experience of Dr. Romayne Gallagher (another palliative care specialist).  Indeed, Dr. Gallagher deposes that some recent studies suggest that palliative care lengthens life.

[190]      However, despite the best possible palliative care, some patients suffer pain that cannot be alleviated, according to expert witnesses called by both the plaintiffs and the defendants.  As well, symptoms can cause suffering other than pain (such as nausea, vomiting, and shortness of breath) that cannot be alleviated even by the best palliative care.  Some patients experience what is called “existential suffering”, meaning, for example, a profound sense of loss of dignity.

[191]      The defendants do not take the position that all pain or suffering can be alleviated for all patients and concede that palliative care is not a panacea.

[192]      Further, high quality palliative care is far from universally available in Canada.  Dr. Gallagher states that, in her opinion:

While standards and norms exist there is not the same degree of standardization of access. The Canadian Hospice Palliative Care Association estimates that up to 90% of people who die could benefit from palliative care (the 10% are sudden deaths and accidental deaths).  Unfortunately only 16-30% of Canadians receive palliative care as part of their life-threatening illness.  Palliative care services across Canada have often been referred to as a patchwork of services across the country because there is little strategic planning of palliative care. There are many places in Canada, particularly in rural or remote areas, where there is little or no access to palliative care specialist nurses or physicians. If we could guarantee that every medical student or nursing student received adequate palliative care training we could assume that all primary care providers were capable of providing palliative care meeting the Canadian standards. However, the curricula and standards have only been developed in the last 10 years in Canada and there are many other countries that lag behind Canada in palliative care training.

[Footnotes omitted.]

[193]      Dr. José Pereira and Dr. Harvey Chochinov give evidence to similar effect.  Their opinions are consistent with the conclusions in the Special Senate Committee Report, and subsequent Senate reports on the state of palliative care.

[194]      Patients’ experience with the medical system, including palliative care, may be affected by factors such as their age and disability.  Disabled people have experienced marginalization in Canadian society, including in connection with the delivery of health care.  Health care providers may, like other people, overestimate the difficulty in living with certain kinds of disability and wrongly assume that life in some circumstances is “not worth living” (according to the evidence of Professor Catherine Frazee, Rhonda Wiebe and David Martin).

[195]      Palliative care may include administering medications for pain management in high doses.  The weight of the evidence currently suggests that it is very unlikely that opioids will hasten death where properly used.  However, a belief that aggressive pain management through opioids will hasten death is still fairly widely held, even among physicians.

[196]      For example, Dr. Michael Ashby says that “[a]nalgesic and sedative use, if done in accordance with international standards for good palliative care, do not cause death. ... However, like any class of drugs, opioids are dangerous if used inappropriately”.

[197]      Dr. Pereira deposes:

Studies are demonstrating that using strong opioids such as morphine carefully and then gradually increasing their doses (titration) to effect (good symptom control) is safe and effective in managing dyspnea related not only to cancer but also ALS and end-stage heart and lung failure”.

[198]      To the extent that practitioners continue to believe that opioids sufficient to relieve pain may hasten death, that phenomenon may tend to confound the ethical debate.  This is because some practitioners may believe that they are administering opioids which have a double effect (managing pain but incidentally hastening death), when in fact they simply have the single effect of managing pain.  Some evidence suggests that as a result, pain management has not been as effective as it could be.  Dr. Gallagher states:

One of the long-standing myths that we are working to change is the one that opioids shorten life because they cause respiratory depression which can cause death.  In the last 10 years there have been many studies in a number of countries and across a variety of health care settings showing that opioids used in appropriate doses to control pain and shortness of breath do not cause respiratory depression and do not hasten death.  ...  Since this article was published even more studies have come out demonstrating the safety of opioids when used appropriately for the treatment of pain and shortness of breath.

One of the barriers to adequate pain and symptom control at the end of life is the persistence of this myth.  Doctors do not wish to cause harm to people and are hesitant to increase the dose beyond their familiarity.  This is part of the work that palliative care practitioners do on a daily basis is to educate and mentor physicians in proper prescribing in order to control pain and shortness of breath.  Many patients also believe that these drugs are harmful and hesitate to use them, causing suffering for themselves and those who love them.  Palliative care practitioners often spend time educating the patient and family about the safety and benefits of using these medications to control pain and shortness of breath.

[199]      In summary, while the weight of the evidence is that proper use of opioids in palliative care does not cause death, opioids can have that effect if used inappropriately.

[200]      In the context of palliative care, it is fairly widely accepted that when a patient is close to the end of life, and is experiencing symptoms that are severe and refractory (that is, resistant to treatment), it is ethical practice for her physician to sedate her and maintain her in a state of deep, continuous unconsciousness to the time of death, with or without providing artificial hydration or nutrition (“terminal sedation” or “palliative sedation”).  Deponents who discussed this practice included Dr. Pereira, Dr. Michael Downing and Professor Anne Bruce. 

[201]      Palliative sedation remains somewhat controversial and is typically made available only when the patient is thought to be near death (normally, within one week), although it is not always possible to be accurate in such assessments.  No legislated standards for palliative sedation exist in Canada of which I am aware, but some guidelines have recently been developed or are still under development, according to Dr. Downing, Dr. McGregor and Professor Bruce.  For example, the Fraser Health Authority Refractory Symptoms and Palliative Sedation Therapy Guidelines (Surrey:  Fraser Health, 13 January 2011) state that the criteria for implementing palliative sedation therapy include that the patient:  is terminally ill and near death (within hours to days) with no hope of recovery; is in a palliative program or has a palliative care treatment plan; is suffering refractory symptoms which the palliative sedation is intended to relieve; is fully informed and involved in the decision-making or the substitute decision-maker is acting in accordance with the patient’s values and beliefs; a “Do Not Resuscitate” order is in effect; and the degree of sedation is proportionate to relief of the refractory symptoms.

[202]      Dr. Douglas McGregor provides an account of how he has occasionally incorporated palliative sedation into his own practice.  In cross-examination, Dr. McGregor stated that palliative sedation can sometimes hasten death.  However, it cannot be assumed that palliative sedation, even accompanied by withdrawal of hydration, necessarily hastens death when it is administered to patients who are already in the final stages of dying.

2.            Assisted Suicide and Voluntary Euthanasia Practice

[203]      Assisted suicide and voluntary euthanasia (as well as non-voluntary and involuntary euthanasia) are criminal offences:  Criminal Code, ss. 241, 229.  The defence of necessity is likely not available:  R. v. Latimer, [2001] 1 S.C.R. 3.

[204]      Most physicians who consider provision of assisted death to be ethical practice in some circumstances are deterred from providing it by the current state of the law.  (I refer to the evidence of Dr. David Bell, Dr. David Boyes, Dr. Michael Klein, Dr. William Shoichet, Dr. Derryck Smith and Dr. Philip Welch.)  It is likely, however, and I find on a balance of probabilities, that a few physicians in Canada, as in other countries, provide assistance in suicide or euthanasia despite the criminal prohibition against doing so.  (I refer to the evidence of Dr. Lawrence Librach and Dr. Eugene Bereza in this regard.)  I also note the evidence of Dr. Rodney Syme that, despite the prohibition of assisted death in Australia, 36% of Australian surgeons reported administering medication in doses greater than necessary to relieve symptoms, with the intention of hastening death, in order to relieve suffering.

[205]      Some Canadians travel to Switzerland in order to obtain assistance in hastening their deaths, doing so at a time when they are still well enough to travel, at considerable financial cost and with some possible risk of criminal prosecution for relatives or others who assist them (I refer to the evidence of the plaintiffs Lee Carter and Hollis Johnson).  According to statistics provided by the Swiss “death with dignity” organization DIGNITAS, of 97 assisted suicides facilitated by that organization in 2010, five were of Canadians.

[206]      A Canadian organization called Dying with Dignity provides information and support on hastening death. Its Executive Director, Wanda Morris, deposes that Dying with Dignity provides support for individuals at the end of their lives, including support at the bedside of those who wish to determine the nature and timing of their death.  The organization offers information and emotional support. Ms. Morris states that Dying with Dignity does not encourage anyone to end their life, does not provide the means to do so, and does not actively assist in a person’s death.

3.            The Law

a)            The Informed Consent Requirement

[207]      Patient decision-making is central to all medical care.  The doctrine of informed consent protects a patient’s right to accept or refuse medical treatment.  No medical procedure may be undertaken unless a medical practitioner has obtained the patient’s consent after providing her with information sufficient to enable her to evaluate the risks and benefits of the proposed treatment and other available options.  Informed consent presupposes the patient’s capacity to make a subjective treatment decision based on her understanding of the necessary medical facts provided by the doctor and on her assessment of her own personal circumstances.

[208]      The foregoing description of the doctrine of informed consent is taken from Malette.  Justice Robins, writing for the Court, further explained (at 328):

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment.  A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community.  Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment.

[209]      Malette arose when a physician, aware that his severely injured and unconscious patient was carrying a card identifying herself as a Jehovah’s Witness and requesting that she not be given a blood transfusion under any circumstances, nevertheless administered a blood transfusion to save her life.  The Court concluded that the effect of the plaintiff’s card was to restrict the treatment which could be provided to her, and that the physician’s administration of the transfusions therefore constituted a battery.  On the basic principle, the Court stated (at 336):

At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision.  Competent adults ... are generally at liberty to refuse medical treatment even at the risk of death.  The right to determine what shall be done with one’s own body is a fundamental right in our society.  The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based.

[Emphasis added.]

[210]      In Fleming v. Reid (1991), 4 O.R. (3d) 74 (Ont. C.A.) [Fleming], the Public Trustee, on behalf of two mentally incompetent patients who were involuntarily detained in a psychiatric facility, sued to enforce their rights to refuse the administration of certain neuroleptic drugs their treating psychiatrist considered beneficial to their mental conditions.  When they were competent, the patients had expressed their wish not to receive those drugs which could have significant and unpredictable side effects.

[211]      The Court (per Robins J.A.) cited Malette, and said the following with regard to the general principles applying to the physician-patient relationship at 85-86:

The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law.  This right underlies the doctrine of informed consent.  With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment.  The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination.  The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care.  It is the patient, not the doctor, who ultimately must decide if treatment – any treatment – is to be administered.

A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment.  A doctor is not free to disregard such advance instructions, even in an emergency.  The patient’s right to forgo treatment, in the absence of some overriding societal interest, is paramount to the doctor’s obligation to provide medical care.  This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient’s life or health, and regardless of how ill-advised the patient’s decision may appear to others.

[Emphasis added.]

[212]      The Court concluded that provisions of the Ontario Mental Health Act, R.S.O. 1980, c. 262, granting a physician the authority to override the competent wishes of a patient where deemed to be in the patient’s best interests, unjustifiably infringed the security of the person guarantee in s. 7 of the Charter.

[213]      These principles were brought into sharp focus in Nancy B. v. Hôtel Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Que. S.C.) [Nancy B.], where the patient was not simply refusing treatment but requiring that previously-initiated treatment be withdrawn.  The 25-year old plaintiff was afflicted with Guillain Barré Syndrome, an irreversible neurological disorder which in her case had led to total and permanent paralysis, and to complete dependence on mechanical respiration.  She sought an injunction requiring the hospital to withdraw the respiratory support upon her request.  The plaintiff was pronounced mentally competent by the hospital’s psychiatrist, and it was accepted that her request was freely given and informed.

[214]      Justice Dufour characterized the issue in these terms (at 392):

What Nancy B. is seeking, relying on the principle of personal autonomy and her right of self-determination, is that the respiratory support treatment being given her cease so that nature may take its course; that she be freed from slavery to a machine as her life depends upon it.  In order to do this, as she is unable to do it herself, she needs the help of a third person.  Then, it is the disease which will take its natural course.

[215]      Having reviewed both the Québec civil law and the common law regarding informed consent, the Court found that “[t]he logical corollary of this doctrine of informed consent is that the patient generally has the right not to consent, that is the right to refuse treatment and to ask that it cease where it has already been begun” (at 390).  Justice Dufour then considered whether this right was limited by the criminal law, ultimately concluding that the Criminal Code (specifically, ss. 45, 216, 217 and 219) did not impede the withdrawal of the treatment keeping the plaintiff alive.  He held that an individual who terminated Nancy B.’s respiratory support was letting nature take its course, and was not in any way offending the criminal law.

[216]      In the result, Dufour J. granted the order permitting the plaintiff’s physician to terminate respiratory support upon her request.

[217]      The Supreme Court of Canada in Rodriguez confirmed that patients have the right to refuse or discontinue treatment, citing the Nancy B. decision.  Sopinka J. summarized the state of the common law as follows (at 598):

Canadian courts have recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued [Ciarlariello].  This right has been specifically recognized to exist even if the withdrawal from or refusal of treatment may result in death ([Nancy B]; and [Malette]).

[218]      The Supreme Court of Canada confirmed in 2009 that these remain the common law principles regarding informed consent, in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 [A.C.], at paras. 39-45.  Justice Abella wrote, for the majority, at paras. 39-40:

The legal environment for adults making medical treatment decisions is important because it demonstrates the tenacious relevance in our legal system of the principle that competent individuals are – and should be – free to make decisions about their bodily integrity.

At common law, adults are presumptively entitled to direct the course of their own medical treatment and generally must give their “informed consent” before treatment occurs, although this presumption of capacity can be rebutted by evidence to the contrary.  (See Lucinda Ferguson, “The End of an Age: Beyond Age Restrictions for Minors’ Medical Treatment Decisions”, paper prepared for the Law Commission of Canada (October 29, 2004), at p. 5.) When competency is not in question, this right “to decide one’s own fate” (Re T (adult: refusal of medical treatment), [1992] 4 All E.R. 649 (C.A.), at p. 661) includes the unqualified right to refuse life-saving medical treatment.

[219]      In Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 [Ciarlariello], the Supreme Court affirmed the foundational importance of individual autonomy and self-determination in the common law principles.  Justice Cory, for the Court, wrote (at 135):

It should not be forgotten that every patient has a right to bodily integrity.  This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted.  Everyone has the right to decide what is to be done to one’s own body.  This includes the right to be free from medical treatment to which the individual does not consent.  This concept of individual autonomy is fundamental to the common law and is the basis for the requirement that disclosure be made to a patient.  If, during the course of a medical procedure a patient withdraws the consent to that procedure, then the doctors must halt the process.  This duty to stop does no more than recognize every individual’s basic right to make decisions concerning his or her own body.

[Emphasis added.]

[220]      Since Rodriguez, the common law principles relating to competent adult patients have been clear. Individual autonomy gives competent, informed patients the right to consent to treatment, including the right to withdraw consent to life-sustaining treatment.

[221]      However, many patients are not competent to make medical decisions.

[222]      To provide for those situations, most Canadian provinces and territories have legislation regarding advance directives.  In British Columbia, it is the Representation Agreement Act, R.S.B.C. 1996, c. 405, ss. 2 and 7.  Where an individual does not have a representation agreement, the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 11 allows a health care provider to provide treatment with the consent of a personal guardian or representative.  Section 16(1) prescribes a list of third parties from whom a health care provider may obtain substitute consent.  In the absence of legislation of this nature, the common law will continue to govern.  As both Malette and Fleming make clear, an individual’s known preferences regarding future treatment will prevail in the event that he or she later becomes incompetent.

[223]      Where a patient is incompetent and her treatment preferences are not known, both at common law and under applicable statutory regimes, medical decisions will be made in the patient’s best interests:  see, for example, Conway v. Jacques (2002), 214 D.L.R. (4th) 67 (Ont. C.A.).

[224]      In some cases, this may allow the withdrawal of life-sustaining treatment from an incompetent patient.  In Rodriguez, the majority referred (at 598-99) with seeming approval to the decision of the House of Lords in Airedale N.H.S. Trust v. Bland, [1993] 2 W.L.R. 316 [Bland], where such a procedure was approved in the case of a boy who, as a result of injuries, was in a persistent vegetative state.  His parents and treating physicians sought and obtained court approval to cease life-sustaining treatment.

b)           Potentially Life-Shortening Symptom Relief

[225]      Since Rodriguez, it has been clear that potentially life-shortening symptom relief is permissible where the physician’s intention is to ease pain.  As Sopinka J. explained (at 607):

The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based upon intention – in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death. ... In my view, distinctions based upon intent are important, and in fact form the basis of our criminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear.

c)            Palliative Sedation

[226]      So far as I am aware, palliative or terminal sedation has not been the subject of judicial consideration in Canada.  It seems, however, to be a practice that may fall within the principles already described with regard to informed consent and potentially life-shortening symptom relief.

d)           Withdrawal of Treatment against the Consent of Substitute Decision-Makers

[227]      The law makes clear that consent is a sufficient condition for the withdrawal or withholding of treatment.  But is consent also a necessary condition?  Whether a physician or hospital can legally withhold or withdraw potentially life-sustaining treatment without the consent of either the patient or the patient’s substituted decision-maker, is currently under much debate.

[228]      In some decisions, Canadian courts have held that it is not appropriate for a court to interfere with medical practitioners acting unilaterally in the best interests of a patient:  for example, Child and Family Services of Manitoba v. R.L. (1997), 154 D.L.R. (4th) 409 (Man. C.A.); and Re: I.H.V. Estate, 2008 ABQB 250.

[229]      More commonly, however, courts faced with such issues have concluded that the law in Canada is not settled:  for example, Sawatzky v. Riverview Health Centre Inc. (1998), 167 D.L.R. (4th) 359 (Man. Q.B.); Jin v. Calgary Health Region, 2007 ABQB 593; Golubchuk v. Salvation Army Grace General Hospital, 2008 MBQB 49; and Rotaru v. Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318.

[230]      The question whether a patient’s family can require maintenance of life-sustaining treatment against medical advice is central in a case to be heard in the Supreme Court of Canada, Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (leave to appeal to S.C.C. granted, [2011] S.C.C.A. No. 329).

e)            Summary

[231]      To summarize, the law in Canada is that:

(a)          Patients are not required to submit to medical interventions (including artificial provision of nutrition and hydration), even where their refusal of or withdrawal from treatment will hasten their deaths, and physicians must respect their patients’ wishes about refusal of or withdrawal from treatment.

(b)          Decisions about refusal or withdrawal of treatment may be made by competent patients either in the moment or by way of advance directives, and may be made by substitute decision-makers in the case of incompetent patients.

(c)          Physicians may legally administer medications even though they know that the doses of medication in question may hasten death, so long as the intention is to provide palliative care by easing the patient’s pain.

(d)          It is unclear whether a patient’s substituted decision-maker can require the maintenance of life-sustaining treatment against medical advice.

D.           Evidence

1.            Opinions of Ethicists

[232]      Each side tendered evidence regarding the ethics of physician-assisted death.  Before turning to the evidence of practising physicians, I will review the evidence of professional ethicists.

[233]      The plaintiffs rely upon the evidence of Professor Wayne Sumner, Dr. Marcia Angell, Professor Margaret Battin, Dr. Upshur, and Dr. Gerrit Kimsma.  The defendants counter with the evidence of Professor John Keown, Professor Thomas Koch and Dr. Bereza.  Those witnesses refer in turn to the writings of others, and to the reports of various bodies that have analyzed the issues.

[234]      Professor Sumner is a philosopher and retired Professor of ethics.  In his opinion evidence, he addresses the ethical position regarding a request for assistance with death from a person who is:  decisionally capable (competent); fully informed of her diagnosis and prognosis, and of treatment or palliative care options; exercising individual will free of undue influence or coercion; and expressing the request on a consistent and continuing basis.  He states this opinion:

Treatment cessation, pain management, and terminal sedation can … all be justified when they are the outcome of an informed choice (whether request or refusal) on the part of a decisionally capable patient, and they serve the best interest of the patient by preventing or avoiding needless suffering.  This justification holds even when the result of any of these measures is the hastening of the patient’s death.  Indeed, these measures may in many circumstances better serve both patient autonomy and patient well-being by hastening death, if that is the outcome that the patient seeks and that will help to minimize suffering.

It is obvious that either assisted suicide or voluntary euthanasia can be justified in exactly the same way by reference to exactly the same values.  These measures as well can be both the outcome of a patient’s informed request and serve the patient’s best interest.  There cannot be an ethical bright line between the three conventionally accepted measures and these further ones, since they all serve exactly the same core values.  If these widely accepted measures are justified, under conditions of patient informed choice and patient best interest, then so is assisted death.  Which measures will be appropriate in a given case will depend on the particularities of the case, and especially on what the patient wants and what will best serve his interest.  In many cases, perhaps most, the conventionally accepted options will suffice.  But there will be cases in which a decisionally capable patient will make a rational, considered, and stable request for one or another form of assisted death and in which that will serve their best interest.  The ethical framework that will justify treatment cessation, pain management, and terminal sedation will therefore equally justify assisted death.

[Emphasis added.]

[235]      Professor Sumner refers to searches for an ethical bright line distinguishing among end-of-life measures.  He describes arguments that attempt to distinguish:  acts from omissions; a patient’s request for treatment which will hasten death from refusal of a treatment which will prolong life; killing from letting die; and death as an intended outcome from death as an unintended though foreseen outcome.  He concludes that there is simply no way to show that, of the four treatment options (treatment cessation, pain management, terminal sedation and assisted death), assisted death is uniquely ethically impermissible.  He says that if it is impermissible then so are some of the others; if they are all permissible, then so is assisted death.

[236]      Thus, according to Professor Sumner, the ethical framework which justifies the conventionally accepted options will equally justify assisted suicide and voluntary euthanasia.

[237]      Professor Sumner also refers to attempts to distinguish suicide from assisted suicide on an ethical basis:

The two acts in question – suicide and assistance with suicide – are different, and there is no simple entailment relation between the moral status of the first and that of the second.  To make the obvious point, in committing suicide the patient causes his own death while in assisting the physician enables, and therefore to that extent plays a causal role in, the death of another.  While suicide remains within personal boundaries (leaving aside spillover effects on others), assistance crosses those boundaries: it is action not by a person on herself but by one person upon another.  Therefore, at least in principle there is room here for an ethical distinction.  However, in practice it is difficult to see what the ground of the distinction might be.  We are imagining that the patient’s decision for suicide is entirely rational and autonomous, that it is in the patient’s best interest, and that he has made an informed request for assistance.  The role of the physician is limited to providing the means for the patient to do something which is itself ethically permissible.  It is unclear, therefore, how it could be ethically impermissible for the physician to play this role.  The ethical burden of justifying assistance with suicide is discharged by justifying suicide itself.

[238]      Dr. Angell, a physician and Senior Lecturer of social medicine at Harvard University, argues that physician-assisted suicide and euthanasia may be ethically permissible.  She deposes:

One of the most important ethical principles in medicine is respect for each patient’s autonomy, and when this principle conflicts with others, it should almost always take precedence.  This premise is incorporated into our laws governing medical practice and research, including the requirement of informed consent to any treatment.  In medicine, patients exercise their self-determination most dramatically when they ask that life-sustaining treatment be withdrawn.  Although others may sometimes consider the request ill-founded, we are bound to honor it if the patient is mentally competent – that is, if the patient can understand the nature of the decision and its consequences.

[239]      Professor Battin, a philosopher and Professor of bioethics, provided evidence about what she says are the core principles central to the debate:  liberty (also referred to as freedom, self-determination or autonomy) and mercy (compassion, or the right to be free from pain and suffering).  She asserts:  “No one should be deprived of liberty or forced to suffer, without adequate cause.”  Professor Battin then refers to a third core value for physicians, non-abandonment, stating:

A third central value, non-abandonment, is more precisely a norm of practice for physicians, and follows from the two philosophical principles.  Physicians are under an ethical obligation to try to respond to autonomous requests from their patients, especially when those requests revolve around extremes of suffering in those who are otherwise dying.

[240]      Professor Battin says that assistance in death should not be solely a matter of patient choice:

Autonomy focuses on the values and wishes of the particular patient who finds himself or herself in an untenable situation.  But assistance in dying, if it is also to involve physicians, cannot be solely a matter of patient choice.  The nature of the patient’s suffering and why it is intolerable to the patient must also be understood by the physician, who then is obliged to try to respond as a matter of mercy and in fulfilment of his or her commitment not to abandon the dying patient.  Thus autonomy and mercy go hand in hand:  for the physician to offer assistance in dying, it must be the patient’s choice and it must also be done to help the patient avoid suffering that is either intolerable or about to be so.

[241]      She also argues that the principles of autonomy and mercy do not stand alone.  In her view, in order to support physician-assisted dying, the principles of autonomy and mercy must work in tandem:

Physician assistance in bringing about death is to be provided only when the patient voluntarily seeks it (autonomy) and only where it serves to avoid pain or suffering or the prospect of them (mercy).  Because these principles do not operate independently, it cannot be claimed that permitting physician-assisted dying would require assisting lovesick teenagers who are not suffering from a serious medical condition to die; likewise it cannot be claimed that permitting physician-assisted dying on the basis of the principle of mercy would require involuntary euthanasia for someone who is in pain but nevertheless desires to stay alive.  Both principles must be in play; but when they are in play, they jointly provide a powerful basis for permitting and respecting physician aid in dying.

Those who oppose physician aid in dying must show that the principles of liberty and freedom from suffering that are basic to an open, liberal and democratic society should be overridden.  This is the point of slippery-slope assertions about the potential for corrupting physicians and widespread abuse in the Netherlands and perhaps Oregon.  Yet there is no empirical evidence that supports these claims, and substantial evidence to the contrary.

[242]      Dr. Upshur, a physician and Professor of public health ethics, states:

Based on my review of the empirical, psychological, and philosophical literature and my experience as a clinician, I believe that, under certain conditions, providing assistance with suicide or euthanasia can be an ethically appropriate course of conduct for a physician.  The conditions that I support, on the same professional foundation, are that the request be free and informed and made by an individual when competent.  I do not believe that assisted suicide and euthanasia should only be available to those who are diagnosed as terminally ill, but rather should be available to those for whom life has become not worth living to them.  There are times when even the best palliative care is not sufficient and where a competent and uncoerced patient wishes to die.  Within a carefully regulated regime, in my professional opinion as a clinician and ethicist, it can be clinically and ethically appropriate for a physician to provide that patient with assistance (either through assisted suicide or euthanasia).

[243]      Dr. Kimsma, a Netherlands physician and Extern Associate Professor of ethics, deposes as follows:

Based on my practical experience as a medical practitioner and SCEN consultant: ... I believe that practicing PAD [physician-assisted death] is consistent with the goals of medicine.  However, I am fully aware of the ambivalence and complexity and bias incorporated in these issues, both from points of view of religion, law and medicine.  The real significance of the “Oath of Hippocrates” as an argument against physician-aid-in-dying is difficult to defend from a historical point of view.  PAD, throughout modern Western medicine seems to be occurring in fact, but being dealt with under a veil of confusion, ambiguity and lack of truth/disclosure.  That said, it remains true that at all time PAD is difficult and emotionally burdening for physicians, given the medical ideology of the absolute protection of life and the alleviation of suffering.

[244]      On the other side of the debate, we find Professor Keown, a Professor of law and medical ethicist, whose position is that any intentional taking of life is unethical and should not be permitted.  He says that the principle of the inviolability of life has historically informed both the criminal law and the ethics of the medical profession.  He argues against physician-assisted suicide and euthanasia, both because he supports the principle of the sanctity of life and because he is of the view that it will be impossible to avoid abuse without a legal bright line prohibiting intentional killing (the “practical slippery slope”) and extension of the circumstances in which assisted death is permitted (the “logical slippery slope”).

[245]      On cross-examination, Professor Keown was asked about his book, Euthanasia, Ethics and Public Policy: An argument against legalization (New York:  Cambridge University Press, 2002).  He agreed that he is strongly opposed to the reasoning in the Bland decision of the House of Lords (referred to with seeming approval in Rodriguez) since it amounted to permission to intentionally cause the death of an incompetent patient by omission.  He confirmed his view of the Bland case as a move away from the traditional values of autonomy and inviolability of life, and towards the use of quality of life as an ethical legal marker.

[246]      Professor Koch, a gerontologist and Adjunct Professor of medical geography, was asked by Canada to comment on the evidence of Dr. Angell, Professor Battin and Dr. Kimsma, and to provide an opinion regarding the concept of autonomy in the context of physician-assisted suicide and hastened death.  He suggests that it is simplistic to define autonomy as the ability to choose freely for oneself regardless of the consequences (a definition he attributes to Dr. Angell), and says “relational autonomy” would reflect the sense of patient allegiance and mutuality argued by Dr. Kimsma.  He says the simplistic definition of autonomy would lead to absurd consequences such as liposuction on demand, even if it would likely cause the death of the patient.  He urges that nobody in practice subscribes to such a definition.  He opines, in his affidavit, that:

By insisting society should approve and then facilitate the death of a citizen, advocates of simple autonomy are asking for not simply communal and medical tolerance but communal support and medical support. That is not autonomy but something very different.

To assume the autonomous will of the individual should in these situations take precedence over both social cautions and medical cautions is to assume the person choosing has all knowledge and the perspective to employ it. But this is precisely what differentiates these complicated medical realities from the normal consumer mode of choice in our society. This was the point made by Nobel prize-winning economist Kenneth Arrow in his article on medicine as a distinct entity in the modern marketplace (Kenneth Arrow, “Uncertainty and the Welfare economics of medical care.” The American Economic Review 53:5 (1963), 981-9732). Medicine, unlike many other areas, is one in which the knowledge of the person is necessarily limited when compared to the knowledge of the professional. They are not commensurate and thus demand a degree of trust and faith in the medical professionals to do what is right.

[247]      Professor Koch asserts that the Hippocratic Oath in one or another form remains a mainstay of medical if not biomedical ethics.  He says that the covenant in that oath not to “give a lethal drug to anyone if asked” reflects a belief in the value of life generally and specifically in the lives the physician undertakes to serve.  In his opinion, patients’ fears (such as the fear of incontinence) cannot be accepted as a reason for termination of life because that would be to agree that a life with incontinence is a life that is insupportable, and would feed into a view of medicine as a consumerist practice in which special knowledge has little value.  He deposes as follows:

This claim isn’t about individual choice and autonomy. We cannot stop but we need not applaud suicide in the face of adversity. Ms. Taylor may kill herself. She seeks not the right to do that but instead the obligation of us to agree her life is so insufficient that we will assist or direct her termination. This claim is about whether we honour each other irrespective of individual characteristics or set up a sliding scale by which some conditions devalue life until the point where its termination is appropriate. It is about whether we place our priorities in the arenas of rehabilitation, palliation, and social service or agree with the simplistic assumption that state-supported, physician-assisted or directed termination is or should be a reflexive response to restrictive medical conditions.

[248]      The defendants also rely on the evidence of Dr. Bereza, a physician and Director of clinical ethics programs.  Dr. Bereza states that the ethical debate in the context of this litigation ought to extend beyond normative ethics to applied medical ethics – a discipline that requires “the careful and comprehensive deliberation and management of complex, real-life situations, where morally significant details can vary profoundly even within groupings of similar clinical cases.”  He suggests that ultimately judgments must be made based on not only rational, but also moral, emotional, psychological and spiritual elements.  He frames the ultimate question this way:  “Do the ethically relevant considerations of individual liberty, self-determination, relief of suffering (presumably of an increasingly small minority), and tolerance of perspectives in a pluralist society, outweigh the risks of ethically unwarranted, premature deaths for some (possibly many)?”

[249]      Dr. Bereza’s evidence, particularly his formulation of the ultimate question, illustrates the strong connection between the ethical question in individual cases and the broader ethical question that takes into account the consequences for society.

[250]      Dr. Bereza believes that there is a legitimate distinction between withholding or withdrawing life-sustaining treatment as opposed to physician-assisted death, in that:

Physician-assisted suicide and euthanasia, on the other hand, can be characterized as acts that require additional, active interventions that will necessarily accelerate the dying process.  This does not represent a consent or refusal of care, but rather a request or demand for additional intervention to accelerate the dying process.

[Emphasis in original.]

[251]      However, he adds that “while these ethical distinctions are very powerful, and can probably be invoked persuasively in a large majority of cases, it may be difficult to claim that they constitute a categorical, clear line that will allow for absolute differentiation in all cases.”

[252]      Dr. Bereza notes that patients sometimes invoke practices such as palliative sedation and the withholding or withdrawal of life-sustaining technologies “not as refusals of burdensome medical technology, but rather as an accelerated means to death”.

[253]      In the end, Dr. Bereza allows that there may be morally persuasive arguments for physician-assisted death in some cases.  Nevertheless, he concludes as follows:

The best medical care is personalized care.   While the patient’s best interests are the sine qua non of such care, it does not necessarily follow that patient preferences be viewed as some kind of ethical trump card that supersede all other considerations.  Professional integrity and communitarian perspectives are but two other considerations, among many others, that have considerable moral weight.

I believe there is a risk of unjustifiable death to vulnerable individuals if the status quo is changed.  There are some rare examples of physicians who have violated the law in this regard.  I also believe there are credible anecdotes that cannot be substantiated, of physicians who may be performing euthanasia, albeit unwittingly, where this approach is masquerading as palliative care.   Whether this is a result of ignorance of the law, of standards of practice in pain control and palliation, of advocacy of individual patient’s best interests, of passive complicity with family members’ personal agendas, of acts of civil disobedience based on conscience, or merely professional hubris, is probably impossible to ascertain.

From a normative perspective, I would find it problematic to accept a change in the laws before our society has firstly demonstrated a commitment to providing timely and universal access to quality palliative care.

2.            Evidence of Practitioners

[254]      The plaintiffs also rely upon the evidence of Canadian medical practitioners who state that based on their clinical experience and their understanding of medical ethics, they would consider it ethical in some circumstances to assist a patient who wishes to hasten death.  Those practitioners include:  the plaintiff Dr. William Shoichet, Dr. Bell, Dr. Marcel Boisvert, Dr. Boyes, Dr. Eric Cassell, Dr. Cohen, Dr. Klein, Dr. Librach, Dr. Meckling, Dr. Smith, Dr. Upshur and Dr. Welch.

[255]      I note that Canada challenges the evidence of Dr. Boyes and Dr. Boisvert as possibly based on outdated experience with palliative care options.

[256]      The evidence of three of these witnesses, which is fairly representative of the others, is as follows:

[257]      Dr. Klein, a family physician and paediatrician, states these views:

When I was still in clinical family practice, I worked under the present legal regime where it is criminally prohibited to intentionally assist a grievously and irremediably ill adult patient to die under any circumstances.  Under this regime, there is a great need to find solutions that address patient comfort.  Often decisions are made in palliative care, and I personally have made these decisions innumerable times, to provide a treatment with the intent of securing the patient’s comfort and the known outcome is that the patient’s death will be hastened as a result of that treatment.  However, I have not been allowed to administer analgesics with the intent of hastening a patient’s death as a means of relieving their suffering, even if that is their competent, informed and lasting wish.  As a physician, I felt concern and was anxious about participating in end-of-life decision making in these circumstances because I knew that I was at risk of criminal and professional censure depending on outside interpretations of my actions.

As a practicing physician, I was also required to withhold or withdraw life sustaining treatment at the request of a competent patient, including discontinuation of the use of a ventilator in circumstances where the withdrawal of such will certainly result in suffocation, and the discontinuation of tube feeding and hydration in circumstances where discontinuation will results in starvation and dehydration resulting in death.  I was required to undertake such conduct at the request of a patient where the patient’s specific goal for the instruction is to achieve death.

I understand that the law currently draws a legal distinction, but as a physician, I see no ethical distinction between withholding and/or withdrawing life sustaining treatment and/or administering analgesics for the purpose of alleviating pain in circumstances where I know that death will certainly ensue or certainly ensue more quickly than it would otherwise on the one hand, and acting to intentionally bring about a patient’s death in order to relieve suffering in circumstances I outline below on the other.

...

Nevertheless, the current blanket prohibition against this form of treatment circumscribes ethically supportable medical treatment that would be more aligned with a patient’s informed wishes and that I would otherwise ethically prescribe to patients in certain circumstances and under certain conditions.

I think physician-assisted dying is a form of medical treatment, albeit one that should be carefully regulated.

[258]      With particular reference to the situation of patients with neurological disease, Dr. Cohen, a behavioural neurologist and Assistant Professor of neurology, states:

I have witnessed a number of patients with grievous and irremediable neurological diseases who have already experienced prolonged suffering, die slow and terrible deaths.  I have witnessed patients with grievous and irremediable neurological conditions at the end of life gasping for breath as they slowly drowned in their own secretions or choked on their own saliva.  These patients appeared extremely uncomfortable, agitated and restless.  Some patients explicitly told me that they were experiencing discomfort and pain.  I have seen patients turn blue because they cannot get enough air.  Some appeared terrified.  For some of these patients, this slow and painful march to death lasted days.  Some patients experienced multiple episodes of choking and a feeling of suffocation over a period of weeks.  These deaths were extremely traumatic for both the patient and their family.  Sometimes patients are provided sedation to the point of semi-consciousness so they are made more comfortable as they struggle for breath.  Nonetheless, they may linger in a state of dying for hours to days with families standing by in distressed states that may take years to recover from.  In my opinion, physician-assisted dying should have been an available treatment option in these situations.  With all my training as a physician, I cannot accept that it is right to allow patients to die in this immeasurably cruel and useless fashion if to do so is against the patients’ wishes.

Nor do I think it is right to allow grievously and irremediably ill patients to suffer against their wishes if they are far from death but their suffering is protracted over time and life is no longer bearable to them as may be the case for bedridden individuals or those facing major loss of autonomy.

It is my opinion that physicians must respect patients’ autonomy, including patients’ decisions about the timing and manner of death.  Competent adults with grievous and irremediable neurological diseases should be allowed to determine for themselves the line between acceptable and unacceptable levels of suffering.  It is not for me to say when a patient’s suffering has become unbearable and life has lost all meaning; this is a deeply personal and private choice.  Many patients find satisfaction and pleasure in their lives even though it is not the more ideal life they expected or hoped for themselves.  Many patients carry on through great adversity and suffering, and find meaning even in a protracted disease and death.  However, many patients reach a threshold with their disease beyond which life is no longer gratifying for them.  Many of these patients have told me that they look forward to their deaths.

...

As a physician, I do not believe there is any ethical distinction between withdrawing, at a patient’s direction, life-sustaining treatment with the knowledge that death will result and acting, at a patient’s informed request, to bring about death in order to alleviate suffering.  Either way, the patient is making an independent choice to die.  Competent patients have the legal right to refuse treatment that will prolong their deaths.  For patients who are suffering but who are not dependent on life support, such as respirators or dialysis, refusing treatment will not hasten death quickly.  To treat these patients equitably and compassionately we should offer physician-assisted dying as it is their only option to hasten death.

[259]      The plaintiffs also tendered evidence from Dr. Librach, a palliative care physician and Director of a centre for bioethics.  Dr. Librach does not state explicitly that he considers physician-assisted dying to be ethical, but it is a fair inference from his evidence that he does.

[260]      He was asked to respond to this question:  “In your opinion as a palliative care physician, could there be a need for physician-assisted dying in Canada in certain circumstances?”  His answer was:  “Yes but only in exceptional circumstances and with stringent legal and professional safeguards in place as I explain in the following paragraphs.”  Dr. Librach states the opinion that there is always some suffering associated with dying, but much unnecessary suffering can be dealt with effectively.  However, he says, despite the best of palliative care, some patients want their death hastened by assisted suicide or euthanasia, even when free of significant depression or pressure or coercion from others.  He states that, although the number of such patients is small, it is necessary to listen to their wishes and protect them in their decision making.  He then states:

After careful reflection I have come to the personal opinion that the issue of physician-assisted dying will not go away, that the provision of quality palliative care will not answer the wishes of all persons who are dying and that we as a society need to deal with this issue through the courts and through Parliament.  Law reform needs to be considered so that the process of physician-assisted dying if approved is protective and open, not a hidden process.

[261]      In addition, the plaintiffs tendered the evidence of physicians from other countries who believe that assisting patients who wish to hasten death can be ethical:  Dr. Ashby (Australia), Dr. Nancy Crumpacker (Oregon, U.S.A.), Dr. Kimsma (the Netherlands), Dr. Thomas Preston (Washington, U.S.A.), Dr. Peter Rasmussen (Oregon, U.S.A.); and Dr. Syme (Australia).

[262]      For example, Dr. Preston, a retired cardiologist and Director of the organization Compassion and Choices in Washington State, deposes:

The principle of autonomy is a fundamental principle in support of physician aid in dying although it is not the only principle at stake.  The autonomy argument for physician aid in dying can be stated as follows:  There is a moral reason to respect others’ autonomous choices, and this reason gains strength as the importance of the choice under consideration increases.  An autonomous decision to hasten one’s death is a profoundly important decision for a terminally ill person that involves his or her most significant values. There is therefore an extraordinarily strong moral reason not to restrict such a decision. This reason becomes even stronger when provisions are in place to ensure that the choice is indeed highly autonomous and not coerced.  Opponents argue that autonomy cannot support physician aid in dying, citing concerns that patients desiring such an option have impaired autonomous decision-making capacity, extreme individualism, or that physician aid in dying would actually undercut individual autonomy.

[263]      In response, the defendants have provided evidence from Canadian practitioners who believe that assistance in hastening death is inconsistent with sound ethical practice:  Dr. Chochinov, Dr. Downing, Dr. Herbert Hendin, Dr. Gallagher, Dr. McGregor, Dr. Pereira, and Dr. Leslie Sheldon. I again provide a sample of those opinions.

[264]      Dr. McGregor, a palliative care specialist and Regional Medical Director, Palliative Care for Vancouver Coast Health, provided an affidavit describing the practice of palliative care in British Columbia and in particular in the lower mainland.  He deposes that the team with which he is involved has carried out palliative sedation perhaps six or seven times over eight years, and that guidelines for the practice are under development.

[265]      He was cross-examined on his affidavit before the Court, and testified:

Q         Dr. McGregor, I want to ask you this question, if the – this Court was to say that the laws which make any kind of physician-assisted dying a crime are unconstitutional, in other words, if through this process physician-assisted dying was made legal and subject to all the appropriate safeguards would you not agree that these same four principles [beneficence, non-malfeasance, autonomy and justice] that are traditional health care ethical principles could be complied with by a physician if an adult with full consent and no mental illness made the request for physician-assisted dying?

A          I think – I think the answer to your question is yes but I’m not sure that that’s the right thing to be doing in our society.

[266]      In re-examination, he testified:

Q         And then finally one last question.  My friend took you to what is now Exhibit 11, the  extract from “Medical Care of the Dying” which was  authored in part – well, co-authored and edited  by Dr. Michael Downing, and took you to page 104  and asked a question with respect to the  traditional health care ethical principles of  beneficence, non-malfeasance, autonomy and justice.  And my note of his question was if the  Court was to say that the laws prohibiting physician-assisted dying are unconstitutional then subject to all the appropriate safeguards would you say that these guidelines could be complied with by an adult patient – an adult capable patient.  Your answer was I think the answer to your question is yes, but I’m not sure it’s right. Could you please explain why it’s not right?

A          So I think that – I think as physicians particularly we set out to value, esteem life above everything else.  I think that’s a value held in society.  I personally feel that that is a value that I will continue to hold and I don’t think that many of my colleagues would differ from that.

[267]      Dr. Downing gave evidence in his cross-examination to similar effect.

[268]      Dr. Chochinov is a psychiatrist and Canada Research Chair in palliative care.  His team has developed a model called “dignity therapy” which relates to practices intended to maintain an intact sense of dignity in palliative care patients.  A patient’s sense of autonomy, he says, can be maintained by thoughtful practices.  Therapeutic options include practices such as being more vigilant and attentive to physical domains of suffering, and addressing psychological and spiritual discomfort.  He provided an affidavit and was cross-examined before the Court.

[269]      Dr. Chochinov was asked whether, in his opinion, the legalization of physician-assisted suicide or intentional hastened death by a medical practitioner is required to achieve good outcomes in palliative care.  He responded in his affidavit as follows:

In the vast majority of instances, palliative care is able to mitigate suffering.  As such, even in the absence of death hastening options, good outcomes in palliative care are regularly achieved.  Palliative care has made great gains over the last few decades and can now attend to most sources of symptom distress.  In some instances, managing physical distress may involve having to sacrifice conscious awareness. ...  However, palliative care should no more be seen as the perfect foil to suffering, than medicine should be pitched as the perfect foil to death.

[270]      As to whether a change in the law is necessary in order to provide appropriate care for seriously ill and injured patients, given professional and ethical obligations, he referred to his previous answer and added:  “At this point in time, I would not be prepared to participate in a scheme permitting physician-assisted or intentional death by medical practitioner.”  He gives as his reasons for holding that position the following:  health system inadequacies (only a minority of Canadians have access to comprehensive, quality end-of-life care); potential harms (because in his view the data are not convincing that safeguards can protect against such harms); subjectivity in evaluation (referring to research suggesting that a health care provider’s willingness to provide assisted death may be mediated by various personal factors, including religious beliefs, diminished empathy, and lesser knowledge of symptom management); and unknown changes in the health care provider-patient dynamic (he asks whether supporting a patient’s wish to die could unwittingly undermine the patient’s sense of worth and dignity).

[271]      Dr. Gallagher, a specialist and Clinical Professor of palliative care, states in her expert report:

Is there a need for a change to the law prohibiting assisted suicide in order for me to provide appropriate care for patients?

In my opinion there is no need to change the law prohibiting assisted suicide in order for me to provide appropriate end of life care for my patients.

Assisted suicide by medical practitioners – is it a violation of my professional or ethical obligations to the patient?

The goals of medicine are prolonging life, relieving suffering and improving or maintaining function and have been so since the Hippocratic Oath was written thousands of years ago.  Even then there was the strong pronouncement about not doing harm and not administering a deadly drug nor counseling a patient to take a deadly drug.  The Canadian Medical Association Code of Ethics notes the core activities of a physician as health promotion, advocacy, disease prevention, diagnosis, treatment, rehabilitation, palliation, education and research.

In no way is administering a drug with the intent to end the life of the patient consistent with the goals or core activities of medicine.  While drugs administered to treat patients can result in death, that is considered an adverse outcome and not the intention of the treatment.  Giving a drug with the intention of causing the death of the patient does not relieve suffering but moves the patient to a state where we presume they are beyond suffering.

In my opinion changing the law to allow physicians to administer a deadly drug would be to radically change the concept of what a physician is that has been held for over two thousand years.  I believe it would also seriously undermine the trust that patients have in a physician to do what is in their best interest.

There is no medical skill required to administer a drug that results in death.

[272]      The evidence of Dr. Hendin, a psychiatrist and researcher of end-of-life decisions, largely relates to the effectiveness of safeguards in the Netherlands and Oregon.  With relevance to the ethical issues for physicians, however, he deposes:

Despite the fact Oregon physicians report that depression is the best predictor and most common correlate of physician-assisted suicide, patients, their families and their physician report that not depression but a need for control is the primary concern that patients express in discussing their desire for a hastened death. This need is usually related to patients’ fears of future suffering and presents the physician with an opportunity to address their specific concerns and to develop interventions that will relieve the anxiety of most patients. Oregon researchers have described these patients, noting that they were inflexible and “dreaded the thought of being dependent on others.” (Ganzini 2009).

The need for control, however, is characteristic of most suicidal patients. They make absolute conditions on life: “I won’t live . . . without my husband,” “if I lose my looks, power, prestige, or health,” or “if I am going to die soon” (Hendin 1999). Depression, often precipitated by discovering a serious illness, exaggerates their tendency to see life in black and white terms, but for many such people the need for control has been a dominant feature of their lives. In any case, the good practice of medicine obliges doctors to relieve distress rather than to assume that hastening death is the best or only way of doing so.

Patients are not alone in their inability to tolerate situations they cannot control. Lewis Thomas has written insightfully about sense of failure and experience in dealing with dying patients (Thomas 1984). This feeling helps to explain both the doctors’ tendency to use excessive measures to maintain life and their need to make death a medical decision. By deciding when patients die, by making death a medical decision, the physician preserves the illusion of mastery over the disease and the accompanying feelings of helplessness. Assisted suicide and providing euthanasia become ways for physicians of dealing with the frustration of being unable to cure the disease.

3.            Positions of Professional Bodies

[273]      The Attorney General for British Columbia provided evidence regarding the positions taken by medical associations on euthanasia and assisted suicide.

[274]      The Canadian Medical Association is a voluntary professional organization that has 75,000 members and represents the majority of Canadian physicians.  Its policy document, Euthanasia and Assisted Suicide, (Ottawa:  CMA, 2007) most recently revised in 2007, states in part:

Euthanasia and Assisted Suicide
(Update 2007)

This policy replaces two previous policies, Physician-Assisted Death 1995 and Euthanasia and Assisted Suicide (1998).  Euthanasia and assisted suicide, as understood here, must be distinguished from the withholding or withdrawal of inappropriate, futile or unwanted medical treatment or the provision of compassionate palliative care, even when these practices shorten life.  The CMA does not support euthanasia or assisted suicide.  It urges its members to uphold the principles of palliative care.  ...

...

Background

Euthanasia and assisted suicide are opposed by almost every national medical association and prohibited by the law codes of almost all countries.  A change in the legal status of these practices in Canada would represent a major shift in social policy and behaviour.  For the medical profession to support such a change and subsequently participate in these practices, a fundamental reconsideration of traditional medical ethics would be required.  ...

CMA policy on physician participation in euthanasia and assisted suicide

Canadian physicians should not participate in euthanasia or assisted suicide.

Physician concerns about legalization of euthanasia and assisted suicide

The CMA recognizes that it is the prerogative of society to decide whether the laws dealing with euthanasia and assisted suicide should be changed.  The CMA wishes to contribute the perspective of the medical profession to the examination of the legal, social and ethical issues.

Before any change in the legal status of euthanasia or assisted suicide is considered, the CMA urges that the following concerns be addressed.

1.   Adequate palliative-care services must be made available to all Canadians.  The 1994 CMA General Council unanimously approved a motion that Canadian physicians should uphold the principles of palliative care.

The public has clearly demonstrated its concern with our care of the dying.  The provision of palliative care for all who are in need is a mandatory precondition to the contemplation of permissive legislative change.  Efforts to broaden the availability of palliative care in Canada should be intensified.

2.   Suicide-prevention programs should be maintained and strengthened where necessary.  Although attempted suicide is not illegal, it is often the result of temporary depression or unhappiness.  Society rightly supports efforts to prevent suicide, and physicians are expected to provide life-support measures to people who have attempted suicide.  In any debate about providing assistance in suicide to relieve the suffering of persons with incurable diseases, the interests of those at risk of attempting suicide for other reasons must be safeguarded.

3.   A Canadian study of medical decision making during dying should be undertaken.  We know relatively little about the frequency of various medical decisions made near the end of life, how these decisions are made and the satisfaction of patients, families, physicians and other caregivers with the decision-making process and outcomes.  Physicians are involved in making decisions concerning whether to withhold or withdraw treatment and whether to administer sedatives and analgesics in doses that may shorten life.  It is alleged that some Canadian physicians are providing euthanasia or assistance in suicide.  Hence, a study of medical decision making during dying is needed to evaluate the current state of Canadian practice.  This evaluation would help determine the possible need for change and identify what those changes should be.  If physicians participating in such a study were offered immunity from prosecution based on information collected, as was done during the Remmelink commission in the Netherlands, the study could substantiate or refute the repeated allegations that euthanasia and assisted suicide take place.

4.   The public should be given adequate opportunity to comment on any proposed change in legislation.  The law should be determined by the wishes of society, as expressed through Parliament, rather than by court decisions.

5.   Consideration should be given to whether any proposed legislation [FN2 – E.g., Oregon Revised Statutes.  The Oregon Death with Dignity Act.  §127.800 – §127.995.] can restrict euthanasia and assisted suicide to the indications intended.  Research from the Netherlands and Oregon demonstrate that a large percentage of patients who request aid in dying do so in order to maintain their dignity and autonomy.

If euthanasia or assisted suicide or both are permitted for competent, suffering, terminally ill patients, there may be legal challenges, based on the Canadian Charter of Rights and Freedoms, to extend these practices to others who are not competent, suffering or terminally ill.  Such extension is the “slippery slope” that many fear.  Courts may be asked to hear cases involving euthanasia for incompetent patients on the basis of advance directives or requests from proxy decision makers.  Such cases could involve neurologically impaired patients or newborns with severe congenital abnormalities.  The “Groningen protocol,” which sets out five criteria for the provision of euthanasia to incurably ill babies, was adopted in Holland.  Psychiatrists recognize the possibility that a rational, otherwise well person may request suicide.  Such a person could petition the courts for physician-assisted suicide.

[275]      The defendants also referred to the positions of the World Medical Association, Australian Medical Association, American Medical Association, British Medical Association, and New Zealand Medical Association, all of which are opposed to physician-assisted death.

[276]      The plaintiffs argue that the official bodies do not necessarily represent the views of all of their members, and that (according to Dr. Angell) in the case of the American Medical Association, only a minority of physicians are members of that association.  The plaintiffs also refer to the contrary or neutral positions taken by other organizations, including the American Academy of Hospice and Palliative Medicine, the Swiss Academy of Medical Sciences, and the American Medical Women’s Association.

[277]      I also note the position of the Canadian Hospice Palliative Care Association, which takes a neutral stance with respect to the legalization of physician-assisted death, according to its Issues Paper on Euthanasia, Assisted Suicide and Quality End-of-Life Care (Ottawa:  CHPCA, 24 April 2010).

4.            Public Opinion

[278]      The plaintiffs led evidence regarding the results of a 2010 public opinion survey in Canada and a similar survey in Great Britain.

[279]      Both surveys were conducted by Angus Reid Public Opinion, using online polling of representative samples of the Canadian and British populations.  Mario Canseco, Vice President of Angus Reid, deposes that the Canadian survey was conducted on a representative sample of 1,005 Canadian adults from December 1-2, 2010.  The margin of error was +/- 3.1%, 19 times out of 20.  The survey results were statistically weighted according to the most current education, age, gender and region Census data to reflect the Canadian population. The British survey was conducted on a representative sample of 2,015 British adults from October 27-28, 2010.  Its margin of error was +/- 2.2%, 19 times out of 20.  Its results, too, were statistically weighted.

[280]      The survey results for Canadians showed that, when asked “Generally speaking, do you support or oppose legalizing euthanasia in Canada?”, with no definition of “euthanasia” being provided, 63% said that they supported legalization, 24% opposed, and 13% were not sure.  Results varied significantly among regions of the country, with respondents in Québec showing the highest level of support (78%) and those in Alberta the lowest (48%).  When provided with some specific scenarios under which a patient might ask for a doctor’s help in ending his or her life, the responses broke down as follows:

Euthanasia

Below are some specific scenarios under which a patient might ask for a doctor’s help in ending his or her life.  Do you support or oppose allowing the doctor to end the patient’s life under each one of these scenarios?

 

Support

Oppose

Not sure

A patient is in a coma with little or no hope of waking.  The patient had previously specified they wished to have their life terminated if they were ever to find themselves in this condition

81%

13%

6%

A patient is terminally ill and will die in less than six months.  The patient is expected to suffer a great deal of physical and mental anguish during that time

78%

15%

7%

A patient has a lifelong, but non-life threatening condition such as being quadriplegic and wishes to end his or her life

36%

55%

9%

A patient wishes to die at the same time as their spouse or other loved one

13%

79%

8%

 

 

 

 

[281]      The survey of Britons showed 67% supported legalizing euthanasia, 19% opposed and 14% were not sure.

[282]      The plaintiffs acknowledge the limitations of opinion polls, but suggest that the evidence shows that social consensus has shifted from 1993 to the present and that there is broad public support for assisted dying in Canada and in other Western democracies.

[283]      On the other hand, Canada submits that the polls are unreliable and do not assist the Court, among other reasons because the questions asked were left open to interpretation, and 20% of the population was excluded from the poll due to lack of internet access. Canada argues that what the polls show, if anything, is that public support for euthanasia in Canada fluctuates.

[284]      British Columbia’s position is that public opinion polls are not relevant to the determination of societal consensus, referring to Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1 at para. 50:

In Burns, the then Minister of Justice, in his decision on the order to extradite the respondents Burns and Rafay, emphasized that “in Canada, Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here, and I am firmly committed to that position” (para. 76). While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.

[Emphasis added.]

[285]      Instead, it argues, Canadian consensus is to be found in the refusal of successive governments and Parliaments to legalize assisted dying, in the Special Senate Committee Report (described in the next section), and in the position of the Canadian Medical Association, statutory and judicial pronouncements, and the views of individual palliative care physicians.  It says that international consensus is to be found in the overwhelming majority of Western democracies that prohibit the practices.

[286]      British Columbia agrees with Canada that the polling evidence provided by the plaintiffs is unreliable.  Counsel points to the cross-examination of Mr. Canseco, in which he agreed that the survey respondents may not have understood what the term “euthanasia” includes.   Mr. Canseco also agreed that, taking into account two previous Angus Reid surveys, one reasonable inference could be that there has been a trend of decreasing support for the legalization of euthanasia.

[287]      As to the suggestion that the polling results support a shift in consensus, Mr. Copley points out that there was evidence in the Rodriguez record of a public opinion poll done by Gallup Canada Inc., using a somewhat differently-worded question.  That question asked, “When a person has an incurable disease that causes great suffering, do you, or do you not think that competent doctors should be allowed by law to end the patient’s life through mercy killing, if the patient has made a formal request in writing?”  The poll results at that time were that 77% of Canadians believed that euthanasia should be permitted.

5.            Public Committees

[288]      As already described, a Special Committee of the Senate of Canada undertook in 1994 to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide in light of ongoing public debate on the topic of assisted death.  Over the course of 14 months, the Committee heard testimony from witnesses across Canada, and received hundreds of additional letters and briefs.

[289]      The Special Senate Committee Report, published in June 1995, was the last comprehensive review of the question of assisted dying by a Canadian public body until 2012 when the Québec Select Committee made its report.

[290]      The Senate Committee was unable to achieve unanimity with respect to assisted suicide and euthanasia.  The entire Committee recommended that the offence of counselling suicide under s. 241(a) of the Criminal Code remain intact.  While a majority of members recommended no amendments to the Criminal Code s. 241(b), aiding and abetting suicide, a minority recommended that an exemption be added to permit persons to assist in a suicide under clearly defined conditions (described later, in subsection IX (C), “Addressing the Risks”).

[291]      The entire Senate Committee recommended that both involuntary and non-voluntary euthanasia remain criminal offences.  However, the Committee recommended amendments to the Criminal Code that would provide for less severe penalties in cases of non-voluntary euthanasia where the essential elements of compassion or mercy are present.  To that end, they suggested either the creation of a third category of murder that would not carry a mandatory life sentence, or the creation of a separate offence of compassionate homicide.  In either case, the Committee advised that the essential elements of compassion and mercy be clearly and narrowly defined.

[292]      A minority of the Committee recommended amendments to the Criminal Code to permit voluntary euthanasia for competent individuals who are physically incapable of committing assisted suicide, subject to the same or similar safeguards recommended for assisted suicide.  As an alternative, the minority recommended Criminal Code amendments to create a less severe penalty.

[293]      Thereafter, Senate focus shifted to palliative care.  A Subcommittee to update the Special Senate Committee Report was subsequently established to examine progress on implementing the unanimous recommendations made in that report.  I refer to those developments when discussing the state of palliative care in Canada in subsection VIII (E), “Impact on Palliative Care”, below.

[294]      In November 2011, a six-member Expert Panel of the Royal Society of Canada published the RSC Report (End-of-Life Decision Making) in response to national and international changes to the landscape of end-of-life care.  Noting the recommendations in the Special Senate Committee Report in 1995, the Panel asked whether a careful reconsideration of the same issues would result in the same conclusions in the present day.

[295]      The Expert Panel unanimously recommended that the prohibitions on assisted suicide and voluntary euthanasia in the Criminal Code be modified to allow both practices in carefully circumscribed and monitored circumstances.  (As lesser options for reform, the Panel recommended prosecutorial charging guidelines that would be explicit as to the circumstances in which a prosecution for assisted suicide or voluntary euthanasia would not be in order, and the implementation of diversion programs and restorative justice processes for cases of this nature.)

[296]      The Expert Panel identified a number of core elements of a permissive regime, to which I will refer later, in subsection IX (C), “Addressing the Risks”.

[297]      The Canadian Parliamentary Committee on Palliative and Compassionate Care, an ad hoc, all party committee of Members of Parliament, released Not to be Forgotten: Care of Vulnerable Canadians in November 2011.  The Canadian Parliamentary Committee Report did not address physician-assisted dying, but focused on palliative care, suicide prevention and elder abuse.  However, in the context of a broader discussion on suicide prevention, the Report examined the issue of suicide prevention and mental illness amongst the elderly.  The Committee recommended that the federal government establish a suicide prevention secretariat and an elder abuse awareness and prevention office with similar mandates of developing and implementing national strategies to address these concerns.

[298]      In March 2012, the Québec National Assembly’s Select Committee on Dying with Dignity issued the Québec Select Committee Report, which included a number of recommendations concerning palliative care, palliative sedation and advance medical directives, as well as assisted death.  With regard to assisted death, the committee recommended amendments to relevant legislation to recognize medical aid in dying as appropriate end-of-life care when a physician assesses the person making the request as meeting certain conditions that I will describe later.

6.            Prosecution Policies

[299]      The plaintiffs led evidence about policies in British Columbia and the United Kingdom governing prosecutors’ exercise of discretion in proceedings regarding assisted suicide or euthanasia.

[300]      The evidence about the British Columbia policy is relevant for three reasons.  First, the policy may shed some light on social consensus about the ethics of assisted suicide or euthanasia.  Second, the British Columbia policy incorporates by reference accepted medical ethical standards.  Finally, the plaintiffs suggest that the prosecution policy marks a significant change since Rodriguez.  The plaintiffs characterize the B.C. policy as “remarkable” because, they say, it appears to allow for the exercise of discretion not to prosecute a person who has violated the assisted suicide provision and thus to contradict the principle of sanctity of life espoused in the Rodriguez decision.

[301]      The current version of the British Columbia prosecution policy provided in evidence is dated March 15, 2004, and it was admitted that the policy was made effective on that date.  However, it appears that the Ministry of the Attorney General initially stated its policy on November 3, 1993, not long after the Rodriguez case was decided:  see the Special Senate Committee Report, Appendix F, “Chronology of Major Canadian Developments and Events”.

[302]      The policy sets out guidelines for cases where a Report to Crown counsel reveals that a person, motivated by compassion for another person, participated in causing that person’s death.  It states:  “Given the complex nature of the legal issues and the evolution of palliative care, charging decisions will be made on a case-by-case basis following an examination of the facts and circumstances of each case.”  The policy directs Crown counsel to consider a list of factors, which are said to be consistent with the overall policy on charge assessment, reflecting two requirements for a prosecution to proceed:  (1) that there is a substantial likelihood of conviction; and (2) that prosecution is required in the public interest.  Charge assessment decisions are to be made by Regional Crown counsel in consultation with the Director, Policy and Legislation.

[303]      In the policy, “palliative care” is defined as “a qualified medical practitioner, or a person acting under the general supervision of a qualified medical practitioner, administering medication or other treatment to a terminally ill patient with the intention of relieving pain or suffering, even though this may hasten death”.  The policy states that that conduct, “when provided or administered according to accepted ethical medical standards, is not subject to criminal prosecution”.

[304]      Finally, “withholding or withdrawing treatment” is defined and the policy states that that conduct, “when provided or administered according to accepted ethical medical standards, is not subject to criminal prosecution”.

[305]      Crown counsel are directed to consider a number of factors in characterizing the conduct of the person involved in a death, including: the provable intention of the person, recognizing the criminal intent necessary for the offences in question; where the conduct “involves a physician and a patient, the position of the Canadian Medical Association and expert medical opinions as to generally recognized and accepted medical practices”; whether the acts of a qualified medical practitioner constitute withholding or withdrawing treatment, with reference to the law on informed consent, and indicia of capacity; and whether the act of a qualified medical practitioner or a person acting under their supervision constitutes palliative care.

[306]      In considering whether the acts of a qualified medical practitioner constitute palliative care, Crown counsel are to take into account, among other matters, the Rodriguez decision – in particular Justice Sopinka’s comments at 607 about the administration of drugs for pain control in dosages that the physician knows will hasten death.  They are also to take into account whether the patient was terminally ill and near death with no hope of recovery, whether the patient’s condition was associated with severe and unrelenting suffering, whether accepted ethical medical practices were followed, and whether the patient was participating in a palliative care program or palliative care treatment plan.

[307]      Turning to the second branch of the charging decision, the policy states that if Crown counsel has determined that there is a substantial likelihood of conviction, then counsel must determine whether the public interest requires a prosecution.  The factors to be considered include those set out in the general charge assessment policy and the following additional factors:  the importance of supporting proper professional and ethical standards within the health care professions; society’s interest in the protection of vulnerable persons; and society’s interest in protecting the sanctity of human life, recognizing this does not require life to be preserved at all costs.

E.           Analysis

1.            Summary of the Ethical Debate

[308]      In describing the ethical debate, it is useful to begin on common ground.

[309]      First, there is no disagreement about the facts set out above, relating to existing clinical end-of-life practices and the understood legal and ethical justification for them, the non-universal availability of palliative care in Canada, and the inability of palliative care to alleviate all suffering of all patients.

[310]      Second, there is little dispute that the principles described by Professor Battin (autonomy, compassion and non-abandonment) play a central role in the formation of medical ethics.  As well, there is little dispute that a central precept for physicians continues to be “do no harm”, that physicians set out to esteem and value life and that intentionally ending the life of a patient is either ethically inconceivable to them or conceivable only in stringently defined exceptional circumstances.

[311]      Third, it is common ground that physicians are ethically required to act in the best interests of their patients, but not to break laws in order to do so.  There was some reference in the evidence, and in submissions, to physicians’ right to refuse to perform services that they view to be unethical, and that right appears to be recognized in permissive jurisdictions such as the Netherlands and Oregon.  It is unnecessary to address this point further because the plaintiffs do not assert that a physician should be compelled to assist in suicide or perform euthanasia.

[312]      Finally, there remains some controversy about the ethics of palliative sedation, at least in connection with the relief of existential suffering (as opposed to physical pain or other physical symptoms).  However, I was not made aware of significant ethical disputes about other end-of-life practices when performed with the informed consent of a competent patient.  The evidence (I refer to Professor Keown in particular) does show that the ethics of withdrawing or withholding treatment from a patient who is unable to give informed consent remain controversial, at least when the patient has not made his wishes known through an advance directive.

[313]      The plaintiffs do not argue that physician-assisted death should be imposed on patients who do not, themselves, request it.  Therefore, the ethical debate relevant to this case focuses on a limited class of patients:  those who are competent adults (decisionally capable); fully informed as to their diagnosis, prognosis and all options for treatment or palliative care; persistently and consistently requesting assistance with death (that is, non-ambivalent); and not subject to coercion or undue influence.

[314]      As I understand the evidence, the debate encompasses the following main ethical and practical arguments against making physician-assisted death available to such patients.  I begin with arguments that relate solely to the individual patient, but include as well those relating to the social aspects of the debate, that is, the possible impact on persons other than the patient:

(a)          The sanctity of human life is a fundamentally important ethical principle, central to our society.

(b)          Physicians are committed to the preservation of life as their highest value and that commitment should not be eroded.  The Hippocratic Oath is inconsistent with providing assistance in death; it explicitly forbids terminating the lives of patients.

(c)          Physician-assisted death is ethically different, because of the intention of the physician, from currently permissible end-of-life practices.  The “double effect” doctrine – that taking a step with knowledge it may hasten death is appropriate if the intent is to alleviate suffering – permits physicians to take steps that will possibly hasten death.

(d)          Whether or not suicide may be ethical, assistance in suicide can never be ethical as it requires society to agree that a person’s life is not valuable.

(e)          Unfettered autonomy to request and receive treatment, including a hastened death, presupposes an undesirably consumerist model of medicine.

(f)           While individual autonomy is an important value, it does not take precedence over all other values, including concern for society as a whole.  Individual autonomy should be understood as “relational”, taking into account that individuals are part of society and their decisions affect others and are influenced by others.  Suicide affects many people, and particularly the deceased’s family or others close to him.

(g)          Risks to the individual patient who is requesting assisted death cannot be eliminated.  Persons who, at one point in the trajectory of their illness, wish only to die, may find later that they are happy that they lived a while longer.

(h)          The availability of physician-assisted death puts at risk patients who are depressed, not truly competent, not fully informed, or subject to coercion or undue influence, including patients who are vulnerable due to age, disability or other similar factors.  It also puts at risk patients who are misdiagnosed or given an inaccurate prognosis.

(i)            Even if there is nothing ethically problematic in an isolated single case of physician-assisted death for the paradigmatic competent, fully informed, terminally ill and suffering person, legal permission for such assistance puts other persons at risk.

(j)            Disabled persons would be at particular risk in a system that allowed for physicians to assist in hastening death, because of the risk that requests for death by disabled people would be more likely viewed as reasonable.

(k)          If physicians become involved in assisting death, that will compromise the physician-patient relationship.

(l)            Physician-assisted death should not be considered until there is universal access to high-quality palliative care because (a) such care can, in almost all cases, alleviate patients’ suffering; and (b) moving to physician-assisted death will undermine incentives to provide high-quality palliative care.

(m)         The availability of physician-assisted death for a limited category of patients will lead to pressure to make it available to ever-wider categories of patients.

[315]      On the other hand, my review of all the evidence shows that the ethical and practical arguments in favour of making physician-assisted death available to the limited category of patients described are:

(a)          The sanctity of life is a principle that is not absolute in our society (it is subject to exceptions such as self-defence) and, while it is central to the value system of a number of religions, that does not settle its place in a secular society.

(b)          The Hippocratic Oath derives from ancient Greece, but has been modified in modern times; a physician may not be harming a patient by assisting the patient to end a life of unbearable suffering.

(c)          The harm caused by death is to the individual who loses some time in life; but, for some individuals, death which brings an end to suffering is not a harm but a benefit.

(d)          No-one should be deprived of liberty, or forced to suffer, without adequate cause.  Failing to respect an autonomous choice to die risks paternalism.

(e)          Individuals may experience such suffering (physical or existential), unrelievable by palliative care, that it is in their best interests to assist them in hastened death.  Physicians are required to respect patient autonomy, to act in their patients’ best interests and not to abandon them.  Where those principles co-exist, assistance in hastened death may be ethically permitted.

(f)           If a patient’s decision to hasten her own death by suicide is ethical, it may be ethical to provide assistance to that patient.

(g)          Medical ethics already permit practices that amount to assisting with hastened death (refraining from administering or discontinuing life-sustaining treatment, administering medication in doses which may hasten death and palliative sedation).  The difference between those practices and physician-assisted suicide or voluntary euthanasia is ethically insignificant.

(h)          Some patients may find death while under palliative sedation repugnant or unacceptable, and may find other forms of palliative care unacceptable.  Patients should not be required to submit to treatment against their wishes.

(i)            Decisions to give or withhold care are routinely made on the basis of medical prognoses and diagnoses, which have varying levels of accuracy. Physicians routinely assess whether their patients are competent and informed and whether their decisions to accept or reject treatment are influenced by depression, coercion or undue influence.  The risks of error already accepted in end-of-life practice are low, and can be further reduced through stringent safeguards and monitoring.

(j)            The possibility of assisted death if continued life becomes unbearable may in itself alleviate suffering, even if a patient does not in the end take that course.

(k)          The availability of assisted death enables patients who believe that they will come to wish to end their lives, to prolong their lives because they will be able to postpone that choice to a time after they lose the physical ability to end their own lives.

(l)            It is unethical to refuse to relieve the suffering of a patient who requests and requires such relief, simply in order to protect other hypothetical patients from hypothetical harm.

(m)         Disabled people should not be deprived of the same degree of autonomy as others, and should not be presumed to be less likely to be competent and more likely to be susceptible to coercion or undue influence.

(n)          The physician-patient relationship is enhanced when a patient knows that her physician will not abandon her.  It should not be assumed that physicians and other health-care providers will discard their focus on assisting patients and preserving life simply because assisted death becomes a legal option in limited circumstances.

(o)          Palliative care and physician-assisted death are not mutually exclusive; the former should be universally provided at a high level, and the latter should be available as a last resort option.

(p)          That there may be arguments for expansion of circumstances permitting physician-assisted death does not mean that those arguments will succeed.

2.            Conclusions about the Ethical Debate

[316]      I will reiterate the reasons why the ethical debate is relevant, and, with reference to those reasons, attempt to draw some conclusions about the ethics of physician-assisted death.  I will leave aside, for the moment, the legal and constitutional ramifications of those conclusions.

[317]      The overarching reason why the ethical debate is relevant is that both legal and constitutional principles are derived from and shaped by societal values.

[318]      Additionally, the ethical debate bears on these questions:  (1) Would Canadian physicians be willing to assist patients with hastening death if it were legal to do so?  (2) Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible, and is the distinction between suicide and assisted suicide ethically defensible?  (3) Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?

a)            Would Canadian physicians be willing to assist patients with hastening death if it were legal to do so?

[319]      The first question above can be answered concisely.  The evidence reveals that there are experienced and reputable Canadian physicians who, in some circumstances, would find it consistent with their ethical principles to assist patients with hastening death if it were legal to do so.

b)           Does current medical practice with respect to end-of-life care make distinctions that are ethically defensible and is the distinction between suicide and assisted suicide ethically defensible?

[320]      The second question, which looks to the ethical distinction between permissible and impermissible end-of-life practices, and between suicide and assisted suicide, is complex.

[321]      The plaintiffs say that there is no relevant ethical distinction between physician-assisted dying on the one hand and end-of-life practices which are lawful, such as refraining from treatment, ceasing treatment or administering palliative sedation, on the other.  Their position is supported by ethicists such as Professor Sumner, Dr. Angell and Professor Battin.  In brief, the argument is that withdrawing a ventilator tube or maintaining a patient under sedation without hydration or nutrition are acts that will result in death, just as much as the act of providing a lethal prescription or administering lethal medications.  To perform those acts, knowing of their inevitable consequences, is to hasten death.  Similarly, refraining from life-saving treatment may result in the death of the patient, and is a passive form of hastening death.  If those practices are ethical, then so is physician-assisted dying.

[322]      The plaintiffs’ position is that the accepted practices of respecting patients’ wishes to withhold or withdraw life-sustaining treatment are both legal and ethical.  Therefore, the plaintiffs say, physician-assisted death must also be ethical, and should be legal.

[323]      The defendants do not argue that the legally approved end-of-life practices in Canada are unethical.  They claim, however, that those practices are ethically distinguishable from physician-assisted death.

[324]      Canada submits that the majority in Rodriguez found a distinction between assisted suicide and other end-of-life practices based on intention, as have some medical ethicists.  At 607, Sopinka J. stated:

The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment.  The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard.  However, the distinction drawn here is one based upon intention – in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.  The Law Reform Commission, although it recommended the continued criminal prohibition of both euthanasia and assisted suicide, stated, at p. 70 of the Working Paper, that a doctor should never refuse palliative care to a terminally ill person only because it may hasten death.  In my view, distinctions based upon intent are important, and in fact form the basis of our criminal law.  While factually the distinction may, at times, be difficult to draw, legally it is clear.  The fact that in some cases, the third party will, under the guise of palliative care, commit euthanasia or assist in suicide and go unsanctioned due to the difficulty of proof cannot be said to render the existence of the prohibition fundamentally unjust.

[Emphasis added.]

[325]      British Columbia submits that that distinction based on intention “provides legal clarity and draws a bright line between the lawful and the unlawful for the physician providing medical treatment”.

[326]      Differing from British Columbia on this point, Canada submits that while the Rodriguez majority’s conclusion that there is a difference between permissible and impermissible end-of-life practices was ultimately correct, there are two inaccuracies in the distinctions drawn by the majority.

[327]      The first alleged inaccuracy is legal.  Canada says that the criminal law does not appear to recognize a distinction between intentionally bringing about a prohibited consequence and doing something knowing that the prohibited consequence is virtually certain to result.  The second inaccuracy is factual.  Canada submits that palliative pain control, including palliative sedation, does not necessarily have the effect of hastening death.

[328]      With respect to the legal point, I think that Canada is correct.  However, I note that Sopinka J. was drawing a line between acceptable end-of-life practices and criminal acts in the context of a constitutional challenge.  The Court did not have a criminal case before it.  The specific constitutional and factual context of the Rodriguez case, in particular its focus on the implications of the requirement for informed consent to medical treatment and on the legality of existing end-of-life practices, may explain why the majority’s comments about intention do not perfectly track criminal law doctrine regarding intention and causation in homicide cases.

[329]      Further, I note that Justice Sopinka acknowledges the difficulty in drawing a bright-line factual distinction (at 607, quoted above).

[330]      In short, Rodriguez was clearly focussed on a legal, rather than a factual or ethical distinction.

[331]      I turn to the second alleged inaccuracy referred to by Canada.  The majority in Rodriguez assumes that effective pain control may hasten death.  The majority states that even if it does, if the physician’s intention is to care for a patient in pain, potentially lethal pain control may nevertheless be legally administered.

[332]      Canada submitted that pain control or palliative sedation does not necessarily hasten death, and therefore is legally distinguishable from physician-assisted death on the basis of causation.  Whether or not that position is consistent with principles of criminal law, and I express no opinion in that regard, the majority in Rodriguez indicates that potentially lethal medications may be legally administered if the physician’s intention is to care for a patient in pain.  Thus, it seems immaterial whether or not the majority in Rodriguez was correct in its understanding of the effect of opioids administered as part of appropriate palliative care.  (The majority in Rodriguez did not refer to palliative sedation.)

[333]      In other words, that possibly incorrect assumption about the effect of pain control medications seems to me to leave unaffected the logic of the ethical argument based upon the Rodriguez decision.

[334]      As I have suggested, Rodriguez addressed where to draw the line for legal purposes, rather than tackling the ethical question per se.  The evidence shows that within the medical and bioethical community the question still remains open whether an ethical distinction is maintainable between withholding or withdrawing life-sustaining treatment and palliative sedation on the one hand, and physician-assisted death on the other.

[335]      The preponderance of the evidence from ethicists is that there is no ethical distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death.  I find the arguments put forward by those ethicists, such as Professor Battin, Dr. Angell and Professor Sumner, to be persuasive.

[336]      In addition, the plaintiffs have provided evidence from a number of practitioners who doubt the existence of a valid ethical distinction.

[337]      Some of the witnesses called by the defendants expressed similar doubts about an ethical distinction in individual cases, but opposed change in the law or in medical ethics because of the possible impact on other persons, on palliative care, on the physician-patient relationship or on society in general.

[338]      In an individual case, whether based on a distinction between foreseeing and intending, on a distinction between acts and omissions, or on other grounds, a bright-line ethical distinction is elusive.

[339]      I also find persuasive the arguments of Professor Sumner with respect to the absence of an ethical distinction between suicide and assisted suicide, if suicide is ethical.  I agree that a distinction vanishes in the circumstances he specifies:  the patient’s decision for suicide is entirely rational and autonomous, it is in the patient’s best interest, and the patient has made an informed request for assistance.  The physician provides the means for the patient to do something which is itself ethically permissible.  It is unclear, therefore, how it could be ethically impermissible for the physician to play this role.

c)            Does the law attempt to uphold a conception of morality inconsistent with the consensus in Canadian society?

[340]      I begin with the apparently strong consensus that the currently legal end-of-life practices are ethical.  None of the Canadian ethicists and practitioners took issue with the ethical foundations of those practices, except possibly with respect to some aspects of palliative sedation.  Further, the Canadian Medical Association and the B.C. Prosecution Policy seem firmly to adopt the position that current legal practices are ethical.

[341]       Such consensus is not surprising; the requirement for informed consent to medical treatment that underpins current end-of-life practices is in turn founded on the very widely shared view that individuals have a veto right with respect to impingement on their own bodies.  In short, the value of individual autonomy underpins the consensus.

[342]      Similarly, there is a strong consensus that if it is ever ethical in an individual case for a physician to assist in death, it would be only in limited and exceptional circumstances, where it is clearly consistent with the patient’s wishes and best interests, and in order to relieve suffering.  The concern about imposing stringent limits stems from the consensus that unlimited physician-assisted death would pose serious risks.

[343]      The evidence shows that thoughtful and well-motivated people can and have come to different conclusions about whether physician-assisted death can be ethically justifiable.  The major medical associations in Canada, the United Kingdom, some other Commonwealth countries and the United States have all taken positions opposed to physician-assisted death.  On the other hand, some individual physicians in those countries take a different view, as do some medical associations, physicians and politicians in jurisdictions where physician-assisted death is permitted.

[344]      The Canadian physicians who deposed that they would provide assistance with hastened death if it were legal to do so were unchallenged with respect to their standing in the medical community or their understanding of and respect for medical ethics.  Their evidence shows that the view that a physician can never ethically participate in terminating life is not universally held by reputable, experienced physicians, despite the position taken by the Canadian Medical Association and similar bodies.

[345]      In the RSC Report, the Expert Panel of the Royal Society of Canada unanimously recommended legal change to permit assisted death after a lengthy discussion of the ethics of that position.  Similarly, the Québec Select Committee recommended legislative amendments that would allow adults with capacity to request medical aid in dying.

[346]      On the other hand, the Parliament of Canada, which no doubt took into account ethical considerations, declined in 2010 to change the existing law by defeating Bill C‑384.   The majority of the Special Senate Committee in 1995 was not persuaded that change was appropriate, although a minority would have recommended an exemption to the Criminal Code to permit assisted death under clearly defined safeguards.

[347]      Public opinion polls provide some indication as to societal values overall, and the polling evidence suggests that 63% of Canadians are supportive of physician-assisted death in some circumstances.

[348]      Professional medical ethicists and medical practitioners also manifest a difference of opinion.  As I see it, the divergence is with respect to the questions that I identified at the outset:  (1) Does a physician have an overriding duty to support the inviolability of life and refrain from intentionally causing death, or can it be ethical, in an individual case, for a physician to assist a competent and informed patient who requests hastened death? (2) Even if it were ethical to provide such assistance in an individual case, should physicians refrain from doing so because of a threat to other persons (particularly those who are socially vulnerable) or to values such as respect for human life, building a strong palliative care system and maintaining appropriate relationships between physicians and patients?

[349]      These points are reflected, for example, in the 1995 Special Senate Committee Report, which states:

The members opposed to changing the existing legislation with respect to assisted suicide are primarily concerned with maintaining the fundamental social value of respect for life. They feel that legalizing assisted suicide could undermine respect for life which they believe is the most universally accepted value in society. Few democratic societies permit assisted suicide. In a pluralistic society, respect for life is a societal value that transcends individual, religious or diverse cultural values.

These members are also concerned about the risks associated with changes to the present law. In their view, legalization could result in abuses, especially with respect to the most vulnerable members of society. ...

There was also some concern over the issue of the “slippery slope”. Changes in the law with respect to competent persons could lead the way to possible changes in the law for incompetent persons. ...

[Emphasis added.]

[350]      With respect to the first question, I think that the real difference of opinion is not about the value of human life; no-one questions that the preservation of human life has a very high value in our society.  Rather, the difference of opinion is about whether the preservation of human life is an absolute value, subject to no exceptions.

[351]      Professor Sumner explores this point:

Normally we assume that death is one of the worst fates that can befall us, which is why in both ethics and law the causing of death is taken to be such a serious matter.  But what makes death such a bad thing in the normal case is what it takes away from us – the continuation of a life worth living.  The disvalue of death is therefore a direct function of the value of the life thereby lost.  This is the deprivation account of the badness of death: death is bad for us by virtue of depriving us of the goods of continued life.  On this account showing that death would be bad for a person requires a comparison between two possible futures for that person: the one in which he dies and the one in which he lives on.  If the goods of further life would outweigh the evils then it would be better for the person to continue living, and death would therefore be a harm to him since it would deprive him of this good future.

[Emphasis in original.]

[352]      In any event, many of the expert witnesses called by the defendants do not base their opinions upon the need to uphold the sanctity of human life, or on that alone.  Instead, they refer to the issues identified in the second question:  the risks that legalization would pose – to vulnerable patients, to palliative care, to the physician-patient relationship in general, or to respect for human life.

[353]      For example, Dr. Chochinov deposes, “[a]t this point in time I would not be prepared to participate” in physician-assisted death.  He gives as his reasons:  health system inadequacies; potential harms and inadequate safeguards; the subjective element in evaluating patients’ requests; and potential changes in the health care provider-patient dynamic.

[354]      Dr. McGregor testified that while, possibly, medical ethical principles could permit assistance in death, he was not sure that it was the right thing for society because of the potential for it to undermine the value of human life.

[355]      I note as well the British Columbia Prosecution Policy.  It seems to allow for the possibility that even if there is a substantial likelihood of conviction, the public interest may not always require prosecution of a case of assisted suicide or euthanasia.  One possible reading of the policy is that it is meant to discourage prosecutions in cases involving end-of-life practices where the hastening of death is a foreseeable result.  Another is that it goes further and potentially encompasses cases of assisted suicide or euthanasia.  At a minimum, the policy suggests an absence of societal consensus that life must always be preserved at all costs.

[356]      The defendants emphasize the number of occasions on which legislatures and learned committees, both in Canada and elsewhere in the world, have looked at the question whether assisted suicide and euthanasia should be prohibited.  In many of the published reports, the conclusion that these practices should be prohibited is largely driven by the view that their risks cannot be adequately addressed through safeguards, and less by the view that it would always be unethical, in an individual case, to relieve suffering.  The predominant concern is about the impact on society as a whole if the prohibition against intentionally causing death were to be lifted.  One way to measure whether that concern has merit is to look at the effectiveness of safeguards in jurisdictions where assisted death is permitted, and I do so in the next section of these Reasons.

[357]      In summary, there appears to be relatively strong societal consensus about the following:  (1) human life is of extremely high value, and society should never, or only in very exceptional circumstances, permit the intentional taking of human life; and (2) current end-of-life practices, including administering palliative sedation to relieve physical suffering and acting on patients’ or substituted decision-makers’ directions regarding withholding or withdrawal of life-sustaining treatment, are ethically acceptable.

[358]      As to physician-assisted death, weighing all of the evidence, I do not find that there is a clear societal consensus either way, in an individual case involving a competent, informed, voluntary adult patient who is grievously ill and suffering symptoms that cannot be alleviated.  However, there is a strong consensus that if physician-assisted dying were ever to be ethical, it would be only be with respect to those patients, where clearly consistent with the patient’s wishes and best interests, and in order to relieve suffering.

VIII.       EVIDENCE FROM OTHER JURISDICTIONS

[359]      Canada’s response to the plaintiffs’ constitutional claims rests in large measure on the proposition that nothing short of a blanket prohibition against assisted dying is sufficient to protect vulnerable individuals from what it terms “wrongful death”.  The population Canada has in mind includes anyone who is rendered vulnerable by his or her circumstances; Canada says circumstances like age or disability may render some people particularly susceptible.  Canada submits:

Even assuming that, in theory, assisted suicide or euthanasia is allowed only in the case of a competent adult who voluntarily requests to die, the evidence shows that it is impossible in practice to guarantee that every person helped to die is, in fact, competent to make the request, that the request is not the result of undue influences, internal or external, perhaps subtle and well-intentioned, and that the person’s desire to die is not simply transitory.

[360]      In contrast, the plaintiffs say that it is possible to screen out people who should not be assisted to die.  They say that empirical evidence collected in jurisdictions that permit assisted dying demonstrates that the safeguards in those jurisdictions are generally effective in preventing the deaths of persons who are incompetent, subject to undue influence or unsettled in their desire to end their lives.  The plaintiffs also point to evidence that the experience in the Netherlands and Oregon does not show a disproportionate number of elderly people or people with disabilities receiving assistance in death.

[361]      Assisted suicide and euthanasia are criminal offences in most western countries, including the United Kingdom, Australia, New Zealand, France, Germany and most parts of the United States.

[362]      Legislative bodies in a number of jurisdictions have considered and rejected legislative change with respect to euthanasia or assisted suicide.  Canada tendered the reports of a number of those bodies, including:

·         from the United States, The New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York State Department of Health, 1994);

·         from the United Kingdom House of Lords, The Select Committee on the Assisted Dying for the Terminally Ill Bill, Assisted Dying for the Terminally Ill Bill  [HL], (HL paper 86-I) (London, The Stationary Office Lt., 4 April 2005);

·         from Australia, Senate Standing Committee on Legal and Constitutional Affairs, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (Report) (Canberra: Senate Printing Unit, June 2008); Joint Standing Committee on Community Development, Report on the Dying with Dignity Bill 2009 (Report No. 36) (Hobart, Tas.: Government Printer, 2009); and

·         from Scotland, End of Life Assistance (Scotland) Bill Committee Report (SP paper 523) (Scottish Parliament Publications, 2010).

[363]      However, a small number of jurisdictions permit one or both of these practices, most notably Oregon and Washington in the United States, and in Europe, the Netherlands, Belgium, Luxembourg and Switzerland.

[364]      In this section, I will summarize, and make findings of fact with regard to the extensive evidence that has been tendered with respect to permissive jurisdictions and their safeguards.   I will focus on three questions:  (1) What level of compliance have the permissive jurisdictions achieved with respect to their safeguards?  (2) Do the safeguards effectively prevent abuse of vulnerable individuals?  (3) What inferences can be drawn with respect to the likely effectiveness of comparable safeguards in Canada?

[365]      Those three questions relate to what is sometimes called the “practical slippery slope”:  the concern that even carefully crafted criteria will, over time, be reinterpreted or ignored, leading to euthanasia or assisted suicide of people never contemplated at the outset.  A fourth question arises as well:  would granting legal permission for physician-assisted death in some circumstances create a foundation for future claims to extend legal permission beyond those contemplated circumstances?  That question relates to what is called the “logical slippery slope”.  It requires speculation and arises only tangentially in connection with the issues in this case.  Accordingly, I will not address it in this section.

[366]      I begin by reviewing briefly the opinion evidence of some of Canada’s expert witnesses who are of the view that existing safeguards in other jurisdictions have not been effective in addressing the practical slippery slope.  Their evidence highlights the main concerns about the efficacy of safeguards.

[367]      The plaintiffs called evidence from a number of experts who share the opinion that, generally speaking, the safeguards have been effective in limiting physician-assisted dying to those who satisfy the requisite criteria, and that there is no evidence that vulnerable groups have been adversely affected.  As many of the plaintiffs’ experts have undertaken empirical studies in the Netherlands, Oregon or Belgium (which I review below), I will refer to their evidence later.

[368]      I will refer only briefly to Switzerland because the practice there is quite different (assisted suicide, with no medical precondition and no requirement for a physician to be involved).

[369]      After summarizing the evidence relating to the various jurisdictions, I will review a multi-jurisdictional study specifically addressing the impact of legal physician-assisted dying on vulnerable populations.

[370]      I will then return to the practical slippery slope questions and set out my conclusions on those questions, based on the evidence.

A.           The Major Challenges to the Effectiveness of Safeguards

[371]      In the view of Dr. Hendin, a psychiatrist and researcher of end-of-life decisions in the Netherlands, virtually every protective guideline there has been violated or modified with negative consequences for patients.  Under-reporting, for instance, is a serious concern.  An even greater cause for alarm he says, is the number of cases of life-ending acts without explicit request (“LAWER”), approximately 1,000 per year in each of the years for which there are data.

[372]      With respect to Oregon, it is Dr. Hendin’s position that due to problems with the legislation and monitoring practices, safeguards are being circumvented with unintended harmful consequences for patients.

[373]      In cross-examination, it was put to Dr. Hendin that a book he wrote about assisted death, which recounts the issues he observed in the Dutch regime, has been criticized with respect to its methodology and accuracy, including by some of the doctors in the Netherlands whom he interviewed and described as major sources for his research.  Dr. Hendin disagreed with the merits of those criticisms.

[374]      Professor Keown, a Professor of law and medical ethicist, opposes assisted death in part because of his concerns about safeguards.  He is of the opinion that laws and guidelines regarding assisted suicide and euthanasia in the Netherlands and Oregon are not effectively controlling those practices and protecting patients.  By “effectively”, he means sufficiently to achieve the degree of control and protection warranted by the importance of the rights and interests to be protected.  The basis of his opinion is that the regimes rely on self-reporting by physicians, making control ineffective.  He further says that patients are inadequately protected because neither jurisdiction requires that each patient be referred for psychiatric evaluation, nor do they require consultation with specialists in palliative care or in the patient’s medical condition. Thus, he says, the safeguards protect doctors more than patients.

[375]      Professor Keown attaches an excerpt from his forthcoming book relevant to these matters, Debating Euthanasia.  One of his three main points in the book is that decriminalization would pose grave risks to the vulnerable, especially the dying, the disabled and the disadvantaged.  In particular, he says that decriminalization would expose competent but vulnerable individuals to pressure to request an early death, and incompetent persons to death without request.

[376]      While much of the evidence of Dr. Pereira, a specialist and Professor of palliative care, concerns palliative care, he also addresses the effectiveness of safeguards in physician-assisted suicide regimes.

[377]      Dr. Pereira’s views on safeguards are set out in a paper he authored entitled “Legalizing Euthanasia or Assisted Suicide:  The illusion of safeguards and controls” (April 2011) 18 Curr Oncol 2.  He agreed on cross-examination that he had not done original research and that his paper was wholly reliant on a review of secondary sources.  He also testified on cross-examination that his interest in the topic of assisted suicide and euthanasia is of recent origin; he has not made a lengthy study of the effectiveness of safeguards.  He agreed that his paper was published in a journal with a low ranking among medical journals in terms of its impact within the medical community.

[378]      In Dr. Pereira’s opinion, safeguards in jurisdictions that permit physician-assisted dying or euthanasia have been ineffective and actually pose a significant risk to many individuals.

[379]      By way of example, Dr. Pereira states that voluntary, written consent is a safeguard in many jurisdictions.  Nevertheless, he cites the fact that, in the Netherlands in 2005, 560 patients (0.4% of all deaths) were euthanized without having given their explicit consent.  He states that the rate in Belgium is three times higher.

[380]      Similarly, the requirement that a second physician be consulted in physician-assisted dying cases is a purported safeguard in most systems.  However, according to Dr. Pereira, there is evidence of non-compliance in Belgium, the Netherlands and Oregon.  Moreover, he claims that second opinions provided by members of “pro-euthanasia lobby groups” raise questions about the objectivity of these assessments.

[381]      Dr. Pereira also describes what he sees as evidence of a slippery slope.  The evidence he cites includes changes to laws, definitions and criteria over time so that they begin to allow practices that had previously been deemed unacceptable.  He also observed a lack of prosecution of cases where the laws have been broken and safeguards circumvented.  Finally, he says that euthanasia and assisted suicide have become options available on demand rather than as a last resort.

[382]      Baroness Ilora Finlay of Llandaff, a palliative care physician and member of the House of Lords, states that she has not come across safeguards within a physician-assisted suicide scheme that, in her view, are sufficiently effective.  Her concerns relate to the influence of the physician on the patient and the fallibility of diagnosis and prognosis.

[383]      She says that while some jurisdictions rely on diagnosis and prognosis of a terminal illness or a progressive life-threatening disease as a safeguard, medical diagnosis and prognosis are both notoriously fallible.  Further, she takes the position that “unbearable suffering”, which is a safeguard in some jurisdictions, is too subjective to be effective.  While type of illness or disability is sometimes proposed as a safeguard, Baroness Finlay notes that relating a safeguard to specific illnesses or disabilities is discriminatory.

[384]      Mental capacity is another purported safeguard, but Baroness Finlay urges that there is no absolute test for undertaking that complex assessment.  Similarly, it can be difficult to detect cognitive impairment or coercive influences on a person, which can often be very subtle.  “Cooling off” periods do not adequately recognize the potential for coercive influences, nor do they take into account the reality that the desire for hastened death fluctuates greatly over time and across patients.

[385]      Some jurisdictions require that patients be told of alternatives to physician-assisted dying, including palliative care.  However, in Baroness Finlay’s submission, simply being told of palliative care is quite different from actually experiencing it.

[386]      The requirement for a second opinion is another common safeguard.  However, Baroness Finlay says that it is human nature for a physician to seek a second opinion from a like-minded physician likely to concur with his own assessment.  Further, she fears that “doctor shopping” raises the spectre of superficial assessments validating requests for physician-assisted dying.  Baroness Finlay also fears that patients who request physician-assisted dying can become locked into the process, and find it difficult to alter course if they change their minds or have doubts.

[387]      (I note that in the preceding paragraph, I am referring to evidence of Baroness Finlay to which objection was taken.  I have concluded, however, that it is within her expertise as an experienced palliative care physician.)

[388]      I now turn to review some of the evidence regarding the effectiveness of safeguards in the jurisdictions that permit physician-assisted dying.

B.           Review by Jurisdiction

1.            Oregon and Washington

[389]      The regimes in Oregon and Washington are detailed in the evidence of Professor Penney Lewis and Professor Mary Shariff, both law professors.

[390]      Oregon’s Death With Dignity Act, Oregon Rev. Stat. §70.245 (1994) [ODDA] was a citizen’s initiative first passed by Oregon voters in November 1994 by a 51% majority.  The ODDA permits only one specific form of physician assisted dying: the provision of a prescription for lethal medication to be self-administered by the patient.  Implementation was delayed by an injunction enjoining the ODDA’s operation.  That injunction was subsequently vacated, and the United States Supreme Court denied certiorari.

[391]      In 1997, the Oregon legislature referred a measure which sought to repeal the ODDA to the general election ballot.  Voters defeated the measure by a 60% margin, thus retaining the Act.  Opponents, however, lobbied for federal intervention against the state initiative.  In 2001, the United States Attorney General issued an interpretive rule which essentially declared that physician-assisted suicide violated the Controlled Substances Act of 1970, 21 U.S.C. §801-904, thus criminalizing conduct specifically authorized by the ODDA.  In 2006, the United States Supreme Court held that the Controlled Substances Act could not be enforced against physicians who prescribed drugs for the purpose of assisted suicide as permitted by the ODDAGonzales v. Oregon, 546 U.S. 243 (2006).

[392]      The ODDA permits a physician to prescribe “medication for the purpose of ending [the patient’s] life in a humane and dignified manner” (s. 2.01).  The patient self-administers the medication.  The ODDA does not permit euthanasia, expressly stipulating that nothing in the Act “shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing or active euthanasia” (s. 3.14).

[393]      Section 2.01 specifies the criteria that qualify a patient to make a request for medication.  The patient must:

(a)          be over the age of 18;

(b)          be a resident of Oregon;

(c)          be capable (defined as having the ability to make and communicate health care decisions);

(d)          be diagnosed by the attending and consulting physician to be suffering from a terminal disease (a “terminal disease” being defined as an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months) (s. 1.01); and

(e)          have voluntarily expressed in writing his or her wish to die.

[394]      The ODDA includes the following procedural safeguards to ensure the foregoing criteria are satisfied:

(a)          The patient must make two oral requests and one written request over 15 days (s. 3.06), the latter signed by two witnesses attesting that the patient is capable, acting voluntarily and is not being coerced to sign the request.  One of the witnesses must be a person who is not related to the patient and has no material interest in the patient’s death (s. 2.02).

(b)          The attending physician must (s. 3.01):

                                      (i)      confirm that the patient has a terminal disease, is capable and has made the request voluntarily;

                                    (ii)      inform the patient of:  his or her medical diagnosis and prognosis; the potential risks and probable results of taking the medication to be prescribed; and, feasible alternatives, including comfort care, hospice care and pain control (all with the aim of ensuring the patient is making an informed decision);

                                   (iii)      refer the patient to a consulting physician for medical confirmation of the diagnosis and for a determination that the patient is capable and acting voluntarily;

                                   (iv)      refer the patient to counselling if appropriate;

                                    (v)      recommend that the patient notify next of kin of his or her request for medication (though a patient who declines will not have his or her request denied for that reason);

                                   (vi)      counsel the patient about the importance of having another person present when the patient takes the prescribed medication and of not taking the medication in a public place;

                                  (vii)      inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15-day waiting period;

                                (viii)      verify, immediately prior to writing the prescription, that the patient is making an informed decision;

                                   (ix)      document in the patient’s medical record the fulfillment of all of the statutory conditions.

(c)          If either the attending or consulting physician is of the view that the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, he or she must refer the patient for counselling.  No medication will be prescribed until the individual prescribing the counselling determines that the patient is not suffering from such impaired judgment (s. 3.03).

(d)          No less than 48 hours must elapse between the patient’s written request and the writing of a prescription under the ODDA.

[395]      The patient may rescind the request at any time and in any manner (s. 3.08).

[396]      Death pursuant to the ODDA is not considered suicide for other purposes (s. 3.07).

[397]      The Oregon Health Division (“OHD”) monitors compliance with the Act.  All physicians who prescribe under the ODDA are required to notify the OHD and provide documentation that legal requirements are met.  If the legal requirements are not met, the physician is reported to the state licensing board.  Pharmacists are also required to file a dispensing report with the OHD.

[398]      According to data from the OHD, the following numbers of prescriptions have been issued and deaths have occurred under the ODDA:

Year

No. of prescriptions under the ODDA

No. of ODDA Deaths (includes deaths of patients with earlier prescriptions)

No. of ODDA deaths per 10,000 Oregon deaths

1998

24

16

5.5

1999

33

27

9.2

2000

39

27

9.1

2001

44

21

7.1

2002

58

38

12.2

2003

68

42

13.6

2004

60

37

12.3

2005

64

38

12.0

2006

65

46

14.7

2007

85

49

15.6

2008

88

60

19.4

2009

95

59

19.3

2010

96

65

20.9

 

 

 

 

[399]      Between the time the ODDA was enacted in 1997 through 2010, 525 individuals have died from ingesting prescribed medications.

[400]      The following table, published by the OHD, sets out the characteristics of the 525 individuals who have died under the Act, 1998–2010:

Characteristics

2010
(N=65)

1998-2009
(N=460)

Total
(N=525)

Sex

N (%)*

N (%)*

N (%)*

Male (%)

38 (58.5)

244 (53.0)

282 (53.7)

Female (%)

27 (41.5)

216 (47.0)

243 (46.3)

Age

 

 

 

18-34 (%)

0.00. (0.00)

6 (1.3)

6 (1.1)

35-44 (%)

1 (1.5)

12 (2.6)

13 (2.5)

45-54 (%)

5 (7.7)

34 (7.4)

39 (7.4)

55-64 (%)

13 (20.0)

94 (20.4)

107 (20.4)

65-74 (%)

19 (29.2)

127 (27.6)

146 (27.8)

75-84 (%)

15 (23.1)

136 (29.6)

151 (28.8)

85+ (%)

12 (18.5)

51 (11.1)

63 (12.0)

Median Years (range)

72 (44-95)

71 (25-96)

71 (25-96)

Race

 

 

 

White (%)

65 (100.0)

449 (97.6)

514 (97.9)

Asian (%)

0 (0.0)

7 (1.5)

7 (1.3)

American Indian (%)

0 (0.0)

1 (0.2)

1 (0.2)

African American (%)

0 (0.0)

1 (0.2)

1 (0.2)

Hispanic (%)

0 (0.0)

2 (0.4)

2 (0.4)

Other (%)

0 (0.0)

0 (0.0)

0 (0.0)

Marital Status

 

 

 

Married (%)

33 (50.8)

212 (46.1)

245 (46.7)

Widowed (%)

14 (21.5)

101 (22.0)

115 (21.9)

Never married (%)

4 (6.2)

38 (8.3)

42 (8.0)

Divorced (%)

14 (21.5)

109 (23.7)

123 (23.4)

Education

 

 

 

Less than high school (%)

4 (6.3)

33 (7.2)

37 (7.1)

High school graduate (%)

13 (20.3)

117 (25.5)

130 (24.9)

Some college (%)

20 (31.3)

105 (22.9)

125 (23.9)

Baccalaureate or higher (%)

27 (42.2)

204 (44.4)

231 (44.2)

Unknown

1

1

2

Underlying illness

 

 

 

Malignant neoplasms (%)

51 (78.5)

373 (81.1)

424 (80.8)

Lung and bronchus (%)

8 (12.3)

88 (19.1)

96 (18.3)

Pancreas (%)

3 (4.6)

35 (7.6)

38 (7.2)

Breast (%)

3 (4.6)

38 (8.3)

41 (7.8)

Colon (%)

3 (4.6)

31 (6.7)

34 (6.5)

Prostate (%)

1 (1.5)

24 (5.2)

25 (4.8)

Other (%)

33 (50.8)

157 (34.1)

190 (36.2)

Amyotrophic lateral sclerosis (%)

7 (10.8)

35 (7.6)

42 (8.0)

Chronic lower respiratory disease (%)

2 (3.1)

18 (3.9)

20 (3.8)

HIV/AIDS (%)

0 (0.0)

8 (1.7)

8 (1.5)

Other illness (%)Ψ

5 (7.7)

26 (5.7)

31 (5.9)

End of life care

 

 

 

Hospice

 

 

 

Enrolled (%)

50 (92.6)

404 (88.2)

454 (88.7)

Not enrolled (%)

4 (7.4)

54 (11.8)

58 (11.3)

Unknown

11

2

13

Insurance

 

 

 

Private (%) Ω

36 (60.0)

315 (69.1)

351 (68.0)

Medicare, Medicaid or Other Governmental (%)

22 (36.7)

135 (29.6)

157 (30.4)

None (%)

2 (3.3)

6 (1.3)

8 (1.6)

Unknown

5

4

9

End of life concerns#

 

 

 

Losing autonomy (%)

61 (93.8)

414 (90.8)

475 (91.2)

Less able to engage in activities making life enjoyable (%)

61 (93.8)

398 (87.3)

459 (88.1)

Loss of dignity (%)§

51 (78.5)

282 (85.2)

333 (84.1)

Losing control of bodily functions (%)

30 (46.2)

264 (57.9)

294 (56.4)

Burden on family, friends/caregivers (%)

17 (26.2)

167 (36.6)

184 (35.3)

Inadequate pain control or concern about it (%)

10 (15.4)

101 (22.1)

111 (21.3)

Financial implications of treatment (%)

1 (1.5)

12 (2.6)

13 (2.5)

DWDA process

 

 

 

Referred for psychiatric evaluation (%)

1 (1.5)

38 (8.4)

39 (7.5)

Patient informed family of decision (%)**

62 (95.4)

361 (93.5)

423 (93.8)

Patient died at

 

 

 

Home (patient, family or friend) (%)

63 (96.9)

435 (94.6)

498 (94.9)

Long term care, assisted living or foster care facility (%)

2 (3.1)

19 (4.1)

21 (4.0)

Hospital (%)

0 (0.0)

1 (0.2)

1 (0.2)

Other (%)

0 (0.0)

5 (1.1)

5 (1.0)

Lethal medication

 

 

 

Secobarbital (%)

60 (92.3)

261 (56.7)

321 (61.1)

Pentobarbital (%)

5 (7.7)

195 (42.4)

200 (38.1)

Other (%)ΔΔ

0 (0.0)

4 (0.9)

4 (0.8)

Health-care provider present**

 

 

 

When medication was ingested

 

 

 

Prescribing physician (%)

6 (30.0)

88 (23.8)

94 (24.2)

Other provider, prescribing physician not present (%)

10 (50.0)

218 (59.1)

228 (58.6)

No provider (%)

4 (20.0)

63 (17.1)

67 (17.2)

Unknown

45

21

66

At time of death

 

 

 

Prescribing physician (%)

6 (9.4)

77 (20.3)

83 (18.7)

Other provider, prescribing physician not present (%)

19 (29.7)

233 (61.5)

252 (56.9)

No provider (%)

39 (60.9)

69 (18.2)

108 (24.4)

Unknown

1

11

12

Complications‡‡

 

 

 

Regurgitated (%)

1 (3.6)

20 (4.5)

21 (4.4)

Seizures (%)

0 (0.0)

0 (0.0)

0 (0.0)

Awakened after taking prescribed medications

2§§

1§§

3§§

None (%)

27 (96.4)

429 (95.5)

456 (95.6)

Unknown

37

11

48

Emergency Medical Services

 

 

 

Called for intervention after lethal medication ingested (%)

0 (0.0)

0 (0.0)

0 (0.0)

Calls for other reasons (%)##

0 (0.0)

4 (0.9)

4 (0.8)

Not called after lethal medication ingested (%)

28 (100.0)

451 (99.1)

479 (99.2)

Unknown

37

5

42

Timing of DWDA event

 

 

 

Duration (weeks) of patient-physician relationship

 

 

 

Median

18

10

10

Range

0-1905

0-1440

1-1905

Unknown

0

20

20

Duration (days) between 1st request and death

 

 

 

Median

64

43

46

Range

16-338

15-1009

15-1009

Minutes between ingestion and unconsciousness‡‡

 

 

 

Median

5

5

5

Range

1-20

1-38

1-38

Unknown

33

38

71

Minutes between ingestion and death‡‡

 

 

 

Median

35

25

25

Range (minutes-hours)

5min–53hrs

1min-104hrs

1min-104hrs

Unknown

33

33

66

 

 

 

 

 

Notations:

*         Unknowns are excluded when calculating percentages.

Ψ       Includes alcoholic hepatic failure, corticobasal degeneration, diabetes with renal complications, hepatitis C, organ-limited amyloidosis, scleroderma, Shy-Drager syndrome, multiple sclerosis, meningioma, pulmonary disease, chronic heart failure, diseases of the heart, cerebrovascular disease, Parkinson’s disease and Huntington’s disease

Ω        Private insurance category includes those with private insurance alone or in combination with other insurance

#        Affirmative answers only (“Don’t know” included in negative answers)   Available for 17 patients in 2001

§        First asked in 2003

**        First recorded beginning in 2001.  Since then, 20 patients (4.4%) have chosen not to inform their families and 8 patients (1.8%) have had no family to inform.  There was one (1) unknown case in 2009.

ΔΔ      Other includes combinations of Secobarbital, pentobarbital and/or morphine.

++          The data shown are for 2001-2010 since information about the presence of a health care provider/volunteer, in the absence of the prescribing physician, was first collected in 2001   Procedure revision was made mid-year in 2010 to standardize reporting on the follow-up questionnaire   The new procedure only collects information on health care providers present at ingestion when the physician or another health care provider is present at time of death   This resulted in a larger number of unknowns in 2010

§§       In 2005, one patient regained consciousness 65 hours after ingesting the medication, subsequently dying from their illness 14 days after awakening   In 2010, two patients regained consciousness after ingesting medications   One patient regained consciousness 88 hours after ingesting the medication, subsequently dying from their illness three months later   The other patient regained consciousness within 24 hours, subsequently dying from their illness five days following ingestion.

##           Calls included three to pronounce death and one to help a patient who had fallen off a sofa.

‡‡           Procedure revision was made mid-year in 2010 to standardize reporting on the follow-up questionnaire  The new procedure accepts information about time of and circumstances surrounding death only when the physician or another health care provider is present at the time of death   This resulted in a larger number of unknowns in 2010.

 

 

[401]      In November 2008, Washington State voters passed their Death With Dignity Act, Wash. Rev. Code §70.245 (2009) [the Washington Act], through a ballot initiative by a vote of 58% to 42%.  The Act came into the effect in March 2009.

[402]      The Washington Act is substantially similar to the ODDA upon which it was modelled.  One area in which it differs is by making express that the patient must self-administer the medication.  The reporting requirements are also virtually identical to ODDA.

[403]      In 2009, medications were dispensed under the Washington Act to 63 individuals.  At least 36 of those individuals died after ingesting the medication.  In 2010, medications were dispensed to 87 individuals; at least 51 died after ingesting the medication.

[404]      Because the legislative change took place in Washington so recently, there is not much information available as to the experience there, and most of the discussion in this section relates to Oregon.

[405]      The OHD publishes data regarding deaths under the ODDA.  One of the plaintiffs’ witnesses, Professor Lewis, a Professor and researcher of comparative law, is critical of the data provided in the annual reports.  She states that the quality has significantly declined between 1998 and 2010, and that the reports from 2007 onwards provided considerably less detail than earlier reports.  Further, she says, data which would have been helpful in evaluating implementation of the ODDA have ceased to be collected; for example, whether individuals received a prescription from the first physician they approached, or the amount of barbiturates prescribed.

[406]      Dr. Hendin, a psychiatrist and researcher of end-of-life decisions, levels similar criticisms against data collection in Oregon.  He deposes that the OHD does not collect the information it needs to effectively monitor the ODDA, and restricts its annual reports to general epidemiological data.  In the absence of surveys and interviews of physicians of the sort conducted in the Netherlands, he says that officials in Oregon have no way of knowing how many physician-assisted deaths go unreported, why some physicians decline a request while others may decide to proceed, or what transpired in any particular case.

[407]      Compassion & Choices is a non-profit organization that promotes informed end-of-life decision-making by educating the public and advising health care professionals.  George Eighmey was the Executive Director of Compassion & Choices of Oregon from 1998 to September 2010.  Jason Renaud has held the position since January 2011.  Both witnesses, who give evidence for the plaintiffs, say that based on their own observations and experiences in collectively advising over 1,700 terminally ill individuals and their physicians regarding aid-in-dying issues, the ODDA does not cause harm to vulnerable persons.

[408]      Robb Miller is Executive Director of Compassion & Choices of Washington, a position he has held since 2000.  He has counselled approximately 1,200 terminally ill patients and their physicians in regard to aid-in-dying issues since the Washington Act came into effect.  Mr. Miller’s experience and evidence mirrors that of Mr. Eighmey and Mr. Renaud.

[409]      Ann Jackson, the former Executive Director of the Oregon Hospice Association, initially opposed the ODDA and voted against the Act and later for its repeal.  She gives this evidence with respect to her current opinion regarding the ODDA:

I now believe that it was cavalier of me to even consider that hospice and palliative care professions could indeed meet all the needs of people who were dying – or that some needs, such as the need to control one’s own life and death, was an unworthy need.

Today I would vote in favour of physician-assisted dying, and “yes”, if ODDA were on the ballot.  I am convinced that physician-assisted dying can be, and is, practiced responsibly in Oregon, and that the ODDA was very well crafted.  I say this based on my personal experience and on the basis of my knowledge of the data that is now regularly published by the Oregon Health Authority.  I am satisfied that the bar is high enough that people who are clinically depressed, for instance, and whose judgment is questionable are not likely to seek it or obtain it.  The bar is, however, not so high, that motivated terminally-ill Oregonians are unduly deterred or restricted from participation.  The safeguards in place are not merely meaningless obstacles.

I have also seen the positive impact the ODDA has on patients in palliative care who, in the end, do not use their prescription.  For those patients, it provides peace of mind that they have an option in the event of a worst case scenario.  I have also seen the positive impact of merely a promise of a prescription on Oregonians who are well, on those who are newly diagnosed with life-threatening diseases or conditions, on family members and loved ones.  This is significant because in hospice in the United States, the patient and the family, by federal law, is the unit of care.

...

Until 2008, when I retired from the Oregon Hospice Association, I met with front-line hospice workers twice a year to discuss their experiences.  Whether they supported or did not support the concept of physician-assisted dying or the ODDA, it is clear to me that conversations with patients and families and other health care professionals about death and dying had improved significantly once the ODDA, literally, put the topic on the table.  When one can respond openly to a request for help in dying, the likelihood of successfully addressing fears or reasons behind the request is much greater.

[410]      Providing a contrasting opinion is Dr. Charles Bentz, an internal medicine physician in Oregon.  In his view, the regime in Oregon allows patients’ lives to be cut short by physicians who do not address the issues underlying patient suicidality at the end of life.

[411]      Dr. Bentz bases his conclusion upon his experience with a patient who had incurable cancer.  He referred the patient to radiation and medical oncology.  When his patient completed the radiation therapy, the radiation oncologist recorded in the medical record her opinion that the patient was depressed due to his circumstances, which included diminished physical stamina.  After the patient completed chemotherapy, he asked the medical oncologist for a lethal prescription.  The oncologist contacted Dr. Bentz to confirm the diagnosis and prognosis prior to issuing the prescription.  Dr. Bentz declined to be the second physician required under the ODDA, advising the oncologist that the course of action was not appropriate and that they should be addressing the issues underlying the patient’s suicidality rather than directly causing his death.  The patient was dead two weeks later from a lethal overdose prescribed by the oncologist; a second opinion had been sought and obtained elsewhere.  Dr. Bentz states that the oncologist had only known and been treating his patient for a few weeks.  Moreover, the death certificate, he says, “untruthfully” recorded the cause of death as cancer.

[412]      Prior to this experience, Dr. Bentz had been of the view that “we were doing well with assisted suicide in Oregon”.  However, after looking into the circumstances surrounding his patient’s death, he saw some concerning problems with the ODDA, specifically, inaccurate records about patients’ deaths, the destruction of such records after one year, and no or insufficient review or sanctions for physicians when patients’ lives are taken unnecessarily.

[413]      Dr. Bentz says that since assisted suicide was legalized in Oregon, roughly half a dozen patients have raised the issue with him.  For none of the patients was physical suffering the motivating factor.  He writes, “[w]hy those patients have wanted to die varies but common to each case is that once I have assisted the patient in addressing whatever their concern was, they no longer want to die.”

[414]      Dr. Nancy Crumpacker, a retired oncologist whose evidence was tendered by the plaintiffs, responds to Dr. Bentz’s evidence that his patient’s death certificate was “untruthfully” completed.  She says that it is the common, if not invariable, practice of physicians who fill out the death certificates of persons who hasten their deaths under the ODDA to record the underlying illness as the cause of the death.  This is done to protect patient confidentiality and to avoid any confusion with settlements from insurance companies.  Completing the death certificate in this manner is not inconsistent with the legislation, as s. 3.14 of the ODDA provides that actions taken in accordance with it do not constitute suicide or homicide for any purposes.  Section 3.13 additionally provides that “[n]either shall a qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner have an effect upon a life, health, or accident insurance or annuity policy.”

[415]      Dr. Linda Ganzini, a geriatric psychiatrist and Professor of psychiatry and medicine, has over some 15 years co-authored numerous studies regarding different aspects of physician-assisted dying in Oregon.  She states that a number of those studies involved confidential surveys carefully designed to detect abuse, and none has revealed any such abuse.

[416]      Based on her research and analysis, Dr. Ganzini states the following conclusions in her affidavit:

Patients do not primarily make requests for assisted suicide because of physical symptoms, such as pain or fatigue, though fear of future physical symptoms may impact the request.  Lack of social support, financial concerns and depressed mood are rated by patients, family members and health care providers as unimportant reasons for requesting assisted death.  Patients appear to request assisted suicide for psychological and existential reasons; that is they value control, dread dependence on others, are ready to die, or assess their quality of life as poor.

It does not appear that patients who die by assisted suicide lack adequate palliative care – 98% have health care insurance, and most are enrolled in hospice before death.  As reported by hospice professionals and physicians there have been measurable improvements in end-of-life care since the initial passage of the ODDA.  Most hospice professionals in Oregon do not believe that assisted suicide and hospice enrolment are mutually exclusive alternatives.  Substantive palliative care interventions can lead some – but not all – patients to change their minds about assisted suicide.

Across a broad range of Oregon health care professionals, the majority support assisted suicide.  A core third consistently morally oppose it and object to legalization of this option.

In Oregon, there is no current evidence for the claim that legalised PAS has had a disproportionate impact on patients often considered vulnerable (the elderly, women, the uninsured, people with low educational status, the poor, minors, or racial or ethnic minorities).  Although there is no evidence that persons with psychiatric illnesses are disproportionally impacted by this law, some patients with MDD have lethal prescriptions without being referred for a mental health evaluation.

[417]      One of the studies that Dr. Ganzini co-authored surveyed Oregon physicians regarding their experiences with requests for assistance with suicide:  L. Ganzini et al., “Physicians’ Experiences with the Oregon Death With Dignity Act” (2000) 342:8 New Engl J Med 557 [the Ganzini et al. Physicians’ Experience Study].  Physicians eligible to prescribe lethal medications under the ODDA were sent a questionnaire in 1999 (approximately two years after the legislation came into effect).  2,649 physicians (65%) returned the survey.  According to Dr. Ganzini, anything over a 60% response rate is considered generalizable.  The results provide a useful snapshot.

[418]      In brief, 144 physicians (5% of respondents) reportedly received a total of 221 requests for lethal prescriptions after November 1997.  The mean age of the patients was 68 years; 76% had an estimated life expectancy of less than six months.  Cancer was the most common diagnosis.  Physicians granted approximately one in six requests for a prescription for lethal medication; one in 10 requests actually resulted in suicide.

[419]      According to the physicians’ assessments, 20% of the patients making a request had symptoms of depression; none of these patients received a lethal prescription.  Also according the physicians’ assessments, 93% of the patients were competent to make medical decisions, 2% were not competent, and physicians were uncertain in 5% of the cases.  Patients’ reasons for requesting prescriptions included (some patients gave more than one reason):  loss of independence (57%); poor quality of life (55%); readiness to die (54%); a desire to control the circumstances of death (53%); physical pain (43%); loss of dignity (42%); viewed self as a burden (38%); and lack of social support (6%).

[420]      Of the patients, 35% had previously requested a prescription from a physician other than the responding physician and 27 patients (12%) were referred to 17 of the respondents specifically because of the patients’ interest in receiving a prescription.  Reflecting this referral process, 27% of respondents (38 of 143) had known the patient for less than one month at the time of the request.  Of the referred patients, 15 of the 27 (55.5%) received prescriptions, and seven (26%) died after taking the medication.  In this group of 27 patients, substantive interventions were recommended for 20 (74%) and implemented for seven (26%).  Despite the interventions, five of the seven died by physician-assisted suicide.

[421]      Physicians reported the outcomes for 165 patients who requested physician-assisted suicide.  Of 29 patients who received prescriptions, 17 died from taking the prescribed medication; 11 died from other causes; and one was still alive at the time of the survey.  A total of 136 patients did not receive prescriptions.  The physician was not willing to provide a prescription to the particular patient in 30 cases and was not willing to provide a prescription to any patient in 40.  In 27 cases, the patient died before meeting all of the requirements of the ODDA.  Finally, 21 patients did not meet the legal requirements of the ODDA and 21 patients changed their minds before completing the requirements (in some cases more than one response was chosen).

[422]      Respondents provided further information about 28 patients who received prescriptions, including 16 who died after administering the medications.  In all cases, the physician obtained an opinion from another physician with respect to the patient’s prognosis and treatment options.  At the time the prescription was written, 13 patients were thought to have 1-6 months to live and 15 were thought to have less than one month to live.  Of the patients, 22 were confined to bed or a chair during more than 50% of their waking hours.  In the case of 18 patients, less than four weeks elapsed between the request for a prescription and its receipt.

[423]      For 68 patients, including 11 who received prescriptions and 8 who died by taking the prescribed medication, the physician implemented at least one substantive intervention, such as control of pain or other symptoms, referral to a hospice program, a consultation or a trial of anti-depressant medication.  Among those patients for whom substantive interventions were made, 46% changed their minds about assisted suicide, as compared with 15% of those for whom no substantive interventions were made.  In 28 instances, patients received medications for depression or anxiety, or were evaluated by a mental health practitioner; three of the 28 changed their minds about obtaining a prescription.

[424]      In their discussion of the results, the authors state that the demographic characteristics of the patients who requested assisted suicide were almost identical to those of members of the general population who died in Oregon.  Moreover, patients rarely cited concerns about finances or lack of social support as the reasons for making their requests.  The authors further note that more than one third of the patients requested assistance with suicide because they perceived themselves as a burden to others, but that only three of these patients received prescriptions for lethal medications, suggesting that the physicians were reluctant to accede to requests for assistance under those circumstances.

[425]      With respect to depression, the authors write (at 562):

Twenty percent of the patients had symptoms of depression, a finding that is similar to the reported prevalence of depression in patients with terminal illness.  Depression has been reported in 59 to 100 percent of terminally ill persons interested in assisted suicide or other means of hastening death and in 80 percent of patients with cancer who committed suicide.  We could not determine whether depression was in fact less common in persons in Oregon who requested a prescription for a lethal medication or whether the physicians failed to detect depression in some instances.  Nonetheless, most of the respondents reported that they had made efforts to improve their ability to recognize depression in terminally ill patients.  Only 11 percent of the patients who either received a trial of medication for depression or anxiety or were evaluated by a mental health expert changed their minds about obtaining a prescription for a lethal medication.

[426]      The authors acknowledge several sources of bias and potential error, including:  lack of information about the 35% of physicians who did not respond; that physicians who were opposed to or uncertain about the ODDA were less likely to provide complete information about patients than physicians who favoured it; and, the survey asked physicians for patients’ reasons for requesting death under the ODDA, which is less reliable than surveying the patients themselves.

[427]      Dr. Ganzini co-authored a study that looked specifically at the issue of depression:  L. Ganzini, E.R. Goy and S.K. Dobscha, “Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey” (2008) 337 Brit Med J a1682 [the Ganzini Depression Study].

[428]      The authors surveyed 58 Oregonians, most terminally ill with cancer or ALS, who had either requested assistance in dying from a physician or had contacted an aid in dying advocacy organization.  The outcomes measured depression and anxiety according to the hospital anxiety and depression scale and the structured clinical interview for the Diagnostic and Statistical Manual of Mental Disorders.

[429]      The authors found that 15 participants met their pre-defined criteria for major depressive disorder, and 13 met the criteria for anxiety.  By the end of the study, 42 participants had died; 18 of those participants received a prescription for a lethal drug under the ODDA, and nine died by the lethal ingestion.  Of the participants who received a prescription, 15 did not meet their criteria for a major depressive disorder.  However, three did.  All three depressed participants died by lethal ingestion within two months of the research interview.  None had been evaluated by a mental health professional before their participation in the study.

[430]      The authors described their findings, as follows (at 3):

Among patients who requested a physician’s aid in dying, one in four had clinical depression.  However, more than three quarters of people who actually received prescriptions for lethal drugs did not have a depressive disorder.  Our findings also indicate that the current practice of legalised aid in dying may allow some potentially ineligible patients to receive a prescription for a lethal drug; two of those who ultimately died by lethal ingestion had depression at the time they received a prescription for a lethal drug and died by ingesting the drug.  A third patient was depressed at the time that she requested a physician’s aid in dying and probably received her prescription; she was successfully treated for her depression before she died by lethal ingestion.

[431]      The authors note the possibility that these three individuals may have satisfied the requirements of the ODDA despite their depressive disorders, as the attending physicians may have determined that the depression was not influencing the patients’ judgment.  They further indicate that while diagnosing depression can be relatively straightforward, determining its role in influencing decision making is more difficult, even by expert assessment.  In this regard, they cite an earlier study co-authored by Dr. Ganzini which found that of a sample of 321 psychiatrists in Oregon, only 6% were very confident that they could adequately determine in a single evaluation whether a psychiatric disorder was impairing the judgment of a patient requesting suicide:  L. Ganzini et al., “Attitudes of Oregon Psychiatrists Toward Physician-Assisted Suicide” (1996) 153:11 Am J Psychiatry 1469.

[432]      This earlier study, which was also included in Dr. Ganzini’s expert report, found that 95% of the psychiatrists were somewhat or very confident that they could determine, in a long-term relationship with the patient, whether a mental disorder such as depression was influencing the decision for physician-assisted suicide.  Psychiatrists who favoured the ODDA were significantly more confident of their ability to adequately assess the patient in the context of both a single evaluation and a long-term relationship than those who were opposed to the legislation.

[433]      The authors of the Ganzini Depression Study conclude that while most terminally ill Oregonians who receive assistance in dying do not have a major depressive disorder, current practice under the ODDA may fail to protect some patients with mental illness.  Increased vigilance and systematic examination for depression among patients who may access aid in dying are therefore needed.  They recommend the use of depression screening tools to determine which patients should be referred on for mental health evaluation.

[434]      The authors recognize a number of limitations of the study, among them the fact that only 28% of invited patients agreed to participate.  This low rate of participation leads to uncertainty regarding the extent to which the data are generalizable to the entire population of Oregonians who request physician assistance in dying.

[435]      Dr. Ganzini acknowledges in her affidavit that no medical practices are without risk.  She states that despite the extensive safeguards in the ODDA, it is impossible to say that there is no risk that a psychologically influenced or depressed patient will slip through.  Indeed, she says, her study demonstrates that three patients with major depressive disorder did access lethal prescriptions.

[436]      Nevertheless, Dr. Ganzini states the opinion that these risks are minimized in a number of ways:

First, as noted above, two physicians are required to comment on the presence of depression, voluntariness and decisional capacity.  Oregon hospices responded to our study regarding depressed patients accessing lethal prescriptions with renewed emphasis on screening patients for depression.  Second, there are neutral observers built into the process.  For example, most patients are cared for by a hospice association (85-90% of all PAS [Physician-Assisted Suicide] deaths in recent years) and the hospice personnel are aware of the request for PAS.  As reported in study 16, patients who request PAS are routinely discussed among hospice workers and reviewed in the interdisciplinary team meeting.  Third, the amount of time, dedication and effort required to get the lethal prescription is substantial and labour intensive.  Only people who are determined and effective are likely to proceed successfully through all of the hoops.  The length and nature of the vetting process itself creates a system that works to winnow out those who are less than fully and genuinely committed to obtaining PAS.  In other words, patient inertia and indifference is likely sufficient, in itself, to thwart the process.  In my opinion, many depressed patients are unable to access these prescriptions, not because they are ultimately screened out, but because they are unable to mount the effort needed to get through this process.  In study 13, we reported that only one in 10 explicit requests to a physician in Oregon result in death by lethal prescription.  These system safeguards and processes, in my opinion, substantially decrease the risk of an involuntary, non-decisional or mood-dependent death by lethal ingestion.

[437]      In Dr. Ganzini’s opinion, patients with major depressive disorder who desire physician-assisted suicide should be given a trial of depression treatment instead of a lethal prescription, even if they do have adequate decision-making capacity.  The persistence of the depressive disorder should disqualify the patient from receiving a lethal prescription.

[438]      As to voluntariness, Dr. Ganzini states:

Among the over 50 patients [pursuing] PAS who I have interviewed, I was concerned about undue influence in three.  In two cases, further interviewing allayed my concerns.  The third was disqualified based on undue influence and depression.  In contrast, the vast majority of persons who pursue PAS do so with single-minded determination, at times in opposition to the views of family members.  Although many worry about being a burden, in fact, their families would appreciate the opportunity to give greater care.  These are very independent people who do not want more care.

[439]      From 1996 to 2001, Professor Helene Starks, an Associate Professor of bioethics and humanities, was Research Manager/Co-Investigator of the “Insights into Hastened Death” study, the objective of which was to explore physician-assisted dying from the perspective of the patients and families who pursued this as an option regardless of its legality.  A number of papers resulted from this study.

[440]      Professor Starks opines that one of the limitations of the Ganzini Depression Study is the fact that the researchers did not use narrative methods to assess the relationship between depressive symptoms and the patients’ rationales for assisted death, nor which factors contributed to their determination of a quality of life threshold.  She co-authored a qualitative study which did take this approach, A.J. Bharucha et al., “The Pursuit of Physician-Assisted Suicide: Role of Psychiatric Factors” (2003) 6:6 J Palliat Med 873.

[441]      The researchers conducted multiple qualitative, in-depth, semi-structured interviews with 35 families.  Patients and family members were interviewed concerning 12 prospective cases (12 patients and 20 family members) and 23 retrospective cases (28 family members).  These individuals were predominantly from Washington but some were from Oregon.  Transcripts of the interviews were reviewed by a psychiatric consultant (who did not interview participants) who formed an independent forensic psychiatric assessment for each patient using a checklist containing the standard (DSM-IV) criteria for major depressive order, as well as other symptoms of psychopathology.  The consultant also provided impressions of the subject’s decisional capacity.

[442]      The researchers found that no patient met the criteria for a probable major depressive disorder during the planning phase of physician-assisted suicide.  Three patients (9%) were described as possibly experiencing a major depressive episode during the planning phase; however, none appeared to be, or were described as being cognitively or functionally compromised.  Only one patient (3%) was decisionally incapacitated during the planning phase, due to advanced vascular dementia.  However, this patient had openly communicated an enduring interest in physician-assisted suicide to her spouse and family over many years prior to the onset of dementia.  Three patients (9%) who had actively sought and planned their physician-assisted suicide over many months were decisionally incapacitated on the day of death due to advanced dementia and/or superimposed delirium.

[443]      Professor Starks states that the most significant findings of the study include: (1) the planning phase for physician-assisted suicide was long and unfolded over months to years; (2) major depressive episodes were relatively absent during the planning phase, meaning that depression did not appear to be the primary motivation or influence for patients seeking physician-assisted suicide; (3) the overwhelming majority of patients seeking physician-assisted suicide maintained their decisional capacity; and (4) some of the individuals who sought physician-assisted suicide may have had unreported psychiatric co-morbidities, such as alcohol abuse.  While these co-morbidities have the potential to impair decisional capacities, none of the participating patients exhibited any such signs.  Professor Starks says that the findings demonstrate that the decision to seek physician-assisted suicide was not impulsive, and patients openly communicated their intent with family members over significant periods of time.  Depressive symptoms, when present, were not described by the patients or their families as influential factors in their pursuit of physician-assisted suicide.

[444]      She opines, based on her research, that “it is possible to have co-morbid depressive symptoms and still have decisional capacity to choose assisted dying and not have depression as the driving factor.”

[445]      The authors acknowledge that the generalizability of the findings is limited, primarily by the small and self-selected nature of the sample.  Other limitations include the illegality of physician-assisted suicide (when some of the suicides took place) and the resulting need for secrecy, and the possibility that depressed people with terminal illnesses pursuing physician-assisted suicide chose not to participate in the study.  In cross-examination, Professor Starks agreed that there could have been recall bias in the interview subjects, and that some of the sources used to recruit families for the study were patient advocacy organizations.  She also agreed that because the patients were not given standardized psychopathology instruments, the study may have failed to detect depressed individuals.  As well, the population, which included patients who were assisted in suicide extra-legally, may not be representative.

[446]      Professor Starks opines that the Washington system would be improved if it required palliative care consultations and systematic narrative assessments.

[447]      In arguing that the safeguards in the Oregon regime do not sufficiently protect vulnerable individuals, a number of Canada’s experts – such as Professor Keown and Dr. Pereira – cite the findings of the Ganzini Depression Study.  A physician is not required to refer a patient for counselling under the Oregon regime unless he or she believes there is a concern as to the patient’s competence.  However, Dr. Hendin says, studies show that physicians are not reliably able to diagnose depression or to determine whether depression is impairing judgment.

[448]      Canada’s experts also point out that the available data indicate that the vast majority of patients in Oregon have not been referred for psychiatric evaluation, and that the percentage of referrals has decreased over the years.

[449]      According to the latest data from the OHD, which appears earlier in this section, one patient of the 65 who died under the ODDA in 2010 (1.5%) was referred for a psychiatric evaluation.  Of the 460 patients who died between 1998 and 2009, 38 were referred for a psychiatric evaluation (8.4%).

[450]      Dr. Ganzini opines that the primary reason for the decline in psychiatric referrals in Oregon is that multi-disciplinary hospice medical teams, which include clinical social workers with mental health expertise, have become more confident in their own ability to assess depression accurately.  Palliative care physicians have also now gained experience in evaluating patients under the ODDA.  Dr. Ganzini suggests that the decrease may also reflect the research findings that most patients who seek access to physician-assisted death are not depressed.  However, she agrees that mental health evaluation is underutilized, and that some patients who are depressed might be screened out following mental health evaluations.

[451]      Some of the other concerns that Canada’s experts raise with respect to the situation in Oregon include the fact that physicians recommended a palliative care consultation in only 13% of the first 142 requests for prescriptions after the ODDA came into effect (citing the Ganzini et al. Physicians’ Experience Study); and, the absence of any enforcement mechanism in the event physicians fail to comply with the reporting requirements.

[452]      Professor Keown notes that the three most common reasons for seeking a lethal prescription in Oregon have been losing autonomy (91.2%), a decreasing ability to engage in activities which make life enjoyable (88.1%) and loss of dignity (84.1%).  He points out that these reasons are some distance from the “unbearable suffering” standard used to illustrate the need for physician-assisted dying.  He also says that the majority of patients have been guided through the process by Compassion & Choices, which he describes as the “pressure group” that promoted the legislation.

[453]      A further concern that Dr. Hendin raises is that unlike the regime in the Netherlands, the ODDA does not require the physician to inquire into the patient’s suffering, as the relevant criterion is that the patient is terminally ill and has less than six months to live.  The unintended consequence, he says, is that physicians do not necessarily inquire into the source of the medical, psychological, social and existential concerns that usually underlie requests for assisted dying.  Such inquiry produces the kind of discussion that itself often leads to relief for patients, and provides an opportunity for physicians to suggest more moderate measures.  Further, while physicians are required to indicate to a requesting patient that palliative and hospice care are feasible alternatives, they are not required to be knowledgeable about relieving physical or emotional suffering in patients.  The focus, Dr. Hendin says, thus shifts away from relieving the distress of dying patients considering a hastened death to meeting the statutory requirements of the ODDA.

[454]      With respect to Washington, Professor Starks states that the publically available data suggest that all patients who get as far as receiving a prescription have met the eligibility criteria.  Professor Starks further deposes that satisfying the requirements of the Washington Act requires effort and dedication.  This reflects a common characteristic of the participants in the “Insights into Hastened Death” study, and published descriptions of the individuals who use the ODDA, namely, that they are organized and able to direct their lives.

2.            Netherlands

[455]      Euthanasia and assisted suicide are governed in the Netherlands by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002, Stb. 2001, 194 [the Dutch Act], which came into force in 2002.  While both practices are offences under the Penal Code (Art. 293-294, Sr.), the Dutch Act creates an exception for physicians who comply with the due care and reporting requirements it prescribes.  In describing the regime, I draw on the evidence of Dr. Kimsma, Professor Legemaate, Professor Lewis and Professor Shariff.

[456]      The Dutch Act does not differentiate between euthanasia and assisted suicide.  “Euthanasia” is used as a compendious term that encompasses both practices.  Much of the research concerning the Dutch regime uses the word euthanasia in this way.  In order to describe Dutch law and practice accurately, in this section the word “euthanasia” is used as it is in the Netherlands – as a term that includes both euthanasia and physician-assisted suicide.

[457]      The Dutch Act is in part the codification of a permissive regime that had developed through a series of judicial decisions and professional guidelines issued over the preceding three decades.

[458]      The Postma decision (District Court, Leeuwarden, 21 February 1973, N.J. 1973, No. 183), concerned the case of a physician who had administered a lethal dose of morphine to her 78-year old mother who was deaf and partially paralyzed, and had pleaded with her daughter repeatedly to end her life.  The doctor was convicted of “death on request” but was sentenced to one week of probation instead of a possible 12-year term of imprisonment.  The decision provoked legal discussion regarding the acceptability of active physician involvement in death.  Subsequent court decisions confirmed that, under certain circumstances, euthanasia and assisted suicide could be justifiable even though they were offences under criminal law.

[459]      The underlying legal reasoning for accepting active physician involvement in death remained unclear until 1984 when the first voluntary euthanasia decision reached the Dutch Supreme Court:  Schoonheim, Supreme Court, 27 November 1984, N.J. 1985, No. 106.  The Court reasoned that notwithstanding the prohibition of the practice in the Penal Code, a physician was able to invoke the defence of necessity when confronted with a conflict between his or her duties to preserve life on the one hand and to relieve suffering on the other.  If, faced with such conflict, the physician chose a course of action that was objectively justifiable, he or she was not guilty of an offence.  The Court held that the criteria for accepting the defence of necessity were to be derived from medical-ethical opinions formulated by the medical profession.

[460]      This reasoning provided the foundation for voluntary euthanasia in the Netherlands until the Dutch Act was enacted in 2002.  As earlier noted, the Act largely codified the due care criteria which had developed in the jurisprudence.  Generally speaking, the criteria were that the patient’s wish to die had to be informed and voluntary, and expressed clearly and repeatedly; the patient had to be suffering intolerably and with no hope of relief, though he or she did not have to be terminally ill; the physician had to consult with at least one other physician; and, the physician had to report the death to the medical examiner.

[461]      Unlike many jurisdictions which draw a moral or legal distinction between euthanasia and assisted suicide, the Netherlands treats both alike.  “Euthanasia” refers to the termination of life upon request, thus encompassing both practices.  Professor Legemaate explains that both the Dutch Act and the case law that preceded it treat euthanasia and assisted suicide the same way, and that the same requirements and procedures apply to each.  A physician and patient may choose one or the other, depending on the circumstances at hand, the characteristics of the patient and his medical condition.  In cases where a choice can be made, the Royal Dutch Medical Association advises physicians to favour assisted suicide for psychological reasons, but this is not a binding rule.

[462]      Under Article 2 of the Dutch Act, a physician who carries out euthanasia is exempt from prosecution under the Penal Code if he or she complies with a number of due care criteria.  Specifically, the physician must:

(a)          be satisfied that the patient’s request is voluntary and carefully considered;

(b)          be satisfied that the patient’s suffering was unbearable, and that there was no prospect of improvement;

(c)          have informed the patient about his or her situation and prospects;

(d)          have come to the conclusion, together with the patient, that there is no reasonable alternative in light of the patient’s condition;

(e)          have consulted at least one other independent physician who must have seen the patient and provided a written opinion on the requirements of due care referred to in (a) to (d) above; and

(f)           have terminated the patient’s life or assisted with suicide with due medical care and attention.

[463]      Regional Review Committees (“RRC”), which review all cases of euthanasia, have fleshed out some of these legislative requirements.  For example, they have identified that there must be a sufficient physician-patient relationship to allow the physician to form a judgment concerning the requirements of due care.  Similarly, criterion (f) has been interpreted to require the use of the appropriate method, substance and dosage as recommended by professional guidelines, and that the physician stay with the patient until death occurs, or, in the case of physician-assisted suicide, that the physician hand the medication to the patient and remain until the patient is pronounced dead (in case complications should arise).

[464]      The requirement for an independent consultation increasingly is being satisfied by consultations with specialized physicians participating in the SCEN (Support and Consultation Regarding Euthanasia in the Netherlands) Project.  These physicians are available to advise doctors who are faced with a request for physician-assisted death, and to act as the independent consultant required by the Act.  A non-binding best practices protocol has been implemented among SCEN physicians.

[465]      The Dutch Act establishes certain reporting requirements.  A physician must report an assisted death to the medical examiner using a prescribed form indicating that he or she has complied with the due care criteria.  The medical examiner, in turn, is required to conduct an examination of the deceased patient and ascertain the completeness and accuracy of the physician’s report.  He or she then notifies the relevant RRC.

[466]      Five regional RRCs review and evaluate all cases of physician-assisted dying.  Each RRC comprises an uneven number of members and must include a physician, a legal expert and an ethicist.  The RRC must decide whether the reported instance of physician-assisted dying is within the limits of the Dutch Act or should be referred to the criminal authorities.  It is only where the RRC has determined that the due care requirements have not been met that such a referral will be made.  According to Dr. Kimsma, the conclusions of the RRCs are published online in the interests of transparency and public accountability.

[467]      The RRCs are required to issue a joint annual report which includes information related to number and nature of reported cases, and the opinions and considerations involved.

[468]      The Dutch Act is limited to the termination of life upon a patient’s request.  It does not extend to termination of life without request.  A physician is not obligated to comply with a request for euthanasia.

[469]      Jurisprudence from Dutch courts remains relevant in defining the permissible scope of euthanasia.  Two Supreme Court decisions of note are Chabot, Supreme Court, 21 June 1994, N.J. 1994, No. 656, and Brongersma, 24 December 2002, Supreme Court, N.J. 2003, No. 167.  In the former, the Court confirmed that mental, as well as physical, suffering can justify physician-assisted dying.  It cautioned, however, that in such cases, the physician must be “extremely cautious”.  In Brongersma, the Court held that neither the previous rules nor the Dutch Act (the death occurred in 1998 but the case did not reach the Supreme Court until 2002) cover “tired of life” situations.  Rather, physicians must limit themselves to requests for physician-assisted dying from patients suffering from a medically classifiable physical or psychiatric sickness or disorder.

[470]      Dr. van Delden, a physician and Professor of medical ethics, has been involved in all of the major empirical studies into end-of-life care in the Netherlands since 1990.

[471]      As Dr. van Delden explains, in 1990, the Dutch government appointed what came to be known as the Remmelink Commission to conduct nationwide research into the frequency and characteristics of euthanasia, physician-assisted suicide and other medical end-of-life decisions in the Netherlands.  To enhance physicians’ co‑operation, information provided by physicians cannot be accessed by the public prosecutor.  The Commission appointed a research group, of which Dr. van Delden was a member.  Similar studies were conducted in 1995, 2001 and 2005.  Data were collected in 2010 but the results have yet to be published.

[472]      The studies (which are known as the “death certificate studies”) used stratified samples of death cases drawn from the central death registry of Statistics Netherlands.  The researchers sent a questionnaire to all physicians attending a death for which the cause of death did not preclude an end-of-life decision (such as a motor vehicle accident causing instant death).  The anonymity of physicians and their patients was guaranteed, and 76% responded in 1990, 77% in 1995, 74% in 2001, and 78% in 2005.

[473]      The questionnaire focused on the characteristics of the end-of-life decisions preceding the patients’ deaths.  Terms such as “euthanasia” and “physician-assisted suicide” were not used out of concern they might be subject to varied interpretations by responding physicians.  The key questions posed were:

·         Did you withhold or withdraw medical treatment

o   while taking into account the possibility or certainty that this would hasten the patient’s death, or

o   with the explicit intention of hastening the patient’s death?

·         Did you intensify the alleviation of pain and symptoms

o   while taking into account the possibility or certainty that this would hasten the patient’s death, or

o   partly with the intention of hastening the patient’s death?

·         Was death the result of the administration, supply, or prescription of drugs with the explicit intention of hastening the patient’s death?

[474]      When the third question was answered “yes”, the researchers classified the case as either:  euthanasia (when the drug was administered by the physician at the explicit request of the patient); physician-assisted suicide (when the patient ingested the drug him- or herself); and, as a life-ending act without an explicit request (when there was no explicit patient request).

[475]      The frequency of euthanasia and physician-assisted suicide across the four studies in the Netherlands reveal the following statistics:

 

1990

1995

2001

2005

Annual number of deaths

128,824

135,675

140,377

136,402

Voluntary euthanasia

1.7%

2.4%

2.6%

1.7%

Assisted suicide

0.2%

0.2%

0.2%

0.1%

Life-terminating acts without explicit request of the patient

0.8%

0.7%

0.7%

0.4%

Total

2.7%

3.3%

3.5%

2.2%

 

 

 

 

 

[476]      Dr. van Delden elaborates with respect to the data for 2005 in his affidavit, stating that physicians received 8,400 requests for euthanasia in 2005.  2,325 requests for euthanasia and 100 requests for assisted suicide, or 3/10 of all requests, were granted.  Of those patients whose requests were not granted, half had died before the decision was made.  The other half either withdrew their requests or had their requests refused because the physician was of the view that the request was not well-considered or the patient’s suffering was not unbearable.

[477]      According to their treating physicians, patients who accessed either euthanasia or physician-assisted suicide gave the following reasons for their requests: no prospect of improvement (85%); loss of dignity (50%); severe symptoms, excluding pain (58%); pain (47%); and, expected suffering (46%).  In all cases, the reporting physicians stated there were no indications that the patient’s request had been made under pressure from others.

[478]      Dr. van Delden provides the following table setting out the demographic characteristics of individuals who died by euthanasia or assisted suicide in  2001 and 2005:

 

2001
(%)

2005
(%)

Total

2.8

1.8

Age (years)

 

 

0-64

5.0

3.5

65-79

3.3

2.1

80 or over

1.4

0.8

Sex

 

 

Male

3.1

2.0

Female

2.5

1.5

Cause of death

 

 

Cancer

7.4

5.1

Cardiovascular disease

0.4

0.3

Other/unknown

1.2

0.4

Type of physician

 

 

General practitioner

5.8

3.7

Clinical specialist

1.8

0.5

Nursing home physician

0.4

0.2

[479]      Dr. van Delden explains that the high incidence of physician-assisted dying among cancer patients accounts, in part, for the higher frequency of the practice in the under-64 age group.

[480]      In addition to the data obtained in the “death certificate studies” through questionnaires, the researchers obtained data from the public prosecutors, and later the RRCs, as to the number of reported cases of euthanasia and physician-assisted suicide.

[481]      The rate of reporting by physicians has increased steadily over the four studies.  In 1990, an estimated 18% of cases were reported to the appropriate authorities; in 1995, 41%; in 2001, 54%; and, in 2005, 80%.  According to Dr. van Delden, changes in notification procedures account for the increase.  In earlier periods, physicians were required to notify the public prosecutor or, later, the local medical examiner, who would then advise the public prosecutor.  No criminal proceedings would be initiated if the prosecutor was satisfied that the due care criteria had been met.  The government subsequently put in place a notification procedure that shifted the assessment of physician conduct from the legal system to the RRCs.

[482]      The 2005 study revealed that the predominant reason for not reporting cases of using drugs with the explicit intention to end the patient’s life at his request was that the physician did not regard the course of action as euthanasia or physician-assisted suicide, and therefore did not consider reporting to be necessary.  In those cases where physicians used drugs officially recommended for euthanasia or physician-assisted suicide, reporting was at 99%; where other drugs were used, mainly opioids, the reporting rate was 2%.

[483]      All four studies revealed cases of LAWER in the Netherlands.  In absolute numbers, there were 1,000 in 1990; 900 in each of 1995 and 2001, and 550 in 2005.  In a substantial percentage of cases, the decision had either been discussed with the patient or the patient had, during a previous phase of the illness, expressed a wish for euthanasia in the event suffering became unbearable; these were not discussions, however, that satisfied the due care requirement of an explicit request.  This was the situation in 60% of the cases in 1990; 53% in 1995; 36% in 2001; and 60% in 2005.

[484]      In other cases, the patients were incompetent.  Professor Lewis deposes that the judicially developed necessity defence continues to apply outside the scope of the Dutch Act to LAWER cases involving incompetent persons, including neonates.  Thus, in some cases, she says, termination of life without request is legally justified in the Netherlands.

[485]      According to Dr. van Delden, in 95% of the LAWER cases, the decision to perform euthanasia had been discussed with colleagues, nursing staff or relatives (on average, two out of three of these categories).  In approximately two-thirds of the cases, morphine was the only drug administered.  The percentage of cancer patients was considerably lower than in cases of euthanasia.  Further, the LAWER patients were closer to death as compared with patients whose requests for euthanasia or assisted suicide were granted; in 88% of LAWER cases, life was shorted by at most one week.  Dr. van Delden states that the most recent studies show that about one-third of the LAWER cases can also be described as terminal sedation.

[486]      In Dr. van Delden’s view, although the LAWER cases are a serious matter, and remain a criminal offence, they are not necessarily proof of a slippery slope from physician-assisted dying on explicit request to non-voluntary euthanasia.  He points out that the occurrence of LAWER in the Netherlands decreased between 1991 and 2005.  Further, he says, other studies show that the prevalence of LAWER is considerably higher in other countries (Australia and Belgium) that do not permit euthanasia.  He notes that the ratio of cases-on-request to LAWER cases in Belgium in 1998, prior to legalization, was 1:3 – the inverse of the same ratio in the Netherlands.

[487]      Dr. van Delden opines that given the due care criteria and the procedural protections built into the Dutch system, there is no risk of a patient receiving physician-assisted dying following a mistaken diagnosis or prognosis.  He also believes that in light of the nature of the diseases that precipitate requests for physician-assisted dying, there is no risk that a treatment would become available during the period that would otherwise have extended their life-expectancy.  There are no reported cases of either risk having materialized.

[488]      Based on his 20 years of experience with euthanasia and assisted suicide in the Netherlands, it is Dr. van Delden’s opinion that the slippery slope arguments raised by opponents of the practice are demonstrably false.  He opines that it is demonstrably true that it is possible for a state to design a system that both permits some individuals to access euthanasia or assisted suicide and enables the state to protect vulnerable individuals and groups.

[489]      Two of the plaintiffs’ witnesses – Professor Battin and Dr. Kimsma – co-authored a study with Frances Norwood which casts light on the practice of end-of-life care in the Netherlands.

[490]      In F. Norwood, G. Kimsma and M.P. Battin, “Vulnerability and the ‘slippery slope’ at the end-of-life: a qualitative study of euthanasia, general practice and home death in The Netherlands” (2009) 26:6 Fam Prac 472, the authors note the presence of the LAWER cases in the Dutch statistics, and observe that some commentators cite these cases as showing the existence of a slippery slope in action in the Netherlands.

[491]      To obtain better insight into the complexity and multi-faceted nature of the trajectory of discussions and behaviours that occur at the end of life, the authors undertook a 15-month study of home death in the Netherlands based on observation and interviews with 15 physicians and 650 of their patients, 192 of whom were living with a terminal or life-threatening illness.

[492]      The authors examined these cases for evidence of life-terminating treatment where the patient was capable of making a request for euthanasia but did not; life-terminating treatment where the patient was not capable of making an explicit request; euthanasia used instead of palliative care alternatives; and euthanasia that was predominantly the intention of the physician as opposed to the patient.  With one exception, they did not find such cases.  In that particular instance, an 81-year-old patient with inoperable cancer died after an increase in morphine by a physician intending to hasten his death and alleviate his suffering at the request of his family; the case fell outside accepted boundaries of euthanasia or terminal sedation under Dutch law.  Prior to his illness, the patient had discussed with both his general physician and his family his desire for euthanasia in the event it ever became necessary.  However, there was no consultation with a second physician and it was not clearly established that the patient’s prior request had been “well considered”.

[493]      Norwood et al. state that the study revealed that the daily practice of euthanasia in the home and nursing home typically involves extensive deliberations, the majority of which do not end in a euthanasia death.  They said that physicians typically stall the development of the discussions, leaving the option of euthanasia open to the patient while at the same time putting the onus on the patient to continue discussions towards that end.  The authors cite this finding that the euthanasia process most often occurs as part of an ongoing discussion, and not as a singular event, as evidence against the existence of abuse in the Netherlands.  They say that their finding is substantiated by figures obtained in statistical studies regarding the prevalence of euthanasia in that jurisdiction.  Those data indicate, for example, that of those individuals who initiated a request for euthanasia with their physician after a life-threatening illness was diagnosed, less than two-fifths died by euthanasia or assisted suicide in 2001.  In 2005, that figure was one third.

[494]      The researchers note that general practitioners in the Netherlands continue a strong tradition of making house calls, tend to treat multiple members of the same family, and accept family participation in end-of-life discussions.

[495]      Norwood et al. conclude (at 479):

Opponents and proponents of euthanasia who suggest that euthanasia practices can be condensed and understood in terms of the ‘explicitness’ of the request or by the intention of a physician are missing critical nuances and patterns revealed in the day-to-day practice of euthanasia.  This study focused on the contexts and interactions that structure daily practices around euthanasia, using a small sample of patients, families and GPs in the greater Amsterdam region.  A study of this type cannot disprove the presence of abuse related to euthanasia practices in The Netherlands, but it does offer evidence that the day-to-day practice of euthanasia discussion is much more conducive to maintaining life than previously understood.

[496]      The limitations of a small qualitative study necessarily influenced by Dutch cultural and medical practices are apparent.  Nevertheless, the study adds some context to the statistical data regarding euthanasia and LAWER in the Netherlands.

[497]      Dr. Kimsma, a Netherlands physician and Extern Associate Professor of ethics, is one of the co-authors of that study.  Based on his research and experience, Dr. Kimsma is of the view that the Dutch system has sufficient safeguards in place to protect vulnerable patients.  The basis for his conviction in this regard is that physician-assisted dying is only possible where there is a voluntary and well-considered request.  He states that such a request is checked and evaluated with patients on a constant basis “because there never can and should be any doubt regarding the integrity and stability of such a grave request”.

[498]      In his affidavit, Dr. Kimsma deposes that since physician-assisted dying is “against the grain of medicine”, it is difficult and emotionally destabilizing for physicians to enter into these euthanasia discussions with patients.  Physicians must convince themselves to overcome these negative emotions, and since the patient essentially has to convince the physician that that the patient-related aspects of the due care criteria are met, a vulnerable patient runs no risk.

[499]      Dr. Kimsma deposes that the empirical studies examining the incidence of depression among those seeking and receiving physician-assisted death in the Netherlands and Oregon show that the prevalence of depressive orders in patients requesting physician-assisted dying is lower than expected.  Nevertheless, the issue remains a serious one since there are patients, albeit a small number, who are depressed and request to be helped to die.  He says that the inescapable conclusion is that in cases where signs of depression manifest, a serious diagnostic assessment must take place.  He endorses the concern that patients requesting physician-assisted death might have a major depressive disorder that goes untreated.  He states that, in case of the least doubt about depression, a psychiatric assessment is professionally mandatory in the Netherlands.  He adds that the diagnosis “depression” is the reason for refusal in 31% of the non-granted requests.

[500]      A number of Canada’s experts give evidence with respect to the difficulties facing physicians in assessing whether patients satisfy the necessary criteria, drawing on the experience in the Netherlands.

[501]      Professor Keown observes that criteria such as voluntariness and unbearable suffering are not precisely defined and are open to subjective interpretation.

[502]      Demonstrating this point more concretely, Professor Brian Mishara, a Québec-based Professor of psychology and suicide prevention consultant, cites a Dutch study, H.M. Buiting et al., “Dutch criteria of due care for physician-assisted dying in medical practice: a physician perspective” (2008) 34:9 J Med Ethics e12.  He summarizes its findings in his affidavit:

A study published in 2008 by Buiting and colleagues randomly selected a stratified sample of 2,100 physicians in the Netherlands and asked them about decision-making related to requests for euthanasia or assisted suicide.  They found that 75% of the physicians who responded (56% response rate) had received such requests and 25% of the physicians who received requests had experienced problems in their decision-making with regard to at least one of the requirements for access to euthanasia and assisted suicide.  Of the physicians who experienced problems, 79% had difficulties concerning their determination of whether or not the patient’s suffering was unbearable and hopeless and 58% had problems determining whether or not the request was voluntary or well considered.  The authors of this article questioned whether the subjective opinions of physicians, who often report difficulties in determining if the patients meet requirements for access to physician assisted death, should be the basis of determining who should live or die according to the Dutch Euthanasia Act.

[503]      The authors of the study also indicate that experiencing problems in applying the criteria should not necessarily be interpreted as a negative finding since, by their very nature, decisions related to euthanasia may be difficult.  Requests for physician-assisted dying typically result in several discussions with the patient, family and other care givers about the due care criteria.  The authors say that the fact that some criteria are more difficult to assess than others suggests they are taken seriously in the decision-making process and receive considerable attention.  The authors recommend that, because physicians have to make difficult decisions in applying the due care criteria, their roles and responsibilities should be clarified.  They question whether physicians can play a major role with respect to the subjective aspects of the decision and argue that they should focus more on the requirement for the absence of reasonable alternatives.

[504]      Dr. Hendin, however, states that since the nation-wide Dutch studies are primarily numerical and categorical, they do not examine the interaction between physicians, patients and families, which ultimately determines the decision for euthanasia.  Other studies, he says, have in fact shown that voluntariness is compromised, alternatives are not presented, and the criterion of unrelievable suffering is bypassed.  Dr. Hendin provides examples of how he says this occurs.  On cross-examination, Dr. Hendin’s evidence regarding those examples was significantly weakened.  For instance, he agreed that his knowledge of the cases was second-hand, and based in one instance on an article written in Dutch; in another on his viewing of a film.

3.            Belgium

[505]      The Belgian 28 May 2002 Act on Euthanasia, B.S. 22 June 2002 [the Belgian Act] came into effect in September 2002.  Its contours are similar to the Dutch Act upon which it is based, though its provisions are more detailed.  The description of the legal regime is drawn from the evidence of Professor Luc Deliens, Professor Lewis and Professor Shariff.

[506]      Professor Lewis deposes that although neither suicide nor assisting suicide is a criminal offence under the Belgian penal code, someone who intentionally provides assistance could be prosecuted for failing to assist a person in danger, or involuntary homicide.  She adds, however, “as no criminal charges have ever been prosecuted in relation to physician-assisted dying under the Belgian criminal law, it is unclear whether the defence of necessity would be available in such circumstances”.

[507]      According to Professor Luc Deliens, a medical sociologist and Professor of palliative care in Belgium, new legislation regarding patients’ rights and palliative care was implemented in Belgium in 2002 at the same time as the Belgian Act.  The patients’ rights legislation stressed the right of all patients to be informed of diagnosis and prognosis, and to consent to treatment decisions.  The palliative care legislation provided that every patient has a right to palliative care, and contained measures for the development of palliative care services in Belgium.

[508]      The Belgian Act defines euthanasia as “intentionally terminating life by someone other than the person concerned, at the latter’s request” (s. 2).  Although assisted suicide is not explicitly included in this definition, the Belgian euthanasia oversight body – the Federal Control and Evaluation Commission (“FCEC”) – has determined that it encompasses physician-assisted suicide.  Because of this framework the experts on the Belgian regime use “euthanasia” as a compendious term including euthanasia and physician-assisted death.  This should be kept in mind when considering the evidence concerning Belgium.

[509]      Section 3(1) of the Belgian Act provides that a physician who performs euthanasia does not commit a criminal offence when he or she ensures that:

(a)          the patient is over the age of majority, and is conscious and competent when making the request;

(b)          the request is voluntary, well-considered, repeated and not the result of external pressure (the request must also be in writing (s. 4)); and

(c)          the patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.

[510]      Section 3(2) sets out a number of procedural requirements for the physician.  In each case, he or she must:

(a)          Inform the patient about his or her condition and life expectancy, and discuss with the patient his or her request for euthanasia, as well as possible therapeutic and palliative options.  Together with the patient, the physician must come to the belief that there is no reasonable alternative to the patient’s situation and that the patient’s request is completely voluntary.

(b)          Be certain of the patient’s constant physical or mental suffering, and the durability of the euthanasia request. To this end, the physician is to have several conversations with the patient spread out over a reasonable period of time, taking into account the progress of the patient’s condition.

(c)          Consult with another physician about the serious and incurable character of the medical condition, and inform him or her about the reasons for the consultation.  The consulting physician must be independent of both the patient and attending physician, and must be competent to give an opinion about the medical condition in question.  The consulting physician must review the medical record, examine the patient and be certain of the patient’s constant and unbearable physical or mental suffering that cannot be alleviated.  The attending physician must inform the patient about the results of the consultation.

(d)          If there is a nursing team that has regular contact with the patient, discuss the patient’s request with the team.

(e)          If the patient so desires, discuss his or her request with relatives appointed by the patient.

(f)           Be certain that the patient has had the opportunity to discuss his or her request with the persons he or she wishes.

[511]      The Belgian Act imposes additional safeguards where the physician is of the view that the patient is clearly not expected to die in the near future, that is, is not in the terminal phase.  In such circumstances, s. 3(3) requires that the physician must also:

(a)          Consult a third physician, who is either a psychiatrist or a specialist in the medical condition in question.  The consulting physician must be independent of the patient and the attending physician.  The consulting physician must review the medical record, examine the patient and be certain of the patient’s constant and unbearable physical or mental suffering that cannot be alleviated, and of the voluntary, well-considered and repeated character of the euthanasia request.  The attending physician must inform the patient about the results.

(b)          Allow at least one month to elapse between the patient’s written request and the act of euthanasia.

[512]      The Belgian Act establishes the FCEC, which is comprised of 16 members including doctors, lawyers and individuals from groups that routinely deal with issues relating to the terminally ill.

[513]      A physician who has performed euthanasia must complete and deliver to the FCEC a prescribed registration form which includes such information as the biographical details of the patient; the nature of the patient’s condition, the suffering and why it could not be alleviated; the elements underlying the assurance that that the request was voluntary, well-considered and repeated, and not the result of any external pressure; and, the manner in which euthanasia was performed and the pharmaceuticals used.

[514]      The FCEC determines whether the euthanasia was performed in accordance with the Belgian Act.  If a two-thirds majority of the committee is of the opinion that the required conditions have not been fulfilled, it will turn the case over to the public prosecutor.

[515]      For the benefit of the Belgian Parliament, the FCEC is required to prepare biennial reports setting out statistical information derived from the registration forms submitted to the committee; an evaluation of the implementation of the law; and if required, recommendations that could lead to new legislation or other measures concerning the execution of the Belgian Act.

[516]      Section 14 of the Belgian Act provides that no physician may be compelled to perform euthanasia.  Should the physician consulted refuse to perform euthanasia, then he or she must inform the patient of this fact in a timely manner, and explain her reasons for refusing.  If the refusal is based on medical reasons, then those reasons are noted in the patient’s medical record.

[517]      Section 15 states that any person who dies as a result of euthanasia performed in accordance with the Belgian Act is deemed to have died of natural causes for the purposes of contracts that he or she has entered into, in particular, insurance contracts.

[518]      Data drawn from the databases of officially reported euthanasia cases in Belgium indicate the following frequency of the practice between implementation of the Belgian Act and December 31, 2007:

Year

No. Deaths

No. Reported Cases of Euthanasia

All Deaths

2002*

105,642

24

N/A**

2003

103,278

235

0.23%

2004

101,946

347

0.34%

2005

103,278

388

0.38%

2006

101,587

428

0.42%

2007

100,658

495

0.49%

2008

N/A**

705

N/A**

Total

 

2622

 

*  Cases reported from September 22 up to and including December 31.

**  N/A denotes not available

 

 

 

 

[519]      The foregoing data are from T. Smets et. al., “Legal Euthanasia in Belgium: Characteristics of All Reported Euthanasia Cases” (February 2010) 48:2 Med Care 187 [the Smets et al. Characteristics Study].

[520]      The following table summarizes the characteristics of patients who have made a request for euthanasia since implementation of the Belgian Act in 2002 (Y. Van Wesemael et al., “Process and Outcomes of Euthanasia Requests under the Belgian Act on Euthanasia:  A Nationwide Survey”, J Pain Symptom Management (forthcoming) [the Van Wesemael et al. Process and Outcomes Study].

Characteristics of Patients Who Have Made a
Request for Euthanasia Since Enactment of the Law

 

Euthanasia Requested

Euthanasia Performed

Euthanasia Request Rejected

Patient Withdrew Euthanasia Request

Patient Died Before Administration

Patient Still Alive

Patient Characteristics

n (Column %)

Row %

Row %

Row %

Row %

Row %

Total

355a (100)

48.3

5.0

10.4

23.0

13.2

Gender

 

 

 

 

 

 

Female

171 (48.7)

44.4

5.8

9.9

22.2

17.5

Male

180 (51.3)

52.2

4.4

10.6

23.9

8.9

Age, years

 

 

 

 

 

 

<40

13 (3.7)

38.5

7.7

7.7

15.4

30.8

40-49

26 (7.4)

38.5

3.8

7.7

23.1

26.9

50-59

48 (13.7)

54.2

4.2

10.4

18.8

12.5

60-69

75 (21.4)

52.0

5.3

8.0

25.3

9.3

70-79

113 (32.3)

54.0

3.5

8.0

23.0

11.5

80 or older

75 (21.4)

33.3

8.0

17.3

26.7

14.7

Diagnosisb

 

 

 

 

 

 

Cancer

226 (63.7)

61.1

2.7

8.4

24.3

17.0

Chronic obstructive pulmonary disease

16 (4.5)

62.5

0.0

12.5

12.5

12.5

Multiple sclerosis / amyotrophic lateral sclerosis

12 (3.4)

33.3

0.0

8.3

25.0

33.3

Heart failure

10 (2.8)

20.0

0.0

20.0

50.0

10.0

Psychiatric disorder

19 (5.3)

0.0

15.8

15.8

0.0

68.4

General deterioration

25 (7.0)

16.0

20.0

8.0

32.0

21.0

Otherc

37 (10.4)

32.4

10.8

16.2

13.5

27.0

Reasons for requiring euthanasiad

 

 

 

 

 

 

Suffering without prospect of improvement

252 (71.6)

55.2

2.8

7.1

22.6

12.3

Deterioration/ loss of dignity

154 (43.9)

55.8

4.5

5.2

23.4

11.0

Pain

120 (34.0)

56.7

0.8

7.5

27.5

7.5

General weakness/ fatigue

113 (32.2)

52.2

6.2

9.7

24.8

7.1

Not wanting to be a burden on family/ environment

113 (32.0)

39.8

8.0

13.3

22.1

16.8

Dependence

78 (22.2)

43.6

1.3

16.7

23.1

15.4

Tired of living

92 (26.0)

34.8

8.7

13.0

23.9

19.6

Invalidity

50 (14.2)

50.0

4.0

10.0

22.0

14.0

Fear of suffocating

46 (13.1)

60.9

0.0

6.5

23.9

8.7

Depression

43 (12.2)

16.3

20.9

11.6

23.3

27.9

Dyspnoea

24 (6.8)

70.8

0.0

8.3

20.8

0.0

Vomiting

11 (3.1)

81.8

0.0

0.0

18.2

0.0

Suffering as most important reason for requesting euthanasia

139 (40.6)

61.2

2.9

5.0

19.4

11.5

Written request (n = 302)

219 (62.9)

63.0

2.3

5.5

19.6

9.6

 

Notations

Significance tested with Stat Xact and Fisher’s exact test for statistically significant differences between categories versus all other categories within the variable.  Significant differences are in bold.

a      For eight cases, the information on the outcome was missing.  Percentages are calculated for valid cases.

b      Physicians indicated multiple diagnoses in 11 cases.  These are not shown in the table.

c      Other diagnoses include acquired immunodeficiency syndrome (1), cerebrovascular accident (7), (beginning) dementia (4), Parkinson’s (2), quadriplegia (1), multiple system atrophy (1), myopathy (1), and non-specified diagnoses (19)

d      More than one answer possible.

 

[521]      Professor Deliens deposes that considerable empirical research has been conducted in Belgium with respect to all forms of end-of-life decisions before, during and after the 2002 legalization of physician-assisted dying.  He attaches to his affidavit numerous studies of which he is co-author.

[522]      Prior to the legalization of euthanasia in 2002, Professor Deliens co-authored “End of Life Decisions in Medical Practice in Flanders, Belgium:  A Nationwide Survey” (2000) 356 Lancet 1806.  It reported the results of a study based upon a 20% sample randomly selected out of all 3,999 deaths recorded between January 1 and April 30, 1998.

[523]      The study revealed that the strict Belgian law did not prevent physicians from practicing euthanasia and other end-of-life decisions, with end-of-life decisions explicitly intended to shorten life being involved in about 10% of deaths.  Professor Deliens said that he and his co-authors estimated that 1.3% of deaths resulted from euthanasia or physician-assisted suicide and that, in 3.2% of cases, lethal drugs were given without the explicit request of the patient.  They found that alleviation of pain and symptoms with opioids in doses with a potential life-shortening effect preceded death in 18.5% of cases and non-treatment decisions in 16.4% of cases, of which 5.8% were with the explicit intention of ending the patient’s life.

[524]      He stated that the results showed the difficulty of obtaining reliable data on euthanasia and other end-of-life medical practices in a country with no formal registration and authorization procedure for end-of-life decisions, and where criminal prosecution of some end-of-life decisions is a possibility.

[525]      Professor Deliens also co-authored a study looking at “Changes in medical end-of-life practices during the legalization process of euthanasia in Belgium” (J. Bilsen et al., (2007) 65 Soc Sci Med 803.  The researchers found that the overall incidence of end-of-life decisions did not change, but the incidence of euthanasia decreased (1.1% to 0.3%), as did the incidence of LAWER (3.2% to 1.5%) and alleviation of pain and symptoms with life-shortening co-intention (5.3% to 2.8%).

[526]      On the basis of his own empirical research, his review of the data collected by others, his review of the relevant literature and his experience as a medical sociologist, Professor Deliens is of the opinion that, in practice, the Belgian Act is successful in limiting the availability of euthanasia to individuals who meet the requirements it imposes, and effectively protecting vulnerable individuals.

[527]      Professor Deliens was co-author of the Smets et al. Characteristics Study, which provides the following information about all cases reported to the FCEC between 2002 and 2007.

[528]      A total of 1,917 euthanasia cases were reported.  The breakdown of patient ages was:

(a)          18-39:  3% of all euthanasia cases; 2% of all deaths in Belgium;

(b)          40-59:  26% of all euthanasia cases; 9.5% of all deaths in Belgium;

(c)          60-79:  53.1% of all euthanasia cases; 37.9% of all deaths in Belgium;

(d)          > 79:  17.9% of all euthanasia cases; 50.2% of all deaths in Belgium.

[529]      A second independent physician was consulted in 99.8% of cases.  Of the patients, 93.4% were terminally ill, and 87.6% of the terminally ill patients had cancer.  Of the non-terminal patients, 90.8% suffered from other illnesses, including progressive neuromuscular disease.  Psychological suffering was reported significantly more often for non-terminal patients (89.7% v. 66.5%), whereas the reverse was true for physical suffering (96% v. 89.7%).

[530]      Of all cases, 0.7% (13) concerned non-terminally ill patients who did not suffer physically; six of those patients had a neuropsychiatric disease and eight had a somatic disease.  All of the patients reported psychological suffering.

[531]      The authors of the study advance a number of possible explanations for the annual increase in the incidence of euthanasia.  They say it is plausible that patients increasingly see euthanasia as an acceptable end-of-life option or that physicians may have become more willing to perform euthanasia in a climate where it is no longer illegal.  It is also possible that physicians may have become more willing to report cases, likely, in part, because the Federal Control and Evaluation Commission has never sent a reported case to the judicial authorities.

[532]      The authors state that no evidence was found to support the fear that legalization of euthanasia would increase the likelihood of elderly patients ending their lives with the assistance of a physician.  Patients 80 years of age or older were under-represented among euthanasia cases compared with all deaths, even controlling for diagnosis and place of death.  Further, the number of reported cases in this age group did not increase significantly over time.

[533]      The authors conclude (at 192):

Based on these reported cases, we can conclude that euthanasia is most often chosen as a last resort at the end of life by younger patients and by patients with cancer.  Developments over time do not show any indication to support the slippery slope hypothesis.  Furthermore, requests for euthanasia from nonterminal patients, some suffering from nonsomatic diseases, can and are being granted under the Belgian euthanasia law, albeit in small and not increasing numbers and under the same strict due care criteria as for terminally ill patients.  Further research should focus on estimating the notification rate for euthanasia and should give attention to the unreported practice as well.

[534]      The authors note a number of limitations of their study.  Because they relied on secondary data collected as part of the anonymous notification procedure, the authors could not obtain complete insight into some areas of the practice, such as palliative interventions.  Further, the data only reflect the officially reported cases; the authors could not exclude the possibility that physicians do not always report their cases, and that unreported cases differ from reported ones.

[535]      Professor Deliens also co-authored the Van Wesemael J. et al. Process and Outcomes Study, mentioned earlier.  The study aimed to describe which euthanasia requests were granted, withdrawn and rejected since the enactment of the Belgian Act, focusing on the characteristics of the patient, treating physician, and the consultation with a second physician.  A representative sample of 3,006 Belgian physicians likely to be involved in end-of-life care received a questionnaire seeking details on their most recent euthanasia request.  914 physicians responded, a response rate of 34% when non-practising physicians were accounted for.

[536]      In the responses to the questionnaires, 363 post-2002 requests for euthanasia were described.  Of all the requests, 171 (48%) eventually ended in euthanasia; 18 (5%) were rejected; 37 (10%) were withdrawn by the patient; 81(23%) patients died before euthanasia was carried out; and, 47 (13%) patients were still alive at the end of the study.

[537]      In 248 (71%) cases, the attending physician’s initial position toward the request was positive, meaning that he or she had already decided to probably or certainly grant the request; in 75 (21%) cases, it was negative, meaning that he or she had already decided to probably or certainly refuse the request.

[538]      In 235 (65%) cases, the attending physician consulted with an independent second physician.  The second physician gave positive advice in 180 (77%) cases, negative advice in 45 (19%), and no advice (yet) in seven (3%).

[539]      In the 45 cases where the second physician gave negative advice, he or she judged that there was no unbearable suffering in 12 (26%) cases; no medically hopeless situation in 14 (31%) cases; no well-considered request in five (10%) cases; and that there were palliative options available in 12 (26%) cases.

[540]      Of the 180 cases in which the second physician gave positive advice, euthanasia was performed in 140 (78%) cases; there were no cases in which the request was rejected; the patient withdrew the request in seven (4%) cases; the patient died before euthanasia was performed in 26 (14%) cases, and the patient was still alive at the time of the study in seven (4%) cases.

[541]      Of the 45 cases in which the second physician gave negative advice, euthanasia was performed in four (10%) cases; the request was rejected in seven (16%) cases; the patient withdrew the request in 11 (25%) cases; the patient died before euthanasia was performed in 13 (30%) cases; and the patient was still alive at the time of the study in nine (20%) cases.

[542]      Of the seven cases in which the second physician gave no advice, euthanasia was performed in four (59%) cases; the request was rejected in one (14%) case; there were no cases in which the request was withdrawn; the patient died before the euthanasia was performed in one (14%) case, and the patient was still alive at the time of the study in one (14%) case.

[543]      In the 123 cases in which there was no consultation with a second physician, euthanasia was performed in 20 (17%) cases; the request was rejected in 10 (9%) cases; the patient withdrew the request in 19 (16%) cases; the patient died before euthanasia was performed in 41 (34%) cases; and the patient was still alive at the time of the study in 29 (24%) cases.

[544]      For 10 of the 18 patients whose requests were rejected, a different end-of-life decision with a possible life-shortening effect was made.  Such a decision was made in the cases of 23 of the 37 patients who withdrew their requests.

[545]      No requests from patients with a psychiatric disorder were granted, and for those patients whose main diagnosis was general deterioration, requests were granted less often compared with those from patients with other diagnoses.  Requests were also rejected significantly  more often when depression was given as a reason.

[546]      The authors make the following points in their discussion of the results.

[547]      Reasons for requesting euthanasia are medical, social and psychological but suffering without prospect of improvement is the most important.  This is consistent with results from studies conducted in the Netherlands.  Pain is an important reason for requesting euthanasia in more than one-third of cases, which is also consistent with other studies.  Only 5% of all requests for euthanasia were actually rejected, which is considerably lower than in the Netherlands where the rate of rejection is 12%.  The authors posit that this may indicate that postponing the decision or trying to convince the patient to choose a different option are more acceptable forms of rejection for some physicians.

[548]      With respect to concerns for the vulnerable, the authors write (at 11):

The repeatedly expressed concern that vulnerable people (older people, disabled people, those with psychiatric disorders) would more easily receive euthanasia is not supported by our data.  On the contrary, we found that requests for euthanasia from patients 80 years and older are granted less often and withdrawn more often.  Requests from patients with a psychiatric disorder were never granted, and those from people with general deterioration were granted less often.  The chances of receiving euthanasia are lower when depression is one of the reasons for requesting euthanasia and when the patient is 80 years or older.  This may be reassuring on the one hand, but may, on the other hand, also be an indication of possible “discrimination” toward certain patient groups in granting euthanasia requests.

[549]      The authors note various limitations to the study.  These include the fact that the low response rate makes it difficult to generalize the results; a survey of the non-responders indicated they were slightly less supportive of euthanasia than responders, indicating a slight response bias; there may be a recollection bias on the part of the physician, particularly with respect to requests from more than a year earlier; and, the information on the circumstances of the euthanasia only reflected the physician’s point of view.

[550]      A qualitative study regarding adherence to safeguards was co-authored by Professor Deliens, T. Smets et al., “Euthanasia in patients dying at home in Belgium:  interview study on adherence to legal safeguards” (April 2010) Brit J Gen Pract e163.  The study aimed to investigate the degree of adherence to the due care requirements imposed by the Belgian Act with respect to patients dying at home under the care of general practitioners, and to explore possible reasons for non-adherence.  The study entailed in-depth interviews of physicians (under a guarantee of anonymity) identified as having performed euthanasia at a patient’s personal residence within a defined two year period.  The process resulted in a study of nine deaths.  All nine patients were adults and none had a low level of education.  None was estimated as being of low income, and seven lived with a regular partner at the time of death.  Four were between 18-64 years of age; three were between 65-79; and two were 80 or older.  In seven of nine cases, the principal diagnosis was cancer.

[551]      While limited, the study provides information regarding actual euthanasia cases taking place at home under the care of a general practitioner.  It revealed that all nine patients had made a voluntary and well-considered request for euthanasia.  Eight put their request in writing.  One made only a verbal request; the physician did not consider it necessary to have it in writing based on the relationship of trust between the physician, the patient and the family.  All nine patients were in a condition for which medical treatment was achieving little or nothing, and there was no prospect of improvement.  Eight had lasting and unbearable physical and/or psychological suffering; one was in a situation in which unbearable suffering was expected in the future.

[552]      In all cases, the physician informed the patient about his or her health condition and life expectancy, and in all cases, they had together come to the conclusion that no reasonable alternatives were possible.  In seven cases, the physicians indicated that either life-prolonging or palliative treatments were still possible, but they were not applied because the patient refused further treatment or did not want to prolong his or her life, or because the physician or patient deemed the chance of improvement too small.

[553]      In one of the nine cases, a nurse administered the final drug; in the rest, the general practitioners did so.

[554]      In three cases, the physician did not consult a second physician as required by the Belgian Act.  One physician did not see the consultation as necessary since he did not consider the matter to be a clear case of euthanasia.  Another did not consult because it “was a case of euthanasia outside the euthanasia law.  No lethal drug was used”.  Nevertheless, both physicians consulted other physicians who, while not performing the tasks required by the Belgian Act, gave advice and information.  A third physician did not consult another physician because he or she found the consultation procedure too burdensome and not useful; he or she believed it was up to the patient and physician alone to make the decision.

[555]      Of the six cases in which there were consultations, in two cases the consulting physician was not independent of the attending physician and patient.  In one, the attending and consulting physicians knew each other because they had taken classes in palliative care together.  In the other, the consulting and attending physicians were friends.

[556]      Five of the cases were reported to the FCEC as required.  The reasons given as to why the other four cases were not reported were: (1) the physician had forgotten; (2) the physician did not see the case as one of euthanasia but of terminal sedation with the intent to hasten death, which does not have to be reported; (3) the physician found the procedure burdensome and not useful (as noted in (e) above; and (4) the physician mistakenly believed that the Belgian Act required him or her to wait an additional 15 days.

[557]      The authors state that the cases were identified by means of a large-scale retrospective mortality study representative of all deaths in Belgium, and are therefore likely to be representative of home euthanasia cases in the country.  Nevertheless, the conclusions are based on a very small number of cases.  Further, given that the interviews were conducted with the physicians about their own adherence and non-adherence to the law, the possibility of social desirability bias cannot be excluded.

[558]      The authors conclude (at e169):

This study found that while most GPs adhered to the substantive requirements, some demonstrated limited adherence to the procedural requirements.  Although legalisation of euthanasia in Belgium has changed it from a covert practice to a more societally controlled one, legalisation alone does not seem sufficient to guarantee due care.  It seems warranted that legalisation of euthanasia, rather than being a final destination, should be seen as a starting point for further debate about standards and guidelines for careful end-of-life practice, and should go together with the proper education of, and provision of information to, all physicians potentially involved.  Incorporation in medical education, feedback from the Federal Review Committee to reporting GPs about their medical actions, and accessible, adequate support for GPs who are confronted with an explicit request for euthanasia could help them in understanding which practices are regarded as euthanasia, and could help overcome their limited knowledge of the euthanasia law.

[559]      With respect to the issue of reporting, Professor Deliens was also co-author of T. Smets et al., “Reporting of euthanasia in medical practice in Flanders, Belgium: cross sectional analysis of reported and unreported cases” (2010) 341 Brit Med J c5174 [the Smets et al. Reporting Study].  The methodology entailed a review of all death certificates in Flanders, Belgium regarding deaths between June 1 and November 30, 2007.  Based on the underlying causes of death, physicians were sent a questionnaire focusing on the characteristics of the end-of-life decision-making that preceded the patients’ deaths.  Total anonymity of physicians and patients was guaranteed.  Terms such as “euthanasia” were not used, and instead the questions posed were designed to assess whether the acts corresponded to the legal definition of euthanasia.  The legal definition of euthanasia includes only acts done at the explicit request of the patient; thus LAWER cases were excluded from those classified as euthanasia for the purposes of the study.  The response rate for the survey was 58.4%, which the authors say leaves room for doubt that results might have differed with a higher response rate.

[560]      The results indicate that the incidence of euthanasia was estimated at 1.9% of all deaths.  Only 52.8% of all estimated cases of euthanasia were reported to the Committee.  Physicians who perceived their cases to constitute euthanasia reported 93.1% of the time.

[561]      Of the unreported cases, 92.2% involved acts of euthanasia as defined by the study but were not perceived as “euthanasia” by the physicians.  Physicians who had not reported a case that the study defined as euthanasia gave these reasons for not reporting: they did not perceive their act as euthanasia, 76.7%; reporting was too much of an administrative burden, 17.9%; the legal due care requirements had possibly not been met, 11.9%; euthanasia is a private matter between physician and patient, 8.7%; and possible legal consequences, 2.3%.

[562]      Unreported cases were generally dealt with less carefully than reported cases.  A written request was absent in the majority of unreported cases; 87.7% had a verbal request only.  Other physicians and caregivers specialised in palliative care were consulted less often.  The life ending act was more often performed with opioids or sedatives, and the drugs were more often administered by a nurse.  In about half of the unreported cases in which opioids were used with the explicit goal of hastening death, physicians indicated that the dose was no higher than necessary for pain and symptom alleviation.  Consultation with another physician occurred in almost all reported cases but only half of the unreported cases.

[563]      There was a significant relation between reporting of euthanasia and the patient’s age, with deaths of patients 80 years or older reported significantly less often than deaths of younger patients.  Cases were also reported less often where the time by which life was shortened was less than one week.

[564]      The authors offer this interpretation of the study’s results (at 5):

Five years after the enactment of the euthanasia law in 2002, half of all euthanasia cases in Flanders were reported to the review committee.  A similar reporting procedure exists in the Netherlands, where the current reporting rate is estimated at 80.2%.  However, the Netherlands had already experienced two decades of relatively open euthanasia practice before euthanasia was officially legalised in 2002, and a reporting procedure has been in place since the early 1990s.  Compared to the Netherlands, bringing life ending acts into the open is a relatively new experience for physicians in Flanders (and in Belgium as a whole) because physicians have only been required to report cases since the enactment of the euthanasia law.  This may, at least in part, explain the lower reporting rate in Flanders compared with in the Netherlands.  [Footnotes omitted.]

[565]      They also offer some hypotheses that might explain the seeming gap between the legal definition of euthanasia and physicians’ perceptions.  They state this conclusion (at 7):

The quality of medical practice at the end of life needs monitoring in any kind of society, and certainly in countries that have legalized euthanasia.  To provide better societal control over euthanasia and to safeguard the quality of the practice, it is necessary that all cases of euthanasia are reported.  The transparency in reporting that was envisaged by the architects of the euthanasia law in Belgium extends especially to those cases in which the time by which life is shortened is greater than one week and to those cases in which it is more certain that life is shortened by the drugs administered.  However, this study estimated that in 2007, only half of all cases of euthanasia in Flanders and around three in four where life was shortened by more than one week were reported to the review committee.

As such legalisation alone does not seem sufficient to reach the goal of transparency (“total” or a 100% transparency seems to be a rather utopian ideal) and to guarantee the careful practice of euthanasia.  It seems warranted that a policy be developed to facilitate physicians in complying correctly with a request for euthanasia, including their obligation to report.  Education in medical schools and adequate support for treating physicians who are confronted with an explicit request for euthanasia will be pivotal in reaching this goal.

[566]      In K. Chambaere et al., “Physician-assisted deaths under the euthanasia law in Belgium: a population-based survey” (June 15, 2010) 182:9 Can Med Assoc J 895 [the Chambaere et al. Population Study], the authors, who include Professor Deliens, describe the practices of euthanasia and assisted suicide, and the use of LAWER in Flanders, Belgium between June and November 2007.  They observe at the outset that euthanasia opponents frequently argue that legalization will lead to a rise in LAWER, particularly among vulnerable groups.

[567]      The analysis is based upon the same 2007 death certificate study and questionnaire as that used for the Smets et al. Reporting Study described above.  The response rate was 58.4%.  Overall, 208 deaths involving the use of life-ending drugs were reported: 142 were upon an explicit patient request (137 euthanasia and five assisted suicide); 66 were without an explicit request (LAWER).  Euthanasia and assisted suicide cases predominantly involved patients under 80 years of age (79.6%), those with cancer (80.2%) and those dying at home (50.3%).  LAWER cases mostly involved patients who were 80 or older (52.7%), those without cancer (67.5%) and those who died in hospital (67.1%).  The LAWER cases represented 1.8% of the deaths in Flanders during the study period.

[568]      Of the LAWER cases, the decision was not discussed with the patient in 77.9% of the cases.  The reasons given by the physicians included (respondents could choose more than one option):  the patient was comatose (70.1%); the patient had dementia (21.1%); the decision was clearly in the patient’s best interest (17%); and the discussion would have been harmful to the patient (8.2%).  In 40.4% of the cases, the physician indicated that although the decision had not been discussed, the patient had previously expressed a wish for ending life.  In 4% of cases, the patient had a written advance directive.

[569]      LAWER was discussed less often with other caregivers but as often with the patient’s family in comparison with euthanasia or assisted suicide.  Pain and the patient’s wish for ending life were more often reasons for carrying out euthanasia or assisted suicide, whereas family burden and the consideration that life not be needlessly prolonged were more often cited as reasons for LAWER.

[570]      In most cases of euthanasia or assisted suicide, the patients had been treated for their terminal illness for more than six months (80.3%), the goal of treatment in the last week was patient comfort (94.3%) and life was shortened by one week or more (44.5%).  Cases of LAWER were more likely to have shorter length of treatment of the terminal illness (less than one month in 46.1% of cases), to have cure as the goal of treatment in the last week (14.6% as opposed to 1.2%), to have shorter estimated time by which life was shortened (less than 24 hours in 47.9% of cases), and to involve the administration of opioids.

[571]      The authors say that the differences in demographic and clinical characteristics between the LAWER patients and those who died of euthanasia or assisted suicide likely reflect differences in the patients’ illness trajectory.  For instance, cancer has a generally predictable trajectory, allowing decision-making to occur in the period between diagnosis and death.  In contrast, most of the patients in the LAWER cases had diseases with less predictable end-of-life trajectories, such as cardiovascular disease.  The authors also believe that LAWER cases often involved chronically ill patients whose general conditions suddenly and drastically deteriorated to point that they were left permanently unable to communicate.  In these situations, the authors say, physicians need to decide on a course of action together with the patient’s family, which may result in a conflict of interest.  This underscores the importance of advance care planning with family and caregiver, and of communication regarding the patient’s wishes should he or she become comatose or incompetent.  They opine that such measures will undoubtedly limit the number of LAWER cases.

[572]      At 899, the authors write:

Our finding that euthanasia and assisted suicide were typically performed in younger patients, patients with cancer and patients dying at home is consistent with findings from other studies.  Our finding that the use of life-ending drugs without explicit patient request occurred predominantly in hospital and among patients 80 years or older who were mostly in a coma or had dementia fits the description of “vulnerable” patient groups at risk of life-ending without request.  Attention should therefore be paid to protecting these patient groups from such practices.  However, when compared with all deaths in Flanders, elderly patients and patients dying of diseases of the nervous system (including dementia) were not proportionately at greater risk of this practice than other patient groups.

[573]      They further comment, at 900:

We found that the use of life-ending drugs without a patient’s explicit request occurred more often in Flanders, Belgium, than in other countries, including the Netherlands, where euthanasia is also legal.  Flemish physicians have been shown to be more open to this practice than physicians elsewhere, which suggests a larger degree of paternalistic attitudes.  This being said, its occurrence has not risen since the legalization of euthanasia in Belgium.  On the contrary, the rate dropped from 3.2% in 1998 to 1.8% in 2007.  In the Netherlands, the rate dropped slightly after legalization, from 0.7% to 0.4%.  Although legalization of euthanasia seems to have had an impact, more efforts are needed to further reduce the occurrence of life-ending drug use without an explicit request from the patient.  [Footnotes omitted.]

[574]      Professor Deliens agreed on his cross-examination that a possible explanation for the reduction in LAWER, physician-assisted suicide and euthanasia between 1998 and 2001 was that, during the period of the debate about legislation, criminal investigations were initiated.  He said, however, that the 2001 data were collected at a time when the medical profession was in turmoil because of the debate and the data may not be reliable.  He suggested that the significant comparison is between 1998 and 2007, which showed a drop in LAWER cases from 3.2% to 1.8%.

[575]      He was asked on cross-examination about whether the research he had done permitted him to know whether the persons receiving euthanasia had disabilities.  He testified that although the question is not specifically addressed in the published papers, and there was not a specific question about disabilities in the questionnaire, it was possible to know from the death certificates, which include codes for the kind of disease patients had prior to their deaths.  He said that it is possible to link the data and, from the codes, to tell whether there were people with disabilities.  He said that they found no cases.

[576]      Finally, I note that Professor Deliens was asked about the comment in the Chambaere et al. Population Study that “the use of life-ending drugs without explicit patient request occurred predominantly in hospital and among patients 80 years or older who were mostly in a coma or had dementia and fits the description of ‘vulnerable’ patient groups at risk of life ending without request”.

[577]      His responses to this line of questioning suggested that possibly he did not wish to admit that he had said that patients who are 80 years or older are vulnerable and at risk of LAWER.  I take into account that Professor Deliens was ill, and was being cross-examined by videolink, in English (not his first language).  Perhaps for those reasons, or perhaps because of a lack of impartiality, his responses in this one area did not seem wholly straightforward.

[578]      One final study co-authored by Professor Deliens is K. Chambaere et al., “Trends in Medical End-of-Life Decision Making in Flanders, Belgium 1998-2001-2007”  (May-June 2011) 31 Med Decis Making 500 [the Chambaere et al. Trends Study].  The objective of this study was to examine trends with respect to the occurrence and decision-making process of end-of-life practices in different patient groups, using the 2007 death certificate study and questionnaire data in comparison with those from similar previous studies.

[579]      The authors summarize the trends at 501:

In 2001, which was a period of intense debate concerning legalization of euthanasia in Belgium, a sharp decline in both euthanasia and lethal drug use without explicit patient request was recorded in comparison with 1998.  This was probably related to the legalization debate during which legal inquiries into the involvement of physicians and nurses in life-ending acts were undertaken, making physicians more reluctant to carry out such end-of-life practices or to report them.  When such acts did take place, physicians conferred more often with patients, nurses, and relatives than they had done in 1998.  In 2007, we conducted a third large-scale, population based study to assess the effects of the 2002 legislation on euthanasia, palliative care, and patient rights on end-of-life practices.  The study found that the total  prevalence  of medical  end-of-life  practices, defined as the administration of drugs or the forgoing of treatment where life shortening was intended or taken into account, had increased considerably to nearly half (47.8%) of all Flemish deaths.  Performance of euthanasia had increased from 1.1% in 1998 and 0.3% in 2001 to 1.9% in 2007.  The use of life-ending drugs without the patient’s explicit request remained stable compared with 2001, at 1.8% of all deaths, whereas the prevalence of intensified alleviation of pain and symptoms (26.7%) and nontreatment decisions (17.4%) had risen significantly since 1998 and 2001.  [Footnotes removed.]

[580]      Professor Deliens summarizes his conclusions about the results in his affidavit:

We found that in patient groups in which the prevalence of life-ending drug use without explicit patient request had dropped, performance of euthanasia and assisted suicide had increased. The consistent increase in intensified pain and symptom alleviation was found in all patients groups except cancer patients.  In 2007, competent patients were slightly more often involved in the discussion of end-of-life practices than in previous years.  Over the years, involvement of the patient in decision making was consistently more likely among younger patients, cancer patients and those dying at home.  Physicians consulted their colleagues more often than in previous years for euthanasia and non-treatment decisions.  The euthanasia law and emerging palliative care culture have substantially affected the occurrence and decision making for end-of-life practices in Belgium.  Efforts are still needed to encourage end-of-life decision making, as some patients would benefit from advance care planning.

[581]      The authors conclude that the findings do not suggest a slippery slope in which legalized euthanasia will lead to more LAWER.  They say, to the contrary, that legalization of euthanasia in Belgium has led to less LAWER and is likely to have provided a platform for open physician-patient communication on end-of-life issues.

[582]      Dr. Ashby, a specialist and Professor of palliative and pain medicine in Australia, states that, provided opinion evidence for the plaintiffs.  Based on his review of the empirical evidence available in the peer-reviewed literature and on personal communications with researchers in Europe, he is of the opinion that the societal harms proposed by opponents of euthanasia and physician-assisted suicide are not substantiated in jurisdictions where the practices are legal.  In particular, he does not believe there is evidence that euthanasia without the patient’s consent has increased in the Netherlands or Belgium since the changes to the law.

[583]      Dr. Ashby attaches the Chambaere et al. Population Study to his affidavit.  He opines that the methodology for the collection of data used in the study was sound and appropriate, and that the conclusions that the authors drew were reasonable and supported by the data.

[584]      Dr. Bernheim, a retired oncologist and Professor Emeritus of medicine in Belgium, states his opinion with respect to the effectiveness of safeguards in Belgium in his affidavit:

On the basis of my own empirical research, my review of the data collected by others, my review of the relevant literature and my experience as a medical oncologist, I have reached the following conclusions.  The legalisation of euthanasia has enhanced, as opposed to undermined, palliative care.  Euthanasia is (in Belgium) an integral component of palliative care.  In my opinion, the Belgian law is, in practice, being complied with in terms of limiting the availability of euthanasia to persons meeting the qualifications imposed under the Act and is effectively better protecting the vulnerable in the context of a permissive regime than was the case under the previous repressive regime.  In my opinion concerns of the “slippery slope” were understandable and legitimate, but they have been assuaged by the empirical evidence, and – if anything – Belgium has climbed up the “slippery slope” since the legalization and regulation of euthanasia.

[585]      He observes that since legalization of euthanasia in Belgium, the overall incidence of the practice has changed little but that the care with which it is carried out has improved markedly (physicians now more frequently discuss such decisions with patients, their relatives, colleagues and nurses), and that the previously relatively high incidence of what he describes as “paternalistic life termination without explicit request” (LAWER) decreased to a larger extent than the extent to which (by definition, voluntary) euthanasia increased.  In other words, he says, the major effect of the law was a shift from unrequested to requested assisted dying.  In addition, he indicates that the Belgian euthanasia bill was passed together with a palliative care bill extending palliative care to all hospitals and doubling public funding, and that there has been a marked increase in palliative care practices.

[586]      Dr. Bernheim deposes that a review of published historical, regulatory and epidemiological evidence in Belgium indicates that there is no evidence of a slippery slope resulting in harm to vulnerable patients such as the elderly and disabled persons.  Further, he says that there is no evidence that euthanasia and palliative care are antagonistic forces nor that legalization of the former has impeded the development of palliative care by appearing as an alternative; rather, there are many indications of reciprocity and synergistic evolution.  He also explains that a substantial proportion of Belgian caregivers seem to consider euthanasia as a medical act which, performed with due care, is consistent with their commitment to palliative care.

[587]      Dr. Bernheim acknowledges that the studies provide incomplete information on the “still too large minority” of unreported cases, but adds that the situation has improved since 1998 when the research suggested that three-quarters of life terminations were without request and none were reported.

[588]      In cross-examination, Dr. Bernheim agreed that the death certificate studies in Belgium did not include information provided by physicians who gave second opinions or by other caregivers, and that the studies had other methodological limitations.

4.            Switzerland

[589]      Unlike the other European countries which have decriminalized euthanasia or assisted suicide, Switzerland does not have a specific statute on this point.  Rather, the matter is governed by the Swiss Penal Code, S.R. 311.0.  In describing the Swiss legal regime and practice, I rely on the evidence of Dr. Georg Bosshard, Professor Lewis and Professor Shariff.

[590]      Euthanasia is not permitted in Switzerland.  It is punishable under Article 114 of the Penal Code as “death on request”, an offence which carries a lower minimum sentence than murder or manslaughter.

[591]      Article 115 of the Penal Code provides that “[a]ny person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty.”  Thus, assisting a person to commit suicide is not an offence when done for unselfish motives.

[592]      Dr. Georg Bosshard explains the implications of Article 115 further:

As a basis for an open practice of assisted suicide, article 15 is interesting for two reasons.  First, it makes no mention of doctors – the legality of assisting suicide, in the absence of self-interest, holds good for any person.  Second, there is no mention of any medical precondition.  The only prerequisite is implicit; namely, that the individual wanting help to commit suicide must have decisional capacity, since otherwise he would not be “handlungsfähig” (have legal capacity) and his act could not be considered suicide.

[593]      Assisted suicides must be reported as unnatural deaths to the local authorities.

[594]      There are four right-to-die organizations in Switzerland: EXIT Deutsche Schweiz; EXIT Association pour le Droit de Mourir dans la Dignité; DIGNITAS; and Exit International.  (The latter two organizations offer assistance to people who are not resident in Switzerland.)  Almost all physician-assisted suicides (92% according to Dr. Bosshard) take place within the frameworks set up by these organizations.  Dr. Bosshard describes the regime at EXIT Deutsche Schweiz:

EXIT Deutsche Schweiz (“EXIT DS”) provides assistance only after an evaluation process which requires that the wish to die is deliberate and stable, the member suffers from a disease with a hopeless prognosis, and the suffering in unbearable or unreasonable disability is present.  EXIT DS workers follow a protocol and use a checklist to document what was discussed at the initial visit and all subsequent contacts.  Most members who are considered eligible for help are close to death, and EXIT DS routinely recommends both hospice care and notification of the family.  Difficult cases are referred to EXIT DS’s ethics committee for review.  Everyone who seeks assisted suicide must be examined by a doctor, who will not prescribe the lethal dose of barbiturates until he or she has assessed the patient’s medical condition and decisional capacity.  If the member is eligible but their own doctor declines to participate, EXIT DS can refer the member to a collaborating physician who would consider assessing the patient and prescribing the lethal drugs.  The prescription will be obtained at a local pharmacy by an EXIT DS volunteer and stored at EXIT DS headquarters until the day of use, when a volunteer will again assess the member’s decisional capacity.  If the member continues to assert a desire to die, the volunteer will mix the drugs in liquid or food and hand it to the person to swallow.  If the person is incapable of swallowing, the drugs can be self-administered through a percutaneous endoscopic gastronomy catheter or intravenously.  Most suicides occur in the person’s home, with only a few taking place in nursing homes or a dedicated room at EXIT DS in Zurich.  At the time of death, the volunteer notifies the police, who attend with a medical officer.  Provided that there are no indications that the assistance violated Swiss law, the case will be closed.  The body is usually released to coroner at the scene, although the rules and procedures vary between cantons.

...

EXIT DS controls quality through screening and training of volunteers, adherence to eligibility and practice guidelines, retrospective review of cases (to review all assisted suicides), and ethics consultations (to deal with difficult cases).  It will refuse to provide consultation or support for an assisted death if the person does not meet their eligibility criteria (in which case the person is referred to counselling, hospice or other appropriate agency).

[595]      According to Dr. Bosshard, assisted suicide in Switzerland accounted for 0.36% of all deaths in 2001.

[596]      Dr. Bosshard co-authored a retrospective analysis of all case files of assisted suicide kept during the 1990–2000 period by EXIT DS, the largest of Switzerland’s right-to-die organizations: G. Bosshard, E. Ulrich and W. Bär, “748 cases of suicide assisted by a Swiss right-to-die organisation” (2003) 133 Swiss Med Wkly 310.  During this period, EXIT DS assisted in 748 suicides among Swiss residents, or 0.1% of total deaths and 4.8% of total suicides.  The data revealed that the deceased were between 18 and 101 years of age, with a mean age of 72 years.  Women accounted for 54.4% of the deceased, a significant over-representation in comparison with all other deaths.

[597]      Over the ten-year study period, the number of deaths tripled from 110 in the first three years studied to 389 in the last three.  This was a highly significant increase in relation to both total deaths in Switzerland (which remained constant), and total suicides (which decreased slightly over the same period).

[598]      In Canton Zurich, EXIT DS assisted in 331 deaths during this period.  Of these, 78.9% of the deceased were principally suffering from fatal diseases, particularly cancer but also cardiovascular/respiratory disease, HIV/AIDS and neurological diseases.

[599]      The remaining 70 persons (21.1%) had primarily non-fatal diagnoses such as musculoskeletal disorders, chronic pain syndrome and diagnoses such as blindness and general weakness.  The wish to die was related to mental disorder in nine cases: eight of depression and one of psychosis.  The authors note that 76% of people in the non-fatal diagnosis groups were women.  This high proportion cannot be explained simply by their longer life expectancy since amongst the 331 cases the men were older than the women.

[600]      In his affidavit, Dr. Bosshard refers to the finding in a recent international study that Swiss doctors carry out euthanasia and termination of life without explicit request of the patient in almost 1% of all deaths, and that the finding “provoked no reaction from Swiss public prosecutors”.

[601]      He also opines, on the basis of the data, that all cases of assisted suicide are being reported when right-to-die societies such as EXIT or DIGNITAS are involved.

[602]      Under the heading “Exit Deutsche Schweiz on the slippery slope?”, the authors write (at 315-316):

There was a striking increase – tripling – in the number of Exit deaths over the 11-year study period.  However, sociodemographic factors (age, gender distribution) and medical factors (diagnoses) relating the deceased remained relatively unchanged.  Since the quality of the records improved, we conclude that this increase stems more from a growing number of requests than from relaxation of the indications for assisted suicide or from progressive laxity in decision-making.  Concern remains whether the persistence of the death wish was tested adequately in those cases where the prescribing physician was not the attending or family doctor, particularly when Exit membership was of short duration (sometimes less than a week).  Such practice stands in contrast to Emanuel and co-workers’ finding that, among terminally ill patients who were seriously considering euthanasia or physician-assisted suicide, half changed their minds over the next few months.

[603]      Professor Mishara deposes that the absence of legal controls in Switzerland has resulted in 50% more cases of assisted dying in that country (0.45% of deaths) as compared to the Netherlands (0.3%).  Assisted deaths in Switzerland are five times more common than in Oregon; there they account for only 0.09% of deaths.

[604]      The intervenor Farewell Foundation for the Right to Die supports adoption of a model similar to that in Switzerland.  It emphasizes the benefits of that model which, it says, successfully regulates assisted dying without imposing a general supervisory role on the medical profession.

5.            Luxembourg

[605]      Euthanasia is treated as a form of murder under Article 397 of Luxembourg’s Penal Code (Law of 16 June 1879), Mémorial 1879, 589 – Pas. 1879, 231.  However, as a result of Art. 397.1, the criminal prohibition does not apply to a physician who has complied with the conditions of the Law of 16 March 2009 on Euthanasia and Assisted Suicide, Mémorial A-No. 46, 16 March 2009 [the Luxembourgish Act].  The Luxembourgish Act draws heavily from the Belgian Act.  In describing the regime in Luxembourg, I rely on the evidence of Professor Lewis and Professor Shariff.

[606]      Article 1 defines both euthanasia and assisted suicide.  Euthanasia is an act, performed by a physician, which intentionally ends the life of a person at his or her express and voluntary request.  Assisted suicide occurs where a physician intentionally assists a person to commit suicide or provides the means to that end on the person’s express and voluntary request.

[607]      Pursuant to Art. 2.1, a physician  will not prosecuted for euthanasia or assisted suicide where the following conditions are met:

(a)          the patient is an adult, capable and conscious at the time of the request;

(b)          the request is made voluntarily, after reflection, repeatedly, and is not the result of external pressure;

(c)          the patient suffers constant and unbearable physical or mental suffering without hope of recovery, arising from a pathological illness or accident; and

(d)          the request is in writing.

[608]      Article 2.2 requires the physician to comply with following conditions of form and procedure:

(a)          Inform the patient of his or her condition and life expectancy, and discuss with the patient his or her request for euthanasia and the therapeutic measures which could still be considered, including the availability and consequences of palliative care.  The physician must believe that, in the patient’s view, there is no other acceptable solution.  These conversations must be recorded in the patient’s medical file.

(b)          Ensure the persistence of the patient’s suffering and of his or her request.  To this end, the physician will conduct several interviews with the patient at reasonable intervals.

(c)          Consult with another physician, independent of both the patient and the treating physician, and competent in regards to the patient’s condition.  The consulting physician will review the medical file, examine the patient, confirm the patient’s suffering, and prepare a report to this effect.  The treating physician will inform the patient of the outcome of this consultation.

(d)          Discuss the patient’s request with the patient’s medical team unless the patient opposes.

(e)          Discuss the patient’s request with people designated in his or her living will unless the patient opposes.

(f)           Ensure the patient has the opportunity to discuss his or her request with those persons he or she wishes.

(g)          Ascertain whether the patient has registered an “end of life provision” with the National Control and Assessment Commission.

[609]      If a patient in a state of irreversible unconsciousness and suffering from a serious and incurable condition has drafted and registered an “end of life provision” with the National Control and Assessment Commission (“NCAC”), a physician may provide euthanasia to the person (Article 4.3).

[610]      Physicians must submit a registration document in the appropriate form to the NCAC within four days of performing euthanasia (Article 5).  The NCAC is composed of nine members including physicians (including one specialized in pain management), legal professionals and members representing organizations defending patients’ rights.  The NCAC will determine whether the conditions of the Luxembourgish Act have been met.  If it rules by a two-thirds majority that the physician has not complied with the due care requirements, it will notify the Medical College.  Where it rules that the physician has not complied with the requirements of Article 2.1, it will notify the public prosecutor.

[611]      The NCAC prepares a biennial report.

[612]      Article 15 states that no physician no physician may be compelled to perform euthanasia.  Should the physician consulted refuse to perform euthanasia, then he or she must inform the patient of this fact within 24 hours, and explain his or her reasons for refusing.

6.            Montana

[613]      While Montana has not legalized assisted suicide, its Supreme Court has recognized that the consent of a terminally ill patient can constitute a statutory defence to a charge of homicide against an aiding physician.  Evidence concerning the legal status of assisted death in Montana was provided by Mark Connelly, a lawyer in Montana, and Professor Shariff.

[614]      In Baxter v. Montana, a terminally ill man, four physicians and a non-profit organization challenged the constitutionality of the application of Montana’s homicide statutes to physicians who provide aid in dying to mentally competent, terminally ill patients.  The District Court held that under Montana’s Constitution, a competent, terminally ill patient had the constitutional right to die with dignity based on the rights to dignity and privacy (Cause No. ADV-2007-287 (Montana First Judicial District Court), Decision and Order 5 December 2008).  The District Court further held that none of the state interests advanced by Montana was sufficiently compelling or narrowly tailored to justify the limitation of that right.  These interests included preserving human life, protecting vulnerable groups from potential abuses, and protecting the integrity and ethics of the medical profession.

[615]      While the District Court found the homicide statutes to be unconstitutional as they applied to terminally ill patients and their physicians, it concluded that implementation of the right to death with dignity and medical assistance was properly left to the legislature.

[616]      On appeal, the Montana Supreme Court affirmed the result but vacated the District Court’s ruling on the constitutional issues (2009 MT 449).  The Supreme Court found as a matter of statutory interpretation that there was nothing in Montana statutes or jurisprudence indicating that physician assistance in dying was against public policy.  It held that a terminally ill patient’s consent to physician assistance in dying constituted a statutory defence to the charge of homicide against the aiding physician when no other consent exceptions apply.

[617]      The Supreme Court’s ruling represents the current state of the law in Montana, according to Professor Shariff.

7.            Colombia

[618]      I draw on the evidence of Professor Sabine Michalowski, a Professor of law, with respect to Colombia.

[619]      As a result of a May 1997 decision of Columbia’s Constitutional Court (Sentencia C‑239/97), assisted death is permitted so long as it is performed by a medical professional with the consent of a patient who is experiencing intense suffering as a consequence of a terminal illness.  Mercy killing remains an offence if these conditions are not met.  The penalty for mercy killing is considerably lower than that of other homicides.

[620]      The Constitutional Court in its decision urged Congress to enact legislation to regulate assisted death in line with the constitutional principles developed in its decision and provided recommendations to that end.  This has yet to happen.  In 2006, a bill to this effect was introduced but subsequently withdrawn when it became clear that it would be rejected.

C.           Impact of Legal Physician-Assisted Dying on Vulnerable Populations

[621]      In the preceding sections, I have described a few of the many studies which have been undertaken to assess different aspects of the physician-assisted dying regimes in those jurisdictions that permit the practice.  Because of the issues in this case, one particularly relevant study is M.P. Battin et al., “Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on ‘vulnerable’ groups” (2007) 33 J Med Ethics 591 [the “Battin et al. Study”].  This study squarely addresses whether legalized physician-assisted dying places vulnerable groups at risk.  As I have noted, it is Canada’s position that no measures short of a blanket prohibition against assisted dying are sufficient to protect vulnerable individuals, including the elderly and persons with disabilities.

[622]      Of the co-authors of this study, both Professor Battin and Dr. Ganzini provided evidence tendered by the plaintiffs in this proceeding; the other three co-authors are Dutch epidemiologists.

[623]      Battin et al. refer to the warnings about potential abuse given by many task forces, courts and medical organizations.  They say that concerns about the practice of physician-assisted death disproportionately affecting vulnerable groups must be taken seriously, not only because of the frequency with which these concerns are raised, but also because of their gravity.  To assess these concerns, the authors examined data from Oregon and the Netherlands with an eye to determining “whether there is evidence that where assisted dying is already legal, the lives of people in groups identified as vulnerable are more frequently ended with assistance from a physician than those of the background population” (at 592).

[624]      The groups upon which Battin et al. focussed are those which are usually identified as vulnerable in the public, political and professional debates over physician-assisted dying:  the elderly; women; uninsured persons; persons with AIDS; persons with low educational status; the poor; racial and ethnic minorities; persons with physical or mental disabilities or chronic non-terminal illnesses; minors and mature minors; and persons with psychiatric illnesses, including depression.

[625]      The authors examined the Oregon data from the annual and cumulative Department of Human Services reports for the 1998-2006 period, and three independent surveys of Oregon physicians and hospice professionals.  (The Department of Human Services reports include all legal cases reported under the ODDA.)  The Dutch data came from the national death certificate studies for 1990, 1995, 2001 and 2005, as well as from a number of smaller, focused Dutch studies.

[626]      Battin et al. conclude on the basis of these data that, with one exception, the rates of assisted dying in both Oregon and the Netherlands show no evidence of heightened risk to any of the identified vulnerable groups as compared with background populations.   People with AIDS are the only group that exhibited a heightened risk.  Professor Battin suggests in her affidavit that an explanation for that heightened risk may be found in the fact that the data largely predate the development of highly active antiretroviral therapies that substantially minimize the likelihood of death from AIDS.

[627]      With respect to the elderly, the authors explain that 10% of patients who died by physician-assisted suicide were 85 or older, whereas 21% of all deaths in Oregon were among persons in this age category.  Persons aged 18-64 were over three times more likely than those over 85 to receive assisted dying.  With respect to the Netherlands, they write that rates of assisted dying were lowest among people over 80 (0.8% in 2005), next lowest in the age range 65-74 years (2.1%) and higher below 65 (3.5%).  Individuals over 80 comprised 30% of the group of patients whose requests were refused and 13% of those whose requests were granted and carried out.

[628]      As for individuals with pre-existing non-terminal physical disabilities or chronic non-terminal illnesses, the authors note that the Oregon data do not specifically indicate whether a person had a disability before becoming terminally ill.  Nevertheless, they point out that no one received assisted dying under the ODDA who was not determined by two physicians to be terminally ill; that is, no one received such assistance for disability alone.

[629]      As previously explained, terminal illness is not required under the Dutch Act, and an individual who faces unbearable suffering, in his own view, and who has been offered all forms of treatment but has no hope of improvement may request assistance in dying.  The authors used physicians’ estimates of the amount of life foregone as an approximation of disability or chronic illness status, and found that approximately 0.2% of patients who received assistance were estimated to have foregone more than six months of life; this was less than 10 of the approximately 2,400 assisted dying cases in 2005.  They also state that Dutch general practitioners infrequently grant and frequently refuse assistance in dying to patients whose diagnosis is “old age/general deterioration” or “other”; this latter category includes patients with no terminal illness and no ALS or multiple sclerosis.  The authors conclude that there is thus no evidence that physician-assisted dying poses heightened risk to people with disabilities who are not also seriously ill.

[630]      With respect to individuals with psychiatric illness, including depression, the study found that approximately 20% of requests for death under the ODDA were from depressed patients but that none progressed to physician-assisted dying.  None of the 292 patients who died under the ODDA was determined to have a mental illness influencing his or her decision, though there have been three disputed cases among the nine-year total of 456 patients who received prescriptions.  The authors acknowledge the following limitation with respect to this aspect of the study (at 596):

Because not all patients who requested assistance were specifically evaluated by mental health professionals and because many cases of depression are missed in primary care, it is possible that some depressed patients received lethal prescriptions; it is also possible that a patient without a mental disorder at the time of receiving the prescription became depressed by the time they ingested it.  There is, however, no direct evidence that depressed patients are at higher risk for receiving assistance in dying under the ODDA.

[631]      As for the Netherlands, about two-thirds of explicit requests for assistance in dying are not granted.  Accordingly to the 1995 study, in 31% of all requests not granted, the physician gave the presence of psychiatric illness as at least one reason for not complying.  Physicians in the interview portion of the 1995 study mentioned depression as the predominant symptom of patients who died with physician assistance in 3% of all cases, compared with “loss of dignity” in 60%, pain as an associated complaint in 45% and debility in 43%.

[632]      Battin et al. cite one study in which cancer patients with depressed mood were four times more likely to request euthanasia:  M.L. Lee et al., “Euthanasia and depression: a prospective cohort study among terminally ill cancer patients” (2005) 23 J Clin Oncology 6607.  However, that study did not address how often the request was granted.  (Dr. Kimsma also refers to this study in his evidence.)

[633]      The authors of the Battin et al. Study indicate that in the 2001 Dutch national death certificate study, about 3% of all requests for physician-assisted dying in the previous year were from patients with predominantly psychiatric or psychological illness, but that none of those was granted.  In the 1995 Dutch nationwide sub-study on end-of-life decision-making in psychiatric practice, there appeared to be about two to five physician-assisted deaths on request per year, mostly, but not always, in patients with a concurrent serious illness, often in the terminal phase.

[634]      In her affidavit, Dr. Ganzini states that although “extralegal cases” (those performed contrary to legal requirements) were not the focus of the study, none was uncovered in Oregon, and among extralegal (LAWER) cases in the Netherlands, there was no evidence of higher rates in vulnerable groups,

[635]      Battin et al. offer this conclusion (at 597):

Thus, we found no evidence to justify the grave and important concern often expressed about the potential for abuse – namely, the fear that legalised physician-assisted dying will target the vulnerable or pose the greatest risk to people in vulnerable groups.  The evidence available cannot provide conclusive proof about the impact on vulnerable patients, and full examination of practice in Oregon would require studies of the complexity, duration and comprehensiveness of the four Dutch nationwide studies.  Nevertheless, the joint picture yielded by the available data in the two jurisdictions shows that people who died with a physician’s assistance were more likely to be members of groups enjoying comparative social, economic, educational, professional and other privileges.  This conclusion does not directly speak to the moral issues in physician-assisted dying; it does not argue whether physician-assisted dying would be more or less appropriate for people in some groups; and it does not show that people in vulnerable groups could not be disproportionately affected in the future or in other jurisdictions.  It also does not show whether low rates of physician-assisted dying among vulnerable persons reflect a protective effect of safeguards or, rather, are evidence of unequal access to assistance.  But it does show that there is no current factual support for so-called slippery-slope concerns about the risks of legalisation of assisted dying – concerns that death in this way would be practised more frequently on persons in vulnerable groups.

[636]      In 2008, Professor Battin updated the data and affirmed the conclusions in the Battin et al. Study in a further, more detailed article (“Physician-Assisted Dying and the Slippery Slope: the Challenge of Empirical Evidence” (2008) 45 Willamette L Rev 91).

[637]      The Battin et al. Study has been the subject of criticism, including by Canada’s witness, Baroness Finlay.  Baroness Finlay co-authored a critique with Professor Robert George entitled “Legal physician-assisted suicide in Oregon and the Netherlands: evidence concerning the impact on patients in vulnerable groups – another perspective on Oregon’s data” (2001) 37 J Med Ethics 171.  As the title suggests, the critique focussed on the findings with respect to Oregon, and called into question both the study’s methodology and its conclusions.  Among the primary criticisms were that Professor Battin et al.’s conclusion regarding the elderly is at variance with official OHD data.  The authors argue that the traditional threshold for old age is 65, and 85 is far too high to use as the beginning of old age.  They say that 12 OHD annual reports issued between 1998 and 2009 show that of the 460 individuals who died under the ODDA during this period, 314 (68%) were aged 65 or older; 146 (31.7%) were aged between 18–64.  The median age was 71.

[638]      Another problem they see with the study is methodological.  Since death rates from other causes are naturally high among people aged 85 or older, it follows that almost any rate of physician-assisted dying in this age bracket is likely to show as proportionately less.

[639]      The authors argue that the Battin et al. Study looks at socioeconomic categories which are of questionable relevance to vulnerability in end-of-life decision-making.  In this context, communication difficulties, having unrelated symptoms, being socially undervalued, and other similar factors are a better gauge of vulnerability.

[640]      Finally, on the crucial issue of depression, they write that more recently published research indicates that some patients in Oregon had depression at the time they were assessed and their request was granted under the ODDA.  Moreover, OHD data show a decrease in psychiatric and psychological assessments under the ODDA to zero or near zero in recent years.

[641]      Dr. Pereira endorses Baroness Finlay and Professor George’s challenge to the Battin et al. Study.

[642]      Professor Battin et al. published a letter in reply to this critique, “Legal physician-assisted dying in Oregon and the Netherlands: The question of ‘vulnerable’ groups. A reply to I.G. Finlay and R. George”, (27 July 2011) J Med Ethics <http://jme.bmj.com>.  The researchers argue that nothing in the critique undercuts the proposition that there is no current evidence for the claim that physician-assisted dying has a disproportionate impact on patients in vulnerable groups in permissive jurisdictions.

[643]      With respect to the elderly, the Battin et al. researchers maintain that the data included in the initial paper in fact support their claim that there is no evidence of heightened risk with respect to this group.

[644]      As for the identification of the vulnerable groups, they explain that the particular groups were chosen not because of assumptions about vulnerability, but because concerns about those groups play such a prominent role in the public debate regarding physician assistance in dying.

[645]      While the focus of their study was not on whether people might seek physician assistance in dying for the “wrong” reasons, such as disturbed emotional states or reactions to loss, Battin et al. say that their paper does indirectly address some of these concerns; for instance, through the examination of rates of assisted dying in cases of depression and in other cases which might be associated with distressed emotional states.  They say that rates of depression are elevated in people seeking assistance in dying but may not be elevated in those who actually receive such assistance.

D.           Analysis of the Evidence about Effectiveness of Safeguards

1.            What level of compliance have the permissive jurisdictions achieved with respect to their safeguards?

[646]      The defendants suggest that there are problems with important aspects of compliance and that the objectives of the safeguards in the Netherlands, Oregon, and Belgium are not being met.

[647]      What conclusions can be reached about the level of compliance with safeguards in the three jurisdictions that have been most studied?  Although the record is extensive, it is not exhaustive.  The data do not permit firm conclusions about certain matters, as is apparent in the evidence of one of the plaintiffs’ witnesses, Professor Lewis.  Further, independent analysis of the data beyond that which the expert witnesses have undertaken is not possible.

[648]      Having said that, I am able to reach some conclusions, based on the testimony of the expert witnesses and the data that they considered.

[649]      On their own, the data collected by the OHD do not support very strong conclusions about compliance with some of the safeguards in Oregon.  The data largely depend upon self-reporting by physicians, and certain information (such as whether multiple “second opinions” were sought) is not available.  As well, doubts exist about full compliance with the requirement for referral to a mental health professional of patients suffering from a psychological or psychiatric disorder or depression causing impaired judgment.

[650]      Supplementing the publicly collected data from the self reports by physicians, however, are:  the studies conducted by Dr. Ganzini, which involved surveys of physicians that received a healthy response rate; the Starks research; and the Battin et al. Study, which involved not only the OHD data but also three independent surveys of Oregon physicians and hospice professionals.  As well, persons who work within the Oregon system, such as Ms. Jackson, Mr. Eighmey, Mr. Renaud and Dr. Bentz, have provided opinion evidence.

[651]      Dr. Ganzini and Professor Battin are impressive, respected researchers, who have both made a long-term study of the ethics, and risks, of assisted suicide and euthanasia.  Each of them was cross-examined before the Court.  Professor Battin testified that, although she is a philosopher and ethicist, not an epidemiologist, her collaborators in the Battin et al. Study were highly qualified empirical researchers and that the analysis they conducted was rigorous.  As a positive indicator of Dr. Ganzini’s objectivity, I note her evidence that she has changed her view about best practices with possibly depressed patients who request assisted death.

[652]      I accept that the opinions of Dr. Ganzini and Dr. Battin were based on the evidence and that they had analyzed that evidence very carefully.  I also found Dr. Starks’s evidence to be carefully and fairly presented, and I accept it.

[653]      However, the anecdotes related by Dr. Bentz and Dr. Hendin and the Ganzini Depression Study show that the safeguards cannot be assumed to be 100% effective.   My review of the evidence suggests to me that the following summary by Professor Starks is fair with respect to Oregon – the process is working fairly well but could be improved, including with respect to oversight:

The publically-available annual reports – that I (and possibly Dr. Pereira) rely on for assessments of the laws as citizens and researchers – suggest that overall, the process is working pretty well.  As with any system, there is room for quality improvement and I am the first to embrace changes that would strengthen oversight and the capacity to improve the process for patients, providers, families, policy makers, critics and advocates.

[654]      In both the Netherlands and Belgium, where there has been extensive documentation and research, the data are much more detailed and complete.

[655]      In the Netherlands, the studies over the years show that there is now much greater compliance than there was pre-legalization with the requirement to report cases of euthanasia; 80% of cases were reported in 2005, up from 18% in 1990.  Cases of LAWER continue (thus, cases in which there is non-compliance with the requirement for express request in writing, and possibly with other requirements).  The trend is that LAWER cases are declining in numbers (from 1,000 in 1990 to 550 in 2005), although it is important to note that the number of LAWER cases prior to law reform is unknown.   Professor Lewis suggests that since 99% of cases involving typical euthanasia drugs are reported, mislabelling by physicians may explain most unreported cases:  some physicians do not label death following the administration of other drugs (e.g. morphine) as euthanasia.  Dr. van Delden gives similar evidence in this regard.

[656]      The evidence supports the conclusion that the compliance with the safeguards in the Netherlands is continually improving, but that it is not yet at an ideal level.

[657]      In Belgium there are still low rates of reporting (only approximately 53% of presumed cases of euthanasia were reported in 2007) and high rates of LAWER.  However, Professor Lewis’s evidence is that the number of LAWER cases has declined since legalization of assisted death.

[658]      The defendants argue that what the data show is that increased enforcement of the laws in Belgium, during a time when legal change was being debated, caused the rates of LAWER to decline;  the rate dropped from 3.2% in 1998 (prior to the political and social debate surrounding legalization of euthanasia) to 1.5% (mid-debate) in 2001 and then rose again (post-legalization) to 1.8% in 2007.  Professor Deliens, on the other hand, emphasizes the comparison between pre-legislation and the present day, and says that an increase from 1.5% to 1.8% lacks statistical significance in the context of these data.

[659]      The low rate of reporting in Belgium may have a similar explanation to that suggested above with respect to the Netherlands.  I also note that the Smets et al. Reporting Study indicates that physicians who perceive their case to constitute euthanasia report 93.1% of the time.  Dr. Bernheim’s evidence, giving the opinion that the legislative change in Belgium has improved the carefulness of end-of-life practice, and Professor Deliens’s evidence to similar effect, is persuasive.

[660]      The evidence suggests that in some measure the impetus toward permissive legislation in the Netherlands and Belgium came from the desire to achieve better understanding, and regulation, of practices of assisted death that were already prevalent and embedded in the medical culture.  Looked at in that light, the law reforms in both jurisdictions have made considerable progress in achieving their goals.

2.            Do the safeguards effectively prevent abuse of vulnerable individuals?

[661]      Professor Battin’s opinion with respect to the efficacy of safeguards is captured in this statement:

In the past, debates about the risks and benefits of legalization have been based on theory and conjecture.  However, we now have years of empirical knowledge about the effects of legalization in Oregon and the Netherlands in practice.  The empirical data collected from these jurisdictions demonstrates that a legal process can be contained.  The empirical data demonstrates that no or little substantive abuse has occurred.  None is reported in Oregon, and much, much less than has been claimed occurred in the Netherlands.  In my opinion, the opposition to legalization of physician-assisted dying based on “slippery slope” arguments that predict wholesale abuse of assisted dying legislation is utterly unfounded; the objective data available from jurisdictions where legalization has taken place simply do not support these predictions.  Further, in my opinion, opponents’ presentation of data from Oregon and Netherlands is generally incomplete, frequently filled with factual inaccuracies and distortions, and often meant to construct a false empirical foundation for what is essentially a moral opposition to the practice of physician-assisted death.

[662]      With respect to the Netherlands and Oregon, the Battin et al. Study provides evidence (with varying degrees of strength) that the availability of assisted death in those jurisdictions has not inordinately impacted persons who might be seen as “socially vulnerable”:  elderly, female, uninsured, of low educational status, poor, members of racial or ethnic minorities, physically disabled or chronically but non-terminally ill, minors or mature minors, or psychiatrically ill (including depression).  Their data show that people with AIDS exhibit a heightened risk, but the data pre-date the development of highly active antiretroviral therapies.

[663]      The study, however, does not address the question of persons who are “situationally vulnerable” due to the factors identified by Baroness Finlay, such as:  personality, emotional distress, untreated symptoms, coercion or the desire not to be a burden.

[664]      The Battin et al. Study was also criticized by some of the defendants’ witnesses.  Dr. Pereira spoke from his deep and sincere conviction that assisted death is wrong and unnecessary in the light of the availability of modern palliative care.  He was straightforward but he did not have the benefit of having conducted empirical research of his own; he basically relied on the work of others, including that of Baroness Finlay.  She is a very well-respected palliative care physician who has taken a leading role in the debate about assisted suicide and euthanasia in the United Kingdom.  So far as I am aware, she and her collaborators in the critique have not themselves conducted an empirical study.  Dr. Hendin is a psychiatrist and a leader in suicide prevention, but has not done the same kind of empirical work.  Further, his testimony on cross-examination, and his passion on the topic, left me in some doubt as to his impartiality.

[665]      I have carefully reviewed the critique made by Baroness Finlay and others of the Battin et al. Study, and I find that the study withstands that critique.

[666]      I have considered the study, the critique and the cross-examinations, as well as other evidence (such as that of Ms. Jackson, Dr. Bentz and others) bearing on whether the experience in Oregon and the Netherlands supports the fears of those who argue that the availability of consensual assisted death will lead to the imposition of assisted death on vulnerable persons.

[667]      I accept that the conclusions stated in the Battin et al. Study are soundly based on the data.  I find that the empirical evidence gathered in the two jurisdictions does not support the hypothesis that physician-assisted death has imposed a particular risk to socially vulnerable populations.  The evidence does support Dr. van Delden’s position that it is possible for a state to design a system that both permits some individuals to access physician-assisted death and socially protects vulnerable individuals and groups.

[668]      No conclusion can be drawn from that study with respect to situational vulnerability.  However, there is some evidence bearing on that question.

[669]      First, depression is a factor that may enter into decision-making about assisted death.  Although many patients are screened out because of depression, Dr. Ganzini acknowledges that it is virtually impossible to guarantee that a person whose decisional capacity is affected by depression will not slip through the safeguards designed to reduce that risk.

[670]      It seems unlikely that persons suffering from Major Depressive Disorder or depression causing impaired judgment would both have the persistence and will-power to work their way through the approval process for assisted death, and escape detection by the reviewing physicians.  However, the evidence (from the Ganzini Depression Study) suggests that up to three persons in Oregon may have done so.

[671]      Second, patients may have received assistance in death after experiencing subtle or overt pressure, facing unconscious suggestions by caregivers that their circumstances are hopeless, or sensing that they are a burden on their families.  It is impossible to know from statistical evidence whether this has occurred, or how often.  However, the evidence from both Oregon and the Netherlands about actual decision-making practices does not support the conclusion that pressure or coercion is at all wide-spread or readily escapes detection.  Dr. Ganzini, for example, who studied the decision-making process, said that the involvement of family members was usually to try to dissuade rather than persuade patients from seeking assisted death.  That most patients in Oregon are in hospice care and that the decision-making process in the Netherlands involves extensive deliberation with a long-term family physician suggest that it is unlikely that many patients successfully obtain a physician-assisted death because of outside pressure to do so.  The incidents referred to by Dr. Hendin and others cannot be disregarded, but, on my reading of the evidence, are highly isolated.

[672]      With respect to Belgium, it is difficult to reach any firm conclusion.  In cross-examination, Professor Deliens acknowledged that patients who do not have a psychiatric disorder but who have some level of depression might be vulnerable to being euthanized.  He also acknowledged that patients with cognitive impairments such as dementia might be vulnerable.  However, I note Professor Deliens’s evidence that the Chambaere et al. Population Study does not show elderly patients or patients dying of diseases of the nervous system (including dementia) to be proportionately at greater risk of LAWER than other patient groups.

3.            What inferences can be drawn with respect to the likely effectiveness of comparable safeguards in Canada, given different cultural contexts?

[673]      I will discuss in the next section of these Reasons the feasibility, in general terms, of safeguards based upon the application of criteria such as a patient’s competence and the voluntariness of a request for physician-assisted death.  At this point, however, having spent some time reviewing the evidence about the experience in permissive jurisdictions, I will note some of the reasons why it is necessary to be cautious about drawing inferences for Canada.

[674]      The utility of considering the experience in other jurisdictions depends upon whether there are sufficient similarities between those jurisdictions and Canada to permit inferences to be drawn.

[675]      Oregon, Washington, the Netherlands and Belgium are all relatively prosperous Western democracies.

[676]      However, though Oregon and British Columbia are geographically proximate, their cultural contexts and methods of health care delivery differ in some ways.

[677]      The evidence suggests that palliative care practices in Oregon differ from those in Canada.  According to Dr. Ganzini, hospice care is delivered in patients’ homes in Oregon.  The evidence of Dr. McGregor and Carolyn Tayler (the Director, Clinical Programs End of Life Care for Fraser Health Authority) is that such care, in British Columbia at least, is provided in a broader range of settings, whether in the home, in hospitals, in hospice or in residential care. However, I do not view the differences between Oregon and British Columbia, including the differing ways of delivering palliative care, as very significant in this specific context.  Indeed, it may be easier to achieve compliance when most palliative care patients are in an institutional setting (permitting greater monitoring) rather than in their homes.

[678]      The overall practice of medicine is different in the Netherlands and in Belgium than in Canada, with a much greater likelihood in those countries that a patient will have a long-term relationship with a family physician.  I do view that as a significant difference, and will return to it in the next section of these Reasons when discussing assessment of competence and voluntariness.

[679]      One of the striking aspects of the evidence is that the practice of what could be called non-voluntary euthanasia (LAWER) continues in both the Netherlands and Belgium.  Dr. Hendin, in his cross-examination, suggested that a possible explanation is that there is little or no enforcement of the law against it, and physicians have a strong position in those cultures, such that they feel able to disregard the law.  He opined that it is different in the United States, including in Oregon.  As well, in the Netherlands, the judicially-developed defence of necessity continues to apply to some cases of euthanasia.

[680]      The evidence suggests (I refer to Dr. Kimsma, Professor Deliens and Dr. Bernheim) that the practice of physician-assisted death existed for some years prior to the euthanasia debate in the Netherlands and in Belgium.  There is no evidence suggesting a comparable history in Canada.  Indeed, it appears that, with very few exceptions, Canadian medical practitioners are compliant with the current absolute legal prohibition of assisted death, suggesting that physicians would also be compliant with any regulatory regime concerning the practice.  Thus, it seems particularly problematic to draw inferences about the likely level of compliance with legislated safeguards in Canada from evidence about Belgium and the Netherlands.  In other words, the evidence about non-compliance and LAWER in Belgium and the Netherlands may not tell us much about what would happen in Canada if physician-assisted death were made legal.  This is because, in Canada, it would not be a question of attempting to regulate a pre-existing and fairly prevalent practice.

[681]      It must also be recognized that the way that regulations are drawn will affect their effectiveness and enforceability.  For example, in Oregon, the regulation prohibits issuing a prescription if the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment.  Dr. Ganzini’s evidence suggests that a more cautious approach would have been to prohibit lethal prescriptions for anyone who is depressed, without qualification.

[682]      Overall, the evidence permits the following conclusions.

[683]      First, cultural and historical differences between the Netherlands and Belgium, on the one hand, and Canada on the other, mean that possible concerns about the level of compliance with legislation in those countries do not necessarily transpose into concerns about Canada.  The experience of compliance in Oregon is more likely to be predictive of what would happen in Canada if a permissive regime were put in place, although even there only a weak inference can be drawn.

[684]      Second, the expert opinion evidence from persons who have done research into the question is that, with respect to all three jurisdictions, the predicted abuse and disproportionate impact on vulnerable populations has not materialized.  Again, inferences for Canada can only be drawn with caution.

[685]      Third, although none of the systems has achieved perfection, empirical researchers and practitioners who have experience in those systems are of the view that they work well in protecting patients from abuse while allowing competent patients to choose the timing of their deaths.

E.           Impact on Palliative Care

[686]      A number of the defendants’ experts express their concern that legalization of physician-assisted dying will impede the further development of palliative care.  Dr. Pereira, for instance, deposes that legalization would jeopardize attempts to train more professionals in palliative care and to increase palliative care resources.  Dr. Sheldon and Dr. Bereza both advert to the pressures on resources in the health system.  Dr. Bereza questions whether those pressures might lead to an irresistible temptation to view physician-assisted death as a more cost-effective and efficient way of dealing with frail, vulnerable or disenfranchised people, a concern that is also reflected in Dr. Sheldon’s evidence.  Dr. Chochinov refers to the fact that only a minority of Canadians have access to comprehensive quality end-of-life care, and opines that “[d]esigning a system that will accommodate a request for hastened death but does not assure attentiveness to the various sources of suffering that can undermine patients’ will to live makes little sense”.  Baroness Finlay expresses her concern that patients may choose a physician-assisted death without ever becoming aware of the complex, holistic aspects of palliative care and the improved experience, reality and support that palliative care may provide.

[687]      The evidence, the defendants say, supports concerns that if physician-assisted death is legal, physicians’ attention will be diverted from providing therapeutic counselling, comfort and care to their patients, confusion about palliative care (that it includes killing patients) will be generated, and our society’s will to invest money and resources in palliative care will be weakened.

[688]      In response, the plaintiffs say that the evidence does not bear out these concerns.  In particular, they say that the evidence shows that physicians’ care for terminally ill patients in permissive jurisdictions improved following legalization.  They also say that there is no evidence that permitting physician-assisted dying would exacerbate misconceptions about palliative care, and may in fact provide a needed opportunity for education.  They submit that physician-assisted dying and palliative care are complementary.

[689]      The Province placed extensive evidence before the Court regarding the palliative care system in British Columbia.

[690]      According to Heather Davidson, British Columbia’s Assistant Deputy Minister of Health, this province’s framework for end-of-life care is based on an integrated approach of providing care to individuals that takes into account their fluctuating and changing needs as they approach the end of life.  This integrated approach is designed to provide a range of options to individuals, in terms of settings and caregivers, that will support their quality of living and assist in facilitating a meaningful, comfortable death in the most appropriate setting.

[691]      Dr. McGregor, a palliative care specialist and Regional Medical Director, Palliative Care for Vancouver Coastal Health, estimates that 15% of British Columbians die at home, 24% in residential care facilities, 12% in hospices and 47% in hospital.  There is no charge for most hospice palliative care services, although there is a daily fee for in-hospice care.  The BC Palliative Care Benefits Program will also cover most pharmaceutical prescriptions at home or in a hospice setting if a patient is deemed by his attending physician to have a life expectancy of six months or less.

[692]      While the province exercises a superintending and policy role, actual health services are provided by five regional health care authorities.  Dr. McGregor explains that each of the five health authorities in the province has developed, and is further developing, primary care and specialized services to meet the needs of the end-of-life population.

[693]      According to Dr. McGregor, the Vancouver Coastal Health Authority delivers hospice palliative care services to patients in their homes, hospital, hospice and residential care facilities.

[694]      Dr. McGregor explains that most ill patients who are expected to die within six to 12 months receive the majority of their care through primary care and community services.  Home and community care teams (which are provided and structured by the Health Authority) are able to provide a range of health care and support services in patients’ homes.  In addition to care from their family physicians, patients eligible for home and community care may receive home visits from nurses, occupational therapists and physiotherapists, nutritional consultants, and community health workers.

[695]      Included in primary care and community services are residential care facilities and hospices.  There are approximately 6,000 residential care facility beds in the Vancouver Coastal Health region, and approximately 50 hospice beds in the province.  Dr. McGregor testified that the waiting list for a residential care bed is usually three or four days.  In Vancouver, 99% of patients are admitted to their first choice of hospice.

[696]      Specialized palliative care services are provided in four dedicated acute hospital palliative care units, as well as through outreach consulting to any other unit in the hospital where patients require such care.  There is an emphasis on interdisciplinary teamwork.

[697]      Dr. McGregor explains that at any given time, the needs of approximately 65% of individuals requiring end-of-life care and support can be met in primary care services in the community; 20% can have their needs met in the community but require some input from specialist palliative care services; and 15% need specialist, often in-patient, services beyond the scope of practitioners with standard training.

[698]      Carolyn Tayler, the Director, Clinical Programs End of Life Care at the Fraser Health Authority, describes the Fraser Health Authority’s End of Life Program.  In brief, that program builds on community-based models, and has shifted the focus of service delivery away from stand-alone acute palliative care units to an integrated continuum of care that includes the home, residential care, hospice and acute/tertiary care.

[699]      Vancouver Island Health Authority’s Victoria Hospice is an internationally recognized centre for expertise in palliative pain and symptom management, education and research in palliative care.  Dr. Downing, a palliative care physician and Research Director at Victoria Hospice, describes the facilities and services that facility offers and delivers by interdisciplinary teams of palliative care physicians, nurses, social workers/psychologists, spiritual advisors, pharmacists, personal support workers and volunteers.  The Hospice provides palliative care services within its 17-bed unit in the Royal Jubilee Hospital, in patients’ homes and as specific medical consultation to patients in other health care facilities.

[700]      Dr. Downing describes what palliative care services may entail, and the Australian Palliative Approach model, which has three levels:  primary, intermediate and complex care.  He deposes that serious deficiencies can occur at any of the three levels due to limited funding, training or expertise.  He further states that:

Thus, while the field of palliative medicine as a specialty is growing, and there are an increasing number of clinicians interested in this as an area of practice, there are still, in Canada and British Columbia, an insufficient number of professionals in all disciplines to provide optimal palliative care to all individuals who need it.  Also, the range of palliative care services in Canada remains highly variable, both in terms of the availability of services and access to the comprehensive expertise of palliative care providers.  Cost pressures for palliative care services do exist and will only increase with the aging population and increasing numbers of people who require end of life services.  Good palliative care is complex, holistic and time-consuming.  However, public funding of palliative care services is increasing and models of palliative care are being researched and developed in order to ascertain better ways for high quality palliative care to be integrated into the health system, efficiently and economically.

[701]      Various Senate and Parliamentary committees have examined the challenges facing the delivery of palliative care in Canada.  The Senate Subcommittee established to examine progress in implementing the recommendations made in the Special Senate Committee Report, tabled its report in June 2000:  Standing Senate Committee on Social Affairs, Science and Technology, Quality End-of-Life Care: the right of every Canadian (Chair:  Sharon Carstairs) [the Senate Subcommittee Report].  As its title makes clear, the Subcommittee concluded that quality end-of-life care, including adequate pain and symptom control, appropriate use of life-sustaining treatments, and support for patients and their families, is an entitlement of all Canadians:

Quality end-of-life care must become an entrenched core value of Canada’s health care system.  Each person is entitled to die in relative comfort, as free as possible from physical, emotional, psychological, and spiritual distress.  Each Canadian is entitled to access skilled, compassionate, and respectful care at the end of life.  This Subcommittee sees care for the dying as an entitlement for all.

[702]      While concluding there had been some movement on the issue, the Subcommittee found that overall there had not been sufficient progress in implementing the palliative care recommendations from the Special Senate Committee Report, and recommended that the federal government, in collaboration with the provinces, develop a national strategy for end-of-life care and a five-year plan for its implementation.

[703]      Senator Carstairs tabled two further reports on palliative care in Canada, in June 2005 and June 2010 respectively.  Still Not There: Quality End-of-Life Care: A Progress Report (Ottawa:  Senate Canada, 2005) (Tabled in Senate, Journals of the Senate, 38th Parl., 1st Sess., No. 66 (2 June 2005)) highlighted the progress that had been made since the Senate Subcommittee Report, but also called attention to the significant disparities in access to quality of end-of-life care across the country resulting from the relative newness of palliative care, and the number of health care jurisdictions.  The report urged the federal government to renew its commitment to a national strategy on palliative and end-of-life care.

[704]      Raising the Bar: A Roadmap for the Future of Palliative Care in Canada (Ottawa:  Senate Canada, 2010) (Tabled in Senate, Journals of Senate, 40th Parl., 3rd Sess., No. 35 (8 June 2010)) recognizes that there have been significant improvements in public policy regarding end-of-life care and the delivery of palliative care services in Canada over the years, but urges that it remains necessary to “raise the bar”.

[705]      Raising the Bar states that only 10% of people die suddenly; the remaining 90% potentially benefit from palliative care.  In 1995, only 5% of Canadians had access to quality palliative care.  In 2008, a best estimate suggested that between 16-30% of Canadians had some level of access, depending on their location.  According to the report, it follows that upwards of 70% of Canadians lack access to even minimal forms of palliative care.  The report cautions that the health care system will be further stretched and access to palliative care will be at risk of erosion given the increase in the number of deaths expected over the next generation, together with the prevalence of chronic disease (a result of our ability to manage these conditions longer and more effectively than ever before).

[706]      Palliative care was also the subject of recent all-party study in the House of Commons, resulting in the Canadian Parliament Committee Report.  The report focused on three areas relating to compassionate care:  palliative care, suicide prevention, and elder abuse.

[707]      The Committee observed that the current health care system is geared toward short-term acute care and is less effective at dealing with individuals with chronic conditions, serious pain or mental health concerns, or with the psycho-social and spiritual needs of patients and their families throughout the dying process.

[708]      The various Senate and Parliamentary reports consistently note that even where palliative care is available, its quality and accessibility vary according to place of residence – a consequence, in significant measure, of provincial jurisdiction over the delivery of health care.  This “patchwork” of services is more pronounced in less populated regions.  Many parts of Canada have no palliative care services at all.

[709]      Returning to the question of impact of legalized physician-assisted death on the development of palliative care, I turn to the situation in Oregon and Washington.

[710]      Dr. Ganzini co-authored E.R. Goy et al., “Oregon hospice nurses and social workers’ assessment of physician progress in palliative care over the past 5 years” (2003) 1 Palliat Support Care 215.  Dr. Ganzini provides the following summary of the study and its findings in her affidavit:

I co-authored a study to obtain hospice nurse and social workers’ assessments of efforts made by Oregon physicians to improve their palliative care skills over the previous 5 years since the enactment of the ODDA.  A survey was sent to nurses and social workers from all 50 Oregon outpatient hospice agencies.  Oregon hospice nurse (185) and social worker (52) respondents, who had worked in hospice for at least 5 years, rated changes they observed over the past 5 years in physicians’ approach to caring for their hospice clients.  Seventy-seven percent of hospice workers rated physicians as more willing to refer patients to hospice whereas only 3% rated them as less willing, 83% rated them as more willing to prescribe sufficient pain medications whereas 3% rated them as less willing, 76% rated physicians as more knowledgeable about using pain medications in hospice patients whereas 6% rated them as less knowledgeable, 67% rated physicians as more interested in caring for hospice patients whereas 5% rated them as less interested, 66% rated them as more competent in caring for hospice patients whereas 4% rated them as less competent, and 26% rated Oregon physicians as more fearful of prescribing sufficient opiate medications whereas 47% rated them as less fearful.  We concluded that most respondents rated Oregon physicians as showing improvements in knowledge and willingness to refer and care for hospice patients.  The major limitation of the study is that physician knowledge and competence in end-of-life care was not actually measured.

[711]      Dr. Ganzini was involved in an earlier study which looked at the views of physicians themselves: Ganzini et al., “Oregon Physicians’ Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death With Dignity Act” (May 9, 2001) 285:18 JAMA – J Am Med Assoc 2363.  That study indicated that most Oregon physicians who care for terminally ill patients reported that since 1994 (the year the ballot initiative establishing the ODDA was passed), they had made efforts to improve their ability to care for these patients.  As Dr. Ganzini summarizes in her affidavit, 30% of the 2,461 physicians who responded to the self-administered questionnaire reported that they had increased referrals to hospice, whereas 3% reported they had decreased their hospice referrals since passage of the ballot initiative five years earlier.  Of the 2,094 respondents who cared for terminally ill patients, 76% reported that they had made efforts to improve their knowledge of the use of pain medications in the terminally ill.

[712]      Dr. Ganzini cautions, with respect to both of these studies, that the improvements cannot necessarily be attributed to the ODDA; they do, however, counter concerns that legalization of physician-assisted dying will undermine attempts to improve access to palliative care.

[713]      Dr. Ganzini deposes that contrary to the concerns expressed by some, such as Dr. Pereira, the legalization of physician-assisted dying in Oregon has not jeopardized palliative care training.  The Oregon Health & Science University, where she holds a number of positions, has a highly sought after palliative medicine fellowship.  Further, she says, hospice resources and palliative care consultation groups have grown since passage of the ODDA.

[714]      Mr. Eighmey deposes that, based on his experience in counselling terminally ill individuals and their physicians with Compassion & Choices Oregon, he believes that patients’ ability to obtain the services of a physician who was able to provide adequate end-of-life care increased following enactment of the ODDA.  Accordingly to Mr. Eighmey, there has been a significant increase in physicians’ knowledge of palliative care, as well as an increase in physicians’ willingness to refer patients to hospice and to care for hospice patients.  More than 82% of the patients of Compassion & Choices who obtained lethal prescriptions under the ODDA were enrolled in hospice care.

[715]      Mr. Miller gives similar evidence based on his personal experience with Compassion & Choices Washington.  He deposes that since the enactment of the Washington Act, there has been an increase in physicians’ knowledge of palliative care, and an increase in the number of individuals he has dealt with who have been referred as patients to palliative care specialists and to hospice care.  More than 85% of the patients who work with Compassion & Choices Washington and who obtain medications for aid-in-dying are enrolled in hospice care.

[716]      In response to the evidence concerning the experience in Oregon, Canada says that Dr. Ganzini’s evidence does not establish that any improvements in palliative care can be definitively attributed to the legalization of physician assisted death.  It says that palliative care improved everywhere, not just in Oregon.

[717]      Dr. van Delden and Dr. Kimsma give evidence about the situation in the Netherlands.

[718]      Dr. van Delden deposes that a wide range of palliative care services is available in the Netherlands.  Palliative care can be received at home or in nursing homes, care homes, hospitals, and both professional and volunteer hospices.  He says that it is striking that special facilities for terminally ill patients, such as hospices, only began to appear in the Netherlands in the early 1990s; these sorts of facilities existed earlier in neighbouring countries.  The probable explanation, he writes, is that medical practitioners in the Netherlands have always given high priority to care for the dying.  (He cites The Netherlands, Ministry of VWS [Health], “Palliative care for terminally ill patients in the Netherlands”, by A.L. Francke (The Hague: NIVEL Netherlands Institute for Health Services Research, 2003), for this evidence).

[719]      Citing the same article, Dr. van Delden further deposes as follows:

It is also worthwhile to comment on the relation between society’s commitment to (palliative) care and euthanasia.  It is sometimes argued that euthanasia cannot be made available to people in vulnerable groups because that would lessen pressures for improvement of their background circumstances.  What is particularly disturbing about this argument is the usually tacit assumption that the suffering of those who are in vulnerable circumstances where euthanasia cannot be allowed, will serve as leverage for improving the provision of such things as adequate terminal care, adequate pain control, and the like.  The evidence appears to be the other way around.  Pain management was improving in the Netherlands before euthanasia was fully legalized, but has continued to do so at an increasingly rapid rate since legalization.  It is legalization, or the prospect of immediate legalization, which appears to contribute to the improvement of terminal care and pain control.

[720]      Dr. Kimsma also refers to the “steep rise” in programs aimed at improving palliative care access and expertise in the Netherlands, again beginning in the early 1990s.  Dr. Kimsma states that by all comparisons, including the latest European Community-initiated overviews, the Dutch level and practice of palliative care stand well in comparison to other European states.

[721]      The plaintiffs’ experts also provided evidence on the experience with palliative care in Belgium.  Both Dr. Bernheim and Professor Deliens opine that the legalization of physician-assisted dying in Belgium has not impeded the development of palliative care in that country.  Professor Deliens states that, to the contrary, legalization has enhanced and is an integral component of palliative care.  Dr. Bernheim describes the situation as one of “reciprocity and synergistic evolution”.

[722]      Dr. Bernheim was lead author of “Development of palliative care and legalisation of euthanasia: antagonism or synergy?” (April 19, 2008) 336 Brit Med J 864.  Of note, two of his co-authors, Arsene Mullie and Wilm Distelmans, are the current and past presidents of the Federation Palliative Care Flanders, a professional organization for palliative care practitioners with more than 1,000 members.  The article looks at “the effect of the process of legalisation of euthanasia on palliative care and vice versa by reviewing the published historical, regulatory, and epidemiological evidence in Belgium” (at 864).  The authors conclude from this evidence that the movements to develop palliative care and regulate euthanasia in Belgium have been mutually reinforcing.

[723]      As Bernheim et al. describe in some detail, the development of palliative care in Belgium began in the early 1980s, at the same time as the drive for the legalisation of euthanasia.  These movements were simultaneous and pioneered to a significant degree by the same caregivers.  For example, two of the founders of Belgium’s first palliative care organization – Continuing Care Community – were advocates of the legalization of euthanasia.  (One of these two individuals was Dr. Bernheim.)  Several early palliative care workers were also active in Belgian right to die societies.

[724]      With respect to palliative care, in an update to this article in the Belgian Medical Journal (Bernheim et al., “The Belgian model of integral end-of-life care: palliative care and legal euthanasia as complementary developments” Tijdschr Geneeskd (forthcoming)), Dr. Bernheim and his co-authors conclude (at 23):

The concern of some that euthanasia would be performed for lack of access to PC [palliative care] was not verified.  All epidemiological data suggest that the more PC, the more life-abbreviating medical decisions at the end of life.  We found no data supporting the second concern of the EAPC [European Association for Palliative Care] that the movement for legalisation of euthanasia would hinder development of PC.  On the contrary, there were numerous indications of reciprocity and mutually stimulating enhancement.

[725]      I referred to a number of studies co-authored by Professor Deliens earlier during my review of some of the empirical evidence regarding the effectiveness of safeguards in Belgium.  Some of those studies include data relevant to palliative care.

[726]      The Smets et al. Characteristics Study looked at various trends in the characteristics of reported cases between 2002 and 2007.  I refer to two trends that relate to palliative care.

[727]      First, a physician who receives a euthanasia request is required to consult with an independent physician.  In 2002/2003, the speciality of that second physician was palliative care 19.3% of the time.  That number decreased to 14.7 in 2004, 10.9% in 2005, 10.0% in 2006 and 8.7% in 2007.

[728]      Second, although the Belgian Act does not mandate that a palliative team be consulted, such consultations occurred in 33.9% of cases in 2002/2003; 33.7% in 2004; 31.4% in 2005; 32.5% in 2006 and 39.4% in 2007.

[729]      The Chambaere et al. Trends Study found that the rate of euthanasia and assisted suicide rose in all patient groups between 1998 and 2007.  Of relevance for present purposes, intensified alleviation of pain and symptoms occurred more often in 2007 than in 1998 and 2001 in all patient groups, except in patients with higher education and in cancer patients.  The authors also acknowledge that other factors may have affected this increase in pain and symptom alleviation, such as improved knowledge of opioids abating physicians’ fears of providing adequate pain relief at the cost of possible life shortening.

[730]      Canada takes issue with the idea that palliative care in Belgium has improved since the legalization of euthanasia, pointing to Dr. Bernheim’s evidence on cross-examination that only half of Belgian physician-assisted deaths took place at the end of a palliative care pathway, even though he agreed that adequate palliative care can reduce requests for euthanasia, and to Professor Bernheim’s agreement that Belgium has seen a decrease in its ranking in various measures of the quality of palliative care.  I take into account, however, Dr. Bernheim’s explanation that since Belgium ranked at the top of palliative care providers, there was little room for Belgium to improve and inevitably a change in Belgium’s ranking would be in a negative direction as other countries improved.  He maintains that palliative care in Belgium continues to rank extremely high.

[731]      My review of the evidence regarding Oregon, the Netherlands and Belgium suggests that in those jurisdictions, legalization of assisted death has not undermined palliative care; on the contrary, palliative care provision has improved since legalization by some measures.

[732]      Few conclusions, however, can be reached about the possible impact on palliative care from a change in Canadian law regarding physician-assisted death.

[733]      First, as Canada points out, palliative care is a developing field; it may be assumed that it is improving not only in permissive jurisdictions but also in jurisdictions that continue to prohibit physician-assisted death.

[734]      Second, there are differences in the history, culture and modes of medical practice among the jurisdictions.

[735]      Third, further improvements in palliative care in Canada would require commitment of public resources, since health care in Canada is largely delivered through a public system.  Some of the debate in the United States has raised the question whether health insurers would refuse to fund palliative care when assisted death was available; no evidence was provided to show that that fear has become reality in Oregon or Washington.  It is difficult to imagine that Canadian politicians, public officials or health care providers, if physician-assisted death were legal, would reduce resources for palliative care services for that reason.

[736]      In summary, having reviewed the evidence and the submissions on this point,conclude that while a change in the law to permit physician-assisted death could affect the palliative care system, predictions as to how would be speculative.  I find that the evidence establishes that the effects would not necessarily be negative.

F.            Impact on Physician-Patient Relationship

[737]      The defendants also argue that legalizing physician-assisted death would negatively impact the physician-patient relationship.  I will review the main arguments in that respect and the evidence from other jurisdictions before setting out my conclusions.

[738]      Dr. Pereira refers to the power imbalance that would arise, and to worsening misconceptions about palliative care.  He expresses concern that some misperceptions, including the idea that opioids invariably shorten life, may leave patients wondering whether a physician administering pain medication is in fact administering a lethal injection.

[739]      Dr. Gallagher holds a similar opinion.   She says that since the time of the Hippocratic Oath, the goals of medicine have been to prolong life, relieve suffering and improve or maintain functions.  Administering a drug with the intent to end the life of a patient, she says, is inconsistent with the goals and core activities of medicine.  In her opinion, changing the law to allow physicians to administer a deadly drug would radically change the concept of what a physician is and seriously undermine patients’ trust in their physicians.

[740]      Baroness Finlay raises concerns about the asymmetries inherent in the physician-patient relationship.  She further deposes:

At the moment there is a bright line.  Doctors know what they can do and what they do not do.  And patients know – and they know that they can discuss their fears about dying and about wanting to ‘end it all’ safe in the knowledge that they will not be taken at their word.

[741]      Not all of the experts share this view.  Dr. Cohen says that, in her opinion, the existing prohibition against physician-assisted death interferes with the physician-patient relationship because it precludes an important treatment option and creates a climate of secrecy and fear.  She deposes:

The blanket prohibition against physician-assisted dying discourages patients who are contemplating a hastened death from talking to their physicians, further isolating these patients.  After all, if patients cannot speak openly and honestly to their doctors about end of life issues, then who will they speak to?  The burden of secrecy is yet another burden that the already suffering patient is forced to bear.

[742]      Dr. van Delden provides a fairly nuanced response to the question of the effect of legalized physician-assisted dying on the physician-patient relationship and trust in physicians.  He says that the fear that accepting euthanasia may make people lose trust in their physicians expresses several concerns.  If it means that physicians will no longer be committed to prolonging life in all circumstances, then he says the fear is correct, but that the move away from vitalism would better promote the well-being of the patient, which would improve trust.  If the fear is that accepting euthanasia would give a right to unbridled autonomy in the form of a right to die, then the fear that trust may be eroded does not concern only physicians but rather the trust that people have in one another.  He says, however, that such an individualistic account of autonomy need not be the basis for accepting euthanasia, and that it is not the basis of assisted death in the Netherlands.  Finally, he says that losing trust in physicians may express a concern that allowing physician-assisted death may lead to non-voluntary or involuntary euthanasia.  He responds to this by rejecting the assumption that physicians will take the opportunity to kill their patients if they are given the opportunity to do so; to the contrary, he says that physicians around the world share the common trait of attempting to cure and relieve suffering.

[743]      The plaintiffs point to the evidence of physicians who have actually participated in physician-assisted dying, and say that it should be accorded particular weight.  That evidence, they say, is to the effect that addressing such requests with their patients has improved their relationship with those individuals.

[744]      Dr. Kimsma, on the basis of his experience as a medical practitioner and SCEN consultant in the Netherlands, deposes as follows:

The tensions placed on the physician in this respect arise, in part, from the public recognition of the emergence of patient choices and truth at the bedside, leading to respect for patient autonomy and thus to conflicts between physician and patient positions, especially in situations at the end-of-life.  Patients and public often have the incorrect opinion that PAD [physician-assisted dying] is a patient’s right as recognized by the Law.  The potential for conflict arises also because a physician’s instinct is to preserve life and the “modern” patient may feel that exercise of his autonomy to choose the opposite (death) should not be limited by the fact that the physician is also a moral agent with duties and obligations, such as the preservation of life.  The effects of requests to help a patient die are therefore very emotional, often deeply moving, because they seem to go so much against the very grain of being a physician.  They lead to emotional and ethical conflicts within the physician. ...

PAD is only possible within a meaningful doctor-patient relationship, and a request has precisely the effect of creating such a relationship when both participants realize the gravity of such a request.  A request changes the doctor-patient relationship, mostly for the better.  A doctor needs to know a patient better and in a different way than in the day-to-day medical relationship, because the physician needs to overcome all the primary inhibitions towards the fundamental rule “Thou shalt not kill” and become convinced in a rati