Physician Assisted Suicides and Euthanasia in Canada

1| Purvi Thaker

Assignment 3: Physician Assisted Suicides and Euthanasia in Canada

(Protecting Medical Practitioners’ from Conviction on Grounds of Violation of Criminal Code)

Purvi Thaker

PPOL 611: Social Policy in Canada

Dr. Loreen Gilmour

April 9, 2015

2| Purvi Thaker

Table of Contents

Executive Summary 3

1. Introduction 4-5

1.1Policy Issue and Historical Background

1.2 Assisted Suicide and Euthanasia: Definitions and Differences

2.Literature review 5-7

2.1.Legislation governing Euthanasia and Assisted Suicide

2.2Charges Against Physicians in Canada in the past for practicing

Euthanasia and Assisted Suicide: Lessons learnt from past experiences in

Canada

3. Research question, goals, and strategies: Policy Recommendation 7-10

4. Other Alternatives (The Garbage Can Model) 10-13

5.Conclusion 13

Bibliography 14

3| Purvi Thaker

Executive Summary

Advances in medical treatments have raised the average life expectancy of people in Canada.

However, it fails to guarantee a perfectly healthy life for people who experience incurable diseases. The

rising interest in Euthanasia and Assisted Suicide in Canada, is an outcome of the desire of people to

have a greater control over their lives in terms of their capacity to determine death when the patients are

terminally ill.

In February 2015, the Supreme Court of Canada struck down the Criminal Code laws prohibiting

physician-assisted suicide, making it no longer against the law for a doctor to help someone who is ill

and suffering to end their life. The ruling raises several concerns over the role of physicians in guiding

their terminally ill patients to dignified death. Learning from the past cases in Canada, where many

physicians, who provided proper and ethical treatment to their terminal patients, incurred a violation of

certain sections of Criminal Code, the paper proposes to re-introduce Bill C-407, An Act to Amend the

Criminal Code (right to die with dignity) in the House of Commons.

The Bill, which did not get debated upon in the year 2005 due to dissolution of Parliament, has

provisions that safeguard the physicians from violating the Criminal Code, by amending sections 14

(Consent to Death), 22(Homicide) and 241(Counselling or aiding suicide) of the Criminal Code,

provided certain criteria are met. The paper also proposes that the legislation and implementation of the

Bill be made a federal issue so as to avoid risks of discrepancy in practice of euthanasia and assisted

suicide across Canada.

4| Purvi Thaker

1. Introduction

1.1 Policy Issue and Historical Background

In February 2015, the Supreme Court of Canada, in a unanimous 9-0 decision, struck down the

Criminal Code laws prohibiting physician-assisted suicide, making it no longer against the law for a

doctor to help someone who is ill and suffering to end their life.1The Supreme Court however,

suspended its ruling for 12 months to allow for new rules and laws to be drafted.2 Legalizing the right to

physician assisted suicide and euthanasia will mean putting the physicians at the center of the debate,

making them powerful, yet vulnerable. In a variety of cases in Canada, physicians have been convicted

for assisting suicide, withdrawing medical treatment at the request of terminally ill patient or where

treatment is not in best interests of the patient and counselling pain-relieving drugs that hastened the

patient’s death as a side effect.3 Effective and concrete drafting of laws on assisted suicide and

euthanasia is required to protect the physicians who provide proper and ethical treatment to their

terminal patients but, by doing so also incur the possibility of violating certain sections of Criminal

Code. This paper proposes reintroducing Bill C-407, An Act to Amend the Criminal Code(right to die

with dignity), with respect to Assisted Suicide and Euthanasia to protect the rights of physicians and

deal fairly with those choosing death over remaining terminally ill.

1.2 Assisted Suicide and Euthanasia: Definitions and Differences:

In order to understand how the legalization of assisted suicide and euthanasia can affect the

physicians, it is important to review the legal definitions of both the phenomena, adopted in Canada.

Special Senate Committee on Euthanasia and Assisted Suicide, Of Life and Death,4 defines Assisted

Suicide in the given way:

“Assisted suicide is the act of intentionally killing oneself with the assistance of another who

provides the knowledge, means or both. Euthanasia on the other hand, means knowingly and

intentionally performing an act, with or without consent, that is the deliberate act undertaken by one

1 “Supreme Court strikes down Canada’s assisted suicide laws,” Global News, last modified February 6, 2015 http://globalnews.ca/news/1740699/alberta-government-approves-tuition-hikes-in-25-programs/. 2 “Supreme Court rules Canadians have right to doctor-assisted suicide,” Global News, last modified February 7, 2015 http://www.theglobeandmail.com/news/national/supreme-court-rules-on-doctor-assisted-suicide/article22828437/ . 3 Butler Martha, Nicol Julia, Tiedemann Marlisa and Valiquet Dominique, Euthanasia and Assisted Suicide in Canada, Library of Parliament, 2013, 16, http://www.parl.gc.ca/Content/LOP/ResearchPublications/2010-68-e.htm. 4 Senate of Canada, Of Life and Death, Report of the Special Senate Committee on Euthanasia and Assisted Suicide, June 1995.

5| Purvi Thaker

person with the intention of ending the life of another person in order to relieve that person’s suffering.

Euthanasia can be voluntary and non-voluntary depending upon whether the act is undertaken in

accordance with or without the consent of a competent individual. Involuntary euthanasia is

indistinguishable from murder or manslaughter. It occurs when the act is done against the wishes of a

competent individual or a valid directive.”

Essentially, there is a difference between euthanasia and assisted suicide, which are used

interchangeably, almost everywhere. In this paper hence, we discuss both the terms and the impact of

legalization of both on the physicians.

2. Literature Review

2.1 Legislations governing euthanasia and assisted suicide

The principle legislation that governs euthanasia and assisted suicide in Canada is the Criminal Code.

According to Section 14 of the Criminal Code,

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 have been inflicted on the person by whom

consent is given.

Thus, a physician is criminally liable if at the request of a patient, he administers the patient with

a lethal dose or knowledge. In other words, a physician is criminally accountable for euthanasia as well

as guiding an assisted suicide.

Other section of the Criminal Code that make a physician liable for a patient’s death even when

the physician deals in ethical and proper treatment of a terminally ill patient, are:

1. section 215(Duty of persons to provide necessaries)

2. section 216(Duty of persons undertaking acts dangerous to life)

3. section 217(Duty of persons undertaking acts)

4. section 219(Criminal negligence)

5. section 220 (Causing death by criminal negligence)

6. section 221(Causing body harm by criminal negligence)

7. section 22(Homicide)

8. section 229(Murder)

6| Purvi Thaker

9. section 231 (Classification of murder)

10. section 234 (Manslaughter)

11. Section 245 (Administering noxious thing)

12. Section 265 and subsequent (various assault and bodily harm provisions)

Given the above sections of the Criminal Code, a physician practicing euthanasia could be expected

to get convicted on grounds of a first-degree murder since it involves both , the intent to cause death

(definition of murder) and the act is most often planned and deliberate (the definition of a first degree

murder). Charges in Canada have ranged from administering noxious substance, to manslaughter, to

murder.5

2.2 Charges Against Physicians in Canada in the past for practicing Euthanasia and Assisted

Suicide: Lessons learnt from past experiences in Canada

In the past, in Canada, there have been numerous cases where assisted suicides have been treated

at par with manslaughter and attempted murder. In some cases, judges have declined to commit the

physicians and in some cases, the physicians have borne the brunt of violating the Criminal Code. In yet

other cases, physicians have been found misusing their authority and put in words of those against

legalizing euthanasia and assisted suicide, killed the hope of life! Some case have been discussed in

brief below:

(A) The Case of Dr,Nancy Morrison:

On May 6, 1997, Dr.Nancy Morrison was arrested on a charge of first-degree murder in the death

of a terminally ill cancer patient. Mr.Mills had cancer of the esophagus which required the

physician to remove the esophagus and repair the gap by repositioning the stomach. By 1996

there was no hope that Mr.Mills would recover. Family of the patient was consulted with usual

procedures in such circumstances and it was decided to discontinue active life support for

Mr.Mills by an agreement. Mr. Mills was taken off the ventilator and administered lethal doses of

pain control drugs. Continuous distress of Mr.Mills led Dr.Morrison to administer first

nitroglycerine, and then inject potassium chloride by syringe, which eventually stopped Mr.Mill’s

heart.

5 Butler Martha, Nicol Julia, Tiedemann Marlisa and Valiquet Dominique, Euthanasia and Assisted Suicide in Canada, Library of Parliament, 2013, 16, http://www.parl.gc.ca/Content/LOP/ResearchPublications/2010-68-e.htm.

7| Purvi Thaker

In February 1998, Judge Hughes Randall declined to commit Dr.Morrison to stand trial. His

argument was that Mr.Mills had already been given pain killers in heavy amount event before

Dr.Morrison administered the same to him which would have led to eventual death of Mr.Mills.6

(B) Doctor Maurice Genereux’s Case (1998):

Doctor Maurice Genereux, in 1998 was convicted of assisted suicide. He plead guilty of abetting

and aiding two HIV patients who were not terminally ill, to commit suicide. The patients as per

the doctor, were deep into depression, and could have taken drugs to suicide sooner or later. The

court sentenced him to two years less one day in jail and three years of probation, rigorous than

most sentences in cases of assisted suicide and because the Ontario Court of Appeal withheld the

sentence, he lost his license to practice.7

(C) The Case of Ramesh Kumar Sharma:

Ramesh Kumar Sharma, a general practitioner was convicted for aiding the suicide of a 93-year

old heart patient, Ruth Wolfe and sentenced to conditional confinement of two years less one day

to be served in the community. Dr.Sharma’s license to practice was also revoked by the

province’s college of physicians.8

The cases cited have been one of a kind and lead to various debates about the role of physicians

and their liabilities and whether the physicians can decline requests of terminally ill patients for

assisted suicide.

It can hence be thought that a change in legal status of these practices in Canada would represent

a major shift in social policy behavior and the importance attached to physicians on the issue of

assisted suicide and euthanasia.

3. Research Question, Goals, and Strategies: Policy Recommendation

a. Research question:

This research paper aims to answer the question of protection of physicians in the context of

legalization of euthanasia and assisted suicide. The primary research question that the paper examines is:

6 Ibid. 7 Ibid. 8 Ibid.

8| Purvi Thaker

How will the physicians be protected against getting convicted of false charges if euthanasia and

assisted suicide are legalized in Canada?

b. Goals (ranked):

Aligned to this research question is the associated goals that are ranked in terms of priorities as follows:

i. Protecting physicians if euthanasia and assisted suicide are legalized and establishing conditions

for the denial and acceptance of a particular case by the physicians.

ii. Ensure that those who are vulnerable do not bear the brunt of legalization of assisted suicide and

euthanasia.

c. Strategies for remedy (to achieve goals):

i. Re-introducing Bill C-407, An Act to Amend the Criminal Code (right to die with dignity) in the

House of Commons. The bill was introduced by a private member in June 2005, but did not get

debated upon because of dissolution of the Parliament. Bill C-407 would have amended sections

14(Consent to Death), 222(Homicide), and 241 (Counselling or aiding suicide) if the Criminal

Code so that, provided that certain criteria are met, a person who assists another person to die

would neither be committing a homicide nor counselling or aiding suicide. 9

ii. Mandate “advance directives” for patients undergoing treatments that deal with “end of life”

decision.

9 Ibid.18

9| Purvi Thaker

d. Possible consequences:

i. Bill C-407, in its essence, did not make it clear that it would be the medical practitioner or a

physician who would legally aid a patient to die with dignity. If the bill is reintroduced without

any changes on this particular concern, there could be discrepancies in terms of the person

assisting death and the power could be misused by other people in-charge.

ii. End of life decisions are challenging particularly given the fact that at times, the course of mental

or physical condition of patients who are seriously ill cannot be known in advance. A patient

may hope to recover, even in worse situations and may not have given advance directives, in the

absence of which, according to the bill, the person shall not be granted the right to die with

dignity, even with the aid of physician.

e. Best policy to achieve goals:

Reintroduce Bill C-407, in the House of Commons as soon as possible to be debated upon so that

it does not meet with the same consequence of that of the last time in the name of dissolution of

WHAT DID BILL C-407 LOOK LIKE?

Bill C- 407 would have amended sections 14 (Consent to Death), 222(Homicide) and 241(Counselling or

aiding Suicide) of the Criminal Code. The Bill would have required that the individual whose death is

assisted:

Be at least 18 years old;

Be either experiencing “severe physical or mental pain without any prospect of relief” or

terminally ill;

Have, while appearing to be lucid, made two requests more than 10 days apart stating his or her

free and informed wish to die; and

Have designated in writing someone to act for him or her “with respect to the person who aids him

or her to die, and with respect to any medical practitioner” in the event that the individual appears

not be lucid.

The bill would also have required that the person who is assisting the death:

Be a medical practitioner or be assisted by a medical practitioner;

Have received confirmation of the diagnosis, from one or two medical practitioners( depending on

whether the person assisting death is a medical practitioner);

Be entitled by the law to provide health services or be assisted by a team of people so entitled;

Act as directed by the individual whose death is assisted; and

Provide the coroner with a copy of the diagnosis from one or two medical practitioners (depending

on whether the person assisting the death is a medical practitioner).

10| Purvi Thaker

Parliament. The bill is fair framework of dealing with the issue of legalization of euthanasia and

assisted suicide and the problems associated with “who will guide the assisted suicide” can be

taken care of by replacing the words “medical practitioners” in the original clause

“Have received confirmation of the diagnosis, from one or two medical practitioners (depending

on whether the person assisting death is a medical practitioner);” by the word “physician”. The

Bill could also contain details on the advance directives to be issued by the patient who seeks to

end life by the means of assisted suicide or euthanasia.

f. Best time to implement Bill C-407:

Since the Supreme Court of Canada has left the decision of legalization open to Parliament, it is

still unclear as to whether any bill let alone Bill C-407 will be introduced in the House of Commons.

4. Other Alternatives (The Garbage Can Model):

a. Policy process (independent of one another)

I. Problems:

Protecting the rights of physicians in case euthanasia and assisted suicide are legalized in Canada

by the government.

Minors and incompetent patients are at a risk given the legal status of euthanasia and assisted

suicide.

II. Solutions:

Introduce Bill C-407 in the House of Commons at the earliest if the government decides to

respect the decision of the Supreme Court.

Introduce a clause of advance directives in the Bill to protect vulnerable patients and minors

from the side effects of legalization of euthanasia and assisted suicide.

III. Politics:

The Supreme Court has left the decision on the Parliament on whether to respect the ruling of

Supreme Court and legalize euthanasia and assisted suicide or not. Justice Minister Peter MacKay, after

the decision of Supreme Court was announced, has said that the government is reviewing the decision.

Conservative MP Steven Fletcher who became quadriplegic after a car accident almost 20 years ago

already gave a signal that the government would leave the legislating process up to the provinces, since

11| Purvi Thaker

health is a provincial matter in Canada however, the federal government will ensure that the vulnerable

are protected. Supreme Court’s decision also confirms that legislating the regulation over health care can

be handled both by the provincial and the federal governments, also outlining that Quebec passed a law

to facilitate medical aid in dying last year.10 The prevalence of federal-provincial responsibility debate

and the delays in consideration of the apex court’s decision by the federal government, both can be seen

as adherence to the individualistic and non-interfering behavior of the government towards an issue

central to palliative health care in Canada.

IV. Resolving the Crisis:

a. Public Perception:

There is a mixed reaction to the decision of Supreme Court on legalizing euthanasia and assisted

suicide. “There are some factors that shape public opinion when it comes to doctor-assisted suicide.

Does suffering from a terminal disease impact how one feels about physician assisted suicide? What if a

loved one thought their health care was a burden to their family?”11 An online survey by The Angus

Reid Institute revealed that most Canadians support doctor-assisted suicide, but they are still divided on

the specific circumstances under which assisted suicides are sought.12

When asked about approval for changing the Criminal Code to allow doctors to prescribe lethal drugs to

patients who want to die, survey respondents answered as follows:13

Strongly Approve:37%

Moderately Approve:42%

Moderately Disapprove:8%

Strongly Disapprove:10%

10 “Supreme Court strikes down Canada’s assisted suicide laws,” Global News, last modified February 6, 2015 http://globalnews.ca/news/1740699/alberta-government-approves-tuition-hikes-in-25-programs/. 11 “Most Canadians support doctor-assisted suicide, but specifics reveal divisions,” Global News, last modified December 17, 2014 http://globalnews.ca/news/1731716/most-canadians-support-doctor-assisted-suicide-but-specifics-reveal-divisions/ 12 Ibid. 13 Ibid.

12| Purvi Thaker

“There are scenarios under which the vast majority of Canadians – those 42 per cent who say they

moderately support physician-assisted suicide– are actually drawing a line and saying, ‘Under certain

circumstances, we don’t support it.'”14

Thus, although the general public perception supports chaging the Criminal Code to legalize physician

assisted suicide, there are wider variations dividing general perception, given specific circumstances.

b. Current Political Agenda:

Currently, the federal government does not seem to have legalizing euthanasia and physician assisted

suicide on its agends as highlighted by statements from Justice Minister Peter McKay and Conservative

14 Ibid.

13| Purvi Thaker

MP Steven Fletcher.Introduction of Bill C-407 will require that the agends first move up in the scale of

preferred debates in the House of Commons. Another point of contention could be the politics involved

with the responsibility of regulating the law. The federal govenrment would want the provincial

governments to look after necessary amendments and implement the Bill since health falls under the

purview of provincial matters.

c. Paritipants:

Participants (or stakeholders in othe words) include governments at both, the federal and provincial

levels, vairous Medical Associations (The Canadian Medical Association for example), Patients who are

terminally ill ( and those who seek to die with the help of physicians), Judiciary (lawyers, who shall

guide drafting of the advance directives, judges and legal advisors) and Non-Governmental

Organizations (NGOs) that advocate for and against assisted suicide and euthanasia and Physicians ,who

are going to be at the serving end of the whole debate.

5. Conclusion:

In conclusion, there are still heavy discussions revolving around the topic of euthanasia and assisted

suicide. In order to protect the doctors from the unintended consequences of getting convicted even

while they perform their duties ethically, it is imperatvie that a bill like be Bill C-407 be introduced in

the House of Commons, making it an issue of federal importance. Giving a federal consideration to the

entire debate of legalizing euthanasia and assisted suicide will guarantee levelled implementation of the

laws throughout enitre Canada, protecting physicians not only in particular provinces under particular

circumstances but allowing the physicians in Canada to follow a standardised procedure in assiting their

patients with dignified deaths.As a final note, it will be a good proposal to legalising euthanasia and

assisted suicide in Canada because it can save thousands of patients in the country, hours of gruelling

pain and suffering instead of dying a peaceful death and help the physicians, cater to their patients’

needs without compromising on their ethics and conscience.

14| Purvi Thaker

Bibliography

Butler Martha, Nicol Julia, Tiedemann Marlisa and Valiquet Dominique, Euthanasia and Assisted

Suicide in Canada, Library of Parliament, 2013, 16,

http://www.parl.gc.ca/Content/LOP/ResearchPublications/2010-68-e.htm.

“Most Canadians support doctor-assisted suicide, but specifics reveal divisions,” Global News, last

modified December 17, 2014 http://globalnews.ca/news/1731716/most-canadians-support-doctor-

assisted-suicide-but-specifics-reveal-divisions/

Senate of Canada, Of Life and Death, Report of the Special Senate Committee on Euthanasia and

Assisted Suicide, June 1995.

“Supreme Court strikes down Canada’s assisted suicide laws,” Global News, last modified February 6,

2015 http://globalnews.ca/news/1740699/alberta-government-approves-tuition-hikes-in-25-programs/

“Supreme Court rules Canadians have right to doctor-assisted suicide,” Global News, last modified

February 7, 2015 http://www.theglobeandmail.com/news/national/supreme-court-rules-on-doctor-

assisted-suicide/article22828437/ .

15| Purvi Thaker