The decision represents a reversal in the ironclad prohibition against assisting with suicide, no matter the circumstance. For now, that ban remains in place, but the court has given the provinces and the federal government 12 months to craft legislation that addresses the ruling. If they do nothing, the Court’s decision will take effect.
The Supreme Court came to a very different decision 21 years ago in the Rodrigues case when it upheld the conviction and jail sentence of a father who heeded his daughter’s pleas to be released from a life time of endless suffering with no hope of a cure.
Today public opinion has swung strongly in favour of decriminalizing doctor assisted suicide for the terminally ill who are suffering. According to a CBC article in December, the figure was 84%. Physicians who will bear the heavy burden of discharging a patient’s wishes in such circumstances are more divided. In the past, their professional association interpreted the Hippocratic Oath as requiring them to actively intervene to prevent death, even if the patient didn’t want the intervention and there was little or no quality of life and no hope of a cure. There is also the call of the physician’s individual conscience, and moral, religious beliefs that may restrain them from advocating for or participating in any course of treatment or withholding of treatment that shortens a person’s life. Indeed, a Canadian Medical Association poll found that only 26.7% of physicians would be willing to participate in assisted suicide, and only 20.0% would participate in voluntary euthanasia.
More broadly, attitudes are changing in part because the enormous advances in medicine, in providing a safe and clean environment and in countless other areas have increased our longevity by a substantial margin. When Otto von Bismarck introduced the first public retirement pension, the age of entitlement, at 65, was well beyond the average span of the German worker. It was a politically popular but fiscally inexpensive reform to introduce. Until recently, people reaching the age of 100 were remarkable individuals, worthy of a news story and a letter from the Queen. Now they are commonplace.
That is not to say the biological effects of aging have been fundamentally changed. We generally reach our physical peak somewhere in our twenties and our mental peak in our thirties. By age 60, the process of degeneration is well underway. By age 80 one third of all adults will suffer from some form of dementia.
Most of us have had the experience of visiting or actively caring for aging parents or other relatives and know friends who have gone through similar trials. And most of us have had occasion to visit long term care facilities. Some of us have held the hands of people grimacing in pain, struggling with discomfort and agitation. A few may even have had the harrowing experience of holding a loved one who clearly wants an end to pain, or who resents the indignity of helplessness.
Just as the abortion debate has moved from societal imposition of criminal sanctions to the broad consensus that these are individual choices, so too there is an emerging consensus that the choice of where and how to die ought to be left to the individual to choose, not the state. What I speak of here is treatment or the limitation of treatment to palliative care – the relief of suffering only.
When the lawyers in our firm are asked to do a Will for someone, particularly someone at the age of retirement with the children grown and gone, we suggest that, if they haven’t already done this, that they do Powers of Attorney for Personal Care and Property. We often suggest that the Power of Attorney for Personal Care be someone who will be sympathetic and caring, not necessarily the best financial manager, but someone who can be counted on to make the right choices. We also suggest that the client review with their Power of Attorney for Personal Care the choices that the client themselves wishes to make and we encourage them to make the choices now, while they have a clear mind and can readily comprehend the consequences of what they are choosing. The device we suggest they consider using is a health care directive.
McMaster University in Hamilton, Ontario was the first school of medicine in Canada to offer a specialization in geriatrics. My uncle, Dr. Ronald Bayne, joined the faculty of medicine in McMaster in order to start up this program – he was the first specialist in geriatrics in Canada. Part of McMaster’s innovative approach to medicine was to empower patients to make choices in advance. McMaster reached out to our firm and others to collaborate on the process of coming up with something that might have legal force and effect, while still speaking the language of doctors, but in a way in which the patients could understand the consequences, both in terms of how long it would take them to die and how painful that process would be for each of the choices they were making. Most of the choices were treatments that overcame natural processes that were shutting down: intubation to introduce food directly into the stomach when the swallowing function had stopped, glucose IVs to replace fluids, oxygen to supplement shortness of breath, etc.
The Health Care Directive which we use is very much our own product, and not something endorsed by either McMaster or some group of lawyers specializing in this field. It does speak in quite technical, medical language, and is specifically designed to be completed by the client/patient in consultation with their family doctor, who can explain in clear, graphic layman’s language what the consequences will be, both in terms of prolongation of life and suffering. If the doctor is prepared to do this, and also is prepared to assist in giving effect to it, we ask that the doctor sign off on the medical health directive and keep the original copy with the patient’s chart in his or her office.
A word of warning. Care decisions are intensely personal and no one can take the power of a person to make those choices away from them, not even the person themselves. At the point at which they are in the hospital, suffering from a terminal illness or accident, in pain, the medical staff will still be obliged to ask them whether or not they want treatment, often in terms that will strongly suggest that they should accept intervention. If the patient gives consent, (and it may be nothing more than the squeeze of a finger or the batting of an eyelash), the doctors will proceed. A Power of Attorney for Personal Care is only valid at the point at which the patient or client is no longer capable of making decisions – either because they are demented or because they are in a coma.
A second word of warning. A Power of Attorney is not obligated to necessarily follow a health care directive. The doctors can present alternatives to the POA and, if the POA chooses intervention, the doctors must obey. That is why it is important, we say, for the client to choose someone to be their Power of Attorney for Personal Care who will be tough minded enough to follow through on the wishes of the person who is creating the health care directive, and not substitute their own discretion. These are, after all, your choices, and if you are going to make them, the expectation is that you will want them followed. Whether you actually go through the health care directive with the POA is a matter of choice. Often the POA is affronted or upset at the detail. Sometimes simply broad strokes is all that is required – “I have completed a health care directive and it is with the family doctor – please follow it”.
Nothing, of course, will stop an emergency room team from dealing with whatever crisis brings you into the hospital. Where the health care directive comes into force is once you are stabilized. At that point normally the hospital will reach out to the family doctor and the family doctor will bring the health care directive to the hospital or transmit it to them. The doctor supervising treatment in the hospital sometimes will make a call directly to the family doctor just to reassure himself that the family doctor is confident that the patient knew what he or she was doing when they made these choices.
There are no guarantees. There is no magic formula. All each of us can do who want to control their end of life quality of life is make provisions now if they want to. There is no requirement to do so. As public acceptance of an individual person’s right to control each aspect of their life, including dying, increases, we expect that these choices, increasingly, will be accepted as commonplace. Even now we are pleased to report that in most cases they are being accepted and followed. After all if you, in the fullness of your capacities and in good health, make choices clearly knowing what the consequences are, who else is in a better position to make these decisions for you?
The choice is yours. We are here to assist if you wish.
For assistance in evaluating your estate matters, please contact Douglas Menzies at 613-722-1313 ext. 222.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation, family law, and estate matters. This blog article by Douglas Menzies is for informational purposes only and does not constitute legal advice.