Euthanasia - International Position - Legal Position in Canada

In Canada, physician-assisted suicide is illegal as per Section 241(b) of the Criminal Code of Canada. The Supreme Court of Canada in Rodriguez (supra) has drawn a distinction between "intentional actor" and "merely foreseeing".

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

Common Cause (A Regd. Society) ...Petitioner(s)

Versus

Union of India and Another …Respondent(s)

J U D G M E N T

Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

H.4 Legal Position in Canada:

101. In Canada, physician-assisted suicide is illegal as per Section 241(b) of the Criminal Code of Canada. The Supreme Court of Canada in Rodriguez (supra) has drawn a distinction between ―intentional actor‖ and ―merely foreseeing‖. Delivering the judgment on behalf of the majority, Justice Sopinka rejected the argument that assisted suicide was similar to the withdrawal of life-preserving treatment at the patient‘s request. He also rejected the argument that the distinction between assisted suicide and accepted medical treatment was even more attenuated in the case of palliative treatment which was known to hasten death. He observed:-

―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.‖

He added:-

―In my view, distinctions based on 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.‖

102. The Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 held that the prohibition on physicianassisted death in Canada (in Sections 14 and 241(b) of the Canadian Criminal Code) unjustifiably infringed the right to life, liberty and security of the person in Article 7 of the Charter of Rights and Freedoms in the Canadian Constitution.

103. The Supreme Court declared the infringing provisions of the Criminal Code void insofar as they prohibit physicianassisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‗Irremediable‘, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.

104. After the Supreme Court‘s decision, the Canadian Government appointed a Special Joint Committee on Physician-Assisted Dying to ‗make recommendations on the framework of a federal response on physician assisted dying in consonance with the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians‘. The Special Joint Committee released its report in February 2016 recommending a legislative framework which would regulate ‗medical assistance in dying‘ by imposing both substantive and procedural safeguards, namely:-

Substantive Safeguards:

· A grievous and irremediable medical condition (including an illness, disease or disability) is required;

· Enduring suffering that is intolerable to the individual in the circumstances of his or her condition is required;

· Informed consent is required;

· Capacity to make the decision is required at the time of either the advance or contemporaneous request; and

· Eligible individuals must be insured persons eligible for publicly funded health care services in Canada.

Procedural Safeguards:

· Two independent doctors must conclude that a person is eligible;

· A request must be in writing and witnessed by two independent witnesses;

· A waiting period is required based, in part, on the rapidity of progression and nature of the patient‘s medical condition as determined by the patient‘s attending physician;

· Annual report analyzing medical assistance in dying cases are to be tabled in Parliament;

and

· Support and services, including culturally and spiritually appropriate end-of-life care services for indigenous patients, should be improved to ensure that requests are based on free choice, particularly for vulnerable people.

105. It should be noted that physician assisted dying has already been legalized in the province of Quebec. Quebec passed an Act respecting end-of-life care (the Quebec Act) in June 2014 with most of the Act coming into force on 10 December, 2015. The Quebec Act provides a ‗framework for end-of-life care‘ which includes ‗continuous palliative sedation‘ and ‗medical aid in dying‘ defined as ‗administration by a physician of medications or substances to an end-of-life patient, at the patient‘s request, in order to relieve their suffering by hastening death. In order to be able to access medical aid in dying under the Quebec Act, a patient must:-

(1) be an insured person within the meaning of the Health Insurance Act (Chapter A-29);

(2) be of full age and capable of giving consent to care;

(3) be at the end of life;

(4) suffer from a serious and incurable illness;

(5) be in an advanced state of irreversible decline in capability; and

(6) experience constant and unbearable physical or psychological suffering

(7) which cannot be relieved in a manner the patient deems tolerable.

106. The request for medical aid in dying must be signed by two physicians. The Quebec Act also established a Commission on end-of-life care to provide oversight and advice to the Minister of Health and Social Services on the implementation of the legislation regarding end-of-life care.