THE EUTHANASIA EXPRESS ROLLS ON
by
MARGARET SOMERVILLE
__________________________________________________________
Margaret
Somerville is Professor of Bioethics in the School of Medicine
at the University of Notre Dame Australia. Until recently, she
was Samuel Gale Professor of Law, Professor in the Faculty of
Medicine, and Founding Director of the Centre for Medicine, Ethics
and Law at McGill University, Montreal. Her most recent book is
Bird on an Ethics Wire: Battles about Values in the Culture
Wars. This article was first published in https://www.mercatornet.com
It’s
often said that Australia and Canada are, in many ways, comparable
countries. So let’s look at a recent Canadian euthanasia
case, that of Audrey Parker, to see what we might learn relevant
to the current euthanasia debates in Australia.
But first
some background. Canada legalized physician-assisted suicide and
euthanasia (PAS-E, euphemistically called “voluntary assisted
dying” VAD in the Victorian Voluntary Assisted Dying
Act) just over two years ago.
Like
the Australian pro-euthanasia advocates, the Canadian advocates
claimed that PAS-E would be rarely used and only in extreme cases;
that safeguards would be highly effective and would not change,
that is, there would be no slippery slopes; and that vulnerable
people, for instance, those who are mentally incompetent, would
not be placed at risk because only adults able to give informed
consent immediately prior to being euthanized could have access
to it.
Audrey
Parker was a 57-year-old Canadian living in Halifax, Nova Scotia.
She was diagnosed with Stage IV breast cancer in early 2016. The
cancer had spread to her bones and the lining of her brain. Audrey
was assessed and approved for euthanasia (MAiD Medical Assistance
in Dying) under the Canadian law providing for this procedure.
She describes in a Facebook post, written just hours before her
death by euthanasia on November 1, that for seven months she had
been in contact on a monthly basis with the person who would provide
her with euthanasia.
Audrey
also disclosed that she would have liked to live until Christmas
and New Year – as she put it, her “favourite time
of the year” - before accessing euthanasia, but she was
frightened to do this. The basis for her fear was that if she
became mentally incompetent she could not be euthanized, because
the law only allowed persons competent to give a valid consent
just before the euthanasia procedure to have access to it. Audrey’s
concern was that the metastases in her brain could render her
incompetent to consent.
Audrey
teamed up with Dying with Dignity to advocate for a change
in the law that would make prior consent adequate – that
is, that consent to euthanasia in advance directives would be
sufficient if the person were mentally incompetent. Canadian Press
reported that Audrey said that Dying with Dignity had
drafted a bill proposing that change and after her death would
be promoting it under the banner of Audrey’s Law.
CBC News
noted that she wrote, “I'm willing to leave early if it
will result in this change for those who come after me.”
As this
statement shows and as is true for possibly everyone, Audrey wanted
her death to have meaning. We saw this same phenomenon in the
early days of the HIV/AIDS epidemic when there were no effective
treatments and young men dying of AIDS committed suicide. They
were often told by advocates of the legalization of assisted-suicide
and euthanasia that they were heroes for choosing suicide and
their brave action would promote its legalization, which would
help others in the same situation as they were.
But back
to Audrey. CBC News later posted “a corrected story”
stating, “A previous version contained inaccurate information
that Dying with Dignity Canada would submit a bill next week,
dubbed Audrey's Law, seeking an amendment to remove the need for
late-stage consent for medically assisted dying patients who have
already consented and been approved. In fact, the organization
will launch a campaign in the coming weeks with the aim of seeing
that the rights of people who've been assessed and approved for
assisted dying are respected.”
Why might
Dying with Dignity have sought this correction?
Repealing
a safeguard provision in the euthanasia law – namely, the
requirement for competency and consent at the time of inflicting
death – is less likely to meet the approval of the general
public or politicians than arguing for this change in the law
on the basis of respect for individual autonomy. Moreover, the
latter approach is consistent with the respect for individual
autonomy arguments on which the MAiD law was based and which were
very influential in having the law enacted.
And seeing
the proposed change as dropping a safeguard is inconsistent with
the claims of pro-euthanasia advocates that no logical slippery
slope (the expansion of the people and circumstances where euthanasia
is permitted) would occur and, likewise, that vulnerable people,
such as those who are mentally incompetent, would not be put at
risk because their consent was needed at the time of euthanasia.
The change
would also eliminate another safeguard, the possibility of a person
changing their mind about euthanasia. We know from research that
even people who have asked for euthanasia can change their minds
when given good palliative care.
But might
a court rule that it is unconstitutional or a breach of a person’s
human rights to require a final consent? Audrey’s argument
that she is forced to die sooner because of the consent requirement
exactly mirrors the argument of Gloria Taylor, a plaintiff in
the Carter case, which resulted in the legalization of
PAS-E in Canada.
Ms Taylor
was suffering from a serious neurodegenerative disease, amyotrophic
lateral sclerosis (ALS), and wanted access to PAS-E. The Supreme
Court of Canada ruled that prohibiting PAS-E faced Ms Taylor with
a “cruel choice” between, as she argued, committing
suicide while still able to do so without assistance or living
longer and being unable to commit suicide, because the assistance
she would need was a crime. The court held the prohibition of
assisted suicide was a breach of Ms. Taylor’s right to life
in section 7 of the Canadian Charter of Rights and Freedoms and
unconstitutional, because it meant she would commit suicide sooner
if assistance remained prohibited, that is, the criminal prohibition
of PAS-E shortened her life.
In short,
the Supreme Court converted the “right to life” to
a “right to death through PAS-E”. It’s true
Australia does not have a Charter of Rights as part of its Constitution,
but Australian courts have ruled the same fundamental rights exist
at common law and the right to life is certainly such a right.
Applying
the court’s reasoning in Carter to Audrey’s
case, it can be argued that if a legal prohibition (in this case
on euthanizing mentally incompetent people) means they will die
sooner in order to have help in dying, that prohibition is unconstitutional
because it shortens life thereby contravening the “right
to life” in section 7 of the Charter. Moreover, as was also
held in Carter, it would also contravene the section
7 Charter rights to liberty and security of the person or the
common law equivalents of these rights.
Audrey’s
case is a good example showing that once we step over the line
that we must not intentionally kill there’s no logical stopping
point. We can only hope that if there were a court challenge to
requiring consent at the time of euthanasia, the Canadian courts
would rule that section 1 of the Charter applied to justify any
breaches of section 7 rights that the consent requirement was
found to constitute, as being a restriction that was a “reasonable
limit prescribed by law … [that] can be demonstrably justified
in a free and democratic society” and, therefore, not unconstitutional.
And should
Dying with Dignity be successful in having a bill come
before the Canadian Parliament let’s hope that it would
reject such a change, not least in the interests of protecting
highly vulnerable people, such as those with dementia.
Australia
can avoid all such problems by persuading the Victorians to repeal
the Voluntary Assisted Dying Act and not legalizing PAS-E.
