Physician-assisted suicide: the case for legalization

In Canada, if you are a competent adult, then you have the legal as well as the moral right to insist that life-support be withheld or withdrawn, even if this will result in your immediate death.

If, however, you are suffering irremediably but are not dependent on technology to keep you alive then you may be stuck. Instructions to "pull the plug" provide a merciful exit from unbearable suffering only if you happen to be "lucky" enough to require life-support.

There are other permissible escape routes from a prolonged and painful process of dying. You can, for example, legally choose to refuse all food and fluids, thereby starving yourself to death.

Or you can choose "terminal sedation" — the administration of drugs that will make you unconscious until you die. Typically, when this happens, tube feeding and hydration will be also be withdrawn.

Susan Griffiths was not dependent upon life support and, for understandable reasons, she did not find the prospect of a lingering death (from starvation/dehydration) appealing.

Griffiths’ preference was to end her life quickly and painlessly at a time of her own choosing, with the assistance of a physician.

However, because physician-assisted suicide (PAS) is still illegal in Canada, she was forced to leave her Winnipeg home in order to travel, at great effort and expense, to Switzerland.

At the Dignitas Clinic in Zurich, on April 25, 2013, she will receive assistance to hasten her death. Switzerland, along with a number of other European countries (including Belgium and the Netherlands) and several American states (Oregon, Washington State and Montana) have legalized assisted suicide, subject to careful safeguards.

Alarmingly, under Canadian law, it is possible that Susan’s daughter, Natasha, who accompanied her, could be prosecuted for the crime of "assisted suicide."

The Lee Carter case, currently before the B.C. Court of Appeal and heading ultimately to the Supreme Court of Canada, will decide that issue along with the constitutional right of Canadians to receive PAS in defined circumstances.

Susan has publicized her choice in an effort to make something morally significant of her death. She hopes to generate public debate on the desirability of legalizing PAS.

We owe her an informed and reasonable debate on the benefits and risks of legalizing PAS in Canada. My comments are offered as a small contribution to that debate and as a tribute to Susan’s generous spirit and remarkable courage.

Canadian public opinion on this issue is strongly supportive of law reform. For more than two decades, we have been telling pollsters that we favour eliminating the Criminal Code prohibition against assisted dying. The percentage of those who favour regulation rather than prohibition ranges between two-thirds and three-quarters. Although a vociferous minority opposes legalization – mostly on religious grounds or because of "slippery slope" fears - there are very few controversial social issues about which Canadians are so remarkably united.

For Susan Griffiths, as for Sue Rodriguez (1993) and Gloria Taylor (2012), respect for the principle of individual autonomy is of central importance. People should be free to decide upon their own fate. When an important life choice concerns a private matter and when the individual making that choice is rational, informed and acting voluntarily on the basis of her authentic (or true) values then the state should not interfere.

ALS patient Gloria Taylor, one of the plaintiffs in the Lee Carter case, puts the point eloquently:

"What I want is to be able to die in a manner that is consistent with the way that I lived my life. I want to be able to exercise control and die with dignity and with my sense of self and personal integrity intact. I want to be able to experience my death as part of my life and part of my expression of that life. I do not want the manner of my death to undermine the values that I lived my life in accordance with …"

Those opposed to de-criminalization of PAS often base their opposition on the authority of the Bible or some other holy text. But we are a pluralistic, multi-cultural and multi-faith secular society. Appeals to religious authority no longer cut the mustard. 

For this reason, contemporary opposition to PAS  mostly eschews appeals to holy scripture and relies instead on the argument that if we respect the liberty of some individuals to choose assisted death we will thereby expose the ill and frail to an increased risk of abuse or exploitation. This is commonly labeled "the slippery slope argument."

At the time Rodriguez was decided (1993), no other country had yet decriminalized PAS and, in consequence, there were few studies to confirm or to disconfirm the slopist fears.

Today, we possess ample data showing that slippery slope fears are unwarranted. Briefly, here is what the data show.

According to Linda Ganzini, an Oregonian psychiatrist who has done many studies of PAS in Oregon and in the Netherlands:

"We found that rates of assisted dying in Oregon and in the Netherlands showed no evidence of heightened risk for the elderly, women, the uninsured, (inapplicable in the Netherlands, where all are insured), people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses, including depression, or racial or ethnic minorities, compared with background populations."

Indeed, the safeguards in Oregon (and other jurisdictions) are so careful that, arguably, the disabled or otherwise vulnerable people are better protected by a regulated system than by one which entirely prohibits PAS. In Oregon, the criteria are public and decisions are made in the open by doctors who are accountable.

We know that PAS occurs in Canada, but since it occurs in the dark, with no safeguards, the risk of abuse is greater.

Critics predicted if PAS were decriminalized, we would quickly become the kind of society in which disabled or otherwise vulnerable people would be bumped off by the state to save money on palliative care.

Ironically, the opposite has happened. Places that have legalized PAS have some of the best palliative care in the world.

Moreover, what the data from Oregon shows is the number of people who access assisted dying is small and has shown little or no tendency to increase over time.

 Between 1997, when PAS became legal in Oregon, and the end of 2004, a total of only 208 patients used the act to end their lives.

During this period, the number of patients using the act increased during the first six years and fell slightly in the seventh year. But, out of approximately 30,000 annual deaths in Oregon, PAS accounted for only one in every 800, according 2005 figures from the Oregon Department of Health and Human Services.

The most recent data available from the Netherlands shows 2.8 per cent of deaths in 2010 resulted from euthanasia. This rate is comparable with those in 1995 and 2001.

That is, there has been no significant increase in the number of deaths from euthanasia over this fifteen year period of time. Moreover, distribution of sex, age and diagnosis were stable between 1990 and 2010.

The great majority of people who seek PAS are dying from metastatic cancer. Some, like Susan Griffiths, have terminal degenerative diseases. Most have access to and are receiving good quality palliative care but nevertheless are suffering greatly.

I will conclude by listing some of the legal safeguards for PAS applications in Oregon to convey a sense of how it is possible to allow patients the right to a dignified death while still protecting those who may be vulnerable to harm.

"The patient must be 18 years of age or older, resident in Oregon, the patient’s request must be made at least three times (two oral and one written) over a period of 15 days, with two witnesses to the written request. Both the attending and a second physician consultant must confirm that the patient has a disease that, within reasonable judgement will cause death within six months, that the patient is capable of making and communicating health care decisions, that the patient has been informed of all feasible alternatives, including hospice and comfort care and that the decision is voluntary. If depression or some other psychiatric disorder is suspected then either physician shall refer the patient to a psychiatrist or psychologist. PAS cannot then be administered until a mental health professional certifies that the patient is not suffering from a psychiatric disorder or depression which causes impaired judgement. VAE* is explicitly precluded as is PAS by advance directive. There is also a reporting requirement. Information about cases which fall under the Death with Dignity Act (DWDA) must be reported publicly on an annual basis."

*VAE stands for voluntary active euthanasia