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Full text of "Study paper on assisted suicide, euthanasia and foregoing treatment : a study paper"

STUDY PAPER 



ASSISTED SUICIDE, EUTHANASIA 
AND FOREGOING TREATMENT 



ONTARIO LAW REFORM COMMISSION 



^t 



3^T* 



Ontario 



Digitized by the Internet Archive 

in 2011 with funding from 

Osgoode Hall Law School and Law Commission of Ontario 



http://www.archive.org/details/studypaperonassiOOgilm 



STUDY PAPER 

ON 

ASSISTED SUICIDE, EUTHANASIA 
AND FOREGOING TREATMENT 



ONTARIO LAW REFORM COMMISSION 




A Study Paper prepared for the 

Ontario Law Reform Commission 

by 

JOAN M. GILMOUR 

With additional chapters by 

KAREN CAPEN 

BARNEY SNEIDERMAN 

MARJA VERHOEF 



Ontario 



1996 



The Ontario Law Reform Commission was established by the Ontario Government in 1964 as an 
independent legal research institute. It was the first Law Reform Commission to be created in the 
Commonwealth. It recommends reform in statute law, common law, jurisprudence, judicial and 
quasi-judicial procedures, and in issues dealing with the administration of justice in Ontario. 



Commissioners 

John D. McCamus, MA, LLB, LLM, Chair 
Nathalie Des Rosiers, LLB, LLM 
Sanda Rodgers, BA, LLB, BCL, LLM 
Judge Vibert Lampkin, LLB, LLM 

Counsel 

J.J. Morrison, BA (Hon), LLB, LLM, Senior Counsel 
Donald F. Bur, LLB, LLM, BCL, PhD 
Barbara J. Hendrickson, MA, LLB, LLM 
Howard Goldstein, BA (Hon), MES, LLB, LLM 

Chief Administrator 

Mary Lasica, BAA 

Secretaries 

Tina Afonso 
Cora Calixterio 



The Commission's office is located on the Eleventh Floor at 720 Bay Street, Toronto, Ontario, 
Canada, M5G 2K1. Telephone (416) 326-4200. FAX (416) 326-4693. 



Canadian Cataloguing in Publication Data 

Gilmour, Joan. 

Study paper on assisted suicide, euthanasia and foregoing treatment 

Includes bibliographical references. 
ISBN 0-7778-5943-2 

1 . Assisted suicide-Law and legislation-Ontario. 2. Euthanasia-Law and legislation-Ontario. 
3. Rights to die-Law and legislation-Ontario. I. Capen, Karen. II. Sneiderman, Barney. 
III. Verhoef, Marja J. (Marja Jannie), 1948- IV. Ontario Law Reform Commission. II. Title. 



KE0724.G54 1997 347.7 13 '04 197 C97-964002-4 




Ontario 



Ontario 
Law Reform 
Commission 



The Honourable Charles Hamick 
Attorney General for Ontario 



Dear Attorney: 

I have the honour to submit the Ontario Law Reform Commission's Study 
Paper on Assisted Suicide, Euthanasia and Foregoing Treatment. . 




December, 1996 



John D. McCamus 
Chair 



TABLE OF CONTENTS 

Page 

Acknowledgments ix 

List of Contributors x 

INTRODUCTION* 1 



CHAPTER 1 HISTORICAL FRAMEWORK OF MEDICAL AND 
JUDICIAL INITIATIVES REGARDING SUICIDE, 
EUTHANASIA AND ASSISTED SUICIDE: ENGLAND, 
U.S. AND CANADA By Karen Capen 7 

\. Introduction 7 

2. Definitions of Terms 10 

3. The Twentieth Century 12 

(a) England 12 

(b) The United States 16 

(c) Canada 25 

CHAPTER 2 DEFINITIONS OF DEATH 35 

CHAPTERS COMMON LAW 41 

L Decisionally Capable Patients 41 

2. Decisionally Incapable Patients 48 

(a) Patients with Advance Directives 48 

(b) Patients Without Advance Du-ectives 50 

CHAPTER 4 PROVINCIAL LEGISLATION AND PROFESSIONAL 

REGULATION 53 

1. The Health Care Consent Act 53 

2. The Substitute Decisions Act 60 



Joan M. Gilmour is the author of the Introduction and of subsequent chapters unless otherwise indicated in 
the table of contents. 



[V] 



VI 

3. The Child and Family Services Act 63 

4. Professional Regulation 70 

(a) The Regulated Health Professions Act and Profession-Specific Acts 70 

(b) Professional Organizations: Ethical Standards 72 

5. The Ontario Human Rights Code 75 

CHAPTER 5 CRIMINAL LAW 89 

1. Assisted Suicide 91 

2. Culpable Homicide 94 

3. Motive; Consent 96 

4. Criminal Negligence 98 

5. Necessaries of Life 102 

6. Other Duties 104 

7. Administering a Noxious Thing 104 

8. Summary 104 

CHAPTER 6 ENFORCING THE LAW: CRIMINAL LIABILITY, 

INQUESTS AND PROFESSIONAL DISCIPLINE 105 

1. Criminal Liability 105 

2. Criminal Liability of Health Care Providers 107 

3. Criminal Liability of Family Members 109 

4. Other Enforcement Mechanisms: Inquests and Professional Discipline 1 14 

5. Evaluating The Likelihood of Criminal Liability 1 16 

CHAPTER 7 CONSTITUTIONAL RIGHTS 121 

1. The Reach of The Charter 121 

2. The Charter Rights 124 

3. Comparative Constitutional Law: The United States 129 



Vll 

4. Decisionally Incapable Patients 131 

CHAPTER 8 CURRENT LEGISLATIVE AND JUDICIAL 

APPROACHES TO EUTHANASIA AND ASSISTED 
SUICIDE: ENGLAND AND THE UNITED STATES 

By Karen Capen 135 

1. Introduction 135 

2. England 137 

3. United States 145 

CHAPTER 9 EUTHANASIA IN THE NETHERLANDS 

By Barney Sneiderman and Mar j a Verhoef 179 

1. Introduction 179 

2. The Law 181 

(a) The Genesis of a Medico-Legal Policy 181 

(b) Procedural Safeguards 190 

(i) Consultation 190 

(ii) Reporting 191 

(iii) Comment on Failures to Consult and Report 192 

3. The Dutch Health Care System and Socio-Cultural Factors 193 

(a) The Health Care System 193 

(b) Socio-Cultural Factors 194 

4. The Data 196 

(a) The van der Wal Study 196 

(b) The Remmelink Commission Study 198 

(i) Euthanasia 199 

(ii) Life-Terminating Acts Without Explicit Request (LAWER) 200 

(iii) Alleviating Pain and Symptoms (APS) 205 

(iv) Non-Treatment Decisions 206 



Vlll 

(v) Commentary on The Euthanasia and LAWER Data 206 

5. Commentary On Nursing Homes And Palliative Care 209 

(a) Nursing Homes 209 

(b) Palliative Care and Pain Control 210 

6. Conclusion 212 

CHAPTER 10 AUSTRALIA 215 

CHAPTER 1 1 THE HEALTH CARE CONSENT ACT: APPLYING 

THE GUIDANCE PRINCIPLES 219 

1. Prior Capable Wishes 219 

2. Best Interests 221 

(a) Making Decisions 222 

(b) Withholding and Withdrawing Treatment 224 

(c) Artificial Nutrition and Hydration 224 

(d) Palliative Care 226 

(e) Evaluating Decisions: Intervention Principles 228 

3. Futility 229 

(a) Decision-Makers and Determinations .....229 

(b) Persistent Vegetative State 235 

CHAPTER 12 CRIMINAL LAW; THE QUESTION OF REFORM 239 

1. Separate Treatment for Compassionate Homicide 239 

2. The Criminal Law and Aid in Dying 243 

(a) Assisted Suicide 246 

(b) Voluntary Euthanasia 258 

CHAPTER 13 RECOMMENDATIONS AND OPTIONS FOR REFORM 261 

APPENDIX A 263 



ACKNOWLEDGMENTS 



Joan M. Gilmour 

Appreciation is expressed go to a number of colleagues and friends who read parts of the 
study paper in draft form, in particular, Dianne Martin, Alan Grant, Judith Keene, Judith Wahl, 
and Jamie Cameron. I also wish to thank the groups and individuals who generously gave their 
time and expertise in consultations on the project. They are listed in Appendix A to the study 
paper. I was fortunate to have able and enthusiastic research assistants who worked with me at 
various times over the course of this project: Barbara Watson, Wendy Sutton, Laura Boujoff and 
Suzanne Craig and the assistance of the Commission's librarian, Carol Frymer. As well, I would 
like to thank my secretary, Jeniffer Hosein, for her helpfulness and care through many revisions. 
My family's patience and encouragement has been invaluable. Finally, I wish to extend my 
appreciation to the Ontario Law Reform Commission for its support of work in this difficult and 
challenging area. 



Karen Capen 

Karen Capen would like to acknowledge the diligent and thoughtftil research assistance of Diane 
Woolard. 



Barney SNEroERMAN and Marja Verhoef 

Barry Sneiderman and Marja Verhoef express their appreciation to Professor Johan Legemaate 
of Erasmus University in Rotterdam for his kindly assistance in the preparation of their chapter. 



[ix] 



LIST OF CONTRIBUTORS 



Joan M. GUmour is the principal author of this Study Paper. Professor Gilmour is a member of 
the faculty of Osgoode Hall Law School of York University in Toronto, Ontario. She obtained 
her B.A. and LL.B. degrees from the University of Toronto, and after engaging in the private 
practice of law, obtained her master's degree and doctorate in law from Stanford University. She 
is a member of the Bars of Ontario and British Columbia. An important focus of her research 
and teaching and her practice is health law. 

Karen Capen holds the degrees, MA, BCL and LL.B. having graduated from the McGill 
Faculty of Law National Programme in 1992. She is a member of the Ontario Bar. She 
provides legal and consulting services on medical/ethical topics, including the development 
of briefs on proposed health care-related legislation. She is a regular contributor to the 
Canadian Medical Association Journal on cases dealing with issues of confidentiality of 
medical records, informed consent, the physician-patient relationship, etc. She has presented 
workshops on Canadian legislative initiatives at the Canada-U.S. Forum on Women's Health. 
She is currently a doctoral candidate at Montreal's Concordia University, studying 
reproductive health and effective decision-making. 

Barney Sneiderman has been a member of the Faculty of Law of the University of Manitoba 
since 1969. His major academic areas of interest are law and bioethics, and criminal law and 
criminology. He is the co-author of Sneiderman, Irvine and Osborne, Canadian Medical 
Law: An Introduction for Physicians, Nurses and other Health Care Professionals (2nd 
Edition, 1996). Since 1991, he has made four trips to the Netherlands to study Euthanasia 
Policy. 

Marja Verhoef received her Master's degree in Sociology from The State University of 
Utrecht, The Netherlands and her Ph.D. in Epidemiology from the University of Calgary. She 
is an Associate Professor in the Department of Community Health Sciences of the University 
of Calgary. She teaches Research Methods and Health Care in a Social Perspective and is 
actively involved in research concerning end-of life decision making and complementary 
medicine use. Her interest in euthanasia and assisted suicide is long-standing. In 1981, she 
co-authored a book on the role of euthanasia in Dutch nursing homes, based on extensive 
qualitative research. 



[X] 



INTRODUCTION 



Euthanasia, assisted suicide and the cessation of hfe-sustaining treatment have been the 
subject of much attention and intense debate. They raise deeply troubling moral and legal 
questions. Laws prohibiting aiding suicide have been challenged in court — unsuccessfully in 
Canada and successfully in two American appellate cases in recent years. Voluntary euthanasia 
and assisted suicide are the subject of a non-legislative accommodation allowing their 
occurrence in limited circumstances in the Netherlands; assisted suicide has just been legalized 
in one Australian state. Referenda seeking to legalize voluntary euthanasia and assisted suicide 

have been held in some American states, with the most recent initiatives being narrowly 

■J 

defeated in Washington and California, and even more narrowly passing in Oregon. In Canada, 
these issues and related ones have given rise to working papers and reports by the federal Law 
Reform Commission of Canada and were the subject of deliberation by a Senate Special 
Committee. Both recommended legislative changes, but to date, the federal Parliament has not 
acted on the work of either. Private Members' Bills have been introduced in the House of 
Commons but have not gone beyond second reading or referral to a legislative committee. 
There have, however, been changes in the legislative landscape affecting this area at the 
provincial level, as a number of provinces have enacted or proposed legislation governing 
consent to medical treatment as well as establishing procedures to allow and regulate substitute 
decision-making for those who are decisionally incapable. The legislative regimes are of 
general application and thus, include life-sustaining treatment. 

The federal Law Reform Commission of Canada noted in its Working Paper 28, 
Euthanasia, Aiding Suicide and Cessation of Treatment, that "[w]hen the research project was 
first designed in 1976. ..the question of cessation of treatment and, more generally, that of 
euthanasia, was a constant and urgent concern among members of the medical profession, a 



Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519; Compassion in Dying v. State of Washington 79 F.3d 790 (9th 
Cir. 1996), cert, granted {sub. nom. Washington v. Glucksberg), 65 U.S.L.W. 3218 (Oct. 8, 1996); Quill v. 
Vacco 80 F. 3d 716 (2nd Cir. 1996), cert, granted 65 U.S. L. W. 3218 (Oct. 8, 1996). 

Sneiderman B., Verhoef M., "Euthanasia in the Netherlands: A Report for the Ontario Law Reform 
Commission," in this volume; in Australia, see the Rights of the Terminally III Act, No. 12 of 1995, Northern 
Territory of Australia. 

Capen K., "Current Legislative and Judicial Approaches: England and the United States," in this volume. 

Law Reform Commission of Canada, "Euthanasia, Aiding Suicide and Cessation of Treatment", Working Paper 
28 (Dept. of Supply and Services Canada, Ottawa: 1982); Law Reform Commission of Canada, "Euthanasia, 
Aiding Suicide and Cessation of Treatment", Report 20 (Dept. of Supply and Services Canada; Ottawa: 1983); 
Senate Special Committee on Euthanasia and Assisted Suicide, Of Life and Death (Minister of Supply and 
Services Canada, Ottawa: June, 1995) (hereafter, "Senate Committe Report"). 

Senate Committee Report, supra, n. 4 at A-33 - A-34, App. E., "Legislative Proposals Previously Introduced to 
Parliament". 

See ch. 4, infra. 



[1] 



number of lawyers and a large proportion of the Canadian public". It is now two decades later 
and the Commission's observation remains true, although the debate has become even more 
widespread and the need for clarity in the law more urgent as our ability to sustain life in 
circumstances where continued life is no longer welcome or endurable to the person concerned 
continues to expand. Some questions have been answered along the way — for instance, a 
competent patient's ability to refuse even life-sustaining treatment is now well established in 
law. Many others remain. If anything, the debate grows more complex as new considerations 
come to the forefront. To take just a few examples, at what point does treatment become futile, 
such that it need no longer be offered to a patient? Who determines when that point has been 
reached, and what meaning should attach to the term "fiitility"? When would a decision to 
withhold life-sustaining treatment from a disabled individual constitute discrimination on the 
basis of disability? These and many other issues require a clarity, certainty and predictability in 
the law that is lacking at present. 

It is preferable to formulate public policy on such matters in advance, rather than to wait 
for criminal charges to be laid or other legal proceedings to be commenced. While the judicial 
system is an important and valuable instrument in maintaining compliance with accepted norms 
and enforcing social control , there are significant limitations inherent in it as an institution. As 
one American judge commented in an appellate decision dismissing charges of murder and 
conspiracy to murder laid against two physicians who had complied with a family's request to 
remove first the respirator and then the intravenous tubes providing artificial nutrition and 
hydration to a man in a persistent vegetative state following a stroke suffered after surgery: 

...it appears to us that a murder prosecution is a poor way to design an ethical and moral code for 
doctors who are faced with decisions concerning the use of costly and extraordinary 'life support' 
equipment. 

In an adversarial system such as ours, courts are generally reactive, focussed on the 
circumstances of an individual case, and constrained in the matters that will be considered 
legally relevant and the remedies they can craft. Participation is primarily lunited to those 
directly affected, who are the parties to the proceeding. As LaForest J. noted in a recent Supreme 
Court of Canada judgment: 



11 



Courts are specialists in the protection of liberty and the interpretation of legislation and are, 
accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts 
are not specialists in the realm of policy-making, nor should they be. This is a role properly 
assigned to the elected representatives of the people, who have at their disposal the necessary 



7 

8 

9 
10 

11 



LRCC, Working Paper 28, supra n. 4 at 11.- 

Rodriquez, supra n. 1 at 598. 

Barber v. Superior Court of California 195 Cal. Rptr. 484 at 4S6 per Compton J. (Cal. App. 2 Dist., 1983). 

Brooks N., "The Judge and The Adversary System," in Linden A., The Canadian Judiciary (1976) at 90-1 16. 

RJ.R. MacDonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199 at 277. 



institutional resources to enable them to compile and assess social science evidence, to mediate 
between competing social interests and to reach out and protect vulnerable groups. 

There is a need for a different type of deliberation and decision-making process than 
courts are generally suited to provide. Broader considerations and different voices must be taken 
into account. As our society ages and as more of us live longer with serious disease, that need 
will only become more urgent. 

Much of the debate in Canada and the United States in recent years has focussed on the 
question of whether assisted suicide and voluntary euthanasia should be decriminalized. These 
are clearly both matters within federal jurisdiction, since the Constitution Act, 1867 assigns 
exclusive jurisdiction over criminal law and procedure to the Parliament of Canada. One might 
well ask, then, why a provincial law reform commission would examine legislative and 
administrative policies affecting those issues. The Constitution Act, 1867 does not specifically 
assign power over "health" to either level of government, and both can validly legislate in the 
area within their own otherwise legitimate spheres of activity. However, given the nature of 
those spheres, health care primarily falls to be regulated by the provinces. Authority over 
hospitals and public health and regulation of the health professions, including medicine and 
nursing, is granted to the provinces. There will, then, be aspects of the law affecting euthanasia 
and assisted suicide that fall within provincial jurisdiction, and a need to consider federal law as 
it affects and overlaps with those aspects, just as the Senate Committee found the converse to be 
true in its study of the federal criminal law on euthanasia and assisted suicide. Criminal law, 
for instance, affects professional standards and practices of health care providers. Cessation of 
treatment questions are sometimes confused with and not always obviously distinct fi-om 
euthanasia or assisted suicide. And in practical terms, far more people will be affected by 
decisions to withdraw or not to start life-sustaining treatment than would seek assisted suicide or 

18 

euthanasia even if either were legal and available. These are matters that clearly fall within 



12 



13 
14 

15 

16 
17 



The almost evenly divided results of the Senate Special Committee's deliberations after receipt of extensive input 
and long and careful consideration may not bode well for legislators' ability to resolve these issues either (supra, 
n. 4). The lack of legislative activity in the area on the part of successive federal governments seems to indicate 
no great willingness to tackle the task despite the need. 

Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.), s. 91(27). 

Schneider v. R. [1982] 2 S.C.R. 112 at 142 per Estey J.; R.J.R. MacDonald Inc. v. Canada (A-G.), supra n. 11 
at 246. 

Canadian Bar Association Task Force on Health Care, Wiat's Law Got To Do With It? Health Care Reform in 
Canada (C.B.A., Ottawa: 1994), at 13-19. 

Constitution Act. 1867, supra n. 13, s.92(16), (7), (13). 

Supra n. 4 at 3-4. 

New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthatiasia in the 
Medical Context (Task Force, NY: 1994) at 147 (it is estimated that 70% of the deaths in hospital today involve 
some decision to withhold or stop treatmem); Editorial, "Withdrawing Life Support, How Is The Decision 
Made?" JAMA 1995; 273: 738-739 at 738 (clinical soidies reveal 40% to 60% of ICU [mtensive care unit] 
deaths have been preceded by decisions to withhold or withdraw life support). 



provincial jurisdiction. The provinces also have jurisdiction over the administration of justice, 
including the criminal justice system. Decisions with respect to enforcement — investigation, 
charges laid and prosecution — fall to be regulated by the provinces. A good example of the 
manner in which this division in jurisdiction operates is to be found in the Crown Counsel 
Policy Guidelines with respect to active euthanasia and assisted suicide issued by the Ministry of 
the Attorney General for British Columbia in the wake of the Supreme Court of Canada's 

20 

decision in Rodriguez. Although it is for the federal government to define the offences in the 

2 1 

Criminal Code, the provincial government established policy respecting charging decisions, 
requiring Crown counsel approving charges to conclude both that there is a substantial 
likelihood of conviction and that the public interest requires a prosecution before proceeding. 

The issues raised are very difficult; they do not lend themselves to easy or clear answers. 
The recent history of the consideration given the section of the Criminal Code prohibiting 
assisted suicide in Canada by the courts and the Canadian Senate Committee bears eloquent 
witness to just how divisive these questions are. In September, 1993, the Supreme Court of 
Canada rejected a challenge to the law brought by Sue Rodriguez, a woman suffering from 
amyotrophic lateral sclerosis, who had asserted that the law breached her constitutional rights 
under the Canadian Charter of Rights and Freedoms. The decision was a very close one, 
however. The full Court heard the appeal, and while five of the nine judges held that the law was 
constitutional, the remaining four dissented, concluding it was not. In the wake of Rodriguez, a 
Special Committee of the Senate was appointed to examine and report on the legal, social and 
ethical issues relating to euthanasia and assisted suicide. After hearing numerous oral 

96 

submissions and reviewing many letters and briefs, its fmal report was released in June, 1995. 
Of the seven member committee, a majority of four recommended no change to the law 
prohibiting assisted suicide, but a minority of three recommended an amendment be added to 
the Criminal Code, such that an individual who assisted in another's suicide under clearly 

27 

defined safeguards would be protected from prosecution. With respect to voluntary euthanasia. 



19 
20 

21 
22 
23 
24 

25 

26 

27 



Constitution Act, 1867, supra n. 13, s. 92(1 4). 

Policy 11-3-93. File no. 56880-01, Eut 1, reproduced in Senate Committee Report, supra n. 4, Appendix I, at A- 
59-A-61. 

Criminal Code, R.S.C. 1985, ch. C-46. 

Supra, n. 20. 

Supra n. 21, s.241(b). 

Supra, n. 1 . The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982, which is 
Schedule B of the Canada Act, 1982, (U.K.) 1982, c.ll. 

Senate Committe Report, supra n. 4, at v. Orders of Reference, Minutes of the Proceedings of the Senate, 
Feb. 23, 1994. 

Id. at vii. 

Id. at 74; relative to the voting, see Mullens A., Timely Death, Considering Our Last Rights (Knopf, Toronto: 
1996) at 202-203; Bryden J., "Assisted Suicide law is opposed", Toronto Star (May 31, 1995) at Al. The Report 
itself indicates one of the seven member Committee supported legalizing assisted suicide, but opposed legalizing 
voluntary euthanasia. There was still more than one member who supported that option, however, indicating that 



while the majority recommended that it remain a criminal offence, a smaller minority 
recommended an amendment to the Criminal Code such that it would be permitted for 
competent individuals physically incapable of committing assisted suicide who requested it, 

28 

again subject to safeguards to prevent abuse. All members of the Committee recommended 
that the Criminal Code be amended to provide for a less severe penalty than at present in cases 
of euthanasia that entailed an "essential element of compassion and mercy", to be clearly and 

29 

narrowly defmed. 

With respect to assisted suicide, then, the decision of the Supreme Court of Canada was 
five to four against on the question of constitutional law, and that of the Senate Committee, 
which engaged in a very different type of deliberative process, four to three against. These are 
very close decisions. They reflect the deeply divided nature of thought and judgments on the 
issue. Nor does the existence of a recent decision of the Supreme Court of Canada on the one 
narrow constitutional issue mean that the law in the general area is now certain — far from it. As 
the Chief Justice of Saskatchewan concluded after reviewing the law and its enforcement in a 
1995 decision, R. v. Latimer, "There can be no greater unpredictability and uncertainty in the 
law as it is applied to euthanasia and compassionate killings than the unpredictability and 

30 

uncertainty that now exists". That is to say nothing of the law respecting cessation of life- 
sustaining treatment. Legal problems m that area are for the most part distinct, but are often 

3 1 

easily intermbced with those associated with euthanasia and assisted suicide. 

The message received from many directions is clear and consistent: it is time for a carefiil 
examination of these issues and of current practices and law disengaged from the compelling 
circumstances of an individual case in order to consider the extent to which they accord with and 
assist us in realizing our goals and values as a society, and also to consider reforms that may be 
needed. This paper will begin with an explanation of the existing civil, criminal and 
constitutional law as well as the regime of professional regulation to which health care providers 

32 

are subject. It and the companion papers address the law in other jurisdictions as well. A 
critical analysis of the state of the current law follows, together with recommendations for 
reform. 



the vote was 4 to 3 against legalizing assisted suicide, and 5 to 2 against legalizing voluntary euthanasia (id at 85, 
87). 



28 
29 
30 
31 

32 



Id. at 88. 

Id. at 88-89. 

R. V. Latimer (1995) 126 D.L.R. (4th) 203 at 278 (Sask. C.A.). 

LRCC Working Paper 28, supra n. 4 at 7. 

Sneiderman B., Verhoef M.; Capen K., supra n. 2, 3. 



CHAPTER 1 



HISTORICAL FRAMEWORK OF 
MEDICAL AND JUDICIAL 
INITIATIVES REGARDING 
SUICIDE, EUTHANASIA AND 
ASSISTED SUICIDE: ENGLAND, 
U.S. AND CANADA^ 
by Karen Capen 



1. INTRODUCTION 

Death has always been a changing concept, in our society and in other cultures as well. 
Even as we attempt to look at the meaning of death, it is apparent that there are many complex 
factors which have to be taken into account. Death-related behaviour of any individual occurs in 
a broad social context: the immediate situation and the life history of the person concerned; the 
attitudes toward death of the person's community; and the influence of both dominant and 
personal religious or ethical beliefs of the person. 

Death and events surrounding death link law and medicine in our society. The legal and 
medical professions both deal with issues related to death and dying in ways that sometimes do 
not coincide with each other's understanding of the law or of medical practice. Some of the 
particular issues bringing law and medicine together are the accepted criteria for when death 
occurs, the appropriateness of withholding or withdrawing medical treatment or care and the 
responsibility for decision-making on these matters, and the provision of palliative care and 
treatment of suffering. 

Suicide is one particular form of death and dying that has a long and controversial history. 
The intentional and voluntary taking of one's own life has been addressed in different ways by 
law and by medicine. Suicide has been recorded throughout history and depending on how 
society defines the act and how the motive for the act is interpreted, it has been viewed with 



This paper will review medical, legislative and judicial initiatives and developments surrounding death and dying, 
which have taken place in England, the United States and Canada from the early twentieth century until the period 
around 1976, the turning point year of the Karen Ann Quinlan case. 

Douglas Sepic, "Active voluntary euthanasia: medical-legal aspects and their relationship to societal and moral 
principles" (1992) Legal Medicine 233 at 234. 

Encyclopedia of Bioethics, 1978 at 286-287. 

Encyclopedia of Bioethics, 1978 at 1619. 



[7] 



approval or disapproval. An attempted suicide today is usually characterized as a medical 
problem; historically western societies have viewed suicide as inappropriate for a variety of 



reasons. 



English common law has long considered suicide to be a serious offense. Reference to 
legal action being taken against suicide dates back as far as 967 A.D.^ The crime was viewed as 
one against God and nature, but it was also related to property and service to the monarch.^ 
William Blackstone described suicide as a double offense: one, spiritual, invading the 
prerogative of the Almighty...: the other temporal, against the king. These classes of "wrongs": 
against society, against God and against monarch reflect attitudes valuing morality, religion or 
society, depending on the prevailing social norms of the times. 

Certain world religions do not have stated prohibitions against suicide. '° Early societies 
feared the evil spirit of a suicide and Christianity formally viewed it as wrong. ^^ Blackstone's 
influential statement used the term "self-murder" and the basis for his position was strongly 
religious: "...the law of England wisely and religiously considers, that no man hath the power to 



9 
10 

11 

12 



Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 5. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 5. 

William Blackstone. Commentaries on the Laws of England. Book 4 (17th ed. 1830) at 189. The crime of 
suicide, as explained in the often cited Hales v. Petit (75 Eng. Rep. 387, 400 (C.B. 1562), was viewed as a 
"threefold offence": 

...against nature, against God, and against the King. Against nature, because it is contrary to the rules of 
self-preservation.... Against God, in that it is a breach of His commandment, thou shalt not kill; and to kill 
himself, by which act he kills in presumption his own sole, is a greater offence than to kill another. 
Against the King in that hereby he has lost a subject... Also he has offended the King, in giving such an 
example to his subjects. 

Glanville Williams, The Sanctity of Life and the Criminal Law, New York: Alfred A. Knopf (1970) at 249. 

Glanville Williams, The Sanctity of Life and the Criminal Law, New York: Alfred A. Knopf (1970) at 249. 
Hinduism and Buddhism do not have stated prohibitions, while Christian, Jewish and Islamic religions do. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 5. 

Blackstone. Commentaries on the Laws of England. Book 4 (17th ed. 1830) at 189. 



IT 

destroy life, but by commission from God, the author of it...." English law adopted this view, 
one that reflected a predominantly Christian society. 

Not only was suicide a crime in the English common law, it was also an offense to attempt 
to commit suicide. Similarly, incitement or conspiracy to commit suicide were also treated as 
crimes. ^^ And any person who advised a suicide or who was present when the act occurred was 
viewed as a principal "in the second degree", while if a person had advised but was absent 
during the act, that person was considered an accessory before the fact. Deterrents to suicide 
were both religious and legally based. Certain rites (e.g. fiineral services) were denied a suicide; 
the body might also have been hanged in England. 

Although in early English history suicide was treated as a felony, once it had punishments 

18 

attached to it, it began to be viewed as a criminal act. Even with this long tradition of 
disapproval in western society, however, there have been occasions of support and 
commentators who wrote in favour of suicide. Although sometimes referred to as a satirical 
work,^^ Sir Thomas More in Utopia advocated suicide for people suffering from incurable 

20 

conditions after consent from priests and magistrates. 



13 
14 

15 
16 

17 

18 

19 
20 



Blackstone. Commentaries on the Laws of England. Book 4 (17th ed. 1830) at 189. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 6. 

Glanville Williams, The Sanctity of Life and the Criminal Law, New York: Alfred A. Knopf (1970) at 273-274. 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 349. The technical 
difficulty in this rule was that at common law an accessory could not be punished until the principal was 
convicted, and in the case of a suicide this was clearly impossible. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 7. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 7-8. 

George M. Logan and Robert M. Adams eds., Introduction to Thomas More, Utopia XI-XII (1989). 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 6. More wrote: 

As I said before, the sick are carefully tended, and nothing is neglected in the way of medicine or diet 
which might cure them. Everything possible is done to mitigate the pain of those suffering from incurable 
diseases; and visitors do their best to console them by sitting and talking with them. But if the disease is 
not only incurable, but excruciatingly and unremittingly painful, then the priests and public officials come 
and urge the invalid not to endure further agony. They remind him that he is now unequal to any of life's 
duties, a burden to himself and others; he has really outlived his own death. They tell him he should not let 
the disease prey on him any longer, but now that life is simply torture and the world a mere prison cell, he 
should not hesitate to free himself, or let others free him, from the rack of living. This would be a wise act, 
they say, since for him death puts an end, not to pleasure, but to agony. In addition, he would be obeying 
the advice of priests, who are interpreters of God's will; thus it will be a pious and holy act. 



10 

Suicide as a social issue does not appear to have a morally neutral or objective perspective 
from which to argue either support or disapproval. Apart from the wide range of theological and 
moral positions, there is also the scientific framework (i.e. medical and social models or 
explanations of suicide), which emphasizes biochemistry, environment and social context as 

21 

relevant "causes" of suicide. Most recently, in the twentieth century, suicide laws have been 
repealed, but it is generally still considered an offense to aid or abet suicide, and individuals who 

• 22 

can be proven to have aided a suicide may still be prosecuted. 

Measures to sustain or lengthen and alternatively to hasten death are ones we often 
associate primarily with the secular and science-oriented culture of the twentieth century. 
However, it was generally accepted in Greco-Roman antiquity that sick and despondent 
individuals could freely choose to terminate their lives, sometimes with outside assistance. This 
tolerance ended in western society with Christianity, where the relief of suffering but was 
emphasized but the taking of life was absolutely prohibited. 

2. DEFINITIONS OF TERMS 

The term "euthanasia" (from the Greek "eus" meaning "good" and "thanatos" meaning 
"death") literally means a good or easy death. It is often used interchangeably with other terms 
such as "mercy killing", "right to die", "death with dignity", and most recently "assisted 

25 

suicide". Its meaning has evolved over the centuries, much like the interpretation of death 
itself For example, in the seventeenth century, "euthanasia" generally referred to any means to 
an easy death, including a modest lifestyle or an acceptance of the concept of mortality 



26 



The current biomedical understanding or use of "euthanasia" often contrasts euthanasia 
with the prolongation of life. This meaning dates back to the association of euthanasia with the 

27 

domain of medicine ' in which a physician would take specific measures to hasten death. 
Euthanasia, in the "modern" sense, has added modifying categories. It is now generally accepted 



21 

22 
23 
24 
25 
26 
27 



Those who have been persuaded by these arguments either starve themselves to death or take a drug 
which frees them from life without any sensation of dying. But they never force this step on a man against 
his will; nor, if he decides against it, do they lessen their care of him. The man who yields to their 
arguments, they think, dies an honorable death; but the suicide, who takes his own life without approval of 
priests and senate, him they consider unworthy of either earth or fire, and they throw his body, unburied 
and disgraced, into the nearest bog. 

Dictionary of Medical Ethics, rev ed, (London: Dartman, Longman and Todd, 1981) at 425-426. 

Dictionary of Medical Ethics, rev ed, (London: Dartman, Longman and Todd, 1981) at 425. 

Encyclopedia of Bioethics, 1978 at 261. 

Webster's Third New International Dictionary, 1986. 

Encyclopedia of Bioethics, 1978 at 286-287. 

Encyclopedia of Bioethics, 1978 at 261. 

Francis Bacon's Advancement of Learning (1605) cited in the Encyclopedia of Bioethics, 1978 at 261. 



11 

that "euthanasia" may by defined further as "voluntary" or "involuntary", "active" or "passive", 
and "direct" or "indirect". There are other associated terms: physician-assisted suicide or 

no 

assisted suicide, assisted death, medical decisions concerning the end of life and palliative care. 

Any attempt to define euthanasia in a fixed manner or to adopt a rigid definition even for 
the purposes of broad discussion of the issues raises the concern that the term itself and its 
related concepts are not morally neutral. The term "euthanasia" inevitably brings to mind 
qualifications and exceptions, and as we have often been reminded: "Definitions are not... just 
innocent tools that allow us to describe reality. Rather, they shape our perception of reality — 
they select, they emphasize, they embody biases." 

There are also subtle but significant distinctions in the meaning of terms such as "mercy 
killing" or "assisted suicide". Generally, when the term euthanasia is used to describe an act it 
includes the following elements: an individual is competent, informed, has an incurable illness, 
and has asked for his or her life to be ended. It also requires that a physician or other individual 
agent knows about the person's condition and wish to die, and that other individual then 
commits an act the primary intention of which is to end the life of the other person. Finally, it 
implies that the act is committed with compassion and without personal gain. 

Voluntary euthanasia and "assisted suicide" simply mean that euthanasia (the ending of 
one life by or with the assistance of another individual) has been requested by a competent 
individual. The use of "involuntary" is used if the decision to end life is made by another 
individual or by society usually because the person whose life is to be ended is incompetent. 

Active euthanasia requires that the act of ending life is positive, an act of commission (for 
example, lethal injection), rather than passive, an act of omission (for example, withholding or 
withdrawing medical treatment). The problem with using "passive euthanasia" is that a decision 
to withhold or withdraw treatment can be made for either an acute, chronic or terminal illness, 
and generally, euthanasia is only associated with acts to end the lives of those individuals with 
terminal conditions. 

Other terms often arise but may best not be used: for example, direct euthanasia, where 
death is the intended effect of an act, and indirect euthanasia, where death may be the effect, but 
the intent is to relieve suffering. Assisted suicide is usually distinguished by the factor that this 
form requires the provision of advice or the means to commit suicide, but the act itself is carried 
out by the individual who wishes to die. 



28 

Frederick H. Lowy, Douglas M. Sawyer and John R. Williams. Canadian Physicians and Euthanasia (Ottawa: 

Canadian Medical Association, 1993) at 13-22. 

29 

M.A.M. de Wachter, "Euthanasia in the Netherlands" (1992) 22 Hastings Centre Report 23-30. 

30 

Ronald P. Kaplan, "Euthanasia legislation; a survey and a model Act" (1976) 2 Am J of Law and Medicine 4 1 . 

31 

Frederick H. Lowy, Douglas M. Sawyer and John R. Williams. Canadian Physicians and huthanasia (Ottawa: 

Canadian Medical Association, 1993) at 13. 



12 

Assisted death is a term which attempts to avoid the imprecision of euthanasia and would 
include both euthanasia and assisted suicide. Reference to medical decisions "concerning the 
end of life" could include euthanasia, therapeutic narcotics, no-treatment decisions (withholding 
or withdrawing treatment) and assisted suicide. It is important to note, however, that the term 
"palliative care" is not seen to be in the same categories as the terms noted above, and should be 
discussed entirely within the context of clinical medical practice.^^ 

The range of terms used to refer to some form of euthanasia represent an attempt to 
provide some positive alternatives to what is, for many, a negative concept. Language that 
incorporates death and killing tends to convey the outrage that many feel toward euthanasia, 
while the term assisted suicide, for example, usually is intended to mean by those who support 
the principle something more benign. However, some people will also argue that such efforts 
use language to re-frame a practice such as euthanasia are simply a semantic extension of their 
underlying positions. 

3. THE TWENTIETH CENTURY 

(a) England 

In the twentieth century, proposed euthanasia legislation has existed since the 1930s. It 
was in this decade that Great Britain addressed the issue of legalizing euthanasia with the 
introduction into the House of Lords of a bill sponsored by the English Euthanasia Society in 
1936. The Society was formed in 1935 with the stated objective "to create a public opinion 
favourable to the view that an adult person, suffering from a fatal ilhiess for which no cure is 
known, should be entitled by law to the mercy of a painless death if and when that is his 
expressed wish; and to promote this legislation". 

The bill was called the Voluntary Euthanasia (Legislation) Bill 1936, and it was a proposal 
limited to voluntary euthanasia performed on mentally competent adults. It was considered 



32 



33 



34 



35 



36 



Frederick H. Lowy, Douglas M. Sawyer and John R. Williams. Canadian Physicians and Euthanasia (Ottawa: 
Canadian Medical Association, 1993) at 13-18. 

Frederick H. Lowy, Douglas M. Sawyer and John R. Williams. Canadian Physicians and Euthanasia (Ottawa: 
Canadian Medical Association, 1993) at 20. 

Glanville Williams, The Sanctity of Life and the Criminal Law, New York: Alfred A. Knopf (1970) at 331. See 
also Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 52. 

O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 67. The Euthanasia Society and the proposed legislation had a number of well-known supporters 
including Julian Huxley, H.G. Wells, George Bernard Shaw, A.A. Milne and Vera Brittain. It also included 
members from the medical profession and the clergy. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 
at 52. By its definitions it excluded many situations in which euthanasia might be considered to be appropriate — 
for example, cases of severe stroke, catasfrophic accident, non-fatal degenerative diseases, etc. A death-bed form 
had to be completed, signed, witnessed and forwarded to a "euthanasia referee" appointed by the Minister of 



13 

narrow in scope, did not distinguish between active and passive means and required a number of 
procedural safeguards (forms and certificates to be signed and witnessed, and interviews with a 
"euthanasia referee" appointed by the Ministry of Health). The House of Lords defeated the bill, 
which the Euthanasia Society attributed to safeguards that were too elaborate and formal. 

A Royal Commission on Capital Punishment released a report in 1953 which concluded 

■io 

"reluctantly" that voluntary euthanasia could not be taken out of the category of murder. 
Glanville Williams in his influential work The Sanctity of Life and the Criminal Law, noted that 
the problem may have been that for the Royal Commission there was difficulty in distinguishing 
the genuine suicide pact from a case where the survivor pretended to agree for the purposes of 
getting rid of his companion, without any real mtention of committing suicide hunself The 
result of this study was that if there was to be a change in the legality of euthanasia, it would 
have to be brought about by statute. 

The publication of Williams' Sanctity of Life was something of a milestone itself in the 
mid-20th century debate on euthanasia. After discussmg suicide, he began his chapter on 
euthanasia by stating that "a man is entitled to demand the release of death from hopeless and 
helpless pain, and a physician who gives this release is entitled to moral and legal absolution for 
his act". This work prompted a response in 1958 from a well-known law professor Yale 
Kamisar, in an article entitled "Some Non-religious Views Against Proposed 'Mercy Killing' 
Legislation". 



Health. The act was to be carried out by a medical practitioner licensed for the purpose, and in the presence of an 
official witness. (See also Arthur S. Berger and Joyce Berger, eds., To Die or Not to Die?: Cross-Disciplinary, 
Cultural, and Legal Perspectives on the Right to Choose Death, (New York: Praeger, 1990) at 87-88.) 



37 



38 
39 
40 
41 



42 



Glanville Williams, The Sanctity of Life and the Criminal Law, New York: Alfred A. Knopf (1970) at 334. See 
also Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 52 and O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human 
Sciences Press, 1977) at 70. Kaplan noted that Kamisar argued in "Some non-religious views against proposed 
'mercy killing' legislation" (1958) 42 Minn L R 969 that a major failing of the bill was its paradoxical treatment 
of the requirement of competency: on one hand, euthanasia could be performed only on an adult who had 
consented to the act and who was competent to consent, while on the other hand, the person was also required to 
be suffering from a terminal and incurable illness. It was argued that the very nature of a terminal illness prevents 
competent consent. It is because of this experience that subsequent legislation proposed in the U.S. have 
introduced the concept of "advance directives" to eliminate this problem. 

Encyclopedia ofBioethics, 1978 at 283. 

Glanville Williams, The Sanctity of Life and the Criminal Law, (1957) at 305. 

Encyclopedia ofBioethics, 1978 at 283. 

Glanville Williams, The Sanctity of Life and the Criminal Law, (1957) at 31 1. He noted that regardless of the 
opinion of society on suicide, there has been a long tradition of understanding and acceptance of euthanasia, "the 
merciful extinction of life". He also argued that it is not only morally permissible but mandatory "where it is 
performed upon a dying patient with his consent and is the only way of relieving his suffering", (at 3 1 1) 

Yale Kamisar, "Some non-religious views against proposed 'mercy killing' legislation" (1958) 42 Minn L R 969. 



14 

Kamisar responded to Williams' work arguing that although there might well be some 
persuasive terminal cases where suffering was intolerable, as the law existed at the time, 
physicians would be held criminally liable for failing to prolong life. He also warned that 
although the freedom to choose euthanasia might be seen as a special area of civil liberties, in 
practice laws to legalize euthanasia would create more problems than they would solve."*^ 

Kamisar identified two major risks of abuse regarding the practice of euthanasia. The first 
of these risks is commonly called the "wedge theory", meaning that once society accepts that 
life can be terminated because of its diminished quality, there is no rational way to limit 
euthanasia to prevent its abuse. The second risk put forward in Kamisar' s work is that legalized 
voluntary euthanasia would inevitably lead to legalized involuntary euthanasia because it is 
impossible to draw a rational distinction between those who seek to die because they are a 
burden to themselves and those whom society seeks to kill because they are a burden to others."*"* 

Although there was further discussion of the defeated 1936 Voluntary Euthanasia 
(Legislation) Bill in the House of Lords in 1950, the next relevant development in Great 
Britain was the enactment in 1961 of the Suicide Act. The passage of this statute decriminalized 
attempting and committing suicide, but it remained an offense with a severe penalty attached 
to assist a suicide or attempted suicide. The Act in fact referred expressly to this issue in s.2(l): 
"A person who aids, abets, counsels or procures the suicide of another, or an attempt by another 
to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not 
exceeding 14 years." 

The Euthanasia Society in England quietly continued its advocacy work throughout the 
1950s and 1960s."*^ Its work contributed to the introduction of a second bill to legalize voluntary 
euthanasia, the 1969 Voluntary Euthanasia Bill, the intention of which could be summarized by 
its title: "An Act to provide in certain circumstances for the administration of euthanasia to 
persons who request it and who are suffering from an irremediable condition, and to enable 



43 

44 

45 
46 



47 
48 



O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 116-1 17. 

Steven J. Wolhandler, "Voluntary Active Euthanasia for the Terminally 111 and the Constitutional Right to 
Privacy" (1984) 69 Cornell L.R. 363 at 377. 

Yale Kamisar, "Some non-religious views against proposed 'mercy killing' legislation" (1958) 42 Minn L R 969. 

Glanville Williams, "Euthanasia legislation: a rejoinder to the non-religious objections" in Downing, A.B. (ed) 
Euthanasia and the Right to Die: the case for voluntary euthanasia, (London: Peter Owen, 1969) at 27. See also 
Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 86. 

^-w/c/d^^c/ (U.K.), 1961. 

A number of factors affected the public attitude to the issue of euthanasia, among them the atrocities and eugenic 
practices of Nazi Germany, and a series of "mercy killing" cases including a criminal case in the 1950s in which a 
physician. Dr. John Bodkin Adams, was charged with murder (though eventually acquitted). See Arthur S. Berger 
and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on the Right to 
Choose Death, (New York: Praeger, 1990) at 88-89. 



15 

persons to request in advance the administration of euthanasia in the event of their suffering 
from such a condition at a ftiture date." 

This proposed 1969 legislation was broader in scope than the 1936 bill and contained two 
major differences from the earlier attempt. First of all, it abandoned the series of safeguards that 
had been seen in the earlier version to be too formal and cumbersome, and secondly, it provided 
for the use of advance declarations, with some provision for "last minute" review. It attracted 
considerable attention and was defeated by a slimmer margin (61 votes to 40 in the House of 
Lords) than had been expected. 

The Incurable Patients Bill of 1976 was another attempt to keep the issue of euthanasia in 
the public eye. This bill was introduced, as stated in its title "to enlarge and declare the rights of 

52 

patients to be delivered from incurable suffering". Its purpose was largely declaratory, in that it 
set out rights universally agreed to exist at conmion law, the most important of which was 
enunciated ins. 1(1): 

An incurable patient shall with his consent, and notwithstanding any refusal on his part to receive 
intensive care or other life-sustaining treatment, be entitled to receive whatever quantity of drugs 
may be required to give him full relief from pain and physical distress, and to be rendered 

53 

unconscious if not other treatment is effective to give relief. 



49 



50 



51 



52 



53 



Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 89. 

The advance declaration was not intended to be a person's final opportunity to state his or her wishes. S.4(l) 
proposed that "before causing euthanasia to be administered to a mentally responsible patient the physician in 
charge shall ascertain to his reasonable satisfaction that the declaration and all steps proposed to be taken under it 
accord with the patient's wishes." However, the bill also provided for the patient to give permission to the 
physician in charge to determine the moment without further consultation with the patient, and it gave the 
physician in charge the right to give euthanasia to a declarant who became demented or suffered catastrophic brain 
damage. 

The bill excluded suffering due to mental illness, but its coverage was wider than the 1936 version, the 
"irremediable condition" being defined as "a serious physical illness or impairment reasonably thought in the 
patient's case to be incurable and expected to cause him severe distress or render him incapable of rational 
existence". See Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal 
Perspectives on the Right to Choose Death, (New York: Praeger, 1990) at 89-90. 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 90. See also and O. Ruth Russell, Freedom to Die: 
moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 1977) at 185. 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 90. 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary. Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 90. 



16 

This measure, like the bills in 1936 and 1969, was defeated. Opponents of the proposed 
legislation had been alerted to the support for the 1969 bill and the vote was a stronger 85 to 23 
against the bill. 

During these years, the British Medical Association was generally seen to oppose 
euthanasia. At a meeting in 1969, the BMA's Representative Body resolved that "this meeting in 
affirming the fundamental objects of the medical profession as the relief of suffering and the 
preservation of life, strongly supports the Council's view on the condemnation of euthanasia and 
instructs Council to give this view full publicity". It was also noted that many physicians did 
not agree with this professional body's position. 

Both the medical profession and the general public had to consider the issue of euthanasia 
in light of several celebrated criminal (so-called "mercy killings") cases in England. One of the 

57 

most widely followed of these was R. v. Adams, in which a physician was charged with the 
murder of a patient who had died from an overdose of morphine. The issues involved 
determining the cause of death and causal responsibility, two elements of criminal law which 

58 

had considerable significance for physicians who treated terminally ill patients. 

(b) The United States 

Even as these developments related to euthanasia and medical practice unfolded in 
England, there were concurrent efforts in the U.S. to address these issues. To some extent, the 
common law of England informed early attitudes, legislative activities and medical practice in 
the U.S. related to the acts of euthanasia and assisting suicide. But according to its own 
constitutional framework, the legal course of these issues took a different turn in the U.S. 

The English common law on suicide (including the notion from the English perspective 
that forfeiture of property would be a deterrent or effective penalty ) was never accepted with 



54 

55 
56 

57 
58 



59 



Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death, (New York: Praeger, 1990) at 90. 

Marvin Kohl (ed.) Beneficient Euthanasia (New York: Prometheus Books, 1975) at 145. 

O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 157. 

Unreported. Referred to by Glanville Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. 
Knopf, 1970) at 532 and discussed by Bernard M. Dickens, "The right to natural death" (1981) 26 McGill L J 847 
at 868-870. 

Dr. Adams was acquitted. In instructing the jury, the trial judge stated that "if the restoration of health can no 
longer be achieved. ..[a doctor] is entitled to do all that is proper and necessary to relieve pain and suffering, even 
if the measures he takes may incidentally shorten life". See Peter Mackinnon, "Euthanasia and homicide" (1984) 
26 Crim L Q 483 at 502 and Bernard M. Dickens, "The right to natural death" (1981) 26 McGill L J 847 at 869. 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 349. 



17 

all its implications in the U.S. Several states even went so far as to forbid this penalty in their 
constitutions.^^ Massachusetts took the approach closest to English common law in imposing 
the penalty of ignominious burial. 

In summary, suicide in the U.S. was not generally a criminalized act as it was in England. 
Although some of the courts asserted that suicide was a crime, none devised or imposed a 
penalty. Others stated that since there was no punishment, it could not be considered a crime.^^ It 
is in this context that the issue of euthanasia has been addressed (socially, medically and legally) 
with a particular American approach. 

In what appears to have been the first bill for legalization of euthanasia in any English- 
speaking country, the legislature of the state of Ohio considered a bill "concerning the 
administration of drugs, etc. to mortally injured and diseased persons" in 1906. The bill was 
defeated in the midst of the controversy (in England as well as in the U.S.) it created. Another 
bill, similar to the Voluntary Euthanasia (Legislation) Bill of 1936, was also introduced and 
postponed in 1937 in Nebraska. 

This activity was probably a factor in the founding in 1938 of the Euthanasia Society of 

(si 

America. It immediately drafted a proposal that was submitted in slightly different forms to 
two state legislatures. Both, however, were defeated. These efforts appear to have been widely 
reported in the press. As in England, there then appeared to be a waning of public and 



60 



61 

62 

63 
64 

65 

66 

67 
68 

69 



Helen Silving, "Euthanasia: a study in comparative criminal law" (1954) 103 Univ of Perm L R 350 at 370. As 
stated in Burnett v. People (204 111. 208, 68 N.E. 505, 510 (1903): "As we have never had a forfeiture of goods, or 
seen fit to define what character of burial our citizens shall enjoy, we have never regarded the English law as to 
suicide as ^plicable to the spirit of our institutions." 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 349. 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 349 and Glanville 
Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf, 1970) at 260, 288. 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 350. 

New York Times, January 24, 1906, cited in O. Ruth Russell, Freedom to Die: moral and legal aspects of 
euthanasia, rev. ed. (N.Y.: Human Sciences Press, 1977) at 60. 

O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 60-62. 

O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 71-72. 

Glanville Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf, 1970) at 33 1 . 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 
at 52. 

O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (NY.: Human Sciences Press, 
1977) at 73-75. 



18 

legislative interest in euthanasia proposals, possibly also due to reaction to the Nazi 
experimentation with compulsory euthanasia for medical as well as genetic reasons/^ 

In the U.S. context, the reappearance of euthanasia in the 1960s as an issue of controversy 
and legislative reform has been related to developments in medical technology, broader 

71 

interpretation of constitutional rights and changing public opinion. (Earlier legislative efforts 
had the problem of not clearly distinguishing active euthanasia from withholding or 
withdrawing treatment, and this possibly also contributed to the lack of interest in the 1940s and 
1950s.^^) 

The first of a series of proposals dealing with some form of euthanasia occurred in Florida 
in 1970 with the introduction of an amendment to the state constitution dealing with the "right to 
death with dignity". After this amendment failed, it was reintroduced in the state's House of 
Representatives as a proposed statute. 

The bill, which was passed in the House only to die on the Senate's calendar, was the first 
legislative effort to declare the existence of an inalienable right to die with dignity. It also 
incorporated the requirement of an advance declaration of intent. 

The bill stated that "life... shall not be prolonged beyond the point of meaningful 
existence...", but critics claimed it was unclear as to whether it permitted cessation of 
extraordinary treatment only, or whether ordinary measures of prolonging life were also 
acceptable. Many subsequent state proposals have used Florida's basic approach; however. 



70 
71 



72 
73 

74 

75 



Encyclopedia of Bioethics, 1978 at 282. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 at 
53. See also Paul Starr, The Social Transformation of American Medicine, New York: Basic Books, Inc. (1982) at 
388-393. Starr notes: "Health care as a matter of right, not privilege: No other single idea so captures the spirit of 
the time.... The law did not, in fact, recognize any general right to health care, and philosophers and lawyers 
questioned what a right to health care or to health itself might require. But despite such objections, the claim was 
for a time so widely acknowledged as almost to be uncontroversial." 

Starr described some of the "rights" included in health rights as: the right to informed consent, the right to refuse 
treatment, the right to see one's own medical records, the right to participate in therapeutic decisions, and the right 
to due process in any proceeding for involuntary commitment to a mental institution (p.398). 

He concluded: "The generalization on rights and the intensification of ambivalence toward medical authority 
contributed to the pressure for government intervention. 

Encyclopedia of Bioethics, 1978 at 282. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 54. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 54. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 
at 54-55. 



19 

subsequent efforts have been more explicit as to what kinds of acts or omissions would be 
allowed. 

From 1969 until the summer of 1976, at least 35 bills dealing with some form of 

77 

euthanasia were introduced in approximately 22 state legislatures. They dealt with a variety of 
approaches, using different terms, procedures and controls. There were, however, some general 
themes or approaches. For example, most bills permitted only passive euthanasia (relating the 
issue to medical care and the withholding or withdrawing of treatment in certain 
circumstances). 

It was not clear in some of the proposals whether active euthanasia would also be 
permitted, generally because the language used referred to the requirement of patient consent to 
"the administration of euthanasia" (defmed as "the painless inducement of death"). It was 
thought that such language could be read to permit active or passive euthanasia. 

One proposed bill (in Wisconsin in 1975) clearly allowed active euthanasia, but because of 
its wording it was believed that the potential for abuses would be significant. It was noted, 
however, that one common characteristic of the proposed bills was the lack of inclusion of any 
requirement that the patient's request be followed absolutely. 

Generally, these bills represented three basic types of legislation: (1) following the earlier 
versions, active euthanasia was made legal, normally on request; (2) limited to treatment 
decisions (e.g. omission of treatment), attempting to clarify the decision-making responsibility 
for incompetent patients; and (3) limited to defming the rights of individuals to refuse medical 
treatment, with attention given to a document which would take effect if the individual were to 
become incompetent. 

Attempts at introducing new legislation in the U.S. accompanied (or were a reaction to) a 
variety of court cases that increased public concern for the manner in which euthanasia acts were 
treated in the legal system. An early illustration of legal efforts to address the issue of euthanasia 



76 



77 



78 



79 



80 



81 



Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 54-55. 

These statistics are based on Ronald J. Kaplan's request for information from U.S. state legislatures on the 
existence of proposals for euthanasia-related legislation and the status of those proposals. See Ronald P. Kaplan, 
"Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 at 55, including 
footnotes 46 and 47). 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at56. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 56. 

Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 
41 at 57. 

Encyclopedia of Bioethics, 1978 at 282. 



20 

(although not actually a case about euthanasia) was the 1816 Massachusetts case of 
Commonwealth v. Bowen.82 

It is considered to be the first recorded case of abetting suicide, with Bowen having been 
accused of being a principal in the second degree to the self-murder of Jewett, since he 
"feloniously, wilfully, and of his malice aforethought," counselled Jewett to kill himself and 

83 

therefore "did kill and murder" the suicide victim. This case is the authority usually referred to 
for the rule that wilfully accelerating death, by even a short period of time, involves the "full 
guilt of murder". 

People V. Kirby has been identified as the first reported U.S. case involving euthanasia. 
The defendant had drowned his daughter and stepson because, according to his counsel, "he 
thought it better for them to go into eternity than to stop in this world". He argued that Kirby 
should not be convicted of murder because "there was no evidence of malice against the 

87 

children, but, on the contrary, it appeared he was much attached to them." The court rejected 
this argument, and stated: 



88 



E]very wilful and intentional taking [of] the life of a human being, without a justifiable cause, is 
murder, if done with deliberation and not in the heat of passion, and legal malice is always implied in 
such cases. 

Just as the common law defmes murder as the killing of another human being with malice 
aforethought, the state enacts its criminal law to reflect a deep concern for the preservation of 



82 
83 
84 



8S 

86 
87 
88 
89 



13 Mass. 356 (1816). 

13 Mass. 356 (1816) at 356. 

Glanville Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf, 1970) at 320. As in 
many other cases of aiding suicide, the problem for the prosecution was proof of causation. The jury found Bowen 
not guilty, possibly from a doubt about whether the advice given by him was in any way the procuring cause of 
Jewett's death. (Cite also John A. Alesandre, "Physician-assisted Suicide and New York Law" (1994) 57 Albany 
L.R. 819 at 829-30.) 

2 Park. Crim. Rep. (N.Y.) 28 (1823), cited in William H. Baughman, John C. Bruha and Francis J. Gould, 
"Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations" (1972-73) 48 Notre Dame Lawyer 
1202 at 1204. 

2 Park. Crim. Rep. (N.Y.) 28 (1823) at 29. 

2 Park. Crim. Rep. (N.Y.) 28 (1823) at 31. 

2 Park. Crim. Rep. (N.Y.) 28 (1823) at 3L 

State V. Tice, 257 Iowa 84, 130 N.W.2d 678 (1964); People v. Lewis, 375 111. 330, 31 N.E.2d 795 (1940) cert, 
denied, 314 U.S 628 (1941). 



21 

life. Common law is also consistent in its disapproval of taking the life of a human being by not 
recognizing the consent of the victim as a defence to the criminal act of homicide 



90 



Generally, it appears that special factors which, it may be argued, distinguish euthanasia 
from more reprehensible forms of killing — a humanitarian motive, possible consent of the 
victim, the victim's hopeless condition — are irrelevant in law. The law holds an accomplice (one 
who conspires, aids, or assists, for example) as guilty as the person who actually commits the 
offense. 

92 

In the 1947 Repouille case, a man was indicted for manslaughter in the first degree for 
killing his severely disabled child. The jury brought in a verdict of manslaughter in the second 
degree with a recommendation of "utmost clemency"; the judge sentenced the defendant to not 
less than five nor more than ten years, execution to be stayed, and placed him on probation. 

Shortly after Repouille, there was another widely publicized "mercy killing" case. State v. 
Sander, in which a physician was eventually acquitted of murder by a jury for injecting air into 
the veins of an incurably ill, suffering cancer patient. A device used in such cases was the 
shifting of the issue so that the case could be decided not on the ground of motive but on some 

94 

Other ground, such as lack of causation or temporary msanity. 

The Sander decision was based on no sufficient proof of causation (even though the 
physician had dictated his acts into the patient's medical record). The judge had stated at the 
outset of the trial that the question of mercy could not legally be an issue at the trial. 



90 

91 
92 
93 



94 
95 



Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43 (1946); Turner v. State, 119 Tenn. 663, 108 S.W. 1139 
(1908). 

People V. McArdle, 295 111. App. 149, 14 N.E.2d 683 (1938) and Pinkerton v. United States, 328 U.S. 640 (1946). 

Repouille v. United States, 165 F.2d 152 (2d Cir. 1947). 

Helen Silving, "Euthanasia: a study in comparative criminal law" (1954) 103 Univ of Penn L R 350 at 353. The 
judge was Learned Hand who stated: 

For all we know that there are great numbers of people of the most unimpeachable virtue, who think it 
morally justifiable to put an end to a life so inexorably destined to be a burden to others, and — so far as 
any possible interest of its own is concerned — condemned to a brutish existence, lower indeed than all but 
the lowest forms of sentient life. Nor is it inevitably an answer to say that it must be immoral to do this, 
until the law provides security against the abuses which would inevitably follow, unless the practice were 
regulated. (Cited in Sheila Schiff Cole and Marta Sachey Shea. "Voluntary euthanasia: a proposed 
remedy" (1975) 39 Albany L R 826 at 832-833, footnote 45.) 

It is interesting to note the language used in Judge Hand's comment. It does indeed point out the close connection 
between attitudes to euthanasia and eugenics-type practices. 



Helen Silving, "Euthanasia: a study in comparative criminal law" (1954) 103 Univ of Penn L R 350 at 353. 
Helen Silving, "Euthanasia: a study in comparative criminal law" (1954) 103 Univ of Penn L R 350 at 353. 



22 

Cases known as "right to die" cases evolved from earlier attempts to address "mercy 
killing" and euthanasia cases. The issue eventually became the individual's right to consent to or 
refuse medical treatment or even to affirmatively act to end another person's or one's own life in 
certain circumstances. Modem cases first dealt with refusal of treatment based on religious 
grounds. State courts turned to the U.S. Supreme Court to decide "right to die" cases. The two 
most notable and frequently relied on cases are Griswoldw. Connecticut^^ and Roe v. Wade^^ 

In Griswold v. Connecticut the Supreme Court first recognized the right to privacy as a 
fundamental constitutional guarantee. In this case the Court invalidated a Connecticut statute 
prohibiting the use of contraceptives by married couples and the distribution of birth control 
information and devices to them as violating the fundamental right to privacy. 

The Griswold case recognized an area of privacy based on and initiated by constitutional 
guarantees which are considered "fundamental". It resembled the later Roe decision, in that 
the state's right to limit the guarantee was acknowledged, but it required this limit to be 
narrowly drawn. (According to U.S. constitutional law, fundamental rights are not explicitly 
set out in the Constitution and have to be defined by the court. ) 

Nevertheless, broad interpretation of the U.S. Constitution as in Griswold is said to have 
called attention to the individual's responsibility for determining the time and manner of his own 



96 



97 

98 
99 

100 



101 
102 



Rebecca C. Morgan, Thoma^ C. Marks and Barbara Harty-Golder. "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 17. The "right to die" term is 
considered a term of art used to describe the ability of an individual to have life-sustaining or prolonging 
procedures or treatments withdrawn. 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder. "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 17. Refusal of blood transfusion 
by Jehovah's Witnesses was a primary example of this type of case. 

381 U.S. 479 (1965). 

410 U.S. 113(1973). 

Griswold, 381 U.S. at 485. Mr. Justice Douglas, giving the opinion of the Court, explained the right to privacy as 
follows: 

...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees 
that help give them life and substance.... Various guarantees create zones of privacy. (381 U.S. 479 (1965) 
at 484) 

0^5^0^,381 U.S. at 485. 

The U.S. Supreme Court has indicated some reticence in redefining both fundamental rights and what rights are 
considered to be fiindamental. {See Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue 
of personal choice: the competent incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 
at 19. 



23 

death, and public opinion, especially regarding the right of privacy, has contributed to an on- 
going public debate on the issue of euthanasia, 



103 



The Roe v. Wade decision also recognized that a constitutional right of privacy existed, 
extending the right to include a woman's decision to have an abortion. Roe is considered a 
significant precedent for right to terminate treatment cases because it linked the privacy right 
back to Union Pacific Railway Co. v. Botsford, asserting that personal rights such as these aie 
"fundamental" or "implicit in the concept of ordered liberty". (Of course, the Court also 
recognized that this privacy right is not absolute and is subject to regulation by the state because 
of the state's specific interests, when the state's interests are compelling. 

In 1977, legislation came into effect in the state of California recognizing the right of 
competent adults to decline life-prolonging treatment and providing for a "living will" form 
which a person may use to declare that, in the event of terminal ilhiess, life-sustaining treatment 

107 

should not be used. The California Natural Death Act of 1 976 was seen to clarify the common 
law rather than making new law. In its preamble it stated: 

...adult persons have the fundamental right to control the decision relating to the rendering of their 
own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in 
instances of a terminal condition. 

The American Medical Association had no official position on euthanasia until the AMA's 
House of Delegates adopted the following statement in 1973: 



103 



104 



105 

106 
107 

108 
109 



Ronald P. Kaplan, "Euthanasia legislation: a survey and a model Act" (1976) 2 Am J of Law and Medicine 41 
at 42. 

.410 U.S. 113 (1973). Supreme Court decisions prior to Roe v. Wade established areas of personal decision- 
making within the scope of the constitutional right to privacy: e.g. Eisenstadt v. Baird, 405 U.S. 438, 453-54 
(1972) (contraception); Loving \. Virginia, 388 U.S. 1, 12 (1967) (marriage); Prince v. Massachusetts, 321 U.S. 
158, 166 (1944) (family relationships); Skinner \. Oklahoma, 316 U.S. 535, 541-42 (1942) (procreation); Pierce v. 
Society of Sisters, 268 U.S. 510, 535 (1925) (child rearing and education); Meyer v. Nebraska, 262 U.S. 390, 399 
(1922) (same). The Roe Court cited and relied on these cases (410 U.S. at 152-53). 

Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder. "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 18. 

Roe, 410 U.S. at 152, 154 and 155. 

Catherine D Shaffer, "Criminal liability for assisting suicide" (1986) 86 Columbia L R 348 at 353-354. The 
Natural Death Act is cited as sections 7185-7195, California Health and Safety Code, 1977. 

Ian McColl Kennedy, "Switching off life support machines: the legal implications" (1977) Crim L R 443 at 450. 

"Life-sustaining procedures" are defined (in s.7 186(c) of the California Health and Safety Code, 1977 as: "any 
medical procedures or intervention which utilizes mechanical or other artificial means to sustain, restore or 
supplant with a vital function, which, when applied to a qualified patient [as defined] would serve only to prolong 
the moment of death and where, in the judgment of the attending physician, death is imminent whether or not such 
procedures are utilized". (See Ian McColl Kennedy, "Switching off life support machines: the legal implications" 
( 1 977) Crim LR 443 at 451) 



24 

The intentional termination of the Hfe of one human being by another — mercy kilHng — is contrary to 
that for which the medical profession stands and is contrary to the policy of the American Medical 
Association. The cessation of the employment of extraordinary means to prolong the life of the body 
when there is irrefutable evidence that biological death is imminent is the decision of the patient 
and/or his immediate family. The advice and judgment of the physician should be freely available to 
the patient and/or his immediate family. 

In 1978, the U.S. government passed enabling legislation for a President's Commission for 
the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research.^ ^^ (The 
creation of this influential body likely came about because of the mtense medical concern and 
legal activity in the years leading up to the Quinlan case.) At its first meeting in January 1980, 
the Commission decided to address first its Congressional mandate to report on "the matter of 
defining death, including the advisability of developing a uniform definition of death. 

In July 1981, the Commission reported its conclusions in a report entitled Defining 

1 13 

Death. It recommended the adoption of the Uniform Determination of Death Act (UDDA), 
which was developed in collaboration with the American Bar Association, the American 
Medical Association, and the National Conference of Commissioners on Uniform State Laws. 

Two other Presidential Commission reports were also influential in the U.S. in the early 
1980s: Making Health Care Decisions (1982) and Deciding to Forego Life-Sustaining 
Treatment (1983). In the Commission's introduction to the thu"d of these reports the following 
imderlying reasons for the studies were set out: 

1 . Americans seem to be increasingly concerned with decisions about death and dying; 



110 



ill 

112 
113 

114 



O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences Press, 
1977) at 160. As noted earlier, the BMA also opposed euthanasia and passed a resolution in 1969 against it. On 
the other hand, a change in the Canadian Medical Association's Code of Ethics, passed during the 1970 General 
Council meeting, is considered to have represented a more flexible position. The new wording was: "An ethical 
physician will alow death to occur with dignity and comfort, when death of the body appears inevitable." It added 
that it was not necessary to prolong life by unusual or heroic means when clinical death of the mind had occurred. 
{See O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: Human Sciences 
Press, 1977) at 157.) 

42 U.S.C. 1802(1978). 

42 U.S.C. 300v-l(a)(B)(Supp.l981). 

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Defining Death (Washington, D.C.: U.S. Government Printing Office, 1981). 

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Deciding to Forego Life-Sustaining Treatment (Washington, D.C.: U.S. Government Printing Office, 1983) at 9. 

The UDDA states: "An individual who has sustained either (1) irreversible cessation of circulatory and respiratory 
functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A 
determination of death must be made in accordance with accepted medical standards." In 1983, thirty-seven U.S. 
jurisdictions had recognized the determination of death through neurological standards (including eleven which 
adopted the UDDA by statute). 



25 

2. Dying more often than not occurs under medical supervision (it is less of a private 
matter than it used to be); 

3. A range of biomedical developments during the past several decades have made death 
more a matter of deliberate decision (including frequent dramatic developments which 
have made it possible to retard or even reverse many conditions that, until recently, 
were considered fatal); and 

4. Medical technology often renders patients less able to communicate or to direct the 
course of their treatment (with the constant need to clarify rights, duties and liabilities 
of all concerned). 

The main conclusions of the 1983 report, Deciding to Forego Life-Sustaining Treatment, 
were that 1) the voluntary choice of a competent and informed patient should determine whether 
or not life-sustaining therapy will be undertaken, just as such choices provide the basis for other 
decisions about medical treatment, and 2) health care professionals serve patients best by 
maintaining a presumption in favour of sustaining life, while recognizing that competent 
patients are entitled to choose to forego any treatments, including those that sustain life. The 
report also stated that achieving medically and morally appropriate decisions does not require 
changes in statutes concerning homicide or wrongftil death, "given appropriate prosecutorial and 
judicial interpretation". 

(c) Canada 

In Canada, the common law on suicide reflected the English perspective. Given that 
prosecution of a successfiil suicide was difficult, most prohibitions centred on attempted suicide. 

117 

The offense of attempted suicide in Canada was found in the original Criminal Code at s.238. 
Canada also recognized in its first Code that aiding suicide was criminal. 

The offense of attempted suicide remained largely unaltered until it was repealed in 
1972. Counselling, procuring, aiding or abetting another's suicide remained punishable as a 



lis 



116 



117 
118 
119 



President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Deciding to Forego Life-Sustaining Treatment (Washington, D.C.: U.S. Government Printing Office, 1983) at 1-2. 

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Deciding to Forego Life-Sustaining Treatment (Washington, D.C.: U.S. Government Printing Office, 1983) at 3-4. 
This report also presented conclusions on incompetent patients generally, patients with permanent loss of 
consciousness, seriously ill newborns, and cardiopulmonary resuscitation. 

S.C. 1892, c.29. 

S.C. 1892, c.29, S.237. 

ByS.C.1972,c.l3,s.l6. 



26 

120 

criminal offense. On this issue it was noted by Sopinka J. in Rodriguez v. British Columbia 

121 

(Attorney General) that: 

the decriminalization of attempted suicide cannot be said to represent a consensus by Parliament or 
by Canadians in general that the autonomy interest of those wishing to kill themselves is paramount 
to the state interest in protecting the life of its citizens. Rather, the matter of suicide was seen to have 
its roots and solutions in sciences outside the law, and for that reason not to mandate a legal 

122 

remedy. 

Related to California's passage of its Natural Death Act in 1977, a private member's bill 

121 

was presented in the same year to the Ontario Legislature. On a free vote on second reading 
the measure was approved with a significant majority, but it died when a provmcial election was 
called, and for some years had not been revisited. The mtent of the bill was to permit any 
competent person over eighteen years of age to sign a directive to instruct physicians that 
consent to medical treatment would not extend to the application of life-sustaining procedures 
during the state of terminal ilhiess. 

This effort in Ontario was modelled after the California legislation (noted earlier in this 
paper), but it had been revised to avoid what were seen to be deficiencies in that Act. The bill 
would have relieved physicians of all civil liability in the appropriate removal of life-sustaining 
measures, but there was concern that without the co-operation of the federal government in 

125 

amending the Criminal Code, doctors could still be prosecuted for a criminal offense. (There 
was a similar attempt in Alberta in 1978, but the bill there was allowed to die on the order 

126s 

paper. ) 

In comparison with other jurisdictions (up until the late 1970s), Canada was seen to be 
relatively inactive regarding the introduction of euthanasia-related legislation. Nevertheless, it 
was an issues of concern to physicians. In 1974, the Canadian Medical Association had passed a 
General Council resolution by a close vote (75 to 66) stating that there are times when it may be 
ethical for a physician to write "no resuscitation" on the medical record of a termmally ill 
patient. And in a 1978 version of the CMA's Code of Ethics, principle 5 stated: 



120 
121 
122 
123 



124 
125 
126 



Bernard M. Dickens, "The right to natural death" (1981) 26 McGill L J 847 at 848. 

Rodriguez \. B.C. f'^.G.; [1993] 3 S.C.R. 519; (1993)24 CR (4th) 281 (SCC). 

(1993) 24 CR (4th) 281 (SCC) at 303. 

Bill 3, Private Members Bill, 4th Session, 30th Leg. {See Bernard M. Dickens, "The right to natural death" (1981) 
26 McGill L J 847 at 873, Fran Camerie, "Euthanasia and self-determinism: is there a Charter right to die in 
Canada?" (1987) 32 McGill L J 299 at 316 and Tom Campbell, "Euthanasia and the law" (1979) 17 Alta L R 188 
at 200.) 

Tom Campbell, "Euthanasia and the law" (1979) 17 Alta L R 188 at 200. 

Tom Campbell, "Euthanasia and the law" (1979) 17 Alta L R 188 at 201. 

Bill 244, 4th session, 1 8th legislature. 



27 
An ethical physician... will recognize that the patient has the right to accept or reject any 

127 

physician and any medical care recommended to him.... 

In 1979, a Study Paper in the "Protection of Life" series published by the Law Reform 
Commission of Canada addressed the related issue of when death occurs. This report argued that 
there is a distinction between death as a "natural event" in withdrawal of life-sustaming 
technology or treatment, and when death results from an assisted suicide or euthanasia, where 
there is a much more direct causal connection between the act and the result. The conclusion of 
the report on this issue, that the distinction is a "fundamental" one, is cited by Sopinka J. in 

128 

Rodriguez. 

The LRCC report stated in its first conclusion (regardmg priorities for public policy and 
law): 

Public policy and law should (continue to) affirm and protect the absolute value, equality and 
"sanctity" of human life, and continue to prohibit (active) euthanasia for any reasons. But at 
the same time, it should make explicit that what it is affirming and protecting is the absolute 

129 

value of human personal life, of persons. 

Two major studies by the Law Reform Commission of Canada addressed the issues of 
euthanasia and assisted suicide in the 1980s. The Commission's Working Paper No. 28 
proposed three principles based on the relationship between the quality of life and the sanctity of 
life.'^° (These principles were based on three conclusions made by E. Keyserlingk in another of 
the Commission's reports. Sanctity of Life or Quality of Life in the Context of Ethics, Medicine 
and Law. ) 

The first prmciple was said to be in favour of life; the second, the recognition that all 
human beings are masters of their own destinies except if the exercise of this right affects public 
order or the rights of others; and the third principle was described as the need to consider human 

132 

life from the "qualitative" as well as the "quantitative" perspectives. 



127 

128 
129 

130 

131 

132 



See Fran Camerie, "Euthanasia and self-determinism: is there a Charter right to die in Canada?" (1987) 32 McGill 
L J 299 at 310 and O. Ruth Russell, Freedom to Die: moral and legal aspects of euthanasia, rev. ed. (N.Y.: 
Human Sciences Press, 1977) at 162. 

Rodriguez v. B.C. (A.G.) (1993) 24 C.R. (4th) 281 (SCC) at 309; [1993] 3 S.C.R. 519. 

Sanctity of Life. Protection of Life Series, Study Paper. Law Reform Commission of Canada. Ottawa: 1979 
at 187. 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Working Paper 
No. 28) (Hull, Que.: Supply and Services Canada, 1982) at 36-39. 

Law Reform Commission of Canada, Sanctity of Life or Quality of Life in the Context of Ethics. Medicine and 
Law (Study Paper No.3) (Hull, Que.: Supply and Services Canada, 1979) at 70. 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Working Paper 
No.28) (Hull, Que.: Supply and Services Canada, 1982) at 39. 



28 

The LRCC also dealt with the possibility of decriminalizing assisted suicide in its Working 
Paper. It stated: "...[T]he prohibition in [s.241] is not restricted solely to the case of the 
terminally ill patient, for whom we can only have sympathy, or solely to his physician or a 
member of his family who helps him to put an end to his suffering. The section is more general 
and applies to a variety of situations for which it is much more difficult to feel sympathy.... To 
decriminalize completely the act of aiding, abetting or counselling suicide would therefore not 

133 

be a valid legislative policy." 

This Working Paper submitted that in dealing with a properly informed, competent adult, 
the limit of unreasonable quality of life must be decided by the affected individual. ^^'^ However, 
the response of the public to this report was generally negative and some of its recommendations 
were subsequently retracted in a report published in 1983, Euthanasia, Aiding Suicide and 
Cessation of Treatment (Report 20). 

In this report the LRCC recommended that the Criminal Code be amended to provide that 
the homicide provisions not be interpreted as requiring a physician to undertake medical 
treatment against the wishes of a patient, or to continue medical treatment when such treatment 
"has become therapeutically useless", or from requiring a physician to "cease administering 
appropriate palliative care intended to eliminate or to relieve the suffering of a person, for the 
sole reason that such care or measures are likely to shorten the life expectancy of this person". ^^^ 

The LRCC concluded that neither active euthanasia nor the aiding of suicide should be 
legalized and recommended that there be no change in the present law. It did, however, propose 

137 

a new Criminal Code provision to clarify the status of life-shortening palliative care. 



133 



134 



135 



136 



137 



Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Working Paper 
No.28) (Hull, Que.: Supply and Services Canada, 1982) at 53. 

Fran Camerie, "Euthanasia and Self-Determinism: Is There a Charter Right to Die in Canada?" (1987 32 McGill 
L J 299 at 322. 

For example, the Commission had originally recommended that the consent of the Attomey General should be 
required before prosecutions could be initiated under Criminal Code s.241(b). 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Report 20) (Hull, 
Que.: Supply and Services Canada, 1983) at 35, as stated in Rodriguez v. British Columbia (Attorney General) 
(1993) 24 CR(4th) 281 (SCC) 281 at 305. 

Laura SchifFer, "Euthanasia and the Criminal Law" (1984) 42(2) U of T Fac of L R 93 at 104. The proposed 
provision read as follows: 

199.2 Nothing in sections 14, 45, 198 and 229 shall be interpreted as preventing a physician from 
undertaking or obliging him to cease administering appropriate palliative care intended to eliminate or to 
relieve the suffering of a person, for the sole reason that such care or measures are likely to shorten the life 
expectancy of this person. 

(From Law Reform Commission of Canada, Euthanasia, Aiding Suicide, Cessation of Treatment (Report No.20) 
(Hull, Que.: Supply and Services Canada, 1983) at 35.) 



29 

No effort since the 1972 amendment to the Code has been successful in decriminalizing 
assistance to suicide. Active euthanasia, or as it is sometimes referred to, "mercy killing", 
whether committed by a physician or by a member of a person's family has always fallen within 

138 

the homicide provisions of Canada's Criminal Code. The Canadian justice system does not 

1 19 

consider motive in judging culpability or sentence in the crime of homicide. And assisting 
suicide is a culpable act. However, the degree of assistance in the suicide has generally been 
left open to argue, and sympathetic Canadian juries have acquitted individuals in cases of 
euthanasia. 

In one such case in Calgary, Alberta in 1947, Victor and Dorothy Ramberg were found not 
guilty despite a confession to killing their two and a half year-old son with car exhaust. The case 
was heard in Alberta Supreme Court under Mr. Justice S.J. Shepherd, where defense counsel 
told the jury that they were trying the first case in Canada with a defence based on euthanasia. 
The jury took only 10 minutes of deliberation to return the "not guilty" verdict in the death of 
the terminally diseased (cancer of the optic nerves) child. '"^^ 

The Canadian law on so-called "passive euthanasia" was until recently considered to be 
somewhat less clear than on active euthanasia or assisting suicide. Because the Criminal Code 
differentiates between acts and omissions, today it is generally held that an omission would not 
be censurable unless there is a breach of some legal duty. There has been considerable concern 
that withholding or withdrawal of treatment could represent such an omission. 



138 
139 
140 
141 

142 



143 



144 



Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T Fac of L R 93. 

Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T Fac of L R 93 at 93-94. 

Criminal Code R.S.C. 1970, c. C-34, s.239 or 234. 

It is suggested that this tendency for acquittal in Canadian cases may have come about because Canadian law does 
not recognize defences of temporary insanity or diminished responsibility. 

Sidney Katz, "Are They Better Off Dead?" Macleans, November 1, 1947 at 7. Katz also reported on another case 
in the same article: that of George Herbert Davis, a 68-year-old man who had beaten his wife to death to end many 
years of her pain due to dropsy (which required amputation of both her legs). Mr. Davis admitted his guilt but 
explained that he couldn't stand any longer her pleas for morphine to alleviate her pain; he was sent to trial for 
murder but the jury acquitted him. 

Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T Fac of L R 93 at 95. The preferred term as 
noted above is "withholding or withdrawing treatment". 

More recently, Canadian courts have recognized the common law right of patients to refuse consent to medical 
treatment, or to demand that treatment, once begun, to be withdrawn. See Ciarlariello v. Schacter [1993] 2 SCR. 
1 19. This particular right has also been specifically recognized to exist even if the withdrawal from or refusal of 
treatment may result in death. See Malette v. Shulman (1990), 72 O.R.(2d) 417 (C.A.) and Fleming v. Reid{\99\ 
4 O.R.(3d) 74 which stand for the principle that terminally ill patients who are mentally competent can instruct 
their physicians not to commence life-support treatment; and Nancy B. v. Hotel-Dieu de Quebec (1992), 86 
D.L.R.(4th) 385 (Que.S.C), which affirms that patients on life-support treatment are entitled to direct that such 
treatment be discontinued. 

Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T Fac of L R 93 at 95. 



30 

In the case of active euthanasia, there have been very few criminal prosecutions of 
physicians for homicide in Canada, and when there have been such cases, the acquittal rate has 
been high. However, withholding or withdrawing treatment ^ may give rise to the question of 
whether the physician failed his or her legal duty, and this may bring into play the Criminal 
Code section referring to the provision of the "necessaries of life". ^'^^ For this reason, it has been 
suggested that "reasonableness should be read into this duty of physicians in the context of 
medical treatment. 

The 1957 John Bodkin Adams case in England (referred to above) has been noted as an 
illustration of how the defence of necessity can be used in the medical context. ^^° It applied in 



145 
146 

147 



148 



149 



150 



E. Picard, Legal Liability of Doctors and Hospitals in Canada (Toronto: Carswell, 1978) at 298. 

As noted earlier, even though these practices are sometimes referred to as "passive euthanasia", the fact is that 
medical practice is generally accepted to include decisions to withhold or withdraw treatment, and so the term 
"passive euthanasia" may well be inappropriate. 

R.S.C. 1970, c. C-34, s.l97. One early Canadian case which established that the provision of health care was 
included in these "necessaries of life" was R. v. Brooks (1902), 9 B.C.R. 13, 5 C.C.C. 372 (S.C.) (cited in Fran 
Camerie, "Euthanasia and self-determinism: is there a Charter right to die in Canada?" (1987) 32 McGill L J 299 
at 308). For more recent support for this principle, see also R. v. Cyrenne, Cyrenne & Cramb (1981) 62 C.C.C. 
(2d) 238 (Ont.Dist.Ct). 

The current state of the law on "necessaries of life" is R. v. Tutton ([1989] 1 S.C.R. 1392). In this case, the Tuttons 
were followers of a religious sect that believed in faith healing. They had a young son who was diagnosed as a 
diabetic requiring regular injections of insulin. In the belief that their child had been cured by an act of God, and 
despite medical warnings to the contrary, the Tuttons stopped giving him insulin and he died as a result. The 
parents were charged with manslaughter by criminal negligence through an omission of their duty to provide 
necessities of life to the child. The couple was found guilty at trial but their convictions were overtumed by the 
Ontario Court of appeal (b^ed on a reversible error of the judge in instructing the jury on burdens of proof of the 
manslaughter and failure to provide necessaries of life offenses). On appeal by the Crown, the Supreme Court of 
Canada held that the appeal should be dismissed. (See Peter MacKinnon, "Criminal Law Reform" (1990) 69 Can 
BarRev 177 at 177-178.) 

Law Reform Commission of Canada, Medical Treatment and Criminal Law (Working Paper No.26) (Ottawa: 
Supply and Services Canada, 1980). 

According to Black's Law Dictionary (1030 6th ed. 1990), "necessity" is defined as an "irresistible compulsion; a 
power or impulse so great that it admits no choice of conduct". 

Blackstone wrote that necessity is "a restraint upon the will, whereby a man is urged to do that which his 
judgment disapproves, and which it is to be presumed, his will (if left to itself) would reject. As punishments are 
therefore only inflicted for the abuse of that free will which God has given man, it is highly just and expedient that 
a man should be excused for those acts which are done through inevitable force and compulsion." (See William 
Blackstone, Commentaries on the Law of England, 57.) 

Laura Schiffer, "Euthanasia and the Criminal Law" (1984) 42 U of T Fac of L R 93 at 102. She notes that this 
issue was considered by Glanville Williams in The Sanctity of Life and the Criminal Law (New York: Alfred A. 
Knopf, 1970) at 177 and 181. 

Dr. Adams did not contest the evidence that his patient's death resulted from his injection of morphine, but he 
denied any intent to kill her. His defence was that progressive increases in dosage were necessary to relieve pain, 
and that his concern to ease her dying took precedence over the foreseeable risk of death from morphine overdose 
(see Barney Sneiderman, John C. Irvine and Philip H. Osborne, Canadian Medical Law: An Introduction for 
Physicians and Other Health Care Professionals (Toronto: Carswell, 1989) at 240). 



31 

that case to a particular set of circumstances involving the provision of palliative care (the case 
said that relieving pain was part of a physician's duty), but it was not considered to establish a 
precedent for euthanasia in general. 

There have also been cases in Canada which dealt with the defence of medical necessity. 
For example, in R. v. Byng a man charged with drunk driving attempted to use the defence of 
medical necessity (severe chest pains indicating a possible heart attack) to justify his driving 
while intoxicated. Although this was accepted by the trial judge, the Nova Scotia Court of 
Appeal ruled that his drunk driving was the "greater evil" and he therefore did not fulfill the 

152 

requirements for the defence of necessity. This common law defence is nevertheless available 
in Canada, and is preserved by s.7(3) of the Criminal Code. 

The issue of causation has also been raised in the context of discontinuing treatment. In R. 
V. Kitching and Adams, it was argued that a physician declining or discontinuing artificial means 
of postponing a patient's death in order to spare him or her pain and suffering does not cause the 
patient's death. Even if "brain death" had not been substituted for the traditional criteria as the 
defmition of death in criminal law, the case illustrated that the existence of brain death meant 
that subsequent medical intervention or non-intervention was not sufficiently causally connected 
to death as otherwise determined to satisfy the requirements of homicide liability. 

It also has been generally accepted in Canada in the area of civil law that competent adults 
have an absolute right to refuse treatment, even if death resulted. In the case of Mulloy v. Hop 



151 



152 



153 



154 



155 



R. V. Byng, (1947), 20 N.S.R. (2d) 125. See Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T 
FacofLR93atl03. 

In the 1988 Morgentaler case, the groundwork was established for the exercise of personal autonomy in medical 
decision-making. The Supreme Court of Canada had ruled that, based of s.7 of the Canadian Charter of Rights 
and Freedoms, the Criminal Code restrictions on access to abortion interfered with a women's "bodily integrity in 
both a physical and emotional sense". (See Barney Sneiderman, John C. Irvine and Philip H. Osborne, Canadian 
Medical Law: An Introduction for Physicians and Other Health Professionals (Toronto: Carswell, 1 989) at 27 1 .) 

An important common law necessity case is R. v. Bourne ([1939] 1 K.B. 687 (Cent. Crim. Ct)) which confirmed 
the legal availability of the defence to save not only like itself, but also physical and mental health. (Cited in 
Bernard M. Dickens, "The Right to Natural Death" (1981) 26 McGill L J 847 at 853.) 

(1976), 32 C.C.C. (2d) 159, [1976] 6 W.W.R. 697 (Man. C.A.). {See Bernard M. Dickens, "The right to natural 
death" (1981) 26 McGill L J 847 at 870 and Peter Mackinnon, "Euthanasia and homicide" (1984) 26 Crim L Q 
483 at 501.) 

Peter Mackinnon, "Euthanasia and homicide" (1984) 26 Crim L Q 483 at 501. The majority noted that the 
deceased was maintained on a respirator to preserve his organs, not his life, and did not consider the defendant's 
argument that the real cause of death was the acts of the physicians in removing the deceased's kidneys for 
U-ansplant purposes and in stopping the respirator (see Joan M. Gilmour, "Withholding and Withdrawing Life 
Support from Adults at Common Law" (1993) 3 1 Osgoode Hall L J 473 at 502). 

A more recent B.C. case, R. v. Green ((1988) 43 C.C.C.(3d) 413), referred to R. v. Kitching and Adams, but 
considered the issue in that case (the cause of death) as different from the issue based on the facts oi Green (when 
death occurred). 

Laura Schiffer, "Euthanasia and the criminal law" (1984) 42 U of T Fac of L R 93 at 99. 



32 

Sang,^^^ for example, a physician who performed a necessary amputation over the patient's 
objection was held liable for damages. More recently, in a 1990 case, Malette v. Shuiman,^^^ the 
court strongly upheld the patient's right to self-determination and bodily integrity, and stated 
that preserving life meant more than maintaining physical existence/^^ 

Malette can be contrasted in both reasoning and result with an earlier 1984 case, Procurer 
General du Canada v. Hopital Notre Dame et Niemiec. The patient, who had been detained 
pending deportation, had swallowed wire in order not to have to return to his own country. The 
Quebec Superior Court did not allow the patient to invoke the principle of inviolability of his 
person to support his reftisal of treatment. In the court's view, that principle was seen to be 
aimed at the protection and preservation of life, and so it could not be applied to do the 

., 160 

opposite. 

In Malette, both courts appeared to empathize with the reason (religious commitment: the 
patient was a Jehovah's Witness) for the refusal of treatment, while in Niemiec, the patient's 
wishes were found to be less persuasive than the prevailing value of the preservation of life. 

A year after Malette, another decision, Fleming v. Reid upheld even more strongly the 
patient's right to refuse treatment. Although the facts in this case involved the non-consensual 
administration of psychiatric treatment, the court still supported a patient's right to make 
decisions even about life-saving medical treatments. The court said that it would not matter that 
the patient's decision appeared to be ill-advised. 

Cases that raise questions about withdrawing or withholding life support continue to 
appear before Canadian courts. For example, in 1992 the case of Nancy B. was heard in Quebec 
Superior Court. The patient was a competent adult who had become permanently disabled by 
Guillain-Barre disease. The court held that her respirator was a form of medical treatment to 



156 

157 
158 

159 
160 

161 
162 



(1935), 1 W.W.R. 714 (Alta. C.A.) cited in Laura Schiffer, "Euthanasia and the Criminal Law" (1984) 42(2) U of 
TFacofLR93at99. 

(1990) 72 O.R. (2d) 417 (C.A.), aff g (1987) 63 O.R. (2d) 243 H.C. 

Malette v. Shulman (1990) 72 O.R. (2d) 417 (C.A), aff g (1987) 63 O.R. (2d) 243 (H.C.) at 432 and 430, cited in 
Joan M. Gilmour, "Withholding and Withdrawing Life Support from Adults at Common Law" (1993) 31 
Osgoode Hall L J 473 at 486-487. 

(1984) C.S. 426. 

Procureur General du Canada v. Hopital Notre Dame at Niemiec (1984) C.S. 426 at 427 (cited in Joan M. 
Gilmour, "Withholding and Withdrawing Life Support from Adults at Common Law" (1993) 31 Osgoode Hall L 
J 473 at 484). 

Joan M. Gilmour, "Withholding and Withdrawing Life Support from Adults at Common Law (1993) 31 Osgoode 
Hall L J 473 at 489. 

Fleming v. Reid (1991) 4 O.R. 3d 74 (C.A.) at 86 and 91 (cited in Joan M. Gilmour, "Withholding and 
Withdrawing Life Support from Adults at Common Law" (1993) 31 Osgoode Hall L J 473 at 491-492). 



33 

which Quebec's Civil Code applied, and that since she had been considered capable to consent 
to its use, she was equally entitled to request that it be discontinued. 

Finally, a woman in British Columbia with Lou Gehrig's disease, Sue Rodriguez, was 
recently denied the relief she sought after bringing an application before the Supreme Court of 
B.C. for a declaration that sections 241 and 14 of the Criminal Code are unconstitutional, insofar 
as they prevent a terminally ill patient from assistance in suicide. A panel of three B.C. Court of 
Appeal judges, by a two to one majority decided that her appeal should be dismissed. 

The Supreme Court of Canada finally upheld the two lower court decisions by a five to four 
majority. She had asked that the highest court in the country consider the question of physician- 
assisted suicide as a matter of national importance. The split decisions at both the Court of 
Appeal and Supreme Court levels illustrate the tensions surrounding this ethical and legal 
dilemma. The Supreme Court clearly indicated that this is a matter that requires a legislated 
solution. 



Nancy B. v. Hotel-Dieu de Quebec et al (1992) 86 D.L.R. (4th) 385 (Que.Sup.Ct.), cited in Joan M. Gilmour, 
"Withholding and Withdrawing Life Support from Adults at Common Law" (1993) 31 Osgoode Hall L J 473 
at 493. 

'^"^ See Rodriguez v. B.C. (A.G.) [1993] 3 SCR. 519. 



CHAPTER 2 



DEFINITIONS OF DEATH 



One might expect there to be a general agreement on the minimal point beyond which life 
support need not be continued, that being when death has occurred. Yet in Canada, it is not 
absolutely clear that the legal and medical definitions of death coincide, thus complicating the 
consideration of when there is any decision to be made about suspending the use of life support, 
or about the identity of appropriate decision-makers. Whatever the definition of death, 
determining that it has occurred is still a medical judgment and consequently, remains in the 
hands of physicians. Yet after the fact, the law may have something different to say about when 
death occurred, and may even recognize several different times of death. The traditional legal 
definition of death considers it to be an event occurring at an identifiable point in time, generally 
when heartbeat and respiration cease. Most physicians, however, are now of the belief that it is 
more accurate to view death as a process, or alternatively, that death may manifest itself in 
various ways, certainly not limited to a situation where the heart must have stopped fiinctioning. 
In medicine, then, brain death has assumed greater importance in determining when life has 
ceased. 



1 



Much of chapters 2 and 3 is drawn from Gilmour J., "Withholding and Withdrawing Life Support from Adults at 
Common Law" (1993) 31 Osgoode Hall L.J. 473. 

Kushnir, L. "Bridging the Gap: The Discrepancy Between Medical and Legal Definitions of Death", (1976) 34 
U.T. Fac. L. Rev. 199. See also Dickens, B., "Legal Evolution of the Concept of Brain Death", 2 Transplantation 
Today 60. 

But see Burgess, M., "Law and Ethics: Opportunistic Infections of Medical Practice?" (1988) 3 Can. J.L.S. 265, 
269, pointing out that definitions of death have moral, cultural and religious as well as medical aspects. Currently, 
we have given this determination entirely over to physicians. Burgess suggests that widespread adoption of the 
"brain death criterion" once transplants became feasible represents one more example of the medical profession 
successftilly pressuring society to accept expedient technical solutions without resolving underlying moral, 
cultural and religious differences. Robert Veatch concludes that "[p]lacing responsibility on the individual 
physician or the profession as a whole for deciding what the definition of death should be is the result of 
inadequate analysis". While physicians have special skills to determine whether particular bodily functions have 
ceased, they have no particular expertise to select a particular philosophical or theological concept of death. See 
Veatch, R., Death, Dying and the Biological Revolution: The Last Quest for Responsibility, rev'd. ed. (New York: 
Yale U. Press, 1989) at 48. 

As one commentator noted regarding the laws governing transplantation in the early 1980's, "[t]he legislatures of 
the English-speaking provinces have embarked upon a path of balkanization of the human body", as "...the 
definition of death ... varies depending upon which particular organ is to be transplanted." Freedman, B., "'By 
Good Appliance Recovered': New Reflections on Organ Transplantation and the Definition of Dcatli in Canada", 
(1982) 3 Health Law in Canada 3. 



[35] 



36 



That, too, may be open to change to take into account moral, cultural and religious 
differences. In New Jersey, for instance, the law now provides that an individual may not be 
declared dead by neurological criteria (brain death) if the physician authorized to declare death 
has reason to believe that such a declaration would violate the individual's religious beliefs.^ In 
that situation, it is the individual's value system that prevails if it conflicts with the medical 
profession's. One must remain clear that this is not to be taken as implying that there are two 
kinds of death, "regular death" and "brain death". As one writer noted in commenting on do- 
not-resuscitate laws, "[t]he fact is that there is death, one phenomenon, that can be determined in 
two different ways" . Still, it is difficult not to be struck by the oddity of the idea that one might 
be declared dead if one is, for instance, Christian, but not yet meet the legal defmition of death if 
one is an adherent of a different religion. The implications of the New Jersey law for questions 
such as the defmition of futile treatment and whether an obligation exists to provide it to a 
particular individual patient remain to be resolved — does the law then require treatment beyond 
death, at least for some people? The recent passage of this law highlights the potentially 
contentious nature of even such basic questions as the point beyond which life support need not 
be continued — when death has occurred. 

A number of organizations, particularly in the United States, have developed criteria for 
establishing when brain death has occurred. The Canadian Medical Association has clearly 
accepted the concept of brain death as an ethically valid basis for defming death. The Law 
Reform Commission of Canada has recommended that legislation be passed recognizing that "a 
person is dead when an irreversible cessation of all that person's brain functions has occurred". 
At present, however, Manitoba is the only province to expressly recognize brain death as an 
acceptable criterion for the determination of death. Even legislation the various provinces have 
developed to deal with organ transplants sidesteps the issue by omitting to ascribe a meaning to 
the concept of death or to indicate how to determine whether it has occurred. That task is most 
often delegated to the medical profession. In Ontario, for instance, the Human Tissue Gift Act 



10 



N.J. Rev. Stat. para. 26:6A-5 (Supp. 1993), referenced in Daar, J., "Medical Futility and Implications for 
Physician Autonomy", (1995) 21 Am. J. Law & Med. 221 at 228. 

Annas, G., "New York's Do-Not-Resuscitate Law: Bad Law, Bad Medicine and Bad Ethics", in Baker, R., 
Strosberg, M. and Bynum, J. (eds.). Legislating Medical Ethics.A Study of the New York State Do-Not-Resuscitate 
Law, (Kluwer Academic Publishers, Dordrecht: 1995) at 148. 

The first and most prominent of these American definitions was the "Report of the Ad Hoc Committee of the 
Harvard Medical School to Examine the Definition of Brain Death", 205 J. Am. Med. Assoc. 85 (1968). 

Canadian Medical Association, "A C.M.A. Position - Guidelines for the Definition of Brain Death", (1987) 136 
Can. Med. Assoc. J. 200 A-B. 

Law Reform Commission of Canada, Criteria for the Determination of Death, (Report No. 1 5) (Supply and 
Services Canada, Ottawa: 1981) at 25. The determination would be made on the basis of prolonged absence of 
spontaneous circulatory and respiratory functions, or, when this is impossible because of the use of artificial 
means of support, by any means recognized by the ordinary standards of current medical practice. 

Vital Statistics Act, R.S.M. 1987, c. V-60, s.2 provides: "For all purposes within the legislative competence of the 
Legislature of Manitoba, the death of a person takes place at the time at which irreversible cessation of all that 
person's brain functions occurs." 



37 



provides: "For the purposes of a post mortem transplant, the fact of death shall be determined by 
at least two physicians in accordance with accepted medical practice." 

Canadian case law gives little guidance as to whether brain death can be equated with 
death, particularly as most of the cases concerned with determining when death occurred have 
arisen in the very different context of establishing entitlement to insurance proceeds or bequests 
under a will. One of the very few Canadian judgments to consider this issue is the dissenting 
opinion in R. v. Kitching and Adams , a 1976 decision of the Manitoba Court of Appeal. The 
defendants, who had caused the deceased's original head injuries, asserted that the real cause of 
death was the acts of the physicians in removing the deceased's kidneys for transplant purposes 
and thereafter, stopping the respirator. The Crown responded that the deceased was already dead 
by that time, as brain death had been established. Upon canvassing the various criteria proposed 
for establishing the occurrence of brain death, the dissenting judge was of the view that there 
was not a broad enough consensus among physicians to be able to determine when brain death 
had occurred but that the issue was not essential to the resolution of the case. His comments in 
this regard were not adopted by the majority, who simply noted that the deceased was 
maintained on a respirator to preserve his organs, not his life, but did not consider the 
defendant's argument in detail. 

In a more recent decision of the British Columbia Supreme Court, R. v. Green, Wood, J. 
also relied on the traditional definition of death - that is, death does not occur until the cessation 
of all vital fiinctions, including the heart. In that case, it was necessary to determine whether the 
accused (who admitted shooting the deceased after he had ah-eady been shot by someone else) 
could be found guilty of murder. Each shot taken individually would have been fatal, in that the 
damage to the respiratory centre of the brain was so significant that respiration would have 
ceased. However, the evidence also showed that the heart would continue beating for three to 
five minutes after the first shot, during which time the accused also shot the deceased. The court 
had to determine at what point death occurred - with the extensive brain damage caused by the 
first shot, or some minutes later after the victim had been shot by the accused and his heart 
stopped beating. The court ultimately concluded that, while brain death may be a suitable legal 
standard in medical and civil law contexts, it was impractical to apply in criminal law. In 
reaching this conclusion, the court seemed largely motivated by what it regarded as the 



11 



12 
13 
14 
15 
16 



Human Tissue GiftAct^ R.S.O. 1990, c. H.20, s.7.0ther provincial legislation regulating organ transplants contains 
similar provisions. See, for example. Human Tissue Act, R.S. N. 1990, c. H.15, s. 9{\),Human Tissue Act, 
R.S.B.C. 1979, c. 187, s. 7; Human Tissue Gift Act, R.S.N.S. 1989, c.215, s.8; Human Tissue Gift Act, R.S.P.E.I. 
1988 c. H-13, s.7(l); Human Tissue Gift Act, R.S.A. 1980, c.H-12, s.7; Human Tissue Gift Act, R.S.S.1978, c.H- 
15, s.8(l); Human Tissue Gift Act, R.S.Y.T 1986, c. 89, s. 7. 

See, for example. Re Warwicker v. Toronto General Trust Corp, [1936] 3 D.L.R. 368 (Ont. S.C). 

[1976]6W.W.R.697. 

/6/J. at 71 1-14, O'Sullivan, J.A. 

76/^. at701,Matas,J.A. 

(1988)43 C.C.C. (3d) 413 (B.C.S.C). 



38 



impossible burden this would place on the Crown to prove when death had occurred. This 
would itself seem to be a misreading of the medical understanding of death. Brain death is only 
one of the clinical criteria physicians commonly employ to determine whether death has 
occurred; it does not necessarily exclude other clinical criteria. Either brain criteria or heart and 
lung criteria can, as appropriate, be taken as indicators that death, in the sense of irreversible 
destruction of whole brain function, has occurred. 

Current medical knowledge and indeed, unchallenged medical practice so overwhehningly 
support the conclusion that brain death can be equated with death that it can be anticipated that 
Canadian courts will acknowledge this to be so, certainly in the context of decisions about life 
support. Such a result would be consistent with the direction taken by courts in the United 
Kingdom and the United States. This conclusion finds support in the provinces' willingness to 
afford legal recognition to "accepted medical practice" in determining when death has occurred 
evidenced by the legislation governing transplants. Although criminal liability is determined 
by federal law, not provincial legislation, it is ahnost impossible to imagine that a physician 
would be prosecuted criminally for acts or omissions which are legal provincially. While the 
risk of this occurring remains a theoretical possibility, the weight of legal and medical authority 
leads to no other sensible conclusion than that brain dead patients need not be maintained on life 
support mechanisms, and that no liability would attach as a result of a physician suspending life 
support from a patient determined to be brain dead in accordance with currently accepted 
medical practice. 



17 



18 
19 



In the United Kingdom, this issue would appear to be resolved such that, at least in the context of criminal 
proceedings, courts are prepared to acknowledge that where the victim of a crime is considered dead by accepted 
medical criteria (i.e., brain death has occurred), life support can be withdrawn without breaking the chain of 
causation between the original injury necessitating the use of life support and the death. See Finlayson v. KM. 
Advocate (1978) S.LT. Notes 60 and R. v. Malcharek; R. v. Steel (1981) 2 All E.R. 422, (1981) 1 W.L.R. 690 
(C.A.). 

In R. V. Malcharek, Lx)rd Lane, C.J., specifically noted at p. 429 that: 

Whatever the strict logic of the matter may be, it is perhaps somewhat bizarre to suggest... that where a 
doctor tries his conscientious best to save the life of a patient brought to hospital in extremis,skilfully using 
sophisticated methods, drugs and machinery to do so, but fails in his attempt and therefore discontinues 
treatment, he can be said to have caused the death of the patient. 

Although the court made it clear it was not passing judgment on whether the confirmatory tests for brain death 
represented a satisfactory code of practice, implicit in Lord Lane's statement must be a recognition and 
acknowledgment that "death" can be defined as brain death determined in accordance with accepted medical 
practice. It is not that the state absents itself from any role in defining death, but rather, that the state has limited its 
intervention to deciding that some other profession shall decide, by leaving what the court chooses to characterize 
as a clinical decision in the hands of clinicians. 

Supra, n.ll. 

See Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385, 393 on die need to read federal and provincial 
legislation together as a coherent whole. 



39 



Beyond that, however, physicians, families, hospital ethics committees and courts are 
faced with quandaries arising from the increasingly multiple meanings of death,^^ and with 
difficult questions about the extent to which contentious expansions of our understanding of 
when death has occurred ought to be applied in decisions about life support. The Law Reform 
Commission of Canada has recommended that the law should clearly state that a physician acts 
legally in deciding to terminate or not to initiate "...treatment which is useless or which no 
longer offers reasonable hope, unless the patient has expressed his wishes to the contrary".^* 
One must ask, "reasonable hope" of what? 

This question remains as an unexplored sub-text to the preceding discussion. It does require 
attention both in the context of defining death and more generally in decision-making about life 
support. What minimum must a patient meet before there is a point to determining his or her 
best interests or what the patient's decision regarding the use of life support would have been? Is 
it physical existence alone, or some level of cognitive, sapient life or an appreciation or 



20 



21 



22 



See Goldberg, S., "The Changing Face of Death: Computers, Consciousness and Nancy Cruzan", (1990) 43 Stan. 
L.R. 659, 665-681 (tracing the move from a whole brain definition of death to the development in the United 
States of a legal and medical "consensus" that those who are "permanently deprived of self-awareness by 
cessation of higher brain functioning" can be allowed to die, and noting that some ethicists now distinguish the 
capacity for social interaction rather than mere consciousness as crucial in determining whether life support need 
be continued); see also Delio v. Westchester County Medical Center, 516 N.Y.S. 2d 677 (1987) (accepting 
concept of neocortical or "higher brain" death). In a New Zealand decision, Auckland Area Health Board v. 
Attorney-General [1993] 1 N.Z.L.R. 235,245 (H.C.), (hereafter, "Auckland Area Health Board'), an application 
by a patient's doctors and hospital seeking court approval for the removal of a ventilator from a man suffering 
from an exfreme form of Guillain-Barr6 syndrome who was unable to communicate in any way, Thomas J. 
commented on 

"[t]he problem... when life passes into death but obscurely... the process of living can become the process 
of dying... This is the plight of the irreversibly doomed patient. Maintained by mechanical means they exist 
suspended in a state of moribund inanimation. Whether a body devoid of a mind or, as in the case of Mr. L. 
a brain destitute of a body, does not matter in any sensible way. In their chronic and persistent vegetative 
condition they lack self-awareness or awareness of the surroundings in any cognitive sense. They are the 
'living dead'". 

He did not mean by that expression that he considered the patient dead in the legal sense, although he noted that 
the difference between the two (brain death and this patients's state) is "a matter of medical description" — id. at 
246. In Canada, an Alberta Provincial Court judge committed foster parents to stand frial on charges of second 
degree murder with respect to their foster child who was in a permanent coma and arguably showed no evidence 
of higher brain activity. The child had not suffered whole brain death. The Crown ultimately chose to proceed to 
trial only on a charge of aggravated assault (Lawyer's Weekly, Jan. 14, 1992, p. 14; The National, Feb. 1992, p. 3; 
personal communication with D. Abbey, counsel to the accused, July 6, 1992). The accused were convicted and 
sentenced to 16 years in prison. The Court of Appeal overturned the conviction and ordered a new trial (R. v. 
Lenny (1994) 155 A.R. 225, referenced in Grant I., Chunn D., Boyle C, 77?^ Law of Homicide (Carswell, Toronto: 
1994) s. 3.3(a)). The decision would appear to be an isolated departure from the general requirement of whole 
brain death in the criminal law context. 

Euthanasia, Aiding Suicide and Cessation of Treatment (Working Paper 28) (Ottawa, Supply and Services 
Canada: 1982) at 55-56. See also British Columbia Royal Commission on Health Care and Costs, Closer to 
Home, (Victoria: Crown Publications, 1991), Vol. 2, at . C-182-C-185. 

This factor was emphasized in Re C, [1989] 2 All E.R. 783 at 787 (C.A.), but as a means of judging quality or 
experience of life for this patient, not in terms of whether the patient did not exist as a human being. In Auckland 
Area Health Board, supra, note 20, the court relied on the patient's lack of self-awareness and awareness of his 



40 



awareness of one's environment and ability to interact?^^ As a practical matter, Canadian courts 
will not go beyond very accepted, very conventional medical opinion in defining death in the 
context of life support issues. In Canada currently, that means death will be equated with whole 
brain death. Life support could be withdrawn without question then. However, much more 
problematic determinations must be made when the patient does not meet that definition of brain 
death but is nonetheless in a severely compromised position - for instance, in a persistent 
vegetative state or barely conscious. Given that we can expect courts to take a very cautious 
approach overall in this area, it follows that their analysis of when death has occurred will be 
conservative as well. Certainly at this point in time, where the patient evidences some brain 
activity a court confronted with the question of whether or not to sanction the withholding or 
withdrawal of life support will not adopt an expansive definition of death. In those 
circumstances, the question will be whether or not the patient should be maintained with life 
support staving off the underlying disease or condition, not whether the patient's existence as a 
person has ended although he or she still exists as a human being, as some writers have 
suggested. 



surroundings "in any cognitive sense" to support its conclusion that he was one of the "living dead" for whom life 
support only deferred death but could not be regarded as sustaining life. 



23 



24 



25 



A criterion suggested by Goldberg, supra note 20; Rhoden, N., "Litigating Life & Death" (1988) 102 Harv. L. 
Rev. 375 at 399-401 and at 442; Buchanan, A. and Brock, D., Deciding Jor Others: The Ethics of Surrogate 
Decision-Making {CdmhMgQ U. Press, Cambridge: 1989) at 194-199. 

The Law Reform Commission of Canada's report. Procurement and_ Transfer of Human Tissues and Organs, 
(Working Paper 66) (Hull, Que.: Supply and Services Canada, 1992) at 95-102 implicitly confirms this conclusion 
in its recommendation that death not be re-defined such that anencephalic newborns (who are bom missing a 
major portion of the brain, skull and scalp and who cannot survive) be deemed brain dead to enable early organ 
transplants. One can see a concrete indication of current struggles with this issue in the American Medical 
Association's recent reversal of a position it took in May, 1995, that living anencephalic neonates (newboms 
lacking major portions of the brain) may be used as organ donors under certain circumstances. In a new opinion 
published by the AMA's Council on Ethical and Judicial Affairs (CEJA Report 1-1-95), the AMA returned to its 
former position: organ donations may take place only after death has occurred. (Health Law Update 1:1 (Fall 
1996, Loyola U). Incursions into our sense of others as persons are very real. 

See, for example, Buchanan, A., Brock, D., supra n. 23 at 127-32. 



CHAPTERS 



COMMON LAW 



1 . DECISION ALL Y CAPABLE PATIENTS 

"Every human being of adult years and sound mind has the right to determine what 
shall be done with his own body." This statement has been a guiding precept in Canadian 
judicial decisions about health care for decades . In the context of medical decision-making 
and treatment, it gives substance to the respect for the integrity and autonomy of the 
individual that is basic to the common law . From this fundamental proposition has grown the 
requirement that health-care providers obtain the informed consent of a patient prior to 
treatment. Briefly, the following prerequisites must be established for a consent to be 
"informed": 

(a) The patient has the capacity to reason and make judgments (i.e. is competent); 

(b) The decision is made voluntarily and without coercion; and 

(c) The patient has a clear understanding of the material risks and benefits of non- 
treatment and of the treatment alternatives, as well as of the disease or condition 
and his or her prognosis. 

It would seem to follow from this decision-making model that a competent individual 
can refuse any medical treatment, regardless of motive and regardless of whether the 
treatment is necessary to preserve life. Despite the unequivocal language in which the 



3 



Schloendorffv. Society of New York Hospital, 105 N.E. 92 at 93, per Cardozo J. (N.Y. 1914). 

For an early reference, see Marshall v. Curry (1933) 3 D.L.R. 260 (N.S.S.C.). 

Indeed, in the context of weighing and comparing the various fundamental values the Canadian Charter of Rights 
and Freedoms protects, La Forest J. commented: "When these values come into conflict, as they often do, it is 
necessary for the courts to make choices based not upon an abstract, platonic analysis, but upon a concrete 
weighing of the relative significance of each of the relevant values in our community in the specific context. This 
the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even 
more fundamental values. In Keegstra...U\c\!Son C.J. identified these fundamental or "core" values as including 
the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, 
and the promotion of public participation in the democratic process." (emphasis added) (R.J.R. MacDonald v. 
Canada (AG.) [1995] 3 S.C.R. 199 at 280). Autonomy, then, is one of the values held to be among the most 
fundamental of all. 

Hopp V. Lepp [1980] 2 S.C.R. 192; Reibl v. Hughes [1992] 2 S.C.R. 880 ; Ciarlariello v. Schachter [1993] 2 
S.C.R. 119. In Ontario see now the Health Care Consent Act, 1996, being Sch. A to the Advocacy, Consent and 
Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, c.2, ss. 10, 1 1. 

[41] 



42 

principle is stated, cases in the early 1980's evidenced some tension in courts' willingness to 
apply the principle to its limits. Other principles and interests compete, and sometimes 
prevail . 

By way of example, in a 1984 decision, Procureur General du Canada c. Hopital Notre 
Dame et Niemiec, the Quebec Superior Court authorized the applicant hospital to feed in 
whatever manner necessary and to treat surgically a competent adult detained pending 
deportation who had swallowed a piece of wire and refused all medical treatment, stating that he 
preferred death to a return to his own country. The court indicated that it would not allow 
Niemiec to invoke the principle of the inviolability of his person to support his refusal of 
treatment. Since, in the court's view, that principle is aimed at the protection and preservation of 
life, it could not be applied to do the opposite — that is, in support of a wish for self-destruction^. 
Niemiec' s right to self-determination was subject to certain limits. Thus, although it occurs 
rarely, courts have overridden a competent adult's refusal of treatment, and not just in what 
might be considered the "easy" cases where the interests of children and the state's obligations 
by virtue oi lis parens patriae power over them are clearly implicated in the adult's decision. 

Although refusal of life-prolonging or life-saving treatment by a competent patient is 
not without legal difficulties, the principle of autonomy that implicitly underpins a decision to 
honour such a refusal has continued to gain ascendancy throughout the last decade. This 
tendency is both reinforced by, and a logical extension of the increasing weight accorded the 
patient's right to know and decide expressed in the concept of informed consent to treatment. 
Several decisions are indicative of the courts' growing emphasis on the principle of self- 
determination. In Attorney General of British Columbia v. Astaforoff, it was held that prison 



5 



Courts in the United States, too, have recognized a right in the competent patient to refuse medical treatment 
without which he or she would surely die. However, American courts in the past often grounded their acceptance 
of an individual's right to reftise treatment on a constitutional right to privacy in addition to or instead of a 
common law right to self-determination. In Cruzan v. Director Missouri Dep't. Of Health 1 10 S. Ct. 2841 (1990) 
at 285 1 and note 7, the United States Supreme Court accepted without deciding that competent patients have a 
right to reftise treatment, analyzing the right as a constitutionally protected Fourteenth Amendment liberty interest 
rather than as part of a generalized right to privacy. Historically, privacy has not been constitutionally protected in 
Canada, and the limits on the relatively new Charter guarantees of life, liberty, and security of the person are still 
being developed, particularly in non-criminal law contexts. Given the constitutional underpinning to many of the 
American decisions, it cannot be assumed that they are automatically transferable to the Canadian situation. In the 
United Kingdom, courts have also upheld patients' common law right to reftise even life-sustaining treatment (see, 
for example, Airedale NHS. Trust v. Bland, [1993] 2 W.L.R. 359 at 367-8 (H.L.), Lord Goff [hereinafter Bland]; 
In Re. T. (Adult: Refusal of Treatment), [1992] 3 W.L.R. 782), but reserve the right to overrule the decision (see, 
for example. In Re S. (Adult: Refusal of Treatment), [1992] 3 W.L.R. 806: court ordered a caesarian section that 
patient had refused on religious grounds where physicians believed both mother and child would die otherwise). 

(1984), C.S. 426 [hereinafter Me/w/ec]. 

Ibid, at 427. Margaret Somerville notes that effectively, this "invokes an 'abuse of rights' doctrine, which is more 
explicite in civilian, than in common law, legal systems." M. Somerville, "Reftisal of Medical Treatment in 
'Captive' Circumstances" (1985) 63 Can. Bar Rev. 59 at 81, note 79. Echoes of the same view are evident in the 
judgment of Sopinka J. in Rodriguez, [1993] 3 S.C.R. 519 at 585, commenting on the interpretation of the right to 
"life, liberty and security of the person" guaranteed by s.7 of the Charter. 

[1983] 6 W.W.R. 322 (B.C.S.C); qff'd[\9U] 4 W.W.R. 385 (B.C.C.A) [hereinafter ^sto/oro^. See also Burke v. 
Government of Prince Edward Island (1991), 292 A.P.R. 356 (P.E.I.S.C), in which MacDonald C.J. dismissed 



43 

officials were under no statutory duty to force-feed a competent prisoner who chose to remain 
in prison on a hunger strike although free to leave on parole. The prisoner, an elderly 
Doukhobor woman, had indicated that she did not wish any measures taken to save her even 
when she became unconscious. Although the judge in the first instance acknowledged the 
court's moral and legal duty to preserve the sanctity of life, he went on to hold that that duty 
did not extend to requiring the necessaries of life to be forced on an unwilling recipient. The 
prisoner's wishes were to be respected. The decision was affirmed on appeal. 

By the beginning of this decade, the tension between respecting the individual's right to 
self-determination and bodily integrity on the one hand and preserving life on the other seems 
to have been resolved. Courts support the decisionally capable patient's right to refuse 
treatment, even where the patient will die without it. In a 1990 decision, Malette v. 
Shulman, the Ontario Court of Appeal affirmed that a refusal of blood transfusions by a 
Jehovah's Witness made while competent must be honoured by a physician treating her 
during a later period of incompetence following an automobile accident. The refusal was 
evidenced by an undated, signed card bearing that message which she carried with her, and 
was reliably confirmed by a close family member as having been voluntarily made and still 
expressing the patient's wishes. The patient's directions expressed while competent were held 
to have followed her through and to govern in a later period of incompetence, even though 
the evidence established that had blood been withheld, she might very likely have died.'^ The 
patient's right to self-determination transcended any general interest of the state in preserving 
life and the specific interest of the treating physician in acting expeditiously so as to save her 
life in the midst of what must have seemed at the time to be a very uncertain situation, both 
factually and legally. 



the application of a prisoner awaiting trial on a murder charge for a declaration that he had a Charter right not to 
be force-fed and to refuse medical treatment. The court noted, however, that its decision did not mean the 
respondent had a right to force-feed the applicant, adding that if it did so, it would run the risk of incurring 
liability. 

Ibid, at 326-27. From the aftermath of the case, it appears that the prisoner's wishes were respected with less 
ambivalence in the abstract (the judicial context) than in practice, at least initially. The prisoner was fed by a 
physician who volunteered his services "on humanitarian grounds" when prison medical officers refused to do so 
without the prisoner's consent. During a subsequent hunger strike, Mrs. Astaforoff was tube-fed for three days, but 
not after she refused further feedings. Ultimately, she was granted a conditional pardon and released. See E. 
Carroll, "Forced Feeding of Prisoners: Mary Astaforoff, A Case In Point" (1983) 4 Health L. Can. 85 at 86. She 
was subsequently convicted of another offence, imprisoned and began another hunger strike. This time, authorities 
decided not to force - feed her until she lapsed into unconsciousness. By the time she became unconscious, she 
could not be saved and she died - see Proceedings of the Senate Special Committee on Euthanasia and Assisted 
Suicide, Testimony of Professor Bernard Dickens (June 15, 1994) at 10:29. 



10 

II 

12 
13 



Supra n.8. 

(1990) 72 O.R. (2d) 417 (C.A.), afTg. (1987) 63 O.R. (2d) 243 (H.C.). 

Ibid.?AA2\. 

Ibid, at 429-30. 



44 

In the course of its decision, the court clearly identified the rights to self-determination 
and bodily integrity as the controlling values m the doctor-patient relationship, stating that: 

the right to determine what shall be done with one's own body is a fundamental right in our society. 
The concepts inherent in this right are the bedrock upon which the principles of self-determination 
and individual autonomy are based. 

On the subject of the state's countervailing interest m preserving life and the sanctity of life, 
the court proceeded on the basis that preserving "life" meant more than maintaining physical 
existence, asserting that doing so at the expense of individual free choice and self- 
determination "can only lessen, and not enhance, the value of life."^^ Seemingly, then, the 
state's interest is to be given a content that takes into account the patient's own values as to 
how one's life is to be lived. With that understanding, the interests of the individual and the 
state in life — and particularly, in this patient's life — are not opposed, but complementary.^^ 

One year after Malette, in another decision authored by Mr. Justice Robins, the Ontario 
Court of Appeal again affirmed a patient's right to reftise medical treatment. In Fleming v. 
Reid, the court held that statutory provisions in the Mental Health Act depriving 
involuntary patients of any right to have their prior competent decisions about psychiatric 
treatment control or even be considered in a later period of incompetence breached the 



14 
15 
16 



17 
18 



76/^. at 432. 

76/^. at 430. 

The decisions in Malette and Niemiec provide an interesting contrast in reasoning as well as in result. In Niemiec, 
supra n.6, the Quebec Superior Court expressed little sympathy for the reason the person concerned refused 
treatment, namely, that death was preferable to returning to his own country. In Malette, ibid, both the trial and the 
appellate courts seemed able to empathize strongly with and therefore respect the plaintiffs reason: religious 
commiUnent. In the former case, the court found the patient's refusal of treatment directly antithetical to the 
principle of the inviolability of the person, which it interpreted as an instrumental principle aimed at the protection 
and preservation of life. In the latter, the court held that treating the patient in the face of her refusal violated her 
rights of self-determination and bodily integrity, thereby diminishing the value of life. {Niemiec at 427; Malette at 
430). In Malette, the patient's life and limits on the steps taken to preserve it were assessed against the backdrop of 
her own value system — a value system the court and society at large could accept. In Niemiec, the court assessed 
the person's express wish to die rather than to be retumed to his own country against a generalized value system 
that prized continued life as an absolute good, and found the patient's wishes less persuasive; the preservation of 
life prevailed as the controlling value. It must also be recognized that Niemiec was decided while the crisis was 
on-going — the person concerned might still have died — while Malette was decided after the fact, when the patient 
had recovered, albeit with permanent injuries. The very different viewpoints which foresight and hindsight must 
have given the decision-makers cannot be discounted. In this regard, see In Re. A.C., 573 A. 2d 1237 at 1237, note 
2 and at 1248 (D.C.App. 1990) vacating a lower court's order that a caesarian section be performed on a 
terminally ill woman — but after the fact. Both mother and child had died shortly after the operation. The appellate 
court expressed reservations that judges "called to patients" bedsides and called on to make quick decisions on 
matters of life and death" could ever "realistically frame principled and useful responses to the legal dilemma with 
which they are being confronted." 

(1991)4 0.R.(3d)74(C.A.). 

R.S.O. 1980, c. 262. 



45 

patients' right to security of the person under section 7 of the Charter. The breach could not 
be justified under section 1 of the Charter and, hence, the impugned statutory provisions 
could not stand . 

More recently, Nancy B., a decionally capable young woman permanently disabled by 
Guillain-Barre syndrome, commenced proceedings in the Quebec Superior Court seeking an 
injunction requiring the hospital in which she was a patient, its staff and her physician to 
refrain from administering treatment without her consent and to stop treatment in progress at 
her request. Specifically, she wished to be removed from the ventilator which sustained her 
life, but she was physically incapable of doing so herself The suit was not contested by either 
the defendant hospital or her physician, who had been added to the proceedings as a third 
party. Both, however, were concerned for their potential criminal liability if they acceded to 
the patient's request. Hence, they required some form of judicial imprimatur before they 
would act. All parties, including the intervener, the Attorney General for Quebec, agreed that 
pursuant to Quebec's Civil Code, no one could be made to undergo care without his or her 
consent. The Quebec Superior Court held that the respirator was a form of medical 
treatment to which the Code applied, and that, having initially consented to the treatment, the 

23 

patient was entitled to request that it be stopped. In the result, the court made an order 
permitting Nancy B.'s physician to stop respiratory support when the patient so requested, 
and to ask the hospital for any necessary assistance "so that everything takes place in a 
manner respecting the dignity of the plaintiff. 



19 



20 



21 

22 
23 
24 



Canadian Charter of Rights & Freedoms, Part I of the Constitution Act, 1982, being Sch. B to the Canada Act 
7952 (U.K.), 1982, c.ll. 

The court explicitly melded the patients' common law right in consent-to-treatment cases with the rights 
guaranteed under section 7 of the Charter: "The common law right to bodily integrity and personal autonomy is so 
entrenched in the traditions of our law to be ranked as fundamental and deserving of the highest order of 
protection. This right forms an essential part of an individual's security of the person and must be included in the 
liberty interests protected by s.7. Indeed, in my view the common law right to determine what shall be done with 
one's own body and the constitutional right to security of the person, both of which are founded on the belief in 
the dignity and autonomy of each individual, can be treated as co-extensive." — id. at 88; see now Rodriguez v. 
B.C. (A.G.) [1993] 3 S.C.R. 519 at 587-589. 

Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385 (Que. S.C). 

/A/V/. at 389-90. 

lbiddX?>91. 

Ibid, at 395. The permissive phrasing of the order is noteworthy. It raises questions as to the result if physicians, 
hospital staff, or the hospital had been unwilling to assist. The extent to which courts can or will require hospitals 
and medical personnel to implement non-treatment decisions has been touched on by courts in other jurisdictions. 
In the United States, see Bolivia v. Superior Court, 225 Cal Rptr. 297 at 304 and at 306 (Cal. App. 2 Dist. 1996) (a 
competent patient's right to self-determination as to her own medical treatment — removal of nasogastric 
tube — must be paramount to the interests of the hospital and doctors in continuing her care, nor may they deny her 
relief from pain and suffering should she exercise that right); Bartling v. Superior Court of California. 163 Cal. 
App. 3d 186 (Cal. C.A. 1986). See also Re Jobes. 529 A.2d 434 at 450 (N.J.S.C. 1987). and In Re Requena, 517 
A. 2d 886 (N.J. Super Ct. 1986) to the same effect. But see Brophy v. New England Sinai Hospital. 497 N.E.2d 
626 at 639-40 (Mass S.J.C., 1986) (where substituted judgement of patient in a persistent vegetative state is to 



46 

A few weeks after this decision, in Manoir de la Pointe Bleue (1978) Inc. c. Corbeil^^ 
Rouleau J. of the Quebec Superior Court granted the petition of a long-term care institution 
for a declaration that it must neither administer treatment nor transfer a patient elsewhere 
without consent when the patient had executed a legal directive requesting that he be allowed 
to die by starvation. The patient was a competent 35 year old man, married with two young 
children, who had been permanently paralysed from the neck down following an accident 
with an all terrain vehicle in 1990. 

Nancy B. and Corbeil strongly support a patient's right to self-determination in medical 
treatment, even when the patient's decision will result in an otherwise avoidable death and 
the assistance of a third party will be required to effectuate the decision (to remove Nancy B. 
from the ventilator or to ease any suffering Robert Corbeil might experience). Sopinka J. 
writing for the majority in the Supreme Court of Canada's 1993 decision, Rodriguez v. 
Attorney General (B.C.), noted the judgment in Nancy B. with approval as correctly stating 
the law: 

"Canadian courts have recognized a common law right of patients to refuse consent to medical 
treatment, or to demand that treatment, once commenced, be withdrawn or discontinued... This right 
has been specifically recognized to exist even if the withdrawal from or refusal of treatment may 
result in death [citing Nancy B.Y • 

However, the approach the Quebec Superior Court took in Niemiec also receives some 
inferential support from the majority judgment in Rodriguez. Sopinka J. writing for the 
majority was receptive to "the observation that security of the person, by its nature, cannot 
encompass a right to take action that will end one's life as security of the person is 
intrinsically concerned with the well-being of the living person. This argument focuses on the 
generally held and deeply rooted belief in our society that human life is sacred or inviolable 

27 

[in a secular sense]." ' While specifically disavowing the conclusion that "...in such 
circumstances life as a value must prevail over security of the person or liberty", he reiterated 

28 

that it is one of the values engaged m a case such as this 



25 
26 
27 

28 



cease artificial feeding and hydration, hospital could refuse to remove or clamp G-tube where hospital is willing to 
assist in a transfer of the patient to a suitable facility or home and hospital asserts a breach of its ethical integrity, 
as there is substantial disagreement in the medical community over the ^propriate course of action. Medical 
professionals in these circumstances are not to be compelled to take "active measures contrary to their view of 
their ethical duty toward their patients.") In the United Kingdom, see Re J. (A Minor: Child in Care: Medical 
Treatment) [1992] 4 All E.R. 614 (C.A.) (a court will not require a medical practitioner or health authority to 
adopt a course of treatment that in the bona fide clinical judgment of the practitioner concerned is contra-indicted 
as not being in the best interests of the patient — in that case, repeated ventilation and other "intensive" measures 
to prolong the life of a severely handicapped infant with an unalterably short life expectancy). 

[1992] R.J.Q. 712 (C.S.). 

Supra n.20 at 598. See also B. (R.) v. Children 's Aid Society of Metropolitan Toronto [\ 995] 1 S.C.R. 3 1 5 at 432. 

Id at 585. He added that "[s]anctity of life ... has been understood historically as excluding freedom of choice in 
the self-infliction of death and certainly in the involvement of others in carrying out that choice." 

Id at 586. 



47 

These comments do not seem to exhibit quite the same willingness noted in the decision 
of the Ontario Court of Appeal in Malette to understand "life" in the context of the value 

29 

system of the person concerned . Rather, they suggest that as in Niemiec, rights to self- 
determination and bodily intregrity cannot be applied to support all ends to which an 
individual may wish to apply them. Motives will count and meaning will be attributed to the 
values relied on apart from that the individual may attach to them. Motives are, of course, 
open to differing interpretations. One can see that the manner in which a court characterizes 
the patient's reasons for refusing treatment - the generosity of its reading - could become very 
significant. For mstance, if the court in Niemiec had been prepared to see the refusal of 
treatment as an act of political protest, perhaps the result would have been different. 
Religious freedom {Malette), preservation of one's bodily and mental integrity {Fleming), 
and relief from a permanent state of ahnost complete physical immobility and dependence on 
others {Nancy B. and Corbeil) have all proven to be examples of acceptable motivations, 
although they by no means constitute an exhaustive list. The parameters of any remaining 
limitations on patients' right to reftise life-sustaming treatment remain to be mapped more 
clearly. 

One obvious limitation is to be taken from sections 14 and 241 of the Criminal Code 
(which vitiate the effect of consent to one's own death and prohibit aiding in suicide, 

30 

respectively ) and the decision of the Supreme Court of Canada in Rodriguez affirming that, 
while Sue Rodriguez had the right to reftise even life-sustaining treatment, she did not have a 
right at common law or under the Charter of Rights and Freedoms to assistance in bringing 
about her own death. The Court maintained the distinction between refusmg treatment, 
which is permissible even where the result will be death, and assisting m taking a life, which 
is not. The interest of the state in preserving life outweighs the individual interest in 
autonomy in the latter but not the former. At first glance, the difference between the two 
seems apparent and the distinction a salutary one to maintain — in this context, the right to 
self-determination has to do with making decisions about one's own health care, not having 



29 
30 
31 



Supra n. 15. 

Criminal Code, R.S.C. 1985, c. C-46. 

Supra note 20. As noted previously, the decision was made by the narrowest of margins — five judges in the 
majority and four dissenting. The dissenting judges were variously of the view that the impugned section of the 
Criminal Code violated the applicant's right to liberty or security of the person under s. 7 of the Charter or that the 
law breached her equality rights under s. 15 of the Charter, discriminating against her on the basis of physical 
disability. The dissenting judges would have recognized that Sue Rodriguez had not only a right to take her own 
life but also a right to "assistance under proper circumstances" — Ibid, at 566. These would include testing for 
decisional capacity, time-limited certification by a physician with respect to the applicant's condition, state of 
mind, and a number of other matters, advance notice to the coroner, and the presence of a physician, although the 
act taking her life would have to be her own — in other words, "unassisted." Ibid. For a suggestion from another 
discipline that where an individual wants to end his own life, the "humane response is a presumption that he or she 
is suffering from a treatable mental illness (i.e. with impaired judgment) until proven otherwise (reversing the 
normal presumption of competence)," see F. Lowy, a psychiatrist and formerly Director of the Centre for 
Bioethics at the University of Toronto, "What Kind of Life? What Kind of Death? The Sue Rodriguez Case" 
Canadian Bar Association — Ontario and Medical-Legal Society of Toronto, Tape S-92-707 (14 May 1993). 



48 

oneself killed. Society does not condone killing; the extent of societal disapprobation of 
killing is such that it is expressed through severe criminal sanctions. That argument is 
convincing in the abstract. However, the difference between what will constitute assisting a 
patient to refuse treatment and assisting her to die is not always so obvious in practice. In 
Nancy B., for instance, the actions of third persons removing the patient from the ventilator 
were characterized as assisting the patient to refuse treatment. They could equally well have 
been characterized as the latter, since the resuh that would follow (and indeed, was intended) 
was obvious to all, and that result was death. Nonetheless, whether always logically 
defensible or not, the difference in the legal consequences of the two is clear. 

To summarize, where the patient is competent, courts are now willing to give effect to 
the familiar proposition that common law medical treatment cases cite and recite: every 
human being of adult years and sound mind has the right to determine what shall be done 
with his own body. This principle is not applied in every instance, nor without ambivalence. 
Courts' commitment to the underlying values — which they most often identify as autonomy, 
self-determination and bodily integrity — must also be balanced with the commitment to other 
deeply held values — in this context, to life and its preservation. Autonomy is not an 
automatic trump. But generally, where the patient is competent, the theme of self- 
determination predominates. And so it should, given the countervailing forces in our health 
care system and in the dynamics of physician - patient relationships, and even more 
importantly, given that it is the patient who has to live with and. through decisions about 
whether to undergo treatment. 

2. DECISIONALLY INCAPABLE PATIENTS 

(a) Patients with Advance Directives 

Prior to the decision in Malette v. Shulman, the common law accorded no specific legal 
recognition to any particular regime of making treatment decisions on behalf of decisionally 
incapable patients in Ontario, although a practice had certainly grown up of health 
professionals consulting family members. Even statutes authorizing others to consent to 
surgical operations on behalf of decisionally incapable individuals had been held to be 
directed at protecting hospitals from civil liability, not determining the civil rights of the 



32 
33 
34 



Supra n. 21 at 392; Rodriguez, supra n. 20 at 606. 

See Fletcher, J. "The Courts and Euthanasia" (1987/88) 15, Law Medicine and Health Care 223 at 224-225. 

See also Winnipeg Child and Family Services (Northwest Area) v. G.(D.F.) [1996] M.J. 398 (QL) (Man. C.A.). 
This seems true where there is no judicial intervention as well. For example, in Alberta, a woman left paralysed 
and in intractable pain after being shot requested the removal of a life-sustaining respirator and the hospital 
complied. She died shortly thereafter. "Shot by Spouse, Woman Asks to Die", Globe & Mail, (Aug. 3, 1991) A2. 
Other hospitals and health care workers are not so sanguine about their own potential liability in such a situation 
-see Nancy B., and Corbeil, supra n. 21 and 25. 



49 

patient.^^ Nor were there Canadian cases giving guidance as to how these decisions were to 
be made when the treatment at issue was necessary to sustain life, although a substantial body 
of jurisprudence on this subject had developed in the United States since the landmark 
judicial decision in 1976 allowing Karen Quinlan's removal from a ventilator. The Supreme 
Court of Canada in Re Eve, one of its few decisions in the last decade concerning medical 
intervention and a decisionally incapable person (the non-therapeutic sterilization of an 
incompetent young woman), had somewhat cryptically flagged the question of the removal of 
life-sustaining equipment from an incompetent patient as at least potentially suitable for 
judicial intervention, as one would expect given its parens patriae powers and 
responsibilities.^^ However, by the time of the British Columbia Court of Appeal's decision 
just over six years later in Rodriguez v. B.C. (A.G.), McEachem C.J. B.C. simply took it as a 
given that courts allow the withdrawal of life support from persons who are incompetent 

38 

where that is seen as medically appropriate. While they likely would have done so in cases 
where there was no conflict among those involved in the decision-making, the matter had not 
been put to the test in Canadian courts at that point in time. 

Malette and Fleming established that an individual's instructions about ftiture care or 
the identity of designated decision makers should prevail in treatment decisions after the 
onset of incompetence . Even informal advance instructions can be accepted as a means of 
giving effect to the highly prized value of autonomy, as both decisions suggest that the 
directions need not have been expressed in any particular manner. It may be that the ready 
acceptance of the means employed to communicate refrisal of ftiture treatment in these two 
cases was the result of long-standing customary usage in the first instance and the statutory 
status accorded the reftisal in the second'*\ Still, judicial recognition of advance instructions 
such as these is consistent with the very high value placed on self-determination . Even had 
there been no ftirther developments in the law, one would anticipate that such recognition 
would have been extended beyond these limited circumstances. 



35 

36 
37 
38 

39 
40 
41 



Eve V. Mrs. E. (1987) 31 D.L.R. (4th) 2 at 13 (S.C.C). One would expect the analysis will differ where the 
legislation is obviously intended to have this effect, as with the recent Ontario legislation (see discussion ch. 4. 1, 
II, infra). 

In the Matter ofQuinlan 355 A. 2d 658 (N.J.S.C. 1976). 

Supra n. 35 at 29. 

[1993] 3 W.W.R. 553 at 571. Courts in the United States and the United Kingdom had addressed the issue and 
had authorized the removal of life support - see n. 46 and accompanying text and ch. 4. Ill, V and ch. 11, infra. 

Malette supra n. 11 at 43 1 ; Fleming supra n. 1 7 at 85-86. 

Id. 

In Malette, the court commented that both the religious belief of Jehovah's Witnesses regarding blood transfusions 
and the use of a card to transmit the information to others were well known, certainly among health care providers 
(id at 433-434). In Fleming, the patients had followed the system for advance refusal of psychiatric treatment that 
was mandated by statute; whatever the system's shortcomings, once the patients had done so, they had done 
enough (id at 94). 



50 

In Ontario and a number of other provinces, however, legislation has recently been 
enacted or proposed providing for and regulating advance directives."*^ These documents 
allow decisionally capable individuals to exercise their right of self-determination with 
respect to future health care and treatment decisions that must be made after the onset of 
incompetence. Subject to differing conditions and limitations, a person while competent can 
make a directive specifying what or how health care decisions are to be made, or by whom, 
or some combination of the foregoing. In Ontario, this type of document is referred to as a 
power of attorney for personal care and is provided for as part of a comprehensive legislative 
package governing consent to treatment and substitute decision-making generally."*^ 
Effectively, the legislation has largely overtaken the common law in this area. 

(b) Patients Without Advance Directives 

Most people have not left such clear instructions with respect to their health care as was 
the case in Malette and Fleming. Even with statutory recognition of powers of attorney for 
personal care, few people are likely to make one. That has certainly been the experience in 
jurisdictions where living wills or durable powers of attorney have been recognized by law 
for some time: few people execute them. It is also difficult to have sufficient prescience to 
anticipate the variety of conditions from which one might suffer, the modalities of treatment 
that might be available and the range of prognoses that might hold in order to draft a living 
will or guidelines for a substitute decision-maker in terms sufficiently clear and precise as to 
be meaningful or binding. 

In common law jurisdictions where the issue of withdrawing or withholding life- 
sustaining treatment has been considered by courts and commentators, two major models of 
decision-making have emerged when the patient never was competent to make health care 
decisions or left no clear instructions prior to the onset of incompetence. One is based on a 
concept of substituted judgment and the other on the patient's best interests. In formulating a 
substituted judgment, the decision maker tries to establish as accurately as possible what 



42 

43 

44 
45 



See ch. 4.2, infra. 

Substitute Decision Act, S.O. 1992, c.30 as amended, s. 46. See also the Health Care Consent Act, 1996, being 
Sch. A to the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, c.2. See 
ch. 4. 1, .2, infra. 

In the United States, it is estimated only 15 percent of the population have done so — Areen, J., "Advance 
Directives Under State Law and Judicial Decisions" (1991) 19 Law, Med. & Health Care 91 at 92. 

See, for example, Evans v. Bellevue Hospital (28 July 1987) [unpublished], referred to in N. Y.L.J. (28 July 1987) 
at 1 1 . An incompetent patient with AIDS Related Complex had when still competent executed a document stating 
that life-sustaining treatment should be withheld if his condition became such that he had no reasonable 
expectation of recovery or regaining a meaningful quality of life. He had also executed a power of attorney for 
health care. The patient developed toxoplasmosis, an infection resulting in brain lesions. The patient's health care 
decisionmaker asked that antibiotic treatment be withheld. The patient's physicians reftised, as they were of the 
view that treatment could cure the infection and restore the patient's ability to communicate. The court to which 
the dispute was referred authorized treatment on the ground that the document's reference to "meaningful quality 
of life" was too ambiguous to sanction non-treatment and that, while the patient had no hope of recovery from 
AIDS, he could recover from toxoplasmosis, if treated. 



51 

decision the patient would make if he or she were competent to do so but could take into 
account the reality of his or her own incapacity as a factor in the decision."^^ If the 
determination is to be made on the basis of the patient's best interests, the decision maker 
assesses the patient's needs and the risks and advantages of the medical intervention to 
determine the net burdens and benefits the patient will derive from life with and without the 
treatment . 

The Supreme Court of Canada considered and rejected the American understanding of a 
substituted judgment test in Eve, although in a very different context: the non-therapeutic 
sterilization of a mentally incompetent young woman for purposes of contraception. The 
Court characterized it as "fiction" and "sophistry" to suggest that its choice or anyone else's 
could be that of the incompetent person, adding that what he or she would do is sheer 
speculation. Rather, it settled on a best interests test to decide questions of medical 
intervention, at least when the person concerned has always been decisionally incapable. 

Given the acceptance of an informal advance directive in Malette, a decision that was cited 
with approval in the Supreme Court of Canada's recent judgment, Rodriguez , one can 
anticipate that even in those provinces with no legislation governing substitute decision- 
making, a different analysis would be accepted in the case of a patient who has become 
incapacitated but, while still competent, clearly rejected the idea of life support. This is 
particularly so given the emphasis on self-determination evident in judicial decisions since 
the passage of the Charter. Ontario's new Health Care Consent Act, 1996, adopts this 
approach as well. Even if an individual has not executed a power of attorney for personal 
care, the legislation now directs the substitute decision-maker to follow the individual's prior 
competent wishes with respect to health care if these are known. Wishes need not be 
contained in a power of attorney to be binding; they can be expressed orally, in writing or in 
any other manner. For many, however, their wishes will be unknown and determinations 
about treatment will still be made on the basis of "best interests". That is the fall-back test 
adopted in Ontario's Health Care Consent Act, 1996, although the Act contains further 

52 

guidance to assist in ascertaining what another's best interests might be. Thus, elements of 



46 



47 

48 
49 
50 
51 
52 



President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural 
Research, Deciding to Forego Life-Sustaining Treatment (Washington D.C.: U.S. Gov't Printing Office, 1983) at 
132; see, for example. Re Jobes, supra n. 24 at 444-445; In Re Estate of Longeway, 549 N.E. 2d 292 at 299-300 
(111. 1989). 

Presidents' Commission, ibid, at 135; for applications of this model, see In the Matter of the Conservatorship of 
Torres, 357 N.W.2d 332 (Minn. S.C. 1984); Rasmussen v. Flemming 741 P. 2d 674 (Ariz. S.C. 1987); and Re C, 
[1989] 2 All E.R. 783. 

Supra n. 35 at 35. See also Bland, supra n. 5 at 395. 

Supra note 20 at 598 per Sopinka J. 

Supra n.43, s. 21(1)1 . See also Substitute Decisions Act, supra n. 43, s. 48(4). 

Id s. 5(2). 

Id, s. 21(1), (2). Seech. 4 infra. 



52 

both the major decision-making models adopted elsewhere are evident in the new Ontario 
legislation. 



CHAPTER 4 



PROVINCIAL LEGISLATION 
AND PROFESSIONAL 
REGULATION 



1. THE HEALTH CARE CONSENT ACT 

At common law it is necessary to obtain a patient's informed consent to medical 
treatment. The common law has not, however, addressed the situation of the decisionally 
incapable patient satisfactorily. As a matter of practice, health care providers generally turned 
to the closest family member(s) willing to be involved for consultation or consent, and courts 
always retain an overriding parens patriae juridiction. Direction as to the identity of 
appropriate decision-makers and how decisions ought to be made was notably lacking. In 
order to address the gaps and uncertainty in the law, a comprehensive package of legislation 
was enacted in the early 1990's in Ontario, comprised of the Consent to Treatment Act, the 
Substitute Decisions Act, and the Advocacy Act. Although passed in 1992, the statutes were 
not proclauned in force until April 3, 1995. The legislative initiatives arose out of the same 
forces that underlay judicial decisions such as Malette and Fleming requiring health care 
providers to follow patients' prior capable instructions — ^a desire to give effect to patients' 
autonomy and self-determination as far as possible. An added factor underlying health law 
reform has been a growing public concern about being over-treated, particularly near the end 
of life. In some circumstances, medicine's increasing ability to save or extend life has come 
to be seen as a mixed blessing or no blessing at all. People wanted to be able to ensure this 
would not happen to them or those close to them; they wanted to retain control over the 
health care they received even when they no longer had the capacity to make treatment 
decisions. Fear of bemg subjected to well-meaning but nonetheless relentless therapeutic 
mterventions gave the general commitment to enhancing autonomy and self-determination a 
new and greater urgency in health care. 

Although the Consent to Treatment package of legislation only came into force in April, 
1995, with the change in provincial government later that year, legislation was developed to 
amend and replace it. On March 29, 1996, the new Advocacy, Consent and Substitute 



Eve V. Mrs. £ (1987) 3 1 D.L.R. (4th) 2 (S.C.C). 

S.O. 1992, c. 31, 30 and 26. 

Malette v. Shulman (1990) 72 O.R. (2d) 417 (C.A.); Fleming v. Reid {\99\) 4 OR. (3d) 74 (C.A.). 

See Nuland S., How We Die, Reflections on Life 's Final Chapter (Knopf, NY: 1994) (an account of how various 
diseases take away life). 

[53] 



54 

Decisions Statute Law Amendment Act, 1996 was proclaimed in force.^ It repeals the 
Advocacy Act entirely, makes significant amendments to the Substitute Decisions Act and 
replaces the Consent to Treatment Act with the Health Care Consent Act, 1996 (hereafter, the 
HCCA). A review of the relevant provisions of the HCCA follows. 

The Health Care Consent Act, 1996 presumes that all persons are capable of making 
treatment decisions, meaning that individuals are "... able to understand the information that 
is relevant to making a decision about the treatment... and able to appreciate the reasonably 
foreseeable consequences of a decision or lack of decision'\ Determinations of capacity are 
made by the health care provider proposing the treatment. Capacity may be treatment 
specific, and may return or come and go over time. The guidelines of the College of 
Physicians and Surgeons of Ontario require that when a physician deems a person incapable 
relative to a treatment decison, the physician must inform the person that a substitute 
decision-maker will assist in the discussion of the proposed treatment and will have the 
responsibility for making the fmal decision as to whether the incapable person will or will not 
have the treatment. Physicians are expected to involve the incapable person in the discussion 
of the proposed treatment with the substitute decision-maker as much as possible. If a 
physician proposing treatment concludes that the patient is not decisionally capable with 
respect to a treatment and the individual disagrees or disapproves of the substitute, the 
physician must advise the individual of his or her options under the Act. These include 
applying to the Consent and Capacity Board to contest the health practitioner's finding that 
he or she is incapable or to appoint a representative to give or reftise consent on his or her 
behalf'' 

Except in limited circumstances such as an emergency, health care practitioners are not 
to administer treatment without the patient's informed consent or where necessary, that of a 
substitute decision-maker. The elements of an informed consent are now set out in the 



10 

11 



S.O. 1996,c.2. 

Health Care Consent Act, 1996, being Schedule A to the Advocacy, Consent and Substitute Decisions Statute Law 
Amendment Act, 1996, supra n. 5 [hereafter, HCCA], s. 4(1). 

Ids. 10. 

Ids.l5, 16. 

College of Physicians and Surgeons of Ontario, "A Guide to the Health Care Consent Act", at 5. Note that these 
are guidelines issued by the College only. They are not part of the legislation or regulations, and therefore can 
vary among the health professions and over time. 

HCCA supra n. 6, s.32, 33. 

Id s.lO(l), 25. There is an emergency if "the person for whom the treatment is proposed is apparently experiencing 
severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm." 
Treatment can be administered to a decisionally incapable person if the health care practitioner is of the opinion 
that there is an emergency and the delay required to obtain a consent or refusal on the person's behalf will prolong 
the suffering the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm. 
Similar provision is made when there is an emergency and the communication required to obtain informed 
consent cannot take place because of language barrier or disability, there is no reasonable way to overcome the 



55 

statute and track the requirements at common law: the consent must be voluntary, informed, 
relate to the treatment, and not be obtained though misrepresentation or fraud. *^ Prior to 
consenting, the person is to receive information about the nature of the treatment, its expected 
benefits, material risks and side effects, alternative courses of action, and the likely 
consequences of not having the treatment. As at common law, the extent of the information 
provided about these matters is "...that a reasonable person in the same circumstances would 
require in order to make a decision about the treatment", as well as responses to additional 
information sought. 

The Act sets out a hierarchical list of substitute decision-makers who can give consent 
to treatment on behalf of an incapable person, beginning with a court-appointed guardian of 
the person, and continuing through an attorney for personal care with the appropriate 
authority and a representative appointed by the Consent and Capacity Board. If there has 
been no explicit appointment made in any of these ways, one progresses through family 
members, beginning with a spouse or partner, then moving on to a parent or a child sixteen 

17 

or over, a sibling and other relatives. More highly ranked persons have precedence in the 
decision-making — for instance, the decision of an attorney for personal care would prevail 

1 8 

over that of the patient's spouse or partner. If there is no one among those listed who is able 
and willing to assume the responsibility of giving or refusing consent, then the Public 
Guardian and Trustee (PGT) is the decision-maker of last resort. Additionally, if two or 
more persons equally ranked disagree about whether or not to consent to treatment, the PGT 

20 

decides in their stead. Persons who make decisions on an incapable person's behalf must do 
so in accordance with that person's wishes expressed when he or she was at least sixteen 
years of age and was still decisionally capable. If no applicable wishes are known or they 
cannot be followed, then a substitute decider must base the decision to consent to treatment or 



cx)mmunication difficulty, the delay required to enable communication will put the person at risk of sustaining 
serious bodily harm and there is no reason to believe the person does not want the treatment — s.25(3). 



12 


Id, s.ll(l). Consent can be withdrawn at any time - 


- id, s. 


14. 


13 


Id,s.ll(3). 






14 


Id, 8.11(2). 






15 


Id s.20. 






16 


Defined in HCCA s.20 (7) and (9). 






17 


Id, s.20. 






18 


Id, s.20 (3). 






19 


Id, s.20 (5). 






20 


Id, s.20 (6). 






21 


Id,s.2I(l)I. 







56 

not on the individual's best interests. The statute gives the concept of "best interests" some 
content. Substitute decision-makers are directed to consider : 

(I) the patient's known values and beliefs held while competent, if the substitute 
believes they would still prevail, 

(ii) wishes expressed by the person even though incapable, 

(iii) whether the patient's condition or well-being is likely to improve, remain the same 
or deteriorate with and without the treatment, 

(iv) whether the expected benefit from the treatment will outweigh the risk of harm, and 

(v) whether a less restrictive or intrusive treatment would be as beneficiaP. 

If a practitioner who proposes a treatment believes that the substitute decider did not 
comply with the requirements to consider the incapable person's wishes or best interests (as 
the case may be) in consentmg to or refusing the treatment, he or she may apply to the 
Consent and Capacity Board for a ruling as to whether the substitute did so or not.^"* If not, 
the Board can compel compliance. There is also provision for substitute decision-makers to 
apply to the Board for clarification of the patient's prior capable wish, or for permission to 
consent to treatment that the patient indicated while capable that he or she would not wish to 

25 

receive. In the latter instance, the Board can give permission to consent if satisfied the likely 
result of treatment is significantly better than would have been anticipated at the time the 
wish was expressed, such that the incapable person would probably consent if he or she were 
able. A party to a proceeding before the Board may appeal its decision to the Ontario Court 
(General Division) on a question of law or fact or both. 

28 

The Act, which only applies to treatment begun after it comes into force, changes the 
defmition of treatment somewhat from its predecessor, the Consent to Treatment Act. 
Treatment is now defined to mean: "...anything done for a therapeutic, preventive, palliative. 



22 
23 
24 
25 
26 
27 
28 
29 



Id,s.21(l)2. 

Id,s.21(2). 

Id, S.37. Relative to emergency treatment in the interim, see s.27. 

Id, ss. 35, 36. 

Id, S.36. 

Id,s.80(l). 

Id, S.87. 

In the CTA, supra n. 2, s.l, "treatment" was defined as "...anything that is done for a therapeutic, preventive, 
palliative, diagnostic, cosmetic or other health-related purpose, including a course of treatment or plan of 
treatment." Neither "course of treatment" nor "plan of treatment" were defined terms. 



57 
diagnostic, cosmetic or other health-related purpose, and includes a course of treatment or 

30 

plan of treatment", with a number of specific and limited exceptions listed. "Plan of 
treatment" is also defmed, and means a plan developed by health care practitioner(s) to deal 
with a person's present or anticipated health problems that "...provides for the administration 
to the person of various treatments or courses of treatment and may, in addition, provide for 
the withholding or withdrawal of treatment in light of the person's current health 
condition".^' If the care in question does not fall within the statutory definition of treatment, 
then presumably, the common law would still apply. 

The Consent to Treatment package of legislation was very short-lived: just under a year. 
The Health Care Consent package of legislation has had an even shorter history at the time of 
writing. The Public Guardian and Trustee's role as decision maker of last resort has not 
changed materially with the new legislation, however, and hence, there is utility in reviewing 
program statistics with respect to what the Office of the PGT (OPGT) terms "end of life" 
decisions to get a sense of how frequently it is called on to assume that role and the outcome 
of its decision-making process in such situations. The PGT's Submission to the Standing 
Committee on the Administration of Justice considering Bill 19, the Advocacy, Consent and 
Substitute Decisions Statute Law Amendment Act, 1996, indicates that between April 3, 1995 
when the legislation came into force and December 30, 1995, the Public Guardian and 
Trustee received a total of 2,272 requests for decisions to consent to or refuse treatment. Of 
these, it identified thirty-four as "End of Life (ventilator removal, comfort care, palliative)", 
of which it gave consent in fifteen, refused consent in four and consent was either pending or 
the OPGT concluded it lacked jurisdiction to make a decision in the remaining fifteen. It is 
apparent that "end of life" decisions form only a small part of the treatment decisions in 
which the OPGT is involved. It categorized an additional thirteen of the treatment requests it 
received as "DNR" (i.e. Do Not Resuscitate); it consented to one of these, refused one and 
again, consent was pending or jurisdiction lacking in eleven. The PGT noted that this 
category reflects requests by physicians for a decision regarding resuscitation. Its position is 
that the Office of the PGT rarely has jurisdiction because decisions of this type "...are usually 
considered 'advance directives'" — whether they are considered requests for consent to non- 
treatment or requests for advance instructions, they are not something to which the Consent to 
Treatment Act authorized it to consent or not. Once this position became known among 



30 
31 
32 
33 
34 
35 



HCCA,supran. 6,s.2(l). 

Id,s.2(l). 

Exhibit No. 1/03/126, filed on 02/20/96 with the Standing Committee on the Administration of Justice. 

Id at 3, "Requests by Treatment Category". 

Id. 

Id; this position on the part of the OPGT — that DNR orders generally do not fall within the definition of 
"treatment" — was noted in consultations with representatives of the OPGT, the College of Nurses of Ontario and 
the College of Physicians and Surgeons of Ontario, bioethicists and physicians, and ARCH, A Legal Resource 
Centre for Persons with Disabilifies; see also PGT Treatment Decisions Manual, Implementation Draft (Oct. 
1995). 



58 

health care practitioners, one can only speculate how many requests for consent to a DNR 
order with respect to a particular patient were simply not made because practitioners knew 
the OPGT would declare itself unable to provide any input.^^ 

The PGT's position that a DNR order would not fall within the meaning of "treatment" 
as the term was defined under the prior legislation, the Consent to Treatment Act, is 
problematic. The OPGT's careful attention to the limits on its statutory mandate as 
decisionmaker of last resort — ^that is, to consent to treatment and nothing else — is mamtained 
consistently with respect to all types of requests for decision."^^ There is genuine concern not 
to overstep the bounds of the statutory role. By definition, a DNR order means not to do 
something, specifically, not to treat by resuscitating. One can understand a reluctance on the 
part of an administrative decision-maker of last resort with little or no prior knowledge of or 
connection to the patient to be involved in making a decision after which death could well 
follow. Nevertheless, it is the substitute decision-maker of last resort and decisions about 
resuscitation cannot always be reduced to clinical determinations. Other factors can affect the 
determination. 

Part of the difficulty lies in the convention that has arisen with respect to cardiopuhnonary 
resuscitation — i.e. that consent is presumed unless it has been specifically refused, leading to the 
expectation that CPR will always be performed in the event of cardiac arrest even when 

38 

inappropriate as a treatment modality. It follows logically that in order not to administer CPR, 
health care providers need consent to depart from the norm. This is not true of other treatments. 
While the PGT's interpretation of the law makes literal sense of the words used in the statute, it 
does not seem tenable on further analysis. The purpose of the legislation is, inter alia, to provide 
a comprehensive set of rules to govern the giving of consent. A DNR order is generally one part 
of a plan for the treatment of an individual. It is not made in a vacuum, nor can a treatment plan 
sensibly be accepted or rejected if an integral part of it is carved out of the substitute decision 
maker's (the PGT's) consideration. Indeed, the PGT's Treatment Decisions Manual states that it 
is in general desirable when asked to consent to a treatment plan to obtain the whole plan at one 
time, and that treatment plans should be "...reasonable, comprehensive, including considerations 
of what treatments to utilize, how long to employ them, and when and how to stop the 

39 • 

treatments'' (emphasis added). If the PGT's interpretation of the law were correct, then m 
relation to DNR orders, one would be returned to the common law with respect to consent to 
treatment. As outlined previously, the common law governing substitute decison-making in the 



36 

37 
38 



39 



There are other categories where the request for treatment may or may not have been necessary to sustain life — for 
instance, "Nutrition (eg. naso-gastric tube...)" (id), but the nature of the circumstances of the individuals 
concerned cannot be ascertained from the submission to the Standing Committee. 

Treatment Decisions Manual Implementation Draft, supra n. 35. 

Canadian Medical Ass'n., Canadian Nurses Ass'n., Canadian Healthcare Ass'n., Catholic Health Ass'n. of 
Canada, "Joint Statement on Resuscitative Interventions (Update 1995)" CMAJ 1995; 153: 1652A-C at 1652A. 
The presumption of consent is more likely to prevail in acute care settings than in long-term care facilities 
(correspondence from the OPGT, Nov. 19, 1996). 

Supra n. 35, s. 8.2, p.94. 



59 

absence of prior capable instructions is in an uncertain state. Addressing these gaps and 
deficiencies was one of the important purposes underlying the passage of this legislation. And 
not only the PGT would be unable to consent to DNR orders; if they were not "treatment" 
within the meaning of the Consent to Treatment Act, no other substitute decision- maker acting 
pursuant to that statute and in the absence of prior capable wishes would be authorized by the 
statute to consent to such an order either. Existing common law would continue to govern a 
substitute's decision-making authority. That was clearly not the legislative intent. 

The claim that DNR orders are not treatment has been made elsewhere. In the United 
States, the President's Commission for the Study of Ethical Problems in Medicine and 
Biomedical and Behavioral Research rejected it. In the Commission's view, a patient or 
surrogate must consent to any plan of treatment, whether involving omissions or actions, and 
this would include consenting to a DNR order. The New York Task State Task Force on Life 
and the Law took a similar position. 

With the passage of the new Health Care Consent Act, 1996 in Ontario, the definition of 
"treatment" has been modified. As before, it includes a plan of treatment, but that term is now 
defined to mean a plan developed by health practitioner(s) that deals with present or 
reasonably anticipated health problems and provides for the administration of treatment 
"...and may, in addition, provide for the withholding or withdrawal of treatment in light of the 
person's current health condition". The specific statutory reference to withholding and 
withdrawing treatment being a part of a "treatment plan", which itself falls within the 
definition of "treatment", to which the PGT and other substitute decision- makers are 
authorized to give consent or not, should have put an end to the argument that the PGT lacks 
jurisdiction when what is proposed is not to treat - that is, not to resuscitate. The request for 
consent ought not be made at large or as a routine matter, but in the context of reasonably 
anticipated health problems given the individual's current condition. When the PGT is the 
substitute decision- maker, DNR orders in that type of situation are legitimately within its 
purview. 

Since the passage of the HCCA, the PGT maintains the position that there is no 
jurisdiction to make an advance directive for an incapable person. This is correct, but the 
PGT as decision-maker of last resort still bears the responsibility of making decisions about 
withholding and withdrawing treatment. Implementation of a decision to withhold certain 
treatment, such as CPR, may not be immediate. A decision that CPR is or is not a treatment 
modality that will be provided does not always reduce to a clinical determination; the OPGT 
has a role to play. The OPGT does recognize that it can make a decision about a DNR order 



40 



41 



42 



President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Deciding to Forego Life-Sustaining Treatment (Washington D.C.: U.S. Govt. Printing Office, 1983) at 241, n.39. 

Baker R. "The Legitimation and Regulation of DNR Orders" in Baker R., Strosberg M., Bynum J. (cds.). 
Legislating Medical Ethics. A Study of the New York State Do-Not Resuscitate Law (Kluwer Academic Publishers: 
Dordrecht: 1995) at 50-51. 

HCCA supra n.6, s.2(l). 



60 

where it is related to the person's current health condition."*^ This policy should be clarified 
and communicated clearly to physicians and other affected health care providers. 

2. THE SUBSTITUTE DECISIONS ACT 

The Substitute Decision Act (hereafter, the SDA) was passed in 1992, came into force in 
1995 and was substantially amended in 1996. It governs powers of attorney and guardians 
for property as well as personal care. Its provisions are extensive and complex. The following 
is a description of those provisions relevant to end-of-life decision-making. Under the 
Substitute Decisions Act, a person sixteen years of age or over can give a written power of 
attorney for personal care, authorizing the person(s) named as attorney to make decisions 
concerning the grantor's personal care on his or her behalf."^^ In addition to naming the 
designated decision-maker, the power of attorney can contain instructions with respect to the 
decisions the attorney is authorized to make, provided that the grantor had the capacity to 
make such decisions at the time of execution. The power of attorney need not be in any 
particular form, but is to be executed in the presence of two witnesses, who are also to sign 
it. If the power of attorney does not comply with the statutory formalities regarding 
execution it is not effective as such, but a court may declare it effective on the application of 
any person, provided it concludes that to do so is in the grantor's interests."^ 

A person has the capacity to give a power of attorney for personal care if the person has 
the ability to understand whether the proposed attorney has a genuine concern for the 
person's welfare and appreciates that he or she may need the attorney to make decisions on 
his or her behalf. This means that someone might lack the decisional capacity to consent to 
treatment or undertake other forms of personal care, but still be able to make a valid power of 
attorney naming someone else to make such decisions for him or her. 

A person is incapable of personal care if the person "...is not able to understand 
information that is relevant to making a decision concerning his or her own health care, 
nutrition, shelter, clothmg, hygiene or safety, or is not able to appreciate the reasonably 



43 



44 
45 
46 
47 
48 
49 
50 



"Draft Position Paper on Cardiopulmonary Resuscitation (CPR) and Do Not Resuscitate (DNR)" (Apr. 3, 1996) at 
297-298, being App. B to the Health Care Consent Act Decision Making Manual Implementation Draft (Mar. 
1996). A decision that CPR is not indicated is not always or entirely a clinical decision to be left to medical 
judgment (see discussion of determinations of ftitility, infra, ch. 1 1). 

S.O. 1992 C.30 as amended by S.O. 1994, c.27, and S.O. 1996, c.2. 

Ids.46(l). 

Ids. 46(7), 47(4). 

Id ss.46(8), 48. 

Id s.48(4). 

Ids.47(l). 

Id s.47(2). 



61 

foreseeable consequences of a decision or lack of decision". When the Health Care Consent 
Act, 1996 applies to a decision (as it does to decisions about treatment), a provision in a 
power of attorney for personal care conferring decision-making authority regarding the 
grantor's personal care is effective to authorize the attorney to make the decision, provided 

52 

the HCCA authorizes the attorney to do so. In other words, if a grantor has properly 
executed a power of attorney for personal care and is confronted with a decision about 
treatment as that term is defined in the HCCA (such as whether to have heart surgery or not), 
but the health care practitioner determines he or she lacks the requisite decisional capacity to 
consent to the treatment, then the attorney for personal care would decide whether to consent 
or not. In doing so, he or she is to abide by the decision-makmg principles set out in the 
HCCA: follow the grantor's prior capable wishes, and if none are known or compliance is 
impossible, make the decision the attorney concludes is in the grantor's best interests, in 
keeping with the HCCA guidelines for that determination. If a court appoints a guardian of 
the person for a grantor, a power of attorney for personal care is terminated. 

The Substitute Decisions Act also authorizes court appointment of a guardian of the 
person when an individual is incapable of personal care and needs decisions to be made on 
his or her behalf by a person authorized to do so. The necessary application can be brought 
by any person. No appointment is to be made unless the court is satisfied the need for 
decisions could not be met by an alternative that would avoid the necessity of the court 
having to find the person incapable of personal care and that would be less restrictive of the 
individual's rights. The PGT can only be made guardian of the person when named in the 
application and in the absence of any other suitable person who is available and willing to 
act. 

An order for fiill guardianship includes the power to make any decision on the person's 
behalf to which the Health Care Consent Act applies, as does an order for partial 

58 

guardianship if that is one of the powers specified in the order. A guardian of the person 
with authority to give or refuse consent to treatment is the most highly ranked on the list of 
those who can give or refuse consent to treatment on behalf of an incapable person under the 
HCCA, followed by an incapable person's attorney for personal care with authority to make 



51 
52 
53 
54 

55 
56 
57 
58 



Id S.45. 

Ids.49(l)(a). 

HCCA,supran.6,ss.20,21. 

SDA, supra n. 44, s. 53 (l)(b). Other means of terminating a power of attorney for personal care include 
revocation and execution of a new power of attorney (s. 53(1) (c), (d)). 

Ids.55. 

Id s.55(2). 

Id s.57 (2.2). 

Id ss.59(2)(e), 60(3). 



62 

decisions about treatment. Since a guardian is to make treatment decisions in accordance 
with the HCCA, the same decision-making principles reviewed previously would apply: the 
person's prior capable wishes are to be followed where possible and otherwise, the guardian 
must make the decision that is in the person's best interests.^^ 

If an incapable person has a guardian of the person or an attorney under a power of 
attorney for personal care, the court may give directions on any question arising in the 
guardianship or under the power of attorney. The list of those who can seek du^ections from 
the court under the SDA includes the guardian of the person, an attorney for personal care, a 
dependent, the PGT or any other person with leave of the court. The listed persons differ in 
some instances from those authorized to make various types of application to the Consent and 
Capacity Board under the HCCA — for instance, to depart from an incapable person's prior 
competent wishes or to determine the substitute decison-maker's compliance with the 
principles set out in the statute. 

While the office of advocate is gone with the repeal of the Advocacy Act, the SDA does 
provide that the PGT may appoint volunteers to provide advice and assistance under the 
Act. There is no requirement that it do so, however. There is provision for recognition of 
extra-provincial powers of attorney for personal care and orders of courts outside Ontario 
appointing persons with duties comparable to those of a guardian of the person 



66 



The law on substitute decision-making is in a considerable state of flux across Canada, 
but the need for change from the existing common law has been widely recognized. Nova 



59 
60 
61 
62 
63 
64 
65 



66 



HCCA supra n. 6, ss.20(l), (2). 

Id S.21; SDA, supra n. 44, s.66(2.1). 

Ids.68(l). 

Id S.68. 

HCCA supra n.6, ss.36, 37, 

SDA supra n. 44, s.87(l). 

This is a departure from the predecessor Advocacy Act and the Consent to Treatment Act, supra n. 2, which 
between them put in place an elaborate system of rights advice when a health practitioner had concluded a patient 
lacked decisional capacity, as well as creating the position of advocate for vulnerable persons. The Advocacy Act 
was designed to assist people who are vulnerable due to a mental or physical disability, illness or infirmity have 
their wishes followed, know their rights, and ensure those rights are upheld through the assistance of advocates 
and rights advisers. While advocates would not have been able to make decisions in place of or on behalf of 
vulnerable persons, they were empowered to engage in both instructed advocacy on behalf of specific individuals 
as well as non-instructed advocacy, either to bring about changes at institutional, governmental, legal, social and 
economic levels (i.e. systemic change) or where there was a risk of serious harm to the health or safety of the 
vulnerable person. It was repealed by the Advocacy, Consent and Substitute Decisions Statute Law Amendment 
Act, 1996, supra, n. 5. Rights advisers are now only required in psychiatric facilities, and can be designated by 
either the facility or the Minister of Health (ss.l4 - 16, O.Reg. 103/96 made under the Mental Health Act, R.S.O. 
1990, c.M. 7). 

SDA supra n. 44, ss.85, 86. 



63 

Scotia, Manitoba, Newfoundland and the Yukon have passed and proclaimed legislation 

67 

recognizing advance directives. Alberta has passed but not yet proclaimed legislation on the 
subject. Ontario and Quebec have put in place legislation that addresses not only advance 
directives but also consent to treatment and substitute decision-making more generally.^^ In 
British Columbia, comprehensive legislation has been passed but not yet proclaimed in 
force. ^^ Prince Edward Island has also passed legislation, but it is not in force as yet. ' In New 
Brunswick, advance directives are under study, and in the Northwest Territories, guidelines to 

72 

govern standards and procedures for advance directives are being developed. Where 
legislation has not been passed, as in Saskatchewan, the common law with respect to medical 
treatment and substitute decision-making prevails. This is also the case where legislation has 
been passed but is silent with respect to a particular matter. 

The statutory regunes are new; not all are in force yet. Some deal with living wills or 
durable powers of attorney, but not substitute decision-making generally. Because of the 
breadth of what some of these regimes cover, they can be very complex. There is 
considerable variation in detail among the provinces. Still, the underlying themes are 
consistent even if the solutions vary somewhat. Chief among these is the affirmation of 
patient autonomy and self-determination as pre-eminent values in health care. With respect to 
substitute decision-making, this is evidenced by a move away from assumptions of decisional 
incapacity premised solely on factors such as age or disability and by a more specific, 
focussed test of capacity. It is also evident in the emphasis on supporting the person to make 
his or her own decisions to the greatest extent and for the longest time possible. In keeping 
with that emphasis, statutory schemes generally establish decision-making regimes in which 
the substitute decider takes over decision-making for another to the smallest extent possible. 

3. THE CHILD AND FAMILY SERVICES ACT 

The common law has long recognized the power of the state to intervene to protect 
children in serious jeopardy and to promote their well-being. One way courts exercise this 



67 

68 
69 

70 

71 
72 



Medical Consent Act, R.S.N.S. 1988, c.l4, in R.S.N.S. 1989, c.279; Health Care Directives and Consequential 
Amendments Act, S.M. 1992, c.33; Advance Health Care Directives Act, S.N. 1995, c.A-4.1; Enduring Powers of 
Attorney Act, S.Y.T. 1995, c.8. 

Personal Directives Act, S.A. C.P4.03 (Bill 35, Royal Assent May 24, 1996). 

SDA, supra n. 44, HCCA, supra n.6; Public Curator Act SQ 1989, c. 54, Civil Code of Quebec, L.R.Q. c. 64, 
1991, art. 10-34. 

Adult Guardianship Act, S.B.C. 1993, c. 35; Health Care (Consent) and Care Facility (Admission) Act, S.B. C. 
1993, c. 48; Public Guardian and Trustee Act, S.B.C. 1993, c. 64; Representation Agreement Act, S.B.C. 1993. 
See also Health Statutes Amendment Act, 1994, S.B.C. 1994, c. 42 (in force Apr. 7, 1995). 

Consent to Treatment and Health Care Directives Act, S.P.E.I. 1996, c.lO (Royal Assent May 2, 1996). 

Report of the Senate Special Committee on Euthanasia and Assisted Suicide, Of Life and Death (Supply and 
Services, Ottawa: 1995) at 48. 



64 

71 

power is through their parens patriae jurisdiction. Much of the state's power is now set out 
in legislation, such as the Child and Family Services Act (CFSA).^"* It defines the 
circumstances in which a child will be considered "in need of protection", the power of the 
courts and social agencies to intervene, and the conditions under which those powers can be 
exercised. The relevant statutory provision m the context of decision-making about life- 
sustainmg treatment is as follows: 

5.37(2) A child is in need of protection where, 

(e) the child requires medical treatment to cure, prevent or alleviate physical harm or 
suffering and the child's parents or the person having charge of the child does not 

75 

provide, or refuses or is unavailable or unable to consent to, the treatment. 

The section is not limited to instances where the child's life is at risk; it can also apply 
in situations where the treatment in question might be needed to ensure his or her health or 
well-being. When a Children's Aid Society has grounds to believe that a child is in need of 
protection, it can commence child protection proceedings. The matter must be brought before 

77 

a court for its determination. A parent or other person with custody of the child must be 

78 

given notice of the child protection hearing, unless the court has dispensed with notice. If 
the child is found to be in need of protection, the court can make an order in the child's best 
interests, including committing the child to the care and custody of the Children's Aid 
Society or returning the child to his or her parents subject to the Society's supervision. 
When a child is committed as a ward of the Society, it is vested with all the rights and 

80 

responsibilities of a legal guardian, and can consent to medical treatment. The Health Care 
Consent Act, 1996 (HCCA) provides that for the first year after it comes into force, the CFSA 
prevails in the event of conflict. That provision, however, is repealed on the first anniversary 
dateoftheHCCA.^^ 



73 
74 
75 
76 
77 



78 
79 
80 

81 



See eg. Eve v. Mrs. E. (1987) 3 1 D.L.R. (4th) 2 (S.C.C). 

R.S.O. 1990, c. C. 1 1, as amended. 

Id. s. 37(2)(e). 

B.(R) V. Children's Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315, 375 per LaForest J. 

CFSA s.40(l), 47(1). Where a child protection worker believes on reasonable and probable grounds that a child is 
in need of protection and there would be a substantial risk to the child's health or safety during the time necessary 
to bring the matter on for a hearing or obtain a warrant he or she may bring the child to a place of safety, which 
includes a hospital (CFSAS s. 40(7), (2), 37(1)). 

As it can do if satisfied the time required for notice might endanger the health or safety of the child. — id., s.39(7). 

Id, s.57(l). 

Id, s.62(l). The court can order that a parent retains the right to give or reflise consent to medical treatment, but 
shall not do so if a failure to consent to necessary medical treatment was a ground for finding that the child was in 
need of protection (s.62(l), (2)). 

Health Care Consent Act, J 996, supra , n. 6, s.86(l),(2). 



65 

Decisions about medical treatment must be made in the child's best interests; that is 
what is expected of parents and the test courts apply when called on to consider the 
appropriateness of treatment for a particular child when there is disagreement among those 
involved in his or her medical care to such a degree that it cannot be resolved without judicial 
intervention. Under the CFSA, when a person is directed under the child protection Part of 
the statute to make an order or determination "in the best interests of the child", the person is 
to take into account a number of listed circumstances, including the child's physical, mental 
and emotional needs and the appropriate care or treatment to meet those needs, the child's 
level of development, the child's cultural background and the religious faith, if any, in which 

82 

he or she is being raised. Difficulties arise not with the test itself, but rather with 
determining the content to give it, the designation of whose understanding of best interests 
shall prevail, and more recently, with the resolution of competing claims — for instance, a 
parental claim to religious freedom, including the ability to deny their child medically 
recommended treatment for religious reasons, as against claims asserted by others on the 
child's behalf to life and security of the person. 

In a recent decision, B.(R.) v. Children's Aid Society of Metropolitan Toronto, the 

83 

Supreme Court of Canada considered these questions. Because of their religious beliefs as 
Jehovah's Witnesses, parents of a child bom prematurely and with numerous health problems 
objected to blood transfusions required in connection with an examination and surgery to 
address suspected glaucoma. After a hearing on short notice to the parents, the child was 
made a ward of the Children's Aid Society, which consented to the treatment. After the 
procedure (including the transfusion) had been performed, the wardship order was terminated 
by a second order of the court. The parents appealed, asserting that the definition of a child in 
need of protection in the Child Welfare Act ( the predecessor to the Child and Family Services 
Act), together with the statutory procedures for granting wardship to the Children's Aid 
Society, denied them the right to choose medical treatment for then" child and hence, 
infringed their Charter rights to liberty and freedom of religion. The Court dismissed the 
appeal. In several extensive sets of reasons, members of the Court considered the nature and 
extent of the parents' rights and responsibilities, the interpretation of the legislation and the 
operative intervention principles — that is, when ought the state intervene in a decision 
normally left to the parents? Consideration of the Charter rights at issue will be reserved to a 

85 

later chapter. The present analysis will focus on what the case has to say about how to 
decide — ^that is, the nature of the guidance principles that found the decision-making process. 

As lacobucci and Major J J. noted, while "...an mdividual may refuse any medical 
procedures upon her own person, it is quite another matter to speak for another individual. 



82 
83 
84 

85 



CFSA, supra n. 74, s.37(3). 

Supra n. 76. 

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada 
Act, 7952 (U.K.), 1982, c.ll. 

See ch. 7 infra. 



66 

especially when that mdividual cannot speak for herself, and in [this] case, has never spoken 
for herself. LaForest J. writing for the plurality noted that "the common law has long 
recognized that parents are in the best position to take care of their children and make all the 

87 

decisions necessary to their well-being". There is thus a protected sphere of parental 
decision-making rooted in the presumption that parents should make such decisions on their 
children's behalf, both because parents are more likely to appreciate the best interests of their 
children and because the state is ill-equipped to make such decisions itself.*^ Given the deep 
personal interest parents have in fostering the growth of their children, an interest "of 
fundamental importance to our society", they can be expected to have and act with their 

89 

children's interests at heart. The state will interfere with this role to balance the rights of 
parents and children only in exceptional cases to preserve the child's well-being or health 
where parental conduct falls below the "socially acceptable threshold". ^° In all instances, the 
state must justify the necessity of intervention.^^ 

In this case, the treatment at issue was a blood transfusion, needed in conjunction with 
an examination and treatment for suspected glaucoma. The parents apparently conceded that 
"...if the life of the child was threatened and there was an emergency, the CAS was entitled to 

92 

intervene and the blood transfusions were appropriate". Even with recent unease about the 

93 

blood donation system, blood transfusions are a standard form of medical therapy, enjoy 
wide public acceptance, are not particularly invasive, do not generally cause major side 
effects, and are often necessary to preserve health and even life. Given its standard nature, the 
minimal physical risks associated with a transfusion and the major risks anticipated from 
refusing it, and given strong medical opinion supporting the need for the transfiision and wide 
societal acceptance of it as a form of treatment, the Court was not prepared to countenance 
the parental refusal. The life and physical health of the child clearly prevailed in the 
determination of best interests. 

The more difficult issues arise, however, when the appropriate course of treatment is 
less clear, as may well be the case when the question is one of withdrawing or withholding 
other types of potentially life-prolonging medical treatment that are not so widely accepted, 
or impose serious burdens on the recipient, or with physically beneficial effects that are less 



86 
87 
88 
89 
90 
91 
92 
93 



Supra n. 76 at 432. 

Id. at 370; the judgment was concurred in by L'Heureux-Dubd, Gonthier and McLachlin JJ. 

Id. at 371. 

Id. 

d. at 370 -373. 

Id.at371. 

Id. at 421. 

Commission of Inquiry on the Blood System in Canada, Interim Report (Supply & Services Canada, Ottawa: 
1995) (H. Krever, Commissioner); "Transfusion guidelines being developed", CMA News (Oct. 1996), p.3. 



67 

apparent or less overwhelming, or that entail serious risk of other harmful effects. When the 
minor is mature and approaching the age of majority, at which point he or she could make 
these decisions independently in any event, courts are often guided by the minor's own 
wishes. With very young children, there can be no question of following the child's wishes, 
as he or she lacks decisional capacity. Trying to make decisions purely on the basis of 
"medical need" ignores the fact that concepts of medical need presuppose a value judgment 
about the desirability of treatment. Few Canadian cases have considered this issue directly; 
a review and analysis of the limited jurisprudence follows. 

In two decisions m Quebec and Ontario, courts upheld parents' refiisal of chemotherapy 
for their children suffering from cancer. In both cases, the evidence established that the 
proposed treatment would be extremely intrusive and painfiil, had injurious side-effects, and 
could only marginally improve chances for recovery, which were very poor in any event. On the 
other hand, in Re Superintendent of Child and Family Services and Dawson, surgical 
intervention to replace a shunt in an institutionalized severely handicapped hydrocephalic child 
was authorized by the British Colimibia Supreme Court over the opposition of the parents. The 
evidence in that case established that the operation would assure the continuation of the child's 
life, characterized by the court as relatively happy and not evidencing pain or suffering, and that 
if the operation were not performed, the child might well suffer further deterioration, pain and 
distress, but would not necessarily die. The court distinguished the situation before it from that 
of a terminally ill patient and the question of whether there is a "right to die", and explicitly 
recognized that there may be instances where the child's friture will so certainly be ftill of such 
pain and suffering that the court might reach a different conclusion with respect to life- 

98 

prolonging interventions. Extreme and intractable pain was the only factor the judge explicitly 



94 



95 



96 

97 



98 



Re LDK: Children's Aid Society of Metropolitan Toronto v. K. and K. (1986) 48 R.F.L. (2d) 164 (Ont. Prov. Ct.); 
Walker v. Region 2 Hospital Corp. (1994) 116 D.L.R. (4th) 477; (1994) 4 R.F.L. (2d) 321 (N.B.C.A.). But see 
Oberman M., "Minor Rights and Wrongs", (1996) 24 J. Law, Med. and Ethics 118 (raising doubts about the 
mature minors doctrine, given new understandings of adolescents' unformed decision-making capacities.). 

On judgments of "medical need", see generally D. Callahan, "Terminating Treatment: Age as a Standard", 
17 Hastings Center Report 21, 24 (Oct./Nov. 1987). See also N. Cantor, The Legal Frontiers of Death and Dying 
(Indiana U. Press, Bloomington: 1987) at 54, noting that all medical decisions are infused with quality of life 
considerations, although competent patients at least have the prerogative of making these value judgments for 
themselves. N. Rhoden, "Litigating Life & Deadi" (1988) 102 Harv. L. Rev. 375 at 421-425 suggests that the 
medical profession is prone to reductionist presuppositions about what amounts to a "benefit" to the patient, based 
on a "body-part-repair" orientation. 

Couture-Jacquet v. Montreal Children 's Hospital, (1986) 28 D.L.R. (4th) 22 (Que. C.A.); Re LD.K.:, supra n. 94. 

(1983) 145 D.L.R. (3d) 610 (B.C.S.C), rev'g. (sub nom. Re S.D.) (1983) 42 B.C.L.R. 153 (Prov. Ct.). See also Re 
Goyette: Centre de Services Sociaux du Montreal, [1983] C.S. 429, authorizing a life-saving operation for a child 
with Down's Syndrome over the parents' objection, and New Brunswick (Minister of Health and Community 
Services) v. RB. and SB., (1990) 106 N.B. (2d) 206 (Q.B.), authorizing treatment for meningitis for a severely 
mentally retarded and neurologically handicapped ten year old child over the parents' objection that the child 
would never have any quality of life. 

Id. at 620, 623 (B.C.S.C). 



68 

noted might meet what she called the "most coercive" standard that would justify withholding 

99 

treatment. 

These decisions all concerned patients who were conscious, interacting with others at 
some level, and connected with their surroundings. Further, all three decisions were made 
with respect to children, who could not have developed a stable value system from which to 
identify preferences. The presence or absence of pain and whether it could be controlled were 
obviously significant factors in the patients' lives. And in the first two decisions, it is a fair 
conclusion that the treatment would most likely have staved off death for only a limited 
period of time at best, if at all. The courts were not faced with the situation of a barely 
conscious patient or one in a persistent vegetative state, where the patient's ability to feel 
anything is non-existent or highly questionable but where life could still be maintained for 
years. A court confronting that type of situation may not exclude considerations other than 
pain from its inquu'ies so absolutely. 

Still, it would seem from these cases that courts would regard it as appropriate that life 
support be withdrawn from mmors seldom, and only in extreme circumstances. One need 
only look to the very strong emphasis m Dawson on "...the laws of our society [being] 
structured to preserve, protect and maintain human life [such] that m the exercise of our 
inherent jurisdiction this court could not sanction the termination of a life except for the most 
coercive reasons", an emphasis that is echoed in Niemiec, or, although in a very different 
context, the Supreme Court of Canada's choice in Eve of "...the importance of maintaining 

102 

the physical integrity of a human being" as the controlling value from among several 
others and its hesitation to exercise its parens patriae jurisdiction to approve a contentious 
step that would be irreversible. While one can analyze this result in terms of avoiding 
quality of life decisions as to which there is no consensus, or refusing to condone euthanasia, 
or avoiding a slippery slope of incrementally more morally questionable decisions, at bottom 
it is based on a sense that, as one judge put it: "the life of this child.. .is still so imponderable 
that it would be wrong for her to be condemned to die". This is particularly so with 
children, for whom much of life is yet to come. Judges confronted with questions about 
foregoing life-sustaining treatment will be keenly aware of then* inability to know, their 



99 



100 
101 
102 
103 
104 



Id. at 620, 623 (B.C.S.C). It would follow from this comment that in the face of pain of that nature and degree, the 
judge would be "choiceless"; the fact that there is a decision - a choice - being made is obscured by the 
characterization of pain as a "coercive", choice-removing factor. This characterization of severe pain itself is of 
course dependent on one's underlying choice as to what constitutes "the good" for a patient — see ch. 1 1 infra. For 
a more encompassing sensibility, see Re Minister of Social Services andP, infra, n. 105 and accompanying text. 

Dawson, supra, n. 97, at 620 (B.C.S.C). 

Procureur General du Canada c. Hopital Notre Dame et Niemiec (1984) C.S. 426 at 427. 

Eve, supra, n. 73 at 34. 

Id. at 32-33. 

In Re B, {\9%\) \ W.L.R. 1421 at 1424 (C.A.) quoted with approval in Dawson, supra, n. 97 at 623 (B.C.S.C). 
But see Re J., [1990] 3 All E.R. 930 at 942, 944 for critical comment on this choice of wording. 



69 

inability to find facts of the type and in the ways they are used to relying on as trustworthy in 
a traditional adversarial proceeding. They will be aware of the lack of a social consensus - a 
conventional morality - with respect to many of these questions. Most of all, they will know 
that if a court sanctions foregoing life-sustaining treatment, in all likelihood, that decision 
will shortly be irreversible. Taking all these factors together, the result is likely to be 
judgments rooted in caution that only rarely authorize an irrevocable step of this nature. 

Yet, there are instances where treatment may appropriately be withheld or withdrawn. 
In Re Minister of Social Services and P., parents' decision not to seek a liver transplant for 
their son was upheld in the face of the government's application to have the child declared in 
need of protection so that the operation could be authorized. While the child's chances of 
survival with the transplant were good and death was certain and imminent without it, the 
court noted that the child would always suffer serious side effects, some of which were 
themselves potentially life-threatening, that the decision necessarily involved not just medical 
considerations but important psychological, social and emotional components as well, and 
most importantly in the court's view, that the parents' decision was "...made totally within the 
bounds of current medical practice" and "did not depart" from values society expects from 
thoughtful, caring parents of a terminally ill child. The parents' refusal of the transplant 
was a product of both their assessment of the medical burdens associated with the treatment 
and their determination founded on theu' sensibility as members of First Nations that the 
treatment would be an improper and unacceptable invasion of their child's bodily and 

107 

Spiritual integrity. The court, however, emphasized only that their decision was in accord 
with accepted medical standards (that is, the expert evidence of doctors, although not their 
own physician, who had referred the matter to the Department of Social Services in the first 

I no 

instance). Reference to the other element underlying the parents' decision is missmg, save 
for an indication that their return to the reserve and reliance on native spirituality and healers 
were in no way a rejection of medical care and treatment. The spiritual reason underlying 
the parents' decision, which to them was central, disappears in the judgment. 

This brings us back to the very hard questions. What is a court to do — which families as 
decision-makers and which reasons to accept, and which to reject? And how to decide? How 
can the type of knowledge or belief central to the parents m Re P (or Re B. (R.)) be taken into 
account, and when should it be? In the face of such dilemmas, it is no wonder the court in Re 



105 

106 
107 
108 
109 
110 



(1990) 69 D.L.R. (4th) 134 (Sask. Prov. Ct). See also Re C [1989] 2 All E.R. 783 (C.A.); Re J [1990] 3 All E.R. 
930 (C.A.); ReJ[\991] 4 All E.R. 614 (C.A.); Re C [1996] 2 F.L.R. 43. 

Id. at 143. 

Paulette, L., "A Choice for Ka'ila", (1993) 9 Humane Medicine 13. 

Id.; see also Re P, supra n. 105 at 143. 

Re P, id. at 140. 

Nor is there any reference to the context for the application, specifically the troubled history of contact between 
First Nations peoples and child welfare agencies — see Downie J., "A Choice for K'aila: Child Protection and First 
Nations Children" (1994) 2 Health Law J. 99 at 102-103. 



70 

P retreated to a consideration of one facet of the problem — the treatment, its benefits and 
burdens (medically assessed), and medical practice. It not only seems manageable, but is 
reliably and strongly oriented towards preserving life, as the law is.*'^ At the same time, in 
emphasizing medical standards, medicine's technological capability to preserve life cannot 
subsume consideration of the patient as a whole person and all the circumstances of his or her 
life. We cannot forget that ". . . death is not always necessarily an evil to be fought". ^^^ 

The regard paid to societal expectations in these decisions is also important. Individuals 
who are not decisionally capable are a societal as well as familial responsibility. The 
decisions and the decision-makers must remain subject to collective control. Not all reasons 
for reflismg treatment on another's behalf without prior instructions can be accepted, no 
matter how grounded in one's personal morality or how conscientiously held the belief. 
Family and medical decision-making are not separate spheres; the one informs the other. The 
parents as primary decision-makers operate as the key link between the child and the larger 
society. As such, the parents owe responsibilities: to the patient, of course, but also to the 
collectivity not to fall below the standards that society expects from those charged with the 
care of the most vulnerable. 

4. PROFESSIONAL REGULATION 

(a) The Regulated Health Professions Act and Profession-Specific 
Acts 

There have been very few cases where instances of health care providers allegedly 
assisting in suicide, engaging in euthanasia or inappropriately withholding or withdrawing 
life-sustaining treatment have come before the governing bodies of the various health 
professions for adjudication. Consideration of those cases will form part of the general 
analysis of the enforcement of the law in this area. This section will provide an overview of 
the statutory framework Within which health professionals carry on their practices in Ontario. 

The Regulated Health Professions Act (RHPA) and the statutes specific to each 
profession set out the framework regulating most health care providers and their provision of 
health care in Ontario. This is in addition to standards unposed by the civil and criminal 
law. The RHPA applies to the health professions most frequently involved in health care at 
the end of life, including medicine, nursing, dietetics and respiratory therapists. The Health 
Professions Procedural Code (HPPC) that forms Schedule 2 to the RHPA is deemed to be 



ill 

112 

113 
114 
115 



The same orientation founds the Supreme Court of Canada's decision in Re B. (R), supra, n. 76. 

Kennedy I., "Switching Off Life-Support Mechanisms," in Treat Me Right. Essays in Medical Law and Ethics 
(Oxford U. Press, Oxford: 1988) at 361. See also infra, ch. 4.V (discrimination) and ch. 1 1 (best interests; futility). 

See ch. 6, infra. 

Regulated Health Professions Act, S.0.1991 c.l8; see eg. the Medicine Act, S.O. 1991 c.55. 

Id,Sch. 1. 



71 

part of each health profession Act. These are the statutes that apply to specific professions. 
It includes a number of provisions defining professional misconduct that are of general 
application. The implementation of the RHPA and the specific statutes is the responsibility of 
Colleges for the professions. Each College is governed by a Council, composed of elected 
members and government appointees. One must be a member of the relevant College in 
order to practice a health profession lawfully m the province; membership requires 
registration with the College. Only members authorized by a health profession Act or their 
lawful delegates can perform what the RHPA refers to as "controlled acts". These are 
defmed activities performed in the course of practicing a health profession that must be 
provided by trained individuals to ensure public safety. 

Professional standards are enforced through an administrative disciplinary process. 
Among the College's duties, it must investigate complaints, bring charges of professional 
misconduct where warranted, and discipline members found guilty of professional 

120 

misconduct. Disciplme proceedings can arise in two ways: first, the Complaints Committee 
of the College can investigate a complaint and determine that specified allegations of 
professional misconduct ought to be referred to the Discipline Committee for a hearing. ^^^ 
Second, the Executive Committee of the College can similarly refer allegations of a 

122 

member's professional misconduct for a discipline hearing. Complamts can be made by 
patients themselves, family members, other physicians, hospitals — indeed, anyone can make 
a complaint, although to formally start the complaints process, it must be written or recorded 

123 

in some form. If the Complaints Committee decides not to refer the matter to the Discipline 
Committee, there is a right to seek review of that decision by the Health Professions Board. ^^'^ 
If a referral to the Discipline Committe is made, a panel of the committee holds a formal 

125 

hearing. The College bears the burden of proof It has to establish its case by a 

preponderance of evidence — ^the civil standard of proof, but at the more onerous end of the 

1 1ft 
scale, requiring the proof to be clear and convincing and based on cogent evidence. A 

panel can allow a person who is not a party to participate in a hearing in the manner it 



Id, S.4; Schedule 2, Health Professions Procedural Code (hereafter, HPPC), s.51. 
'^^ Id., SS.4, 5, 8. 

Id. s.13. 
'^^ RHPA, supra n. 114, s.27. 
'^° HPPC, supra n. 1 16, s.25, 26, 5 1(2). 

121 

Id s.25, 26. 

122 

Ids.36(l). 
*^^ Id s.25(4). 
^^* Id s.29(2). 
''' lds.38. 
'^^ Bernstein v. CPSO (1977) 76 D.L.R. (3d) 38 (Ont. Div. Ct). 



72 

127 

determines if it is of the opinion that would be helpful. Unlike a criminal trial in which a 
judge or jury renders the verdict, in discipline proceedings the determination is made by a 
panel, at least one of whom (and often the majority) is a member of the health profession. 

In addition to the generic forms of prohibited behaviour common to all professions such 
as having been found guilty of an offence that is relevant to the member's suitability to 

129 

practice, fiirther acts of professional misconduct are defined in a regulation under each 

130 

health profession Act. For mstance, it is an act of professional misconduct for a physician 
to breach confidentiality except as allowed by law. The profession-specific regulations 
generally include some variation on catch-all provisions defining professional misconduct to 
include conduct unbecoming a member of that health profession and an act or omission 
relevant to the practice of the profession that would reasonably be regarded by members as 

132 

dishonourable, disgraceful or unprofessional conduct. If a member is found guilty of 
professional misconduct, penalties that can be imposed range from revocation or suspension 
of the member's certificate of registration through the imposition of terms or limitations on it 
to a reprimand. A party can appeal the Discipline Committee's decision to the Divisional 
Court , which has all the powers of the panel that originally dealt with the matter. 

(b) Professional Organizations: Ethical Standards 

Professional organizations such as the Canadian Medical Association (CMA) and the 
Canadian Nurses Association (CNA) also set standards of practice for members of then- 
professions. While these do not have the force of law on then- own, they can be influential in 
the mterpretation of the law.^^^ Both have developed Codes of Ethics for their members' 
guidance. ^"^^ The CMA adopted a new Code of Ethics in August, 1996.^^^ In a departure from 



127 
128 

129 
130 

131 
132 
133 
134 
135 

136 



HPPC, supra n. 116, s. 41.1. 

The panel must consist of at least three and not more than five members, at least two of whom must have been 
appointed to Council by the Lieutenant Governor in Council — i.e. lay people. One member must also be a 
member of Council. (HPPC, supra n. 1 16, s. 38(2), (3)). 

HPPC, supra n. 116, s.51(l)(a). 

Id., s.51(l); for an example of regulations specific to a profession, see O.Reg. 856/93 made under the Medicine 
Act, supra n. 114. 

O.Reg. 856/93, made under the Medicine Act, supra n. 1 14, s.l(l) 10. 

See eg. id. 5.1(1)34,33. 

HPPC, supra, n. 116,s.51(2). 

Id. s.70. 

The majority judgment in Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519 at 608 for instance, relies inter alia on the 
opposition of medical associations to legalizing assisted suicide to support its conclusion that the Criminal Code's 
blanket prohibition ought to be maintained. 

See eg. Code of Ethics, Canadian Nurses Association, 1991. 



73 

its predecessor, it no longer makes any specific reference to ethical issues surrounding death 
and dying or transplantation. The former Code of Ethics had provided that, when the patient 
is dying, 

"an ethical physician... 

18. will allow death to occur with dignity and comfort when death of the body appears 
inevitable; 

19. may support the body when clinical death of the brain has occurred, but need not prolong 

138 

life by unusual or heroic means" 

It should not be taken from the new Code of Ethics' silence on these matters that the 
CMA has changed its position. The Notes to the Code explain the omission as a decision that 

139 

an ethical code should concentrate on general principles. The omission can also be taken as 
an indication that these particular principles have now become such a generally accepted part 
of medical practice that they no longer require special acknowlegement or professional 
"permission" to be considered ethically appropriate. 

In 1994, the annual meetmg of the general council of the CMA adopted a resolution that 
CMA members should specifically exclude participation in euthanasia and assisted suicide. 
The vote was 93 hi favour and 74 against. There are more than 55,000 doctors in 
Canada. Surveys done mdicate that opinion among physicians on these issues is divided. ^"^^ 



137 

138 
139 
140 

141 

142 

143 



"CMA Code of Ethics," approved by CMA General Council Aug. 1996, CMA News (Oct. 1996) at 6 - 9. See also 
CMAJ 1996; 155: 1176A-1176B. 

CMA Code of Ethics (CMA, Ottawa: 1980). 

CMA News, supra n. 137 at 9. 

The Canadian Palliative Care Ass'n in its Brief to the Senate Special Committee on Euthanasia and Assisted 
Suicide at p. 6 noted that until the CMA, CNA and Canadian Hospital Association released the Joint Statement on 
Terminal Illness in 1984, ". . . doctors were commonly afraid to write orders not to resucitate". 

Gibbon A., "MDs reject euthanasia, assisted suicide" Globe & Mail (Aug. 17, 1994) at Al, A5. 

Canadian Medical Protective Association, Ninety-Second Annual Report (1993); Borsellino M., "Everything You 
Always Wanted to Know About the CMPA But Were Afraid to Ask", Medical Post (June 8, 1993) at 47. 

Relative to physicians in Canada, see Kinsella D, Verhoef M., "Alberta Euthanasia Survey: 1. Physicians' 
opinions about the morality and legalization of active euthanasia" CMAJ 1993; 148(1 1): 1921-1926; Kinsella D., 
Verhoef M., "Alberta Euthanasia Survey: 2. Physicians' opinions about the acceptance of active euthanasia as a 
medical act and the reporting of such practice", CMAJ 1993; 148(11): 1929-1933 ; Verhoef M., Kinsella D., 
"Alberta Euthanasia Survey: 3-year follow-up", CMAJ 1996; 155(7): 885-890; Searles N., "Silence doesn't 
obliterate the truth: A Manitoba survey on physician assisted suicide and euthanasia", unpublished paper prepared 
for the Manitoba Association for Rights and Liberties (Mar. 7, 1995); Wysong P., "Doctors divided on euthanasia 
acceptance," Medical Post (Oct. 8, 1996) at 1, 90 (in a recent national survey, close to 24% of responding 
physicians said they would be willing to practice active euthanasia and 23% assisted suicide if they were 
legalized. Almost 55% would practice neither, and 20-22% were uncertain); relative to Australian physicians, see 
ch. 10, infra; in the United States, see eg. Bachman et al., "Attitudes of Michigan Physicians and the Public 



74 

resolution supplanted one that had been developed by the CMA committee on ethics at 
council's request and approved by the CMA board of directors which would have had the 
organization take a neutral stand on the issue, recognizing that it is a matter of conscience for 
individual physicians, who should be free to participate in the social and political debate. ^"^"^ 
The resolution adopted resulted in the development of a CMA policy summary on the matter, 
"Physician-Assisted Death", reiterating the text of the resolution and urging CMA members 
to adhere to the prmciples of palliative care and support wider access to palliative care 
services generally. The Canadian Nurses Association has also studied questions that arise 
with respect to treatment at the end of life. The Ontario Medical Association adopted a 
Statement on Euthanasia in 1991 ( re-affirmed in 1994). It takes the position that acceptance 
or rejection of euthanasia is the responsibility of society. While medicine can contribute to 
the deliberations, it will first requu*e assurances there is no prior expectation physicians would 
actually participate in assisting death, and in any event ought not take a leading role in the 
deliberations. 

In 1995, the CMA, the CNA, the Canadian Healthcare Association and the Catholic 
Health Association of Canada approved a Joint Statement on Resuscitative Interventions that 
was developed with the cooperation of the Canadian Bar Association. It replaces the 1984 
Joint Statement on Terminal Illness. It is mtended to provide guidance for policy 
development regarding the appropriate use of cardiopubnonary resuscitation (CPR). The 
Joint Statement notes that CPR was initially developed as a treatment intervention for cases 
of sudden unexpected cardiac or respiratory arrest. However, it has come to be used in aknost 
all cases of cardiac arrest, even in those where it is known to be generally unsuccessful and 
indeed, can cause significant harm. The Joint Statement reviews the treatment decisions 
that have to be made about resuscitative intervention, characterizing them in terms of 
likelihood of benefit. It then sets out situations in which CPR should be performed and when 
it should not. Apart from patient refiisal of CPR, the Joint Statement concludes that people 
who "almost certainly will not benefit" from CPR, "either because the underlying illness or 
disease makes recovery from arrest virtually unprecedented or because the person will be 



Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia" NEJM 1996; 334: 303-309; Lee et al., 
"Legalizing Assisted Suicide — Views of Physicians in Oregon" NfEJM 1996; 334: 310 - 315. 



144 
145 
146 

147 

148 

149 

150 



Editorial, "CMA stance on euthanasia: base camp on a slippery slope", Medical Post (Sept. 6, 1994) at 8. 

CMA Policy Summary, "Physician Assisted Death" CMAJ 1995; 152(2):248A-248B. 

Canadian Nurses Association, "A Question of Respect: Nurses and End-Of-Life Treatment Dilemmas" (CNA, 
Ottawa: Sept., 1994). 

OMA Statement on Euthanasia, approved as policy by the OMA Board of Directors June 4, 1991 (re-affirmed 
1994). 

CMA Policy Summary, "Joint Statement on Resuscitative Interventions (Update 1995)", CMAJ 1995; 153: 
1652A-1652C. 

CMA, CNA, Canadian Hospital Ass'n, "Joint Statement on Terminal Illness-a protocol for health professionals 
regarding resuscitative intervention for the terminally ill", CMAJ 1984; 130: 1357. 

Joint Statement, supra n. 148 at 1652 A. 



75 

permanently unable to experience any benefit... are not candidates for CPR and it should not 
be presented as a treatment option." While as a general matter, the Joint Statement provides 
that these treatment decisions should be made "...in the context of the person's autonomy and 
with full disclosure of options in a supportive environment", it adds the proviso relative to 
those ahnost certainly unable to benefit from CPR that "[w]hether this is discussed with the 
person is a matter of judgement based on the circumstances of the case and the principles 
specified earlier". The document does not fiirther explain the reasons for departing from 

153 

the general model of disclosure to and discussion with the patient m this one instance. 

5. THE ONTARIO HUMAN RIGHTS CODE 

The Ontario Human Rights Code is the principal statute governing human rights in this 
province. ^^"^ It sets out broad prohibitions against discrimination on listed grounds. The 
current statute was enacted in 1981 and replaced the first Ontario Human Rights Code, which 
had been m force since 1962. The 1981 Code applies to discrimination by government or 
private persons or other entities and has primacy over other provincial statutes. 
"Discrimination" is not defined in the Code, but the Supreme Court of Canada has defined it 
generally as: 

...a distinction, whether intentional or not but based on grounds relating to personal 
characteristics of the individual or group, which has the effect of imposing burdens, obligations 
or disadvantages not imposed on others, or which withholds or limits access to opportunities, 
benefits and advantages available to other members of society. Distinctions based on personal 
' characteristics attributed to an individual solely on the basis of association with a group will 
rarely escape the charge of discrimination, while those based on an individual's merits and 

157 

capacities will rarely be so classed. 



151 
152 
153 

154 



155 
156 

157 



Id at 1652 C. 

Idatl652B. 

The question of inability to benefit from a treatment is discussed ftirther in the context of futile treatment, infra, 
ch. 11. 

R.S.O. 1990, c. H.19 (hereafter, the Code). Human rights are also governed by other federal and provincial 
statutes as well as the Canadian Charter of Rights and Freedoms, supra, n. 84. The Code applies to entities and 
individuals within provincial jurisdiction, including the provincial Crown, and is the primary human rights 
instrument likely to apply in the context of health care. 

S.O. 1961-62, C.93. 

Code, supra n.l, s.47(2). As a general matter of interpretation, human rights codes have been accorded quasi- 
constitutional status (I.C.B.C V. Heerspink (1982) 137 D.L.R. (3d) 219 (S.C.C); O'Malley v.Simpson Sears Ltd. 
[1985] 2 S.C.R. 536; Craton v. Winnipeg School Division No. J [1985] 2 S.C.R. 150). 

Andrews v. Law Society of B.C. [1989] 1 S.C.R. 143 at 174 per Mclntyre J. The definition was given in the course 
of interpreting the Charter, but the decision, the first from the Supreme Court of Canada interpreting the Charter 
equality rights, draws so heavily on human rights jurisprudence that it can be applied to the interpretation of the 
Code as well — Dickason v. University of Alberta [1992] 2 S.C.R. 1 103 (because of similar wording and purposes, 



76 
Discrimination may be direct or the result of adverse effect. ^^^ There is no need to 

159 

establish intent to discriminate. 

Among other matters, the Code protects against discrimination in the provision of 
services on the basis of handicap, age, sex, race, colour or ethnic origin. ^^^ "Services" clearly 



cases interpreting and applying particular sections of the Charter could assist in interpreting provincial human 
rights legislation, albeit subject to certain caveats). See also R. v. Swain [1991] 1 S.C.R. 933, 992 per Lamer CJ. 



I 



158 



159 
160 



Code, supra n. 1 : 

s.ll(l) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not 
discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of 
persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except 
where, 

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or 

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an 
infringement of a right. 

(2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is 
reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person 
is a member cannot be accommodated without undue hardship on the person responsible for accommodating 
those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 

See O'Malley v. Simpson Sears, supra n. 156 at 547; Ontario Human Rights Commn. v. Etobicoke (Borough) 
[1982] 1 S.C.R. 202.The respondent bears the burden of establishing that one of the listed exceptions applies in 
order to justify an instance of prima fijcie constructive discrimination. See generally Keene J., Human Rights in 
Ontario, (2d. ed.) (Carswell, Toronto: 1992) at 134 - 141. 

O'Malley, supra, n. 156. 

Code, supra n.l, s.l. " Every person has a right to equal treatment with respect to services, goods or facilities, 
without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, 
sexual orientation, age, marital status, family status or handicap." 

Handicap was one of the new grounds of prohibited discrimination included in the 1981 Code. It is broadly 
defined to include perceived or real, past or present conditions: 

s.lO. "because of handicap" means for the reason that the person has or has had, or is believed to have or 
have had, 

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused 
by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, 
including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co- 
ordination, blindness or visual impediment, deafness or hearing impediment, muteness or 
speech impediment, or physical reliance on a dog guide or on a wheelchair or other remedial 
appliance or device, 

(b) a condition of mental retardation or impairment, 

(c) a learning disability, or a dysfunction in one or more of the processes involved in 
understanding or using symbols or spoken language, 

(d) a mental disorder or, 



77 

includes the provision of health care. A person's rights under the Code are not infringed if 
the person is unable to meet the requirements attending the exercise of the right because of 
handicap 



162 



Questions arise respecting the applicability of this provision to treatment decisions or 
treatment options offered when the individual concerned is disabled. This is a particular 
concern when the patient is not decisionally capable, is in a precarious state of health, and 
consent to treatment must be given or refused by a substitute decision-maker. Where a 
disabled individual is decisionally capable, then treatment decisions should be made by that 
individual in the normal course. If the treatment options offered are artificially limited 
because of the disability, that would constitute a prohibited form of discrimination . Which 
limits are artificial and which are truly the result of the disability may well not be clear, 
particularly as large parts of such a judgment can be socially constructed. Relative to 
decisionally incapable and otherwise disabled patients, if the health care providers or the 
substitute decision-maker are of the view that life-sustaining treatment is inappropriate 
because the individual is ah-eady in so compromised a state from the disability, could that be 
considered discrimination on the basis of the disability, and m what circumstances? In such 
an instance, the decision to withhold or withdraw treatment would be made on the basis of the 
patient's handicap: he or she is so ill that treatment of this type is not indicated. But when is 
this responsible and caring decision-making and when is it impermissible discrimination? 
And what of treating secondary conditions when the disability substantially alters the benefits 



(e) an injury or disability for which benefits were claimed or received under the Workers ' 
Compensation Act. 



161 
162 

163 



Jerome v. DeMarco (1992) 16 C.H.R.R. D/402 (Ont. Bd. of Inquiry). 

Code, supra, n.l, s.l7(l): " A right of a person under the Code is not infringed for the reason only that the person 
is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right 
because of handicap." 

Indeed, views can differ on this question. In Alberta , parents of a 17 year old with Down syndrome who needed a 
lung transplant had to fight for months to convince the hospital to place him on the waiting list for the procedure. 
His expected life span was reportedly another five years in any event, because of other medical conditions. The 
hospital's transplant policy had required transplant candidates to have "satisfactory intelligence", out of a concern 
for managing the necessary treatment regimen after transplant. It changed its policy after a public outcry — Walker 
R., "Mentally disabled transplant patient prompts change in hospital policy", Medical Post (May 2, 1995), p. 52; 
Mitchell A., "Down's treatment bid poses dilemma". Globe & Mail (Apr. 28, 1995) , p.Al. In another context, 
parents of a disabled child challenged the school board's placement of their daughter in a special education 
program rather than a regular class. The Supreme Court of Canada has just overturned the Ontario Court of 
Appeal's ruling in the parents' favour, but has not released reasons for its decision at the time of writing (Eaton v. 
Brant County Board of Education [1996] S.C.J. No. 98 (QL), rev'g. (1995) 22 O.R. (3d) 1 (C.A.)). See 
Schollenberg E., "Medical care disputes and the best interests of the child: integrating the medical evidence" 
(1989) Man. L.J. 308 at 314-315 and references cited therein, detailing a study showing that in a review of 20 
years of cases in Toronto up to 1971, 27 out of 50 children bom with Down's Syndrome and intestinal blockage 
did not have surgery, all with parental concurrence. Without surgery, death was inevitable. Schollenberg Uaces 
changes in that pattern thereafter, which he attributes to changing appreciation of the potential such children 
have — i.e. changes in the social meaning atuibuted to that condition. 



78 

or burdens or doing so or when there are questions as to whether, because of the disability, 
the individual's quality of life can be changed or helped by doing so?'^ 

A decision to differentiate in the treatment provided where one of the reasons for doing 
so is the handicap could constitute a breach of the Code. This calls into question the legal 
status of much responsible, humane decision-making about end-of-life treatment for those 
who are decisionally incapable where the patients' wishes are unknown. As one writer has 
noted, one may undervalue the life of an individual who cannot speak for himself; on the 
other hand, one may also in unconscious and well-meaning cruelty greatly underestimate the 
extent of the suffering and deprivations experienced. ^^^ Possible responses are to look to 
section 1 1 of the Code where applicable, on the basis that the factor is reasonable and bona 
fide in the circumstances, or to section 17, on the basis that the person is unable to fulfill 
essential requirements attending the exercise of the right, or to the general concept of 
discrimination and absence of disadvantage given the patient's condition, such that the 
differentiation would not constitute impermissible discrimination. All seem to be somewhat 
artificial analyses, as neither the general concept of discrimination nor the specific provisions 
relative to constructive discrimination or handicap were framed with these types of issues in 
mmd. 

Canadian jurisprudence offers little guidance on this question or even how to approach 
it. In Minister of Social Services and P., parents' decision not to consent to* a liver transplant 
for their son was upheld, although death was certain and imminent without it and prospects of 
at least short-term survival were good with the treatment. The decision was one the court 
held fell within medically and socially accepted norms; it did not consider the question of 
discrimination. In N.B. (Minister of Health and Community Services) v R.B. andS.B., the New 
Brunswick Court of Queen's Bench granted the Minister temporary custody of a ten year old 
severely mentally retarded and neurologically handicapped child and authorized medical 
treatment (antibiotics for meningitis and an accompanying infection in the area of a shunt). 
Her parents had objected to the treatment, and, as in Re P., there was a difference of opmion 
among physicians as to the appropriate therapeutic response. In this case, though, the court 
in a brief judgment held that a decision not to treat would constitute discrimination against 
the child on the basis of her disability and hence, would be contrary to the Charter of Rights. 
Even if further medical treatment prolonged her suffering, it would also prolong her life, and 



164 

165 

166 
167 
168 
169 



Morreim H., "Futilitarianism, Exoticare and Coerced Altruism: The ADA Meets Its Limits" (1995) 25 Seton Hall 
L. Rev. 883 at 896-897. 

Minow, M., "Beyond State Intervention in the Family: Baby Jane Doe" (1985) 18 U. Mich. J.L. Reform 933 at 
961. 

Supra, n. 157, 158, 162. See also n. 199 - 201, infra, and accompanying text. 

Supra, n. 105. See discussion supra, ch. 4.3. 

Supra, n. 97. 

Supra, n. 105. 



79 

170 

"[t]hat life, however low its quality, is her right". The judgment neither describes the 
child's condition or prognosis in any detail nor expands on what is meant by "suffering" or 
whether it could be alleviated or controlled. It is likely that the non-invasive, minimal, routine 
nature of the treatment in question — antiobiotic therapy — significantly affected the outcome. 
Clearly, the treatment would have been authorized for a non-disabled child who had an 
infection; such a standard therapeutic response ought not to be withheld from a young person 

171 

simply because she also has a disability. As the Saskatchewan Court of Appeal noted in R. 
V. Latimer, quoting the trial judge: "Life was not kind to [the child], but it was a life that was 

172 

hers to make of what she could". 

But what of someone who is very elderly, aheady very ill, and not expected to recover? 
To take one example, must antibiotics always be prescribed for all infections to avoid 
impermissibly discriminating on the basis of handicap? Pneumonia has been called "the old 
man's friend" and antibiotics have not always been prescribed. Additional considerations 
may be important when an individual's ckcumstances differ — for instance, when he or she is 
at the end of life rather than the beginning, or suffers from an illness such that his or her life 
is expected to be very short in any event, or filled with severe and intractable pam and 
suffering. Little public attention has been paid to how these decisions ought to be made. 

173 

The issue has, however, received some consideration in the United States. Although 
decided under different statutory regimes and without the guarantees of access to health care 
familiar in Canada, there are some broad similarities that make these decisions useful to 
examine. In Bowen v. American Hospital Association, health care providers brought 
consolidated actions challenging federal regulations promulgated under the Rehabilitation Act 



170 
171 



172 
173 



Idatlll. 

People First, an Ontario advocacy group for developmentally handicapped people, was granted standing at an 
inquest into the deaths of fifteen severely handicapped children at one institution, the Christopher Robin Home. It 
was instrumental in focusing attention on the whole issue of "comfort care" orders for institutionalized mentally 
and physically handicapped children who contract other illnesses, asserting that the Home's medical director 
inappropriately placed children who were not terminally ill on a palliative care regimen, withholding treatment 
that would have been routine for non-disabled children and prescribing morphine instead, even though it was not 
medically indicated. See Fine S., "Group criticizes care for disabled", Globe & Mail (May 13, 1991), p. A6; Fine 
S., "Christopher Robin jurors urge deth-review panels". Globe & Mail (Apr. 17, 1992); Factum of the Intervener, 
the Coalition of Provincial Organizations of the Handicapped in Rodriguez v. B.C. (A.G.),{S>CC) para. 8; Brief of 
the Chief Coroner and Deputy Chief Coroner for Ontario to the Senate Special Committee on Euthanasia and 
Assisted Suicide (Sept. 16, 1994). 

R. V. Latimer, (1995) 126 D.L.R. (4th) 203 at 2^\ per Tallis J.A. (Sask. C.A.). 

English decisions addressing the question of whether and what treatment is to be provided to severely 
handicapped infants stand in contrast to the American in the analysis employed. However, as they do not address 
decisions to treat or not from an anti-discrimination standpoint, they will not be considered further in this section, 
other than to note that much is left to the medical judgment of the physicians involved, subject to the court's 
parens patriae power to safeguard the infant's best interests {Re C [1989J; Re J [1990]; Re J [1992]; Re C [1996] 
all supra, n. 105). 



80 

concerning procedures relating to health care for handicapped infants. ^^'^ The relevant section 
of that Act provided as follows: 

No otherwise qualified handicapped individual... shall, solely by reason of his handicap, be 
excluded from the participation in, be denied the benefits of, or be subjected to discrimination 

175 

under any program or activity receiving Federal financial assistance. 

The regulations required posting of informational notices, authorized expedited access to 
records and compliance actions, and commanded state child protective services agencies to 
prevent instances of unlawful medical neglect of handicapped infants. 

The United State Supreme Court found the regulations invalid on several grounds. ^^^ 
Stevens J. writing for the plurality held that, while handicapped infants are entitled to 
"meaningful access" to medical services provided by hospitals, a hospital withholding 
treatment from a handicapped infant when parents did not consent to treatment could not 
violate the antidiscrimination provisions of the Rehabilitation Act because without parental 
consent, the mfant is not "otherwise qualified" for the treatment, nor would any denial of 

177 

treatment by the hospital be solely because of the handicap. The focus, then, was on the 
identity of the decision-maker refusing the treatment (the parent rather than the hospital), not 
on the decision itself. 

In arriving at its decision, though, the Court adopted an earlier decision of the Court of 
Appeals interpreting this section of the Rehabilitation Act, United States v. University 

178 

Hospital, SUNY. In passages quoted with approval by the Supreme Court in Bowen, the 
Court of Appeals held that although the infant in that case was a "handicapped individual" 
within the meaning of the statute, the "otherwise qualified" criterion the statute imposes could 
not meaningfully be applied to a medical treatment decision because "...where medical 
treatment is at issue, it is typically the handicap itself that gives rise to, or at least contributes 



174 
175 
176 

177 
178 



106 S. Ct. 2101; 476 U.S. 610 (1986). 

S. 504, 87 Stat. 394, 29 U.S. C. S. 794. 

Those that tum on the different division between federal and state jurisdiction in the United States will not be 
considered. 

Supra n. 174 at 21 11, 2114. 

729 F 2d 144 (2nd Cir 1984) at 156, 157. The case arose as a result of a private citizen's complaint to the 
Department of Health and Human Services that an infant bom with multiple congenital defects was being 
discriminatorily denied medically indicated treatment. The federal agency referred the matter to the state child 
protective agency, which investigated the charge and concluded there was no cause for state intervention. The 
federal agency also requested the hospital's records for its own investigation, which led to this court challenge. 
The genesis of these proceedings emphasizes another important difference between American law and Canadian. 
In Ontario, generally complaints of discrimination must be made to the Human Rights Commission and not 
directly to the courts unless the claim is part of a cause of action otherwise recognized at law (Brd. of Governors 
of Seneca College v. Bhadauria, (1981) 124 D.L.R. (3d) 193 (S.C.C.)). Further, the complainant must have 
standing under the Code to bring the complaint (Code, supra n. 1 54, s. 32). 



81 

to the need for services". The Court of Appeals also rejected the government's argument 
that the infant had been subject to discrimination contrary to the Rehabilitation Act, stating: 
"Where the handicapping condition is related to the condition(s) to be treated, it will rarely, if 
ever, be possible to say with certainty that a particular decision was 'discriminatory'. It 
concluded that, given the difficulty of applying this section of the statute to these types of 
individual medical treatment decisions, it was not in fact intended to be so applied. The 
Supreme Court in Bowen also outlined the state law framework governing the provision of 
medical care to handicapped mfants, relying on the summary of the basic pattern of decision- 
making set out in the Report of the President's Commission for the Study of Ethical Problems 
in Medicine and Biomedical and Behavioral Research, including the latter' s conclusion that 
"...as long as parents choose from professionally accepted treatment options the choice is 

182 

rarely reviewed in court and even less frequently supervened". 

While much of the United States Supreme Court's decision in Bowen turns on the 
proper ambit of federal authority over the provision of health care and state child protection 
agencies and thus is not applicable in Canada, the Court's views about the proper scope of 
and limits on parental decision-making authority and about the applicability of anti- 
discrimination statutes to individual medical treatment decisions could be germane. The reach 
it gives the statutory term "discrimination" in this context is very limited. It does not seem 
enough to say that the statutory protection from discrimmation does not apply at all, because 
it will be very difficuh to conclude with certainty that a particular treatment decision was 
discriminatory when the newborn's handicapping condition is related to the conditions to be 
treated. '^^ The meaning attributed to the term is too narrow. Yet at the same tune, the 
decision sounds an important note of caution: the fact there is a difference in treatment 
offered or provided to disabled as compared to non-disabled individuals does not necessarily 
establish an instance of prohibited discrimination in and of itself. 

The Court noted in Bowen that the form of the petition meant that it did not reach the 
question of whether infants with birth defects are similarly situated to infants in need of 
blood transfiisions (the paradigmatic case where hospitals do report, and do seek to override 



179 
180 
181 
182 



183 
184 



Id at 156. 

Id. 

Id at 157, 161. 

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 
Deciding to Forego Life-Sustaining Treatment: A Report on the Ethical, Medical and Legal Issues in Treatment 
Decisions (U.S. Gov't Printing Office, Washington, D.C.: 1983) at 212-214, cited in Bowen, supra n. 174 at 21 13, 
n.l3. 

Bowen, supra n. 1 74 at 2 1 1 0. 

The sine qua non of American equal protection claims. The Supreme Court of Canada unhooked equality claims 
from a "similarly situated" framework from the beginning of its equality rights jurisprudence, although 
recognizing that equality still remains a comparative concept {Andrews v. Law Society of B.C., supra, n. 157 at 
164. 166). 



82 

parental refusal of treatment), nor whether a hospital could legitimately distinguish between 
the situations on the basis of the different risks and benefits inhering in the different types of 

185 

treatment. These are miportant and legitimate considerations: treatment decisions must be 
individualized to take into account the patient's particular situation and the burdens and 
benefits the treatment will impose on the individual in that context. The disability itself may 
well affect that determination. 

When children are concerned, as the President's Commission noted, the decision- 
making is left to parents in the first instance within the confmes of professionally accepted 
treatment options, and subject to the ultimate control of the state. The boundary-setting 
function assigned to accepted medical opinion amounts to a delegation of part of the state's 
supervisory power to the medical profession. The delegation makes sense, given the matters 
being decided, but the delegation itself cannot be unquestioning or absolute. Societal views of 
disability and the obligations society recognizes it owes the decisionally incapable are 
changing, as is the ready acceptance of medical judgment prevalent in earlier times. Evolving 
or disparate sensibilities have not necessarily been fully absorbed by or even been taken into 
account in medical norms. One must remain alive to the possibility of discrimination in those 
norms as well — to an unintentional discounting of the lives of persons with disabilities, as 
well as to the possibility of overestimating the burden that continued life imposes. On the 
other hand, erring always on the side of preserving life is not an answer either. That, too, can 
exact a terrible price from the person concerned or be morally and ethically inappropriate. 

In another American decision, In the Matter of Baby K. , a hospital brought suit seeking 
a declaratory judgment that a decision in future to withhold ventilator treatment from an 

1 87 

anencephalic infant over her mother's objection would not violate federal or state law. 
With anencephaly, the brain stem is present but the cerebral cortex is rudimentary or absent. 
Baby K was permanently unconscious and could not hear, see or feel pain. She had brain 
stem functions primarily limited to reflexive actions. Most anencephalic infants die within a 
few days of birth. The physicians urged the child's mother to consent to a Do Not Resuscitate 
order and to discontinuing the ventilator treatment, as it served no therapeutic or palliative 
purpose. She declined to do so, first on religious grounds, believing even very limited life has 
value and hoping for a miracle, and second, because she believed that as her child's parent, 
she had the moral and legal right to decide what treatment was in Baby K's best interests. She 
continued to request ventilator support for her child. The hospital ethics committee also 
concluded the ventilator treatment should end because it was futile. The child's mother 
rejected the ethics committee's recommendation as well. The child was transferred to a 
nursing home with the understanding that she would be readmitted if she developed 



185 
186 



187 



Supra, n. 174at2118,n.23. 

The impugned regulations themselves recognize this, suggesting that withholding treatment is justified where 
treatment is ftitile: 45 C.F.R. s.84.55(f)(l)(ii)(B), referenced in Bowen, id. at 2105-2106, n.4 (Department's own 
guidelines interpreting s.504 recognize that the etiology of and prognosis for particular handicapping conditions 
may justify "a refusal to treat solely on the basis of those handicapping conditions"). 

832 F. Supp. 1022 (E.D. Va. 1993), aJSTd, 16 F.3d 590 (4th Cir. 1994), cert denied, 115 S.Ct. 91 (1994). 



83 

respiratory distress again. She did on further occasions, and was admitted to the hospital for 
extended periods to receive ventilator treatment and a tracheotomy. It was anticipated she 
would suffer further episodes of respiratory distress and require ventilator treatment in the 
future. 

The hospital commenced legal proceedings seeking declaratory and injunctive relief 
under four federal statutes and one state statute: the Emergency Medical Treatment and 
Active Labor Act, the Rehabilitation Act, the Americans with Disabilities Act, the Child Abuse 

189 

Amendments of 1984, and the Virginia Medical Malpractice Act. On the hospital's motion, 
a guardian ad litem was appointed to represent Baby K. in the legal proceedings in place of 
her mother. After review, the guardian supported the hospital's position that ventilator 
treatment should be withheld from the child.' ^ The court was not asked to determine what 
was in Baby K's best interests, but to interpret the five statutes the hospital identified as 
relevant.'^* The District Court that initially heard the application found against the hospital. 

The court held that the Emergency Medical Treatment and Active Labor Act 
(EMTALA), a federal statute passed to prevent hospital "dumping" of indigent or uninsured 
emergency patients, '^^ applied to Baby K. and other emergency patients, regardless of their 
lack of financial need. It requires hospitals to provide emergency medical patients requesting 
treatment with medical screening to determine if an emergency exists as well as adequate 
stabilizing treatment for the condition — i.e. ". . . the treatment necessary to prevent the 

193 

material deterioration of the individual's condition or provide for an appropriate transfer". 
The District Court determined the emergency condition was the infant's acute respiratory 
distress, not the anencephaly. Therefore, ventilator treatment was the appropriate response to 
stabilize her condition; it was not futile, at least in response to the immediate presenting 
condition. 

The District Court's more prominent holding was that the anti-discrimination statutes, 
the Rehabilitation Act and the Americans with Disabilities Act, applied and required the 
hospital to provide ventilator treatment. The infant was "otherwise qualified" to receive 



188 
189 
190 
191 

192 
193 
194 



Dist. Ct. supra n. 187 at F. Supp. 1025 - 1026. 

Id. 

Id at 1026. 

Flannery, E., "One Advocate's Viewpoint: Conflicts and Tensions in the Baby K Case" (1995) 23 J. Law, Med. & 
Ethics 7 at 9. 

CA supra, n. 187. 

Id. at 594. 

DistCt. supra, n. 187 at 1027. 



84 

treatment, and as it would be provided to a baby without disabilities at the parents' request, it 
must also be provided to Baby K.'^^ 

As for the constitutional and common law issues, the District Court held that " in order 
to mterfere with a parental decision to continue with life-saving medical treatment for her 
child, the hospital would have to establish by "clear and convincing evidence" that the 
parent's treatment decision would constitute "abuse or neglect" of Baby K., a high standard 
indeed. Where, as here, "...the choice essentially devolves to a subjective determination as to 
the quality of Baby K's life, it cannot be said that the continuation of Baby K's life is so 
unreasonably harmful as to constitute child abuse or neglect". '^^ 

By the time the appeal from this decision was heard. Baby K. was two years old, having 
survived because of repeated aggressive medical intervention. ^^^ On appeal, the Court of 
Appeals (Fourth Circuit) ruled that EMTALA requkes a hospital to provide stabilizing, life- 
saving treatment to an anencephalic child when he or she comes to the hospital in respiratory 
distress and treatment is requested. Because of this conclusion, the court chose not to address 
the extent of any obligations on the hospital under the federal anti-discrimination statutes and 
the state law. Hence, it expressed no opinion with respect to the interpretation of the ADA or 
the Rehabilitation Act. The court relied very heavily on the plain wording of EMTALA 
without regard for its legislative history and purpose — that is, preventing hospitals from 

tog 

refrising to treat financially needy and uninsured individuals. It concluded, that EMTALA 
makes no exception for stabilizing treatment that hospital physicians consider morally and 
ethically inappropriate or that falls outside the prevailing standard of medical care. The 
statute requires stabilizing treatment for any emergency condition on request of an emergency 
patient, and it brooks no exception. 

Baby K. turned on the interpretation of American statutes, not a best interests test, and at 
the appellate level, on thie interpretation of one statute that has no equivalent in Canada, with 
its very different system for funding and ensuring access to health care. As such, it is not 
directly applicable in this country. However, it brings the issues of fritile treatment and the 
scope of decision-making authority very clearly to the fore. One cannot simply evaluate 
treatment decisions for decisionally incapable and otherwise disabled individuals as though 
the disability did not exist (and indeed, one does not do so for decisionally capable patients: 
there is no right to demand treatment that is not medically indicated). Consequently, the 
assessment that must be made is more complicated than the wording of the Ontario Human 



195 
196 

197 



198 



Id. at 1029. 

Id at 1031. The standard of "clear and convincing evidence" was adopted from the United States Supreme Court's 
decision in Cruzan v. Director, Missouri Dept. of Health, 1 10 S. Ct. 2841 (1990). 

Cantwell R., "An Anencephalic Child Kept Alive Through the Fourth Circuit's Interpretation of the Emergency 
Medical Treatment and Active Labor Act: A 'Medical Miracle' or A 'Living Corpse'?" (1994) 14 St. Louis 
University Public Law Review 322. Baby K., bom in 1992, died of cardiac arrest in April 1995 ((1995) 23 Am J. 
Law, Med. & Ethics 6). 

C.A., supra, n. 187 at F. 3d 593. 



85 

Rights Code might suggest. The Code prohibits discrimination in the provision of services on 
the basis of handicap, but the meaning to be attributed to the term "discrimination" in the 
context of medical treatment requires more than a straight comparison with the treatment that 
would be provided to a non-disabled individual. In relation to the admmistration and 
cessation of life-sustaining treatment, it requires not only a weighing of the benefits and 
burdens of the treatment for the patient, but can also requu-e consideration of the proper 
limits to substitute decision makers' and professionals' decision-making authority, how to 
assess futility, and whose view of its meaning is to prevail. 

While we do seem to have reached a consensus about patients' ability to refuse even 

200 

life-saving treatment, consensus about the converse — denying patients medical treatment 
they want, or that is requested for them, is likely to be much more difficult to achieve. That 
being the case, not only the identity of the decision-makers, but the guidance principles 
governing them in arriving at their decisions and the intervention principles defining 
circumstances in which the state will interfere with the initial decision become even more 
important. Decisions substitute deciders make will vary depending on a myriad of different 
judgments about the factors to be taken into account in determining an incapable person's 

201 

best interests when there is no reliable indication of prior capable wishes. The endeavour is 
one of trying to take into account all factors, including but not limited to an awareness of 
concerns about discrimination and the sometimes subtle and unintentional ways it can 
insinuate itself into the decision-making process. 



202 



The Code also prohibits discrimination in the provision of services on the basis of 



sex. This can evidence itself in what has been termed "gender patterned reasoning" in 



203 



individual cases, or at a systemic level in policy decisions formulated. Women experience 



204 



disadvantage in law and in health care, as they do in society generally. As Patricia Peppin 



199 

200 



201 
202 
203 



204 



Health Care Consent Act, 1996, supra, n. 6, s. 21. 

So much so that the revised Code of Ethics adopted by the Canadian Medical Association in August, 1996 (supra, 
n. 137) no longer contains any of the specific references to ethical issues surrounding dying that were a part of its 
predecessor. While the Notes to the new Code explain the omission as a decision to state general principles rather 
than pick one or two specific issues for "special treatment", the omission can also be seen to flow from the fact 
that a decisionally capable patient's ability to refuse even life-sustaining treatment is no longer contentious; it is 
accepted and therefore, no "permission" is needed in the Code of Ethics. See discussion supra, ch. 4. 4. 

Health Care Consent Act 1996 supra n. 6, s. 21 . 

Supra, n. 160, s.l. 

The term "gender patterned reasoning" is taken from Miles S. and August A., "Courts, Gender and 'The Right to 
Die'", (1990) 18 Law, Med. & Health Care 85. The authors analyzed American court rulings where family or 
health care providers sought judicial approval to forego life-sustaining treatment. They concluded that both 
judicial analysis and result were affected by the gender of the patient. Relative to the individual herself, see 
Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide, testimony of Janine Corbeil 
(Jan. 13, 1995) at 32:32, 32:34 (suggesting possible differences in the way men and women who are gravely ill 
think about suicide. In her experience, "women are more concerned about the impact of the disease on those 
around them," and consequently wish to die more quickly). 

As to the latter, see Sherwin S., No Longer Patient (Temple U. Press, Philidelphia: 1992). 



86 
has noted,"[I]n women's lives, it ranges from exclusion, to discouragement, to physical 

205 

violence, to poverty." Decisions or policies that are facially neutral can have a 
discriminatory effect. For instance, some bioethicists have suggested that access to more 
intensive medical services could be restricted on the basis of age — if not strictly in biological 

206 

terms, then in the sense of natural stages of one's life. Who would primarily be affected by 
such a policy? Women. Women live longer than men. They also live in greater poverty than 
men, and are in poorer health as they age. Elderly women and women with disabilities are 
among the poorest of all. Poverty is another correlate of ill health.^^^ The need for health 
care and other forms of care and support increases as people age. Were such a policy to be 
considered, its disparate impact must be taken into account. 

Discrimination on the basis of race in access to or the provision of health care in Canada 
has not been extensively studied, particularly in relation to end-of-life issues. There are, 
however, American and Canadian studies that have found racial differences in access to 

210 

health care. This can affect the state of mdividuals' health, and therefore who gets to end- 
of-life treatment decision-making how quickly, as well as the treatment options offered to the 
patient or the substitute decison-maker. There are also concerns that decision-making about 
treatment be sensitive to and take into account cultural and ethnic differences in decision- 

211 

making processes and views of medicme generally. 



205 
206 

207 



208 

209 
210 



211 



Peppin P., "Power and Disadvantage in Medical Relationships" (1994) 3 Texas J.W.L. 221 at 247. 

A well known proponent of this view is Daniel Callahan. See "Terminating Treatment: Age as a Standard", 
(Oct/Nov. 1987) 17 Hastings Center Report 21; Setting Limits: Medical Goals in an Aging Society (Simon and 
Schuster, NY: 1987). 

Shone M., "Health, Poverty and the Elderly: Can the Courts Make a Difference?" (1991) 29 Alta L. Rev. 840 at 
840-842, 851; Bell N., "If Age Becomes a Standard for Rationing Health Care . . ." in Holmes H., Purdy L, 
Feminist Perspectives in Medical Ethics, (Indiana U. Press; Bloomington: 1992) at 83-92; Logue B., "Taking 
Charge: Death Control as an Emergent Women's Issue", 17 Women & Health 97 (1991) at 1 10; Arendell T., Estes 
C, "Older Women in the Post-Reagan Era", in Fee E., Krieger N., Women 's Health, Politics and Power: Essays 
on Sex/Gender, Medicine and Public Health (Baywood, Amityville NY: 1994), 333-349 at 335. 

Ross, D., Shillinton R., Lx)chhead C, The Canadian Fact Book on Poverty - 1994 (Canadian Council on Social 
Development, Ottawa: 1994). 

National Council of Welfare, Health, Health Care and Medicare (Ottawa, Minister of Supply and Services: 1990). 

Equity in Strategic Health Planning Working Group, "Our Lives, Our Communities, Our Health!" a Report 
prepared with the support of the Ontario Ministry of Health and the Metropolitan Toronto District Health Council 
(Nov., 1994). Comparisons to the United States must be cautious, given the very different situation in relation to 
health care access and funding and the structure of the health care system in that country, however see Council on 
Ethical and Judicial Affairs, Am. Med. Assn., "Black- White Disparities in Health Care", JAMA 1990; 263: 2344- 
2346; Cleeland C, Gonin R., Hatfield A., Edmonson J., Blum R., Stewart J., Pandya K., "Pain and its Treatment 
in Outpatients with Metastatic Cancer" NEJM 1994; 330: 592-596; see also Gibaldi M., "Ethnic Differences in the 
Assessment and Treatment of Disease", 13 Pharmacotherapy 170, 170 (1993), referenced in Peppin P., supra n. 52 
at 245-246. 

See eg. Bowman K., Lee R., "Cultural Issues in Critical Care: A Chinese Case Study", (1995) 28 Annals RCPSC 
338-340. 



87 

Discrimination on the basis of age is also prohibited under the Code. Women form a 
discrete subgroup of the aged. They are disproportionately represented among the elderly, 
and even more so among the oldest old. Discrimination can take place on an individual basis. 
As an example, an American study reported that among patients with metastatic cancer, older 
people (aged 70 or over) were among the groups that were subject to inadequate pain 
management.*^^^ Discrimination can also take place at the level of policy setting. Policies that 
fail to fund or provide adequate funding for the type of health care services that elderly 
people need, such as chronic care, while funding acute care interventions raise concerns 
about fairness in resource allocation, as do decisions to shift health care services to the private 
sector. As Margaret Shone concluded, the elderly are "an enormously disadvantaged 

,» 214 

group . 

Whether assisted suicide or euthanasia are legalized or not, it is already legal to forego 
life-sustaining treatment. If cuts to ftanding for health care and social services continue to the 
point where older people do not have the support they need to live decently and in dignity, 
that can affect the choices they may make about medical treatment in light of their own 
circumstances and increasingly limited options. When decisions to forego life-sustaining 
treatment are made by substitute deciders or reviewed by others, it is even more important to 
be sensitive to the potential for discrimination. This is not to say that treatment should 
always be continued. Decisions may properly be made not to undertake or continue more 
aggressive intervention, but they must be based on the patient's best interests. It is easy to 
underestimate the suffermg another experiences. It is also, though, worrisomely easy to 
underestimate the value of continued life to an older person, even when very ill. 

Further research is required relative to discrimination and health care generally, as well as 
with specific reference to end-of-life decision-making. It is important that both individual 
decision-makers and those formulating policy remain conscious of the potential for 
discrimination in their determinations. 



212 

Supra n. 160, s.l. 

213 

Cleeland et al., supra n. 210. 

Shone, supra n. 207, at 85 1 . 

215 

See, eg. Trafford A., "Assisted Suicide's Apparent Gender Gap", Washington Post (Mar. 2, 1993) at 26. 



CHAPTER 5 



CRIMINAL LAW 



The Canadian Criminal Code prohibits assisted suicide and euthanasia. As with most 
systems of law, the Code also contains a number of other provisions that could impact on 
medical treatment, failure to treat or cessation of treatment, and decision-making about 
treatment for decisionally incapable others, quite apart from non-consensual situations 
amounting to assault. How and when they will apply to medical treatment decisions and 
decision-making is not always clear. Both because of their generality and their vintage, for the 
most part, these provisions were not framed with modem medical realities in mind. It is not the 
intent of this paper, with its focus on provincial law, to analyze criminal jurisprudence in detail. 
However, an understanding of the sections of the Code that could impact on end-of-life 
decision-making is required, since they set boundaries on behaviour that also falls under 
provincial regulation. As the administration of the criminal justice system is a matter within 

provincial jurisdiction as well, enforcement decisions are also significant. It is important to 
consider, then, what charges have been laid, under what circumstances, and the outcome as the 
cases have proceeded through the courts. 

There is little in the way of legal precedent to look to for guidance in determining the 
expected standards of behaviour for health care personnel or substitute decision-makers faced 
with treatment choices in providing, withholding or withdrawing life support. Questions arise 
respecting the legal status of current medical and hospital practices. For instance, the hospital 
and treating physician in Nancy B. v. Hotel Dieu de Quebec required judicial confirmation of the 
patient's right to reftise treatment (the ventilator that sustained her life) because of concerns for 
their potential criminal liability. Similarly in Manoir de la Pointe Bleue (1978) Inc. c. Corbeil, 



R.S.C. 1985, c. C-46, ss.241, 222 (hereafter, the Code). 

Relative to assault and causing bodily harm, see Code, id ss.265 - 268, 269. 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide & Cessation of Treatment (Working Paper 28) 
(Dept. of Supply and Services: Ottawa: 1982); Report of the Sub-Committee on the Recodification of the General 
Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, First Principles: Re- 
codifying the General Part of the Criminal Code of Canada (Feb. 1993; 3d Sess., 34th Pari., 1991-92-93) 
(hereafter, "First Principles "). 

The Criminal Code was adopted by Parliament in 1892 and proclaimed in force a year later. It was subject to 
major revision in 1955 and piecemeal amendment at other times — see First Principles, supra, n. 3. 

Constitution Act, 1867, 30 & 31 Victoria, c.3 (U.K.), s. 92(14). See ch. 6, infra 

(1992) 86 D.L.R. (4th) 385 (Que. S.C). 

[89] 



90 

Rouleau J. explained his willingness to deal with the long-term care institution's application for 
what was, in effect, an advance judicial declaration of immunity in these terms: 

"II est done d'interet public pour la requ6rante en presence du Proeureur g^ndral de reehereher 
protection pour 1' institution et son m6decin et se mettre k couvert ce dispositions de I'art. 215 C. cr., 
les dispositions de la Charte et aussi de I'art. 241 C. cr. pour ce qui touche I'aide au suicide." 

Yet legal commentators and even the Law Reform Commission of Canada in its 1982 
Working Paper, Euthanasia, Aiding Suicide and the Cessation of Treatment, conclude that 

g 

criminal proceedings are unlikely. They point out that there have been very few criminal 
prosecutions with respect to any type of medical care in the past and that where charges have 
been laid against medical personnel, there has historically been a high acquittal rate. There is, 
however, a paucity of Canadian precedent. The law elsewhere will not necessarily be simply 
transferred and applied in Canada. 

Concerns about criminal liability have become newly pressing with changes in societal 
perceptions — not only about the use of life-sustaining medical technology, but also about 
appropriate decision-making processes for these treatment modalities. There is also a sense, 
perhaps because of heightened media attention in a few cases, that criminal charges are being 
laid more frequently. These few cases can, in turn, affect behaviour of substitute decision 
makers and health care providers generally, because it can shape their understanding of what is 
and is not permissible in the treatment of other patients, sometimes without foundation. This 
chapter examines the relevant sections of the Criminal Code as well as cases over the past 
decade in which criminal charges have been laid or considered against family members or health 
care providers as a result of events at the end of a patient's life. 



7 



10 



[1992] R.J.Q. 712, 715 (C.S.) 

Law Reform Commission of Canada, supra n. 3 at 8, 20 (hereafter, "Working Paper 28"); Glantz, L., 
"Withholding and Withdrawing Treatment: The Role of the Criminal Law" (1987/88) Law, Med. & Healtii Care 
231; Weir, R., "The Morality of Physician-Assisted Suicide" (1992) 20 Law, Med. & Health Care 116; Weir, R. 
and Gostin, L., "Decisions to Abate Life-Sustaining Treatment for Non-Autonomous Patients", J. Am. Med. Assn. 
(1990); 264: 1846-1853. 

Although as the British Columbia Royal Commission on Health Care and Costs noted in its report. Closer to 
Home, Vol. 2 (Crown Publications, Victoria: 1991) at C-183, physicians faced with treatment decisions about 
withholding or withdrawing life support tend to assume American law is the law in Canada. 

A sense the judiciary seems to share. See the comments of Lord Browne-Wilkinson in Airedale NHS Trust v. 
Bland [1993] 2 W.L.R. 316 at 382: "In the past doctors exercised their own discretion in accordance with medical 
ethics. To the great advantage of society they took the responsibility of deciding whether the perpetuation of life 
was pointless." He went on to observe that now, some staff" of hospitals report them to authorities, making this 
extremely risky if the doctors' actions approach the borderlines of legality. 



91 

1. ASSISTED SUICIDE 

Assisted suicide is "the act of intentionally killing oneself with the assistance of another 
who provides the knowledge, means, or both". The Criminal Code makes counselling, aiding 

12 

or abetting suicide an offence, punishable by up to fourteen years imprisonment. The law that 
formerly criminalized attempted suicide was repealed in 1972. 

In Rodriguez v. B.C. (A.G.), the Supreme Court of Canada considered a constitutional 
challenge to section 241(b) of the Code by Sue Rodriguez, a forty-two year old woman suffering 
from amyotrophic lateral sclerosis. She asserted that the prohibition on aiding suicide violated 
her liberty and security of the person interests and her right to equality under the Canadian 
Charter of Rights and Freedoms as well as her right to be free from cruel and unusual treatment 
or punishment. A narrow majority of the Court rejected her challenge and upheld the law.'^ 

The Law Reform Commission of Canada initially recommended in 1982 that the criminal 
prohibition on assisting suicide should remain because of the possibilities for serious abuse, but 
that the written authorization of the Attorney General should be required before a prosecution 
was commenced in order to acknowledge the "undeniable element of altruism and compassion" 

1 7 

sometimes involved and the unsuitability of imposing a criminal sentence in some cases. As a 
result of submissions received, however, the Commission withdrew its earlier recommendation 
in its final Report a year later and simply recommended that assisted suicide not be 
decriminalized. Explicitly involving the Attorney General was seen as making prosecution 
decisions be or appear to be too political and as fostering the development of undesireable 
disparities in the enforcement of the law in different provinces. Arriving at a contrary 
conclusion, the British Columbia Royal Commission on Health Care and Costs unanimously 
recommended in its 1991 report. Closer to Home, that the provincial government request the 
federal government to amend section 241(b) of the Code so that it does not apply "...where the 
person who commits or attempts to commit suicide is terminally ill and where a health care 



11 

12 
13 

14 
15 

16 
17 
18 



Senate Special Committee, Report on Euthanasia and Assisted Suicide, Of Life and Death,{ Minister of Supply 
and Services Canada, Ottawa: June, 1995) at 14 (hereafter. Senate Cttee. Report). 

Code, supra n. 1, s.241. 

Attempted suicide was decriminalized in 1972 by S.C. 1972, c.l3, s.l6 — see Law Reform Commission of 
Canada, Working Paper 28, supra n. 3 at 52; First Principles, supra n.3 at 59. 

[1993]3S.C.R. 519. 

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada 
Act, 1982 (U.K.) 1982, c. 1 1 (hereafter, the Charter). 

The constitutional arguments are considered ftirther in ch. 7, infra. 

Working Paper 28, supra n. 3 at 68-69. 

Law Reform Commission of Canada, "Euthanasia, Aiding Suicide and Cessation of Treatment", Report 20 (Dept 
of Supply and Services, Ottawa: 1983) (hereafter, "Report 20 ") at 20-2 1 . 



92 

worker who helps that person to commit or attempt to commit suicide does so in accordance 
with the ethical standards of his or her profession". 

In March, 1993, members of the House of Commons defeated a motion that called on the 
government to consider the advisability of introducing legislation on the subject of euthanasia 
and ensuring that those assisting terminally ill persons who wish to die will not be subject to 

20 

criminal liability. In the same year, the House of Commons subcommittee examining the 
Criminal Code recommended further study on the issue before any decision is taken. In 1995, 
the Senate Special Committee recommended that assisted suicide not be decriminalized, 

22 

although the vote was very close: four to three. It seems that there is no great political will on 
the part of Parliament to move away from the status quo at the present time.^^ In those 
circumstances, it is even more important to clarify the parameters of appropriate treatment and 
cessation of treatment decisions at the end of life. 

Prosecutions under this section of the Code are very rare.^"* That is not to say that assisted 
suicides do not occur. After hearing many oral submissions and receiving many briefs, the 
Senate Special Committee on Euthanasia and Assisted Suicide concluded that, while it could not 
ascertain how often assisted suicide is requested or is taking place or under what conditions, it 
had "...heard sufficient evidence to suspect it is being requested and provided". Others 
studying the question are even more firmly persuaded that is the case: some individuals have 






19 

20 

21 

22 

23 
24 



25 



Supran.9atC-183. 

Supra n. 1 1 at A-30. The vote was 140 to 25 — see Pole K., "High court audience for morality play", Medical Post 
(Apr.6, 1993)atp. 8. 

First Principles, supra n. 3 at 61. It did, however, recommend inclusion of a provision in the Code to the effect 
that "...physicians administering palliative care [i.e. to terminally ill patients] are not criminally responsible for 
accelerating the patient's death, unless the patient refuses such care" — id at 58. 

Senate Committee Report, supra n. 1 1 ; see also Mullens A., Timely Death. Considering Our Last Rights (Knopf 
Canada, Toronto: 1996) at 202-203; Bryden J., "Assisted suicide law is opposed," Toronto Star (May 31, 1995) at 
Al. 

— "PM hesitates on euthanasia," Toronto Star (May 25, 1995) at A 14. 

See Mullens, A., supra n. 22 at 52fF. (recounting 1962 prosecution of Inuit men charged with assisting suicide of 
an elderly Inuit man, the father of one of the defendants, by providing him with a rifle at his request). More 
recently, in R. v. Fogarty, a Nova Scotia woman was found guilty of aiding and abetting another woman who 
committed suicide after Fogarty provided the insulin and syringes with which her friend, a diabetic, took her life. 
See Canadian Press, "Woman guilty in suicide" (Toronto) Globe and Mail (Oct. 19, 1995) at A7; MacLeod, S. 
"N.S. woman charged with aiding suicide" Toronto Star (Oct. 3, 1995). A charge of assisting suicide has also 
recently been laid against a Toronto physician who treats many people with HTV and AIDS. The charge relates to 
the death of one of his patients. It has been reported that the charge was based on a prescription for barbiturates the 
physician provided to the patient, but at the time of writing, a publication ban that was imposed early in the 
proceedings is still in force (Coutts J., Hess H., "Doctor charged in man's suicide". The Globe and Mail, (June 21, 
1996),atAl,A8). 

Senate Committee Report supra n. 1 1 at 55. 



93 

had assistance in bringing about their own deaths despite the law. The most well-known of 
these is Sue Rodriguez. She ultimately ended her own life, reportedly with medical assistance.^^ 
Svend Robinson, a Member of Parliament who had become a friend of Rodriguez as well as an 
advocate for her cause, was with her at her death and confirmed that an unnamed physician 

28 

assisted her to take her life. The provincial government appointed a special prosecutor to 
determine whether charges should be laid against Robinson in connection with the death.^^ He 
concluded charges were not warranted under British Columbia's charge approval process. 
Although Robinson had the opportunity to commit the offence, others were present at her death 
and also had that opportunity. In those circumstances, a conviction was unlikely. 

It should not be taken from this that assistance in committing suicide is freely available 
despite the law. The Senate Special Committee heard moving testimony from surviving family 
members of a number of individuals whose last ilhiess had been pain-wracked, who had endured 
great suffering, and who had attempted to find a health care practitioner who would help them to 
die, but were unable to do so. The campaigns of several severely disabled individuals to 
change the law or just obtain assistance to kill themselves have been widely publicized. Some 
have chosen to commit suicide themselves while still physically able to do so. Austin Bastable, 
an advocate of the right-to-die who suffered from severe multiple sclerosis, had tried to commit 
suicide by himself in 1994 with an overdose of sedatives, but was not successful. That 



26 



27 
28 
29 
30 

31 

32 



See eg. Ogden R., Euthanasia Assisted Suicide and AIDS (Perreault/Goedmann Publishing, Pitt Meadows B.C.: 
1994) (recounting author's study of individuals involved in assisting deaths of persons with AIDS); Testimony of 
Dr. Ted Boadway, Director of Health Policy, Ontario Medical Ass'n., Proceedings of the Senate Special 
Committee on Euthanasia and Assisted Suicide (Oct. 17, 1994) at 20: 82-83; Brief of the Chief Coroner and 
Deputy Chief Coroner for Ontario to the Senate Special Committee on Euthanasia and Assisted Suicide (Sept. 16, 
1994). 

Wilson D., Downey D., "Patient fought to die on her own terms". Globe & Mail (Feb. 14, 1994) at A4. 

Winsor H., Cemetig M., "Rodriguez death puts focus on Ottawa", Globe and Mail (Feb. 15 1994) at Al. 

Canadian Press, "Role of MP in Rodriguez suicide to be probed", Toronto Star (Jan. 11, 1995) at A2. 

Harper T., "MP not charged in aided suicide", Toronto Star (June 29, 1995) at A2; Daisley B., "Robinson won't 
face charges". Lawyers Weekly (July 14, 1995), at 3. 

See, eg Senate Committee Report, supra n. 11 at 65. The stories of many of these families are enlarged on in 
Mullens A., Timely Death. Considering Our Last Rights, supra n. 22. 

A prominent Quebec physician. Dr. Raphael Boutin, committed suicide and made his reasons for doing so public 
in a letter sent to Quebec newspapers. The physician, who was 82, spoke of the failing physical abilities that he 
did not want to endure as part of old age and his belief that he wanted to live and die in dignity. He included a call 
to society to change the law. He was believed to have killed himself with a drug overdose. Being a physician, he 
could access the necessary drugs without assistance — see Cardwell M., "Doctor's suicide letter heightens 
euthanasia debate". Medical Post (Jan. 24, 1995) at 18-19. Edwin Krickhahn, who suffered from amyou-ophic 
lateral sclerosis, campaigned for the legalization of assisted suicide. At one point, he had invited the news media 
to attend at his suicide, which he planned to commit by taking an overdose of barbiturates while still able to do so 
himself He did not do so, but released a statement saying he had not changed his mind, but had developed a 
bleeding ulcer and could no longer tolerate the drugs. He died of natural causes a few months later — Krickhahn 
E., "For 'honesty in dying' , Globe & Mail (Feb. 1 1, 1994), at A23; Mitchell A., "Dying man fought for assisted 
suicide", Globe & Mail (Feb. 10, 1994) at A9. 



94 

experience convinced him of the need for physician assistance and, unable to change the minds 
of legislators in Canada, he went elsewhere to obtain it, travelling to the United States. With the 
assistance of Dr. Jack Kevorkian, he killed himself with carbon monoxide poisoning.^^ 

2. CULPABLE HOMICIDE 

The Criminal Code provides that a person commits homicide when he causes the death of 
another human being by any means, whether directly or indirectly.^"* Not all homicides are 
culpable, and only culpable homicides are criminal offences.^^ Culpable homicide is murder, 
manslaughter or infanticide, and includes causing death by means of an unlawful act or by 
criminal negligence. 

While the term "unlawful act" is not defined in the Code, it has been held to refer to an 
intentional act that "...viewed objectively, is likely to subject another person to danger of harm 
or injury". It is evident that in certain circumstances, it might be difficult to distinguish 

38 

between assisting suicide and participating in homicide. The forms of culpable homicide 
relevant in the context under consideration are murder and manslaughter. The penalties that can 
be imposed for each are very different. Manslaughter is subject to a maximum of life 

39 

imprisonment but no mandatory minimum sentence. A conviction for murder brings with it a 
mandatory life sentence with a minimum period of parole ineligibility based on whether the 
murder is first or second degree. 

Culpable homicide is murder inter alia where the person meant to cause death or to cause 
bodily harm that he knows is likely to result in death and is reckless whether death ensues or 
not. The Supreme Court of Canada has held that this provision requires "...actual subjective 



33 
34 
35 
36 

37 

38 
39 
40 

41 



Downey D., "Bastable tried to 'wake up' Parliament" Globe & Mail (May 9, 1996) at A8. 

Code, supra, n. 1, s.222. 

Id s.222(3). 

Id s.222 (4), (5). The remaining ways of committing culpable homicide are not relevant to this topic and will not 
be considered. 

R. V. Cole (1981) 64 C.C.C. (2d) 119, 127 (Ont. C.A.); R. v. DeSousa [1992] 2 S.C.R. 944 at 958-962. For a 
discussion of the scope of "unlawfiil act", see Grant I., Chunn D., Boyle C, The Law of Homicide{ Carswell, 
Toronto: 1994) at p. 4-9 ff. 

LRCC Working Paper 28, supra, n. 3 at 19. 

Code, supra, n. 1, s.236. 

Id ss.235, 742 (first degree murder: twenty-five year minimum before eligibility for parole; second degree murder: 
ten year minimum (or such greater time as has been substituted) before eligibility for parole). 

Id S.229. 



95 

foresight of the likelihood of causing the death coupled with the intention to cause that death" ."^^ 
Clearly, euthanasia can come within the definition of murder when it entails a deliberate taking 
of a life. In Saskatchewan, Robert Latimer was charged with first degree murder and convicted 
of second degree murder in the death of his severely disabled daughter. His own statements 
established that he had intentionally asphyxiated her with carbon monoxide. His conviction was 
upheld on appeal, and at the time of writing is under further appeal to the Supreme Court of 
Canada. In R. v. Paquachon, a woman ah*eady imprisoned for armed robbery and forcible 
confinement confessed to procuring a piece of cable and hanging her disabled celhnate, a friend, 
at the latter' s repeated request. She was charged with and pleaded guilty to second degree 
murder. Crown and defence jointly requested her parole eligibility not be delayed beyond the ten 
year minimum required by the law, with the Crown acknowledging the crime was motivated by 
elements of compassion and had to be viewed in light of "...the obvious love and care she had 
for this victim over a considerable period of time". 

Culpable homicide that is not murder — ^that is, where the agent lacks the necessary 
subjective mental element (degree of intent) — is manslaughter. There have been instances of 
compassionate motive where charges of murder have been reduced to manslaughter by the 
Crown attomies involved. As these cases are considered in greater detail in the context of 



42 

43 
44 
45 

46 



47 



48 



K V. Vaillancourt [1987] 2 S.C.R. 636, 645; R. v. Martineau [1990] 2 S.C.R. 633, 645-646; K v. Sit [1991] 3 
S.C.R. 124, 129-130. 

R. V. Latimer (1995) 126 D.L.R. (4th) 203 at 208 (Sask. C.A.). 

Id; leave to appeal to S.C.C. granted Aug. 17, 1995, No. 24818 (SCC). 

Peirol P., (1993, Sept. 29), "Prison Death", Kingston Whig-Standard. Available: Quicklaw database Canadian 
Press 93. 

"Crime — Cell-Hanging". (1994, Apr. 23), National general news. Available: Quicklaw database Canadian Press 
94. The crime ought not be evaluated apart from the systemic factors that contribute to such a tragic occurrence. 
See Sugar F. Fox, L., "Nistum Peyako S6ht' wawin Iskwewak: Breaking Chains", (1989-90) 3 Can. J. Women & 
the Law 465 on prison conditions affecting First Nations women that drive women to despair and kill themselves 
or as here, a friend. 

Code, supra n. 1, s.234. In R. v. Creighton [1993] 3 S.C.R. 3, a majority of the Supreme Court of Canada held that 
unlawfiil act manslaughter requires only objective foreseeability of bodily harm that is neither trivial nor 
transitory. See also K v. DeSousa, supra n. 37, canvassing case law on unlawfiil act manslaughter; Grant et al., 
supra n. 37 at p.4-34, s. 4.3 (b) ("While the use of mental state as the determining factor between the two crimes 
[murder and manslaughter] is not self-evident, it is so much part of the common law fabric that it is now virtually 
taken for granted."). 

See e.g. K v. Brush [1995] O.J. No. 656, Ont. Ct. (Prov. Div.) Zabel J. (Mar 2, 1995), summarized 26 W.C.B. (2d) 
478 (eighty-one year old woman originally charged with first degree murder pleaded guilty to manslaughter after 
helping her severely disabled husband who suffered from Alzheimer's disease stab himself to death), R. v. Myers 
and Power (unreported, 23 Dec. 1994) (N.S.S.C) (Nova Scotia C.R. 1 10506), referenced in R v. Latimer, supra n. 
43 at 256 (daughter and her husband, who had cared devotedly for deceased, who was dying from lung cancer, 
charged with second degree murder for suffocating him while unconscious. They pleaded guilty to manslaughter. 
At the time of his death, his physician estimated he was within a day or two of death in any event. Agreed 
Statement of Facts stipulated that although deceased was receiving large doses of pain medication, he seemed to 
sfill experience intense pain.). 



96 

enforcement, they will not be analyzed further at this point, other than to note that the possibility 
of reducing charges exists and has certainly been employed, even in instances where "...the jury 
would have had no recourse but to return a verdict of guilty" of murder if it were properly 

49 

instructed and chose to act on those mstructions. 

The Code also provides that where a person by act or omission does anything that results 
in death, he causes that death even though it might have been prevented "by resorting to proper 
means". Further, where a person causes a bodily injury that results in death, he causes that 
death "...notwithstanding that the effect of the bodily injury is only to accelerate his death from a 
disease or disorder arising from some other cause". 

3. MOTIVE; CONSENT 

In Canadian criminal law, motive is not a constituent of the mens rea or actus reus, 
although it can be relevant to either or both. Thus, in R. v. Latimer, the father of the deceased (a 
twelve year old girl suffering from severe cerebral palsy) was charged with first degree 
murder. He was found guilty of second degree murder. He had placed his daughter in a truck 
and asphyxiated her with carbon monoxide. His motive, which Bay da, CJ. Sask. (dissenting as 
to sentence on the appeal) characterized as having "...its genesis in altruism and ...motivated by 
love, mercy and compassion or a combination of those virtues..." did not affect the outcome.^"* 
The killing was purposefiil; the fact that "...she was put there because her father loved her too 
much to watch her suffer" and was "obsessed with [her] pain" was not relevant to the legal issue 
of his guilt. 

In Canadian criminal law, the deceased's consent to his or her own death does not vitiate 
criminal liability. And as noted above, although attempted suicide is no longer a criminal 



49 

R. V. Myers and Power, supra, n. 48, quoted in R. v. Latimer, supra a 43 at 15% per Bayda C.J. Sask. (dissenting 
as to sentence). 

Supra, n. 1, s.224. 

Id s.226. On the application of a similarly worded provision in New Zealand's Crime Act to the withdrawal of life 
support, see Auckland Area Health Board v. A.G. [1993] 1 N.Z.L.R. 235, 254 (H.C.). 

Supra n. 43. 

Leave to appeal to the Supreme Court of Canada granted, supra n. 44. The appeal is to be argued in November, 
1996. 

Id at 252-253. 

Id at 252. 

Code, supra, n. 1. S. 14 of the Code provides as follows: "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 maay be 
inflicted on the person by whom consent is given". Relative to the role of motive, see Lewis v. R [1979] 2 S.C.R. 
821, 833 per Dickson C.J. A trier of fact may draw negative inferences from an alleged motive that go towards 
either intention (a mens rea component) or identity (an actus reus component). In exceptional circumstances, a 



50 
51 

52 
53 

54 
55 
56 



97 
offence, counselling, aiding or abetting a person to commit suicide is, and remains punishable 

57 

by up to fourteen years imprisonment. Both sections of the Code in a sense detract from the 
strong commitment in the law to self-determination and autonomy. That commitment is 

CO 

particularly evident in civil cases where consent to medical treatment is an issue. Criminal law, 
however, differs from civil law both in some of the policy considerations that are relevant and 
the determination of which will predominate. Thus, in Rodriguez, the majority held that the 
appellant's claim under section 7 of the Charter based on an alleged violation of her liberty and 
security of the person interests could not be divorced from the third value protected by section 7, 
the sanctity of life. The Court stressed that Western democracies, including Canada, recognize 
and protect the value of life, save for "limited and narrow exceptions in situations in which 
notions of personal autonomy and dignity must prevail". 

In R. V. Jobidon, the Court considered and rejected arguments that consent to serious 
bodily harm vitiated any fmding of criminal responsibility for conduct causing such harm.^° 
Although the issue was very different — whether there are common law limits on consent to a 
fistfight where it is intended that bodily harm be caused — ^the Court's recognition of "...the 
policy preference that people not be able to consent to intentionally inflicted harms" was spoken 
at large and could be germane in the context of treatment decisions as well. As Gonthier J. 
writing for the majority noted, "[a]utonomy is not the only value which our law seeks to 
protect". In arriving at the conclusion that allowing consent to operate as a defense in cases 
such as this would run counter to a fundamental value protected by the criminal law, the sanctity 
of the human body, the Court relied in part on the work of the criminal law theorist, George 
Fletcher, who made the point that: 



57 



58 
59 
60 



61 



particular motive may provide a special defence of justification or excuse, as with self-defence. See generally 
Colvin E., Principles of Criminal Law (2nd ed.) (Carswell, Toronto: 1991) at 126-127. 

Code, supra n. 1, s.241. Attempted suicide was decriminalized in 1972 — supra n. 13. In this, Canada differs from 
some other jurisdictions that distinguish either definitionally or in sentencing between murder committed for 
"humanly excusable motive" and murder committed for a morally reprehensible motive. For a review of 
comparative law in this area, see Sneiderman B. and Verhoef M., "Euthanasia in the Netherlands: A Report for the 
Ontario Law Reform Commission," in this volume; see also LRCC Working Paper 28, supra, n. 3 at 25-26, 48-52; 
Senate Committee Report, supra, n. 1 1 at A-1 15-148; A-163-173. 

See e.g. Fleming v. Reid {\99\) 4 O.R. (3d) 74, 88 (C.A.); Malette v. Shulman (1990) 72 O.R. (2d) 417 (C.A.). 

Supra n. 12 at 605. 

[1991] 2 S.C.R. 714 (affirming Court of Appeal's substitution of a guilty verdict for accused's acquittal at trial on 
a charge of manslaughter through assault following a consensual fist fight). The Court also confirmed that conduct 
which falls within the norms for a socially useful acUvity will not attract criminal sanctions, and that it did not 
mean to affect the ability of people to consent to "medical treatment or other appropriate surgical interventions" — 
id at 767. In any event, the Criminal Code explicitly provides in s.45: "Everyone is protected from criminal 
responsibility for performing a surgical operation on any person for the benefit of that person if 

(a) the operation is performed with reasonable care and skill; and 

(b) it is reasonable to perform the operation having regard to the state of health of the person at the time the 
operation is performed and to all the circumstances of the case." 

Id at 765. 



98 

"...the self-destructive individual who induces another person to kill or mutiliate him implicates the 
latter in the violation of a significant social taboo. The person carrying out the killing... crosses the 
threshold into a realm of conduct that the second time, might be more easily carried out. And the 
second time, it might not be particularly significant whether the victim consents or not." 

Gonthier J. went on to express concern that if such activity is legally permitted as long as it is 
consensual, then some individuals may take advantage of that licence from tune to time, and 
eventually may "...lose all understanding that the activity is the subject of a powerful social 
taboo" (emphasis m original). Just such fears have been raised in support of maintaming the 
legal prohibition agamst assisting suicide and the nullification of consent to one's own death.^"* 

4. CRIMINAL NEGLIGENCE 

Other sections of the Code make it an offence to cause death or bodily harm through 
criminal negligence, which is defined as doing anythmg or omittmg to do anythmg it is one's 
legal duty to do in a way that "shows wanton or reckless disregard for the lives or safety of other 
persons". As Grant et al point out, "...with respect to an act, this [the Code] means what it 
says — any way of causing death even if lawful in itself, has been crimmalized". Additionally, 
provided there is an underlymg duty to act imposed by law, omission, too, is a form of this 
offence. The decision about legal liability requires proof of wrongful conduct; in a medical 
context, that will be determmed with reference to the duties imposed by the Crimmal Code and 
the standards of practice of the profession. 

In some ways, it seems inappropriate to think of health care providers' conduct in terms of 
criminal negligence, precisely because of the very minimal nature of the mental element 
required to establish the offence. Criminal negligence srniply does not seem well tailored to 
address culpable acts or omissions in medical treatment, where there is typically conscious 
regard for the harmful consequences to the patient. Given their specialized expertise, physicians 
or other health care workers are extremely unlikely to be unaware of or blind to the likely 
outcome of particular treatment choices. Whether or not all the results are desu-ed, they can 
almost always be foreseen by such mdividuals. The risk to the patient is clearly known; the 



62 
63 
64 



65 

66 

67 



Id at 763, quoting Fletcher, G., Re-thinking Criminal Law (Little Brown, Boston: 1 978) at 770-77 1 . 

Id at 764. 

Kamisar Y., "Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation" (1958) 42 Minn. L. 
Rev. 969; Lowy F., Sawyer D., "Canadian physicians and euthanasia: 4. Lessons from experience" Can. Med. 
Assoc. J. 1993; 148: 1895-1899 at 1896-1897, referencing articles both critical and supportive of the practice in 
the Netherlands. 

Criminal Code, supra, n. 1, ss. 219-221. With respect to crimes of negligence, the accused must demonstrate a 
marked departure from the standard of care of a reasonable person — Creighton, supra n. 47. 

Grant et al., supra n. 37, p.4-23, s. 4.3(a)(ii)(A). 

On causing injury or death by criminal negligence, see Colvin at 150-153, supra n. 56. See also Mewett, A., 
Manning, M., Mewett and Manning on Criminal Law (3d ed.) (Butterworths, Toronto: 1994) at 132-143; 193-215. 



99 

decision is taken in spite of that risk (or perhaps, to bring about that eventuality). There may in 
some instances be the "turning the mind away" or disregard for the patient to which criminal 
negligence speaks/^ but in a medical setting, it is more likely that "there is a turning of the mind 
toward" the patient, making other types of criminal charge more appropriate. 

The cases establish that it takes little to prove the necessary blameworthy state of mind. In 
R. V. Tutton, parents of a five-year-old child suffering from diabetes intentionally withheld the 
insulin that had been prescribed for their child in the belief that he had been miraculously 
cured. The child died as a result. The parents were charged with causing death by criminal 
negligence in denying their son the necessaries of life without lawfiil excuse, thereby 
committing manslaughter. In their defence, it was asserted that they had an honest but mistaken 
belief in the existence of a circumstance that would render their conduct in withholding the 
medication non-culpable — namely, that their son had been cured and therefore no longer 
required insulin. The parents were convicted at trial. On appeal, the Ontario Court of Appeal 
ordered a new trial, an order which was upheld on further appeal to the Supreme Court of 
Canada. The heart of the issue was the determination of the mental state that had to be 
established to amount to criminal negligence, and how it could be proven. While the judgment 

71 

did not produce a clear answer as between a subjective and objective test, even for those 



68 



69 



70 



71 



See eg. K v. Manjanatha, (1995) 131 Sask. R. 316 (C.A.) (anesthetist cx)nvicted of criminal negligence causing 
bodily harm after a 17 year old patient was left in a vegetative state following an operation. He had disconnected 
two of the four alarm systems on the respirator and left the operating room for a significant period of time during 
the procedure to make a personal phone call. The patient became disconnected from the respirator. The sentence 
of six months' imprisonment was upheld on appeal to the Saskatchewan Court of Appeal — Sears Williams L., 
"Anesthetist receives jail sentence after patient left in vegetative state" (Sept. 1, 1995) CMAJ 153(5):6 19-620. See 
also, 5"/. Germain v. R^ (1976) Que. C.A. 185 (doctor's conduct in failing or refiising to treat an individual who 
presented at the emergency department where he was working and who later died of a haemorrhage while being 
transported to another hospital was considered to be sufficiently culpable for the conduct to constitute criminal 
negligence. The doctor was acquitted, however, because the causal relationship between his reftisal to treat and the 
death had not been proved beyond a reasonable doubt). In the United States, see, e.g. Commonwealth v. Youngkin 
All A. 2d 1356 (Pa. Super. Ct; 1981) (physician who repeatedly prescribed a barbiturate in abnormally high 
dosages and confirmed the prescription even when it was questioned by a pharmacist was found guilty of 
involuntary manslaughter in the death of a seventeen year old girl from asphyxiation from the aspiration of her 
stomach contents due to depression of her gag reflex from excessive use of the barbiturate. The appellate court 
emphasized the defendant's conscious disregard of a "substantial and unjustifiable risk"). 

R. V. Jobidon supra n. 60 at 770 (appropriateness of charge of manslaughter through assault rather than through 
criminal negligence, following a death during a fist fight). 

[1989] 1 S.C.R. 1392. Prior to Tutton, the leading case from the Supreme Court of Canada on the mens rea 
required for criminal negligence was O'Grady v. Sparling [1960] S.C.R. 804. In that case, the Court was trying to 
delineate a clear constitutional difference between the then federal offence of criminal negligence in the operation 
of a motor vehicle and the provincial offence of careless driving. The Court ultimately concluded that the federal 
offence punished recklessness (advertent negligence, a subjective concept), while the provincial offence punished 
negligence (inadvertent, an objective concept), thus allowing both offences to stand as they did not occupy the 
same field. The decision satisfied constitutional concerns but created practical difficulties of proof for the Crown 
in criminal cases. 

Three judges (Dickson CJC, Wilson and LaForest J J.) held that some degree of awareness or advertence to the 
threat to the lives or safety of others or alternatively, a wilful blindness to that threat which would be culpable in 
light of the gravity of the risk assumed was required in order to establish criminal negligence (at 1405, 1407). Two 
judges (Mclntyre and L'Heuneux-Dub6 J.J.) imposed an objective test, requiring a marked and significant 



100 

judges requiring proof of a culpable subjective state of mind, the mental element that must be 
proven is minimal. Wilson J. cited and relied on the work of Glanville Williams: 

"... if the actor foresaw the probability of the consequences he is regarded as reckless, even though he 
fervently desired and hoped for the exact opposite of the consequence and even though he did his 
best (short of abandoning his main project) to avoid it ... Recklessness is any determination to pursue 
conduct with knowledge of the risks involved although without a desire that they should 

72 

eventuate." 

The same result obtained in R. v. Waite, a decision the Court released immediately 
following Tutton. It has been suggested that more recent cases have tended to favour an 
objective test, although not clearly and consistently. 

If this test for the mental element necessary to establish criminal negligence were simply 
applied literally to physicians' decisions to withhold or withdraw life support, it would lead to 
undesirable and even absurd results. The offence of causing death or injury by crimmal 
negligence must be understood in a fashion that is sensitive to context - here, that takes into 
account the medical realities for particular patients and the limits on what medical treatment can 
do. Otherwise, physicians would be hesitant to end treatment that is clearly useless or ftitile out 
of fear that because they are aware death will follow, they may somehow run afoul of the 
prohibition against criminal negligence. A similar reluctance might attach to commencmg 
treatment, in case it could not be withdrawn. Such a result could not have been the intention of 
Parliament. 

One way judges have avoided the logical results that would flow from applying this test m 
an unmodified form to decisions about medical treatment is by beginning theh' analysis from the 
premise that where life-sustaining treatment is withheld or withdrawn, the doctor is not causing 
the patient's death (or where the choice is that of the competent patient, the patient is not 
committing suicide), but rather, is simply lettmg the underlying disease or condition run its 
course. Death is then said to be the result of the disease process or injury, and not the result of 
the doctor's actions or omissions or the patient's reftisal of treatment. Legal significance is 



departure from the standard which stances (at 1429). Lamer J. (as he then was) also adopted an objective 
approach, although with a "generous allowance" for factors particular to the accused (at 1434). 



72 

73 
74 



75 



Id., 141 1-1412. (Glanville Williams, incidentally, was a firm supporter of euthanasia - see his book on the subject, 
The Sanctity of Life and the Criminal Law (Faber and Faber, London: 1958)). 

[1989] 1 S.C.R. 1437. 

Grant et al., supra n. 37 at 4.3(a)(ii)(C), p.4-26. Richard Litkowski, in "The Charter and Principles of Criminal 
Reponsibility" in Cameron J. (ed.). The Charter's Impact on the Criminal Justice System (Carswell, 
Toronto: 1996), 271-292 at 279-280, suggests a shifting majority of the Court disallows a consideration of personal 
factors as part of the objective test — Creighton, supra n. 47 (although this case is about unlawful act 
manslaughter; comments on criminal negligence are conquently obiter). 

See R. V. Kitching and Adams [1976] 6 W.W.R. 697, 32 C.C.C. (2d) 159 (Man. C.A.). This is an approach 
Canadian courts have employed with respect to patients' choices to reftjse treatment and doctors' actions in 
ending life support. See Malette v. Shulman (1990) 72 O.R. (2d) 417 (C.A.) (in refiising blood transfusions, 
patient was choosing to assure her chances of eternal salvation, not death); Re Nancy B. supra, n. 6 at 392 (in 



101 

only attributed to the consequences that were the doctor's or the competent patient's initial or 
primary goal or motivation; other consequences of the actions or omissions are not taken into 
account for the purpose of determining their legal characterization, no matter how clearly 
foreseeable they may be. While this line of reasoning (sometimes referred to as the principle of 
double effect ) seems initially appealing as offering an easy way out of an awkward conclusion, 
it has attracted significant criticism. It is also difficult to reconcile such a selective 
understanding of intent with the minimalist conception of the mental element needed to establish 
criminal negligence evident in the Supreme Court of Canada's decisions in Tutton and Waite. 

Often, however, the real issue in these cases is the health care provider's conduct itself, not 
his or her intention. In considering the offence of causing death or injury by criminal negligence, 
it is important not to lose sight of the basic conditions for liability out of excessive concern with 
the ease with which the mental element (awareness of or blindness to the risk) can be 
established. The offences require culpable acts or omissions to undertake a legal duty as a 
starting point - to be culpable, the conduct must be a marked and substantial departure from that 
to be expected of the reasonably prudent person in the circumstances. In a medical context, this 
would mean what can be considered reasonable medical conduct in the particular circumstances 
of the case. If it is reasonable medical practice to stop or not initiate a form of life support for a 
patient, then there has been no departure from the norm when a physician makes and 
implements such a decision, and hence, no culpable act. This result follows even though the 
physician is aware that without the life support the patient will die, either immediately or sooner 
than he or she would have otherwise. For instance, one would expect that a court would fmd it 
reasonable not to initiate cardiopuhnonary resuscitation on a terminally ill patient otherwise near 
death.^^ This is in keeping with medical mores; for years, the Canadian Medical Association 
stated in its Code of Ethics that "[a]n ethical physician ... will allow death to occur with dignity 
and comfort when death of the body appears inevitable; [and] ... need not prolong life by 
unusual or heroic means". The decision corresponds to wider social norms as well. Even 
though the physician knows that the result of not getting the patient's heart beating again will be 
death, it is reasonable medical practice not to try to resuscitate the patient in the circumstances 
and would not, then, constitute criminal negligence. 



refusing continued ventilator support, patient was letting the underlying disease take its course, not committing 
suicide). 



76 



77 
78 
79 
80 



See Kluge, E. - H., Biomedical Ethics in a Canadian Context (Prentice-Hall Canada, Scarborough, 1992), ch. 10; 
Byrne, P., "Homicide, medical ethics and the principle of double effect" in Byrne, P. (ed.) Ethics and Law in 
Health Care and Research (Wiley; Chichester, N.Y.: 1990); Rachels, J., "From 'Letting Die' to Active Killing" in 
Arras, J. and Rhoden, N. (eds.) Ethical Issues in Modern_Medicine (3d ed.) (Mayfield Publishing, Mountain View, 
CA: 1989) at 241-244; Fletcher, J. "The Courts and Euthanasia", (1987/1988) 15 Law, Medicine and Health Care 
223. 

Id. 

Tutton, supra, n. 70; Waite, supra, n. 73; Creighton, supra n. 47. 

The example is drawn from Working Paper 28, supra, n. 3 at 41 . 

Canadian Medical Association, "Code of Ethics and Guide to the Ethical Behaviour of Physicians" (Can. Med. 
Assn.; Ottawa: 1980), cl. 18, 19. The Code has just been replaced by a new version which omits reference to 
specifics. See discussion, supra, ch. 4.4. 



102 

The example chosen to illustrate the application of a standard of conduct based on and 
shaped by notions of reasonableness was deliberately unexceptional. One expects general 
agreement as to what would be reasonable in these circumstances both among physicians and in 
society at large. As the technological capacity of medicine to preserve and extend life increases, 
however, one can expect fewer and fewer such clear cases. Disagreement exists and has always 
existed among physicians regarding treatment choices, including the appropriate use of various 
forms of life support. The more recent and more significant potential for disagreement arises 
from the marked change in the way these questions themselves are perceived. Choices about 
treatment are no longer viewed as purely medical decisions, and because they are recognized as 
having important moral, ethical and other implications, physicians are no longer necessarily 
accepted as the appropriate decision-makers, at least not on their own. In the legal sphere, this 
shift is evident not just in the emphasis on informed consent that now predominates in lawsuits 
arising out of medical treatment, but also in recent legislation protective of patient self- 

82 

determination and the rise of advocacy groups active in an array of legal matters and arenas on 

83 

behalf of the disabled, the elderly, and other vulnerable groups in society. One major issue is 
whose estimation of reasonable medical practice will be adopted - whose mores or norms will 
constitute the standard by which an individual physician's conduct will be judged? 

Where there is no divergence between accepted medical practice and societal expectations, 
the analysis is not problematic. But where there is no consensus, either among physicians or 
between the medical community and society at large or a concerned vocal subset of the public, 
the outcome is not at all clear. Who determines whether treatment is useless or ftitile? What 
factors ought to be taken into account in such a determination? How does one decide whether 
treatment is "reasonable in the circumstances"? At present, the uncertainty leaves substitute 
decision-makers, physicians and hospital personnel unsure of their legal duties and the legal 
parameters within which they must work. 

5. NECESSARIES OF LIFE 

The Code imposes a legal duty on everyone to "provide necessaries of life to a person 
under his charge" if that person cannot provide them for himself or herself and is unable to 
withdraw from that charge for certain listed reasons, including ilhiess and mental disorder. The 
term "necessaries of life" is not defined in the Code, but has been interpreted to include needed 



81 



82 



83 



84 



See, e.g., Webster G., "Treatment controversies: Hydration and Artificial Feeding", Telemedicine Canada, 
Toronto, Apr. 2, 1993. 

See, e.g. the Substitute Decisions Act, S.O. 1992, c. 30, as amended and the Health Care Consent Act 1996, Sch. 
A to the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, c.2. 

See, e.g. People First of Ontario v. Porter, (1992) 6 O.R. (3d) 289 ( C.A.). As another example, in Quebec, the 
Canadian Association for Community Living sought unsuccessfully to have a provincial investigation into the 
hospital death of an infant with Down's Syndrome who required an operation to correct an intestinal blockage and 
from whom artificial nutrition and hydration were withheld - "Whitewash of Infant's Death by Starvation at 
Montreal Children's Hospital Complete", (1990) 4 Can. Human Rights Advocate 4. 

Criminal Code, supra, n. 1, s. 215 (l)(c). 



103 

medical treatment as well as the more commonly understood necessities such as food, shelter 
and clothing. It is an offence to fail to perform that duty "without lawful excuse" if the failure 
endangers the life or "does or is likely to permanently injure the health" of the person to whom 
the duty is owed. One can readily see that a physician or other health care worker caring for a 
seriously ill and incapacitated patient could be regarded as having taken on such a duty. Where 
the patient is dependent on dialysis or a ventilator or artificial nutrition and hydration (to name a 
few of the common types of life support), he or she requires those medical interventions in order 
to live; they are quite literally necessities of life. If they are not to be provided or continued, the 
person in whose charge the patient is must be able to adduce evidence of a "lawful excuse" for 
not doing so or criminal liability could be imposed. 

The more difficult question that remains is with respect to the ability to refuse the initiation 
or continuation of medical treatment when it is clear that the treatment (life support, for 
instance) is necessary to preserve the health or life of an individual. The concern is not so 
pressing when the patient is competent as it is when an individual is decisionally incapable and 
others decide to withhold or withdraw life support. With very rare exceptions, a competent 
individual cannot be treated without his or her consent, even when the treatment is or will be 

88 

life-saving. Consequently, potential criminal liability for withholding or withdrawing life 
support when a patient is competent and refuses treatment is not an issue. Indeed, a physician 
who treats without consent could be held civilly liable for battery, and presumably, could even 

89 

be charged with the criminal offence of assault The situation was well summarized by the 
British Columbia Supreme Court in Attorney General of British Columbia v. Astaforoff. while 
the Criminal Code requires that the necessaries of life be made available to a person under the 
charge of another who is unable to withdraw from that charge, they need not be forced on an 
unwilling recipient. Where the patient is competent, his or her rights to determine the course of 



85 



86 
87 



89 



90 



See, e.g. R. v. Tutton, discussed supra n.70 and accompanying text. But for a suggestion that medical treatment is 
a "necessary of life" where it is required to prevent, cure or alleviate a disease that endangers the life or health of a 
patient, but not where it "serves no purpose" and is only "deferring certain death" for a patient who is "beyond 
recovery", see Auckland Area Health Brd. v. A.G., supra n. 51, at 249-250 (H.C.). 

Criminal Code, supra, n. 1, s. 215 (2)(b). 

See Law Reform Commission of Canada, Medical Treatment and Criminal Law, (Working Paper 26) (Ottawa: 
Ministry of Supply and Services, 1980) at 22-23 and references cited therein (hereafter, "Working Paper 26"). 

See discussion ch. 3, 4, supra. 

The Quebec Superior Court affirmed the right of a competent patient to refuse life-saving treatment in Nancy B. v. 
Hotel Dieu de Quebec, supra n. 6. See also Malette v. Shulman, supra n. 75 (physician who had life-saving blood 
transftisions administered to a patient despite knowing the patient carried a card stating she was a Jehovah's 
Witness and reftised transfusions was liable for battery in a suit commenced by patient after her recovery). As to 
the offence of assault, see Criminal Code, supra, n. 2. 

[1983] 6 W.W.R. 322 (B.C.S.C); afTd. [1984] 4 W.W.R. 385 (B.C.C.A.). (prisoner need not be forcefed by 
prison officials against her wishes); see also Manoir de la Pointe Bleue (1978) Inc. c. Corheil, supra, n. 7 (to the 
same effect respecting the duty of a long-term care institution to a quadriplegic patient who wished an end to 
artificial feeding and hydration). 



104 

treatment and to bodily integrity obviate the possibility of criminal liability attaching to a 
physician who withholds or withdraws life support at the patient's direction.^' 

6. OTHER DUTIES 

The Code also provides that individuals undertaking to administer surgical or medical 
treatment to others are under a legal duty to use reasonable knowledge, skill and care in doing 
so, and further, that those who undertake to do an act are under a legal duty to perform it if an 
omission to do so is or may be dangerous to life. There are no specific penalties attached to 
these duties; they fall within the general offence provision of the Code or they may found the 
legal duty giving rise to liability for omissions in causing injury or death by criminal 
negligence. It is also an offence to unlawfully cause bodily harm to another person.^'* 

7. ADMINISTERING A NOXIOUS THING 

It is an offence to administer or cause to be administered "...poison or any other destructive 
or noxious thing" to anyone. This section of the Code has been used in cases against health 
care practitioners where the patient was so near death from the underlying disease process that 
the Crown would have had great difficulty or been unable to prove beyond a reasonable doubt 
that death resulted from the drug the health care practitioner administered rather than from the 
underlying disease. In Ontario, a nurse was charged with first degree murder in one instance and 
in a separate case, a physician with second degree murder and administering a noxious thing 
with intent to end life. In each case, a plea of guilty to administering a noxious thing with intent 
to cause bodily harm was ultimately accepted. 

8. SUMMARY 

It is apparent from this review of the relevant sections of the Criminal Code that not only a 
deliberate wrongful act or criminal negligence that ends life or causes injury can result in 
criminal liability. Both cessation of treatment and its administration may come under one or 
more of several intersecting and overlapping provisions of the criminal law. Prosecutions, 
however, remain very rare. 



91 

92 
93 

94 
95 
96 



Malette, supra, n. 75 at 431- doctors can rely on patient's "standing orders" (a card refusing blood transfusions) - 
i.e. they carry over to a later period of incompetence. See also Corbeil, supra, n. 7. 

Criminal Code, supra, n. 1, ss. 216, 217. 

See discussion of these provisions in Working P^er 26, supra, n. 87 at 23-28. See also K v. Coyne (1958) 31 C.R. 
335 (N.B.C.A.); R. v. Popen (1981) 60 C.C.C. (2d) 232 (Ont. C.A.) (relative to the common law as a source of the 
duty under s.219(2) of the Code). 

Code, supra, n. 1, s.269. 

Code supra n. l,s.245. 

H V. Mataya (as yet unreported, Ont. Ct.(Gen. Div.), Wren J., Aug. 24, 1992) (summarized (1992) 19 W.C.B. (2d) 
118);/?. V. De La Rocha (as yet unreported, Ont. Ct. (Gen. Div.), Loukidelis J., Apr. 2, 1993). 



CHAPTER 6 



ENFORCING THE LAW: 
CRIMINAL LIABILITY, 
INQUESTS AND 
PROFESSIONAL DISCIPLINE 



1. CRIMINAL LIABILITY 

Administration of the criminal justice system is a provincial responsibility. This includes 
formulating policies with respect to charging decisions. One can see why there is concern 
among physicians and other health care workers with respect to their potential criminal liability. 
The legal rules are applicable on their face to many situations that arise in the care of patients, 
and the rules are severe. Criminal law is a blunt tool; it does not allow for a nuanced response. 
To the extent there is any leeway to take into account compassionate motive or other 
extenuating circumstances, it rests on prosecutorial discretion as to whether and what charges 
will be laid, on sentencing, and on the uncertain eventuality that even if a charge is proved, a 
jury will not convict. However, none of these is either reliable or predictable; as a result, the 
"leeway" may be more illusory than real. Further, where there has been a conviction for first or 
second degree murder, the sentence and minimum periods of imprisonment that must be served 
prior to being eligible for parole are set in the Code. There is no discretion to take motive into 
account. 

As for the exercise of prosecutorial discretion, reactions to particular situations can vary 
widely. What may appear to one individual to call for a lenient, compassionate response may 
appear to another abhorrent, calling for the full weight of the law to be brought to bear. That 
dichotomy is apparent in R. v. Cyrenne, where the presiding judge felt impelled to comment on 
what he viewed as the inappropriateness of the Crown's decision to lay a charge of causing 
death by criminal negligence (with a maximum penalty of life imprisonment) rather than failing 
to provide the necessaries of life (with a maximum penalty of two years' imprisonment) against 
the Jehovah's Witness parents of a critically ill child and their minister who together removed 



1 The Constitution Act, 1 867, 30 «& 3 1 Victoria, c.3 (U.K.), s. 92 ( 1 4). 

2 See eg. British Columbia Crown Counsel Policy Guidelines with respect to active euthanasia and assisted suicide, 
(Policy 11-3-93, File no. 56880-01, Eut 1), reproduced in the Final Report of the Senate Special Committee on 
Euthanasia and Assisted Suicide, Of Life & Death, (Supply & Services Canada, Ottawa: June 1995) at A-59. 

3 See discussion of Morgentaler v. TJte Queen, infra, n. 58. 

4 Criminal Code, R.S.C. 1985, c. C-46 s. s. 742. A conviction for second degree murder carries a life sentence with 
a minimum term of ten years without eligibility for parole, or such longer period, up to 25 years, as may be 
substituted. A conviction for first degree murder carries a life sentence without eligibility for parole for 25 years. 



[105] 



106 



the child from the hospital when it became apparent that physicians intended to give her a blood 
transftision. The child died. As the Crown failed to prove causation beyond a reasonable doubt - 
specifically, that a transfusion at that point would have saved the child's life - the accused were 
acquitted. The judge was of the view that the lesser charge would have been appropriate "... to 
prosecute an otherwise loving and concerned parent who makes a decision regarding the 
medical care of his or her child on the grounds of religion or conscience", and recommended to 
prosecuting authorities that "... in future situations of this kind, they consider whether they might 
use the immense power of the State in a less drastic way."^ Whether one agrees with the 
evaluation of the judge or the Crown in this particular case, it is apparent that prosecutorial 
discretion is not a reliable "escape valve". 

In determining whether to lay charges in a particular case, one would expect that the 
Crown's office would be guided by medical practice. While this might be some comfort to 
health care providers, it does not completely resolve the issue. Not only do physicians have 
serious disagreements about these issues among themselves, but decisions about the provision of 
life support are not purely medical; broader values and ethical concerns must be taken into 
account as well. These are not areas in which doctors have special expertise simply because they 
are doctors or even because they have greater contact with individuals for whom this is an issue 
to be resolved. In any event, medical consensus as the final arbiter may not remain a particularly 
secure standard even if Crown attomies are prepared to accept it for the present, given 
challenges to medical authority and medical decision-making on many fronts. 

In these circumstances, it is not surprising that some hospitals, long-term care institutions 
and medical personnel have felt a need to resort to the courts for some form of pre-treatment (or 
more accurately, non-treatment) "clearance" before withholding or withdrawing life support, 
even at the direction of a competent patient. Concerns for potential criminal liability underlay 
both the refusal of the hospital and treating physician to comply with Nancy B.'s request to be 
removed from the ventilator that sustained her life unless she had prior judicial approval and the 
court application commenced by the long-term care institution in which Robert Corbeil was 
resident seeking a declaration that it could comply with his refusal of artificial nutrition and 
hydration. One could argue that the institutions and medical personnel involved were being 
overly cautious, that their concerns for their legal liability were exaggerated, unrealistic, and 
perhaps even impeding their ability to discharge their duty to the patient - specifically, not to 
treat without the patient's consent. Yet there is both uncertainty as to applicable legal standards 
and a struggle over whose norms will prevail. 



5 



K V. Cyrenm (1981) 62 C.C.C. (2d) 238 (Ont. Dist. Ct). 

Id., at 275-276. 

Nancy B. v. Hotel Dieu de Quebec, (1992) 86 D.L.R. (4th) 385 (Que. S.C); Manoir de la Pointe Bleue (1978) Inc. 
c. Corbeil [1992] R.J.Q 712 (C.S.). 

See also the cxjmments of Lord Browne-Wilkinson in Airedale NHS Trust v. Bland, [1993] 2 W.L.R. 316 at 382- 
383 contrasting the past and present milieus in which physicians work: "[In the past] to the great advantage of 
society they [i.e. doctors] took the responsibility of deciding whether the perpetuation of life was pointless. But 
there are now present amongst the medical and nursing staff of hospitals those who genuinely believe in the 



107 



2. CRIMINAL LIABILITY OF HEALTH CARE PROVIDERS 

The potential for criminal charges based on the cessation or non-initiation of life support 
or other medical treatment exists. Nonetheless, there is a significant disjunction between the 
apparent severity of the law as it is written and its enforcement. It is to this gap that physicians 
and other health care workers are directed to look for comfort despite the uncertainty regarding 
the applicable legal standards - there is said to be little to fear from criminal prosecution in 
practice, as charges are seldom laid and the acquittal rate is high. Yet, whether or not the 
perception is accurate, one increasingly has the sense that the gap between the Law in Action 
and the Law on the Books is narrowing or is being bridged more frequently. 

The Law Reform Commission of Canada reported in 1982 that it had found no record in 
Canadian case law of a single conviction of a doctor for having shortened the life of one of his 
terminal patients by administering massive doses of pain-killing drugs, nor had Canadian courts 
ever convicted a doctor who stopped a useless treatment for a dying patient, or directly blamed a 
doctor for refiising to prolong a patient's agony by deciding not to treat him for a secondary 
complication.^^ While the Commission's conclusion and the assurance of security it seemed to 
offer appear sweeping, on closer examination it is apparent that the range of circumstances to 
which it adverted was quite narrow. Just one year later in Alberta, nine criminal charges, 
including charges of murder and criminal negligence causing death, were laid against a 
paediatric resident who allegedly ordered the administration of a dose of morphine fifty times 
that recommended by the hospital to a newborn infant suffering from severe brain damage and 
serious physical defects. The incident only became public several months later, after it was 
discovered in the course of a routine hospital audit. The charges were laid despite the fact that an 
earlier judicial inquiry into the matter had concluded that it was unable to ascertain whether the 
cause of death was the abnormal dosage of morphine or the natural deterioration of the baby's 
severely damaged brain and heart. As the doctor concerned was no longer in Canada, the case 
did not proceed to trial. However, both the nurse who actually administered the drug and her 



sanctity of human life [presumably, as an absolute, or more of an absolute than the physician] no matter what the 
quality of that life, and report doctors who take such decisions to the authorities with a view to prosecution for a 
criminal offence. I am not criticizing such people ... But their actions make it extremely risky for a doctor to take a 
decision of this kind when his actions may lie on the borderline of legality." 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide & Cessation of Treatment (Working Paper 28), 
(Dept. of Supply & Services, Ottawa: 1982) at 20; in the United States, see, e.g. Glantz, L.H., "Withholding and 
Withdrawing Treatment: The Role of the Criminal Law" (1987/88) 15 Law, Medicine & Health Care 231; Weir, 
R., Gostin, L., "Decisions to Abate Life-Sustaining Treatment for Non-Autonomous Patients," JAMA 1990; 264: 
1846-1853 at 1846. 



10 



II 



A phrase used in this context by Yale Kamisar, "Some Non-Religious Views Against Proposed 'Mercy-Killing' 
Legislation," (1958) 42 Minn. L. Rev. 969 - see, e.g., 1041-1042. 

L.R.C.C. Working Paper 28, supra, n. 9 at 8. 



108 



superior with whom she checked the dosage ordered by the doctor were suspended from 
practice by their governing body for their part in the incident.'^ 

More recently, in what was reported to be the first euthanasia-related criminal charge laid 
against a health care worker since the incident in Alberta, Scott Mataya, a nurse at a Toronto 
hospital, was charged with first degree murder after injecting potassium chloride into a 
terminally ill 78 year old patient who had been removed from life support systems at the request 
of his family and was expected to die within hours. The accused pleaded guilty to the lesser 
offence of administering a noxious substance. He was placed on probation for three years and 
banned from nursing for life and from working in any health care facility in any capacity while 
on probation. The agreed statement of facts entered in support of the plea stated that it could not 
be ascertained whether the patient's death was the result of the medication or his underlying 
illness. It also indicated that the accused had only graduated from nursing school eighteen 
months previously and had been left alone with the patient after his removal from life support 
systems to watch while the patient expired - as one newspaper reported, to "watch the patient 
choke to death". 

Not long after charges were laid against Mataya, Dr. Albert De La Rocha, a surgeon in 
Timmins, Ontario, was charged with second degree murder in connection with the death of a 
seriously ill, 68 year old patient suffering from cancer. It was alleged that death resulted from 
the administration of "a quantity of morphine and potassium chloride". That charge was later 
withdrawn and Dr. De La Rocha pleaded guilty to administering a noxious substance 

17 

endangering the life of his patient, as in Mataya. The Crown sought a custodial sentence. At 
the sentencing hearing, the patient's adult son was supportive of Dr. De La Rocha' s actions. 
The court imposed a three year suspended sentence. Unlike Mataya, there were no conditions 



12 

13 
14 

15 

16 

17 
18 



"Nurses suspended over baby's death," Globe & Mail (Dec. 10, 1983) at 14; "Inquiry unable to determine exact 
cause of infant death". Globe & Mail (Aug. 25, 1983), at 10; "Israeli doctor charged with murder in 1982 
overdose of Alberta infant". Globe & Mail (Nov. 5, 1983), at 18. 

Criminal Code, supra, n. 4, s. 221(2). 

Id., s. 245. R. V. Mataya (as yet unreported, Ont. Ct. (Gen. Div.), Wren J. (August 24, 1992)) (summarized (1992) 
19W.C.B.(2d)118)). 

Appleby, T., "Nurse charged in patient's death". Globe & Mail (Nov. 22, 1991) at Al; Mungan, C, Abbate, G., 
"Sentence suspended in euthanasia case". Globe & Mail, (Aug. 25, 1992) at Al, All. 

See Mickleburgh, R., "Timmins surgeon charged with murder". Globe & Mail, (Feb. 1, 1992) at Al; Proceedings 
of the Senate Special Committee on Euthanasia and Assisted Suicide, testimony of Mr. David Thomas (Crown 
Attorney mDeLa Rocha), (Dec. 12, 1994) at 29:41-29:43. 

Thomas, id. at 29:43. 

Id. at 29:45. 



109 



imposed on the doctor's ability to practice medicine, although his conduct was also the subject 



of professional disciplinary proceedings 



19 



In Manitoba, prosecutors decided not to lay criminal charges against a physician who 
administered multiple doses of morphine to a terminally ill patient who decided to end his life. 
He suffered from amyotrophic lateral sclerosis, as did Sue Rodriguez, but the disease was 
further advanced and he was dependent on a respirator. He asked to be removed from the 
ventilator and doctors complied. The provincial director of criminal prosecutions was satisfied 

20 

there was no evidence that the morphine was given for the purpose of hastening his death. 

A criminal charge of aiding suicide was recently laid against a Toronto physician who 
treats many patients with AIDS and HIV. It has been reported that the charge was laid in 
connection with a prescription for barbiturates he wrote for one of his patients with AIDS who 
subsequently died of a drug overdose, but since a publication ban was imposed soon after the 

22 

proceedings were begun, few details are available. 

3. CRIMINAL LIABILITY OF FAMILY MEMBERS 

Prior to Mataya, a charge of attempted murder had been laid against an Ontario man who, 
at the request of his terminally ill father, speeded up the intravenous infiision of morphine he 
was receiving, intending to cause death. His father died two days later. Nursing staff reported the 
matter to the police two months later. Ultimately, the son pleaded guilty to committing mischief 
likely to endanger life and was granted a conditional discharge and sentenced to three years' 
probation. 

]xi R. V. Brush, eighty-one year old Jean Brush, having initially been charged with first 
degree murder, pleaded guilty to manslaughter in the death of her husband of 58 years. He had 
developed Alzheimer's and pleaded with her to do something, saying he just wanted to go to 
sleep and not wake up. They attempted suicide together with an overdose of sleeping pills, but 
were unsuccessfiil. Then Jean Brush helped her husband stab himself to death, and tried to kill 
herself with the knife as well. In passing sentence, the judge noted that Mr. and Mrs. Brush had 
been let down by society, and that hers was a "...desperate attempt to end her and her husband's 



19 

20 
21 
22 
23 



R. V. De La Rocha (as yet unreported, Ont. Ct. (Gen. Div.), Loukidelis J., (April 2, 1993)); lonnides, N., "Aided 
death, Timmins MD gets probation". Globe & Mail, (Apr. 5, 1993) at p. A 10. See n. 60 infra and accompanying 
text. 

Roberts D., "Doctor won't be charged in ALS case", Globe and Mail (Mar. 2, 1994) at A5. 

Coutts J., Hess H., "Doctor charged in man's suicide," Globe & Mail (June 21, 1996) at Al, A8. 

Id. 

Testimony of Dr. James Cairns, Deputy Chief Coroner of Ontario, Proceedings of the Senate Special Committe on 
Euthanasia and Assisted Suicide (Oct. 17, 1994) (20:7, 20: 13); Dr. James Caims, "What Kind of Life? What Kind 
of Death? The Sue Rodriguez Case", Can. Bar Ass'n - Ontario & Medical Legal Society of Toronto, Tape S-92- 
707 (May 26, 1993). 



110 



life with some shred of dignity and without becoming burdens on society."^"^ He imposed a 
suspended sentence and eighteen months probation, an option open to him because unlike 
murder, there is no mandatory minimum sentence in cases of manslaughter. 

In R. V. Myers and Power, the daughter of the deceased and her husband were charged 
with second degree murder in the death of her father. He was dying of lung cancer, and his 
daughter had left her own family to move in with her father to care for him, aided by her 
husband. The deceased requested both of them to help him die when he could no longer function 
on his own. His daughter cared for him well, but he increasingly lost bodily control and suffered 
severe pain despite medication. By the time his physician concluded he would only live a day or 
two more, he was unconscious and seemed to be in great pain even with the pain medication. 
Ms. Myers and Mr. Power suffocated him. They did not make a secret of their actions, and the 
matter came to the attention of police, resulting in these charges. The trial judge noted that if 
the matter had gone to trial, a properly instructed jury that chose to follow the instructions given 
it would " have no recourse" but to return a verdict of guilty of murder as charged.^^ The Crown 
acknowledged that the minimum sentence of life imprisonment with no parole eligibility for ten 
years required on a conviction for second degree murder would have been too harsh in the 
circumstances, and so agreed to a plea to the included offence of manslaughter. The judge 

28 

imposed suspended sentences, three years probation and community service. 

Robert Latimer, as noted previously, took his disabled daughter's life. He was charged 
with first degree murder. Unlike the cases reviewed above in which negotiations with the Crown 
attomies resulted in guilty pleas to reduced charges, this case went to trial. Latimer was 
convicted of second degree murder and sentenced to life imprisonment with no eligibility for 
parole for ten years, the mandatory minimum sentence for that offence. The conviction was 

29 

upheld on appeal. 

On reviewing these cases. Chief Justice Bayda (dissenting as to sentence) noted the "stark 
inequality" in the results, all of which were non-custodial with the exception of Latimer, who 
faces a minimum of ten years of incarceration before parole eligibility: "...there can be no 
greater unpredictability and uncertainty in the law as it is applied to euthanasia and 
compassionate killings than the unpredictability and uncertainty that now exists". He was of 



24 

25 

26 

27 
28 
29 
30 



[1995]O.J. No.656, Ont. Ct. (Prov. Div.), Zabel J. (Mar. 2, 1995); summarized 26 W.C.B. (2d) 478. 

Id.; see also Claridge T., "No jail for woman who killed sick spouse", Globe & Mail (Mar.3, 1995) at All; Tyler 
T., "She helped husband die out of love", Toronto Star (Feb. 14, 1995) at Al; Bunn M., "Judge rules that 
euthanasia case deserves leniency", Law Times (Apr. 3-9, 1995). 

Agreed Statement of Facts in K v. Myers and Power (unreported, 23 Dec. 1994) (N.S.S.C.) (Nova Scotia C.R. 
1 10506/?er Cacchione J.), quoted in R. v. Latimer, (1995) 126 D.L.R. (4th) 203 at 256-258 (Sask. C.A.). 

Quoted in R. v. Latimer, id at 258. 

Id. 

Id.; leave to appeal to the Supreme Court of Canada granted Aug. 17, 1995, No. 24818 (S.C.C). 

Id at 278. 



Ill 



the view that the inequality in the administration and appHcation of the law was so significant 
that Latimer's right under section 12 of the Charter not to be subject to cruel and unusual 
treatment or punishment had been violated, and would have allowed a constitutional exemption 

-5 1 

from the mandatory minimum sentence requirement for second degree murder. 

In an effort to bring a principled approach to charging decisions, in the wake of Rodriguez 
the British Columbia Ministry of the Attorney General issued policy guidelines applicable to 
instances where police reports reveal that someone motivated by compassion for the deceased 

32 

participated in causing a death. Other provinces do not have such an explicitly focussed 
charging policy. Crown counsel approving charges must conclude both that there is a substantial 
likelihood of conviction and that the public interest requires a prosecution before proceeding. 
The guidelines set out matters to be considered by the Crown in characterizing the conduct of 
the person involved and the public interest factors to be considered. The Canadian Medical 
Association's Code of Ethics is an important referent in the guidelines to evaluate the conduct of 
medical practitioners or those acting under their supervision. However, because of the need for 
contextual evaluation of the circumstances of each case, the level of generality at which the 
guidelines are expressed ultimately produces little in the way of further direction, other than to 
confirm what is already accepted law. For instance, one of the public interest factors identified 
is "Society's interest in protecting the sanctity of human life, recognizing this does not require 
life to be preserved at all cost." Where the one gives way to the other is exactly the perplexing 
and difficult inquiry that those deciding about the administration and cessation of treatment must 
determine, and these guidelines do not assist in clarifying the outer boundaries of permissible 
decision-making — ^that is, what will attract criminal liability (particularly when considering 
cessation of treatment), or the appropriate level of charge to be laid. 

As Bayda, C.J.S. pointed out in Latimer, the cases evidence a sharp difference between a 
charge that is proper "legalistically or mechanistically speaking (i.e. with an eye to the 
mechanics of the law)" and what charge is appropriate "judiciously or fundamentally speaking 
(i.e. with an eye to the fairness of the law)". However, views on how to characterize acts that 
dUQ prima facie wrongful can differ dramatically. When ought an individual be prosecuted to the 
full extent of the law and when ought charges be reduced, or lesser charges be laid initially? The 
widespread controversy that arose after Latimer's conviction evidences the lack of consensus 
clearly. Some people thought the conviction was wrong. Many others thought the severity of the 



31 

32 
33 

34 

35 
36 



Id at 281. 

Supra, n. 2 at A-59-A-63. 

Id at A-62. Contrast, for instance, with Ontario, "Crown Counsel Policy Manual", Ministry of the Attorney 
General (effective Jan. 1994). 

This includes the acceptability of palliative care (including the administration of drugs designed to control pain 
even if the dosage is such as to hasten death), the patient's right to refiise even life-sustaining treatment, and the 
need to ensure any consent obtained was properly informed. 

Supra, n. 2 at A-61. 

Supra n. 26 at 261. 



112 



mandatory minimum period of parole ineligibility that had to be imposed very unjust. Latimer 
was seen as acting in desperation out of love and compassion to free his daughter from 
unremitting pain and the burden of repeated aggressive medical intervention that afforded her 
little or no benefit. This could not and ought not be evaluated in the same way and subject to the 
same level of punishment as what were seen as "more evil" murders. Many others were 
horrified that Latimer was being portrayed as someone who had committed a murder that was 
somehow less wrong, or not wrong at all. He was, after all, the parent of a severely disabled 
child who was totally dependent on him for her care and protection. In their view, he betrayed 
that trust and in doing so, his actions were even more egregious than those of others who have 
taken lives. Some characterized supporters of Latimer as dismissing disabled people generally as 
not worthy of or entitled to protection, legal or otherwise.^^ 

The Council of Canadians with Disabilities and Saskatchewan Voice of the Handicapped, 
intervenors in Latimer's appeal, were concerned with the systemic effects of failing to enforce 
the law against Latimer or of accepting killing a disabled individual as somehow a "special 
case". They characterized arguments being advanced in support of Latimer as a threat to the 
safety and well-being of all persons with disabilities. Others suggested that, since jury 
members have the power to do what is legally wrong — that is, to refiise to apply the law — 
counsel should be able to tell jurors so. Still others pointed out that the focus on one individual 
case necessitated by the structure of the criminal justice system obscured very grave underlying 
problems, in particular "...horrendous inadequacies in the support system Canadian society 
provides to families with handicapped children". In that sense, society shares the responsibility 
for leaving families to cope with the pressures associated with caring for a severely disabled 



37 



38 



39 



40 



41 



See eg. Borovoy A., "Needless pain inflicted by minimum sentence rules," Toronto Star (Nov. 30, 1994); 
Cudmore G. "Law and order failed us," London Free Press (Nov. 23, 1994) at B9. 

For a sampling of the views expressed on both sides of the debate, see Crawford T., "Don't they 'deserve to live?' 
Disabled kids' parents fear growing support of mercy killing", Toronto Star (Nov. 19, 1994) at Al, A8; Benson, L 
"The Latimer case: Do you know where tenderness leads?" Law Times (July 24 - July 30, 1995) at 6; "Justice, 
mercy and Mr. Latimer", Globe & Mail (July 19, 1995) at A 12; "Sentence too harsh in Latimer case", Toronto 
Star (Nov. 24, 1994) at A28; Rankin J. "Protect lives of disabled, TracyLatimer vigil told", Toronto Star (Feb. 23, 
1995) at A7; Rankin J. "Petitions seek cut in Latimer sentence", Toronto Star (Jan. 3, 1995) at A7; Tyler T. 
"Latimer appeal: a test of fairness. More leeway appropriate for dad who killed disabled girl, his jurors say", 
Toronto Star (Feb. 19, 1995) at A2; Feschuk S. "On the man who killed his daughter". Globe & Mail (Nov. 25, 
1994) at A23; Editorial,"Latimer case throws light on medicine's dark trailing edge". Medical Post (Nov. 29, 
1994) at 8. 

Factum of the Intervenors, Council of Canadians with Disabilities and Saskatchewan Voice of the Handicapped, 
in R. V. Latimer fSask. C.A.). 

Rauf N., "On the heels of the Latimer case: Should counsel be able to tell jurors they can disregard the law?" 
Lawyers Weekly (Jan. 13, 1995) at 5. 

Kennedy M., "Letter on the Latimer Case. Families with severely handicapped children in desperate need" Globe 
& Mail (July 27, 1995) at A 14. 



113 



member without sufficient support, and indeed, for failing to ensure people with disabilities 



themselves have access to the resources they need to ensure they can live their lives fully 



42 



Bayda C.J.S. has pointed out a serious problem with the very wide range in results in these 
cases — where does the exercise of discretion properly lie, and which branch of government 
ought to exercise it? As he noted, legislators "...may have had one thing in mind" when they 
passed the sections of the Code defining murder and setting the mandatory minimum 
punishment, but the executive branch of government, and in particular, individual Crown 
attomies, may have another, and the exercise of prosecutorial discretion is largely 
unreviewable. The latter are able to implement their views through charging decisions and plea 
negotiations. This leaves the third branch of government, the judiciary "...whose job it is to use 
their discretion in such a way as to create justice and fairness" able to do so only within the 
limited confines of the case and the charges prosecutors present to them. It should be noted 
that as a practical matter, judges were only able to exercise discretion in sentencing in any of 
these cases because prosecutors had ah-eady exercised theirs, and reduced the charges fi-om 
murder, with its severe mandatory sentence of life imprisonment and minimum periods of parole 
ineligibility. While commending prosecutors for acting in a way they believe will achieve 
fairness and justice, Bayda C.J.S. nonetheless concluded that in the result, the law is in an 
unacceptably unpredictable and uncertain state. 

Prosecutorial discretion exists in charging decisions generally. One concern is with which 
actor in the criminal justice system exercises discretion. Another is with how and when it ought 
to be exercised. Perhaps because of the lack of precedent in this area, doubt about the proper 
standard of behaviour, or a deep ambivalence when faced with tragic factual circumstances, the 
appropriate response on the part of the state is less clear and more uncertain than is normally the 
case when responding to criminal conduct. There is also a concern in charging decisions that a 



42 



43 



44 
45 



In December, 1994, a Hamilton woman, Cathy Wilkieson, took her own life and that of her disabled 16 year old 
son. In the wake of Latimer's conviction, she and other parents of disabled children had met with provincial 
government representatives seeking increased funding for at-home care for the disabled. They were unsuccessful, 
but were reportedly told by government officials during the meeting to call if contemplating murder or suicide. 
Wilkieson's application for some additional special services at home was rejected. Members of her support group 
attributed the deaths to the lack of support for families caring for disabled children; Wilkieson's family denied 
this. See Edwards P. "Little help drove mom to despair, friend says" Toronto Star (Dec. 7, 1994) at Al, A14; 
Coutts J. "Parents of disabled denied more funds". Globe & Mail (Dec. 9, 1994) at A13; Honywill B., "Was boy's 
death a mercy killing?" Hamilton Spectator (Apr. 3, 1995) at Al. 

R. V. Latimer, supra, n. 26 at 278. On the exercise of prosecutorial discretion generally, see Martin D., "Rising 
Expectations: Slippery Slope or New Horizon? The Constitutionalization of Criminal Trials in Canada", in 
Cameron J. (ed.), JTie Charter's Impact on the CriminalJustice System (Carswell, Toronto: 1996), 87-122 at 95- 
97. 

Id. 

Id. 



114 



jury will not convict, with a corresponding deleterious effect on the criminal justice system."*^ 
The lack of transparency in the charging process seems particularly problematic in this context, 
as characterizations of conduct and circumstances can and do vary so widely, and indeed, are 
sometimes diametrically opposed. It appears we want to preserve the gap between the Law in 
Action and the Law on the Books as a means to countenance derogations from the very high 
value placed on protecting and preserving human life in limited instances where to do so is 
perceived as the humane response. However, we neither want to acknowledge nor address doing 
so. As these cases indicate, different people measure the gap differently. The results are neither 
reliable nor controllable. By drawing attention to these difficulties, there is no intention to 
suggest the law should have been or ought to be applied more strictly in circumstances such as 
these, or to be critical of the leniency shown. However, the need to rely on departures from legal 
principles on an ad hoc basis to achieve a result that accords with a public sense of justice 
suggests the need for reform of the law. 

4. OTHER ENFORCEMENT MECHANISMS: INQUESTS AND PROFESSIONAL 
DISCIPLINE 

Health care providers' conduct and decisions may be open to scrutiny in other types of 
legal proceedings as well. In addition to civil lawsuits, which are privately instituted, the state 
can regulate and supervise through inquests and professional disciplinary proceedings."*^ Other 
interested groups and individuals may play a role in these more publicly-oriented processes. By 
way of example. People First, an Ontario advocacy group for developmentally handicapped 
people, was granted standing at an inquest into the deaths of fifteen severely handicapped 
children at one institution, the Christopher Robin Home. People First was instrumental in 
focusing attention on the whole issue of "comfort care" orders for institutionalized mentally and 
physically handicapped children who contract other ilhiesses. Together with a lawyer 
representing the parents of two of the children who died, the group asserted that the Home's 
medical director inappropriately placed children who were not terminally ill on a palliative care 
regimen, withholding treatment that would have been routine for non-disabled children and 



46 



47 



48 



49 



50 



Proceeding of the Senate Special Committee on Euthanasia and Assisted Suicide, Testimony of Dr. James Young, 
Chief Coroner for Ontario, (Oct. 17, 1994) at 20:11-12; 20:13; Brief of the Chief Coroner and Deputy Chief 
Coroner for Ontario to the Senate Special Committee on Euthanasia and Assisted Suicide (Sept. 16, 1994) at 6. 

Dr. James Cairns, supra n. 23 at 20:8 (60 Senior Crown Attomies attending an educational session the Ontario 
Coroner's office ran in the aftermath of the three Ontario cases reviewed earlier "were as divided as anyone else" 
as to the appropriate charge should similar circumstances arise again). 

See Otlowski M., "Mercy Killing Cases in the Australian Criminal Justice System," (1993) 17 Crim. L.J. 10 at 34 
for a similar conclusion relative to Australia. 

As to inquests, see generally the Coroners Act, R.S.O. 1990, c. C. 37; Brief of the Chief Coroner and Deputy 
Chief Coroner for Ontario to the Senate Special Committee on Euthanasia and Assisted Suicide (Sept. 16, 1994). 
As to professional discipline proceedings, see supra, ch 4. 4. 

People First of Ontario v. Bennett; (1991) 5 O.R. (3d) 609 (Div. Ct); (1991) 85 D.L.R. (4th) 174 (rev'd. on other 
grounds) People First of Ontario v. Porter, (1992) 6 O.R. (3d) 289 (C.A.); Fine, S., "Group criticizes care for 
disabled". Globe & Mail (May 13, 1991) at p. A6. 



115 



prescribing morphine instead, even though it was not medically indicated. The coroner's jury 
found that morphine may have been a factor in thirteen of the fifteen deaths it examined at the 
Christopher Robin Home. Its recommendations included mandatory autopsies and blood checks 
where death occurs in palliative care with the use of opiates or other analgesics. Law 
enforcement authorities ultimately concluded that criminal charges were not warranted in 
connection with these events. 

Professional disciplinary proceedings can also result fi*om "end of life" decisions and care 
- what has been termed treating for dying rather than living. Such proceedings could themselves 
lead to criminal charges being laid. In British Columbia, a 1991 coroner's inquiry into the deaths 
in hospital of two elderly patients, one suffering from cancer and the other from amyotrophic 
lateral sclerosis, concluded that both died of morphine overdoses. The coroner strongly urged a 
review by the College of Physicians and Surgeons, the governing body for physicians in the 
province. In its turn, the College was severely critical of the physician involved. Dr. Peter Graff, 
for the method of ordering repeated doses of morphine and Valium with family agreement. 
However, it decided to take no disciplinary action because it concluded the doctor did not intend 
to perform active euthanasia in ordering the medication. After investigation, the Crown also 
decided not to lay criminal charges against the doctor. The College did take the opportunity to 
issue a statement emphasizing that '"active euthanasia' or 'mercy killing' is illegal", with the 
Registrar adding that because "... somebody says this is legal, it doesn't mean to say the 
profession necessarily has to conclude that it's ethical". The College was prepared to accept 
the legal efficacy of the principle of double effect in exonerating the doctor - because he did not 
intend to kill these patients, his actions did not amount to professional misconduct. 

Just prior to the incident involving Dr. Graff, the College had also investigated the actions 
of Dr. Thomas Perry in administering an injection of morpine to his father, who was dying of 
cancer. However, it concluded that the medication (which had been prescribed by the father's 



51 

52 

53 

54 
55 

56 



Supran. 23 at 20:5-20:6. 

Fine, S., "Christopher Robin jurors urge death - review panels", Globe & Mail, (Apr. 17, 1992) at p. A6. See also 
Factum of the Intervener Council of Provincial Organizations of the Handicapped in Rodriguez v. B.C. (A.G.) 
(S.C.C. ), para. 8. 

Dr. Cairns, Deputy Chief Coroner of Ontario, supra, n. 23. See also Dr. James Young, Chief Coroner for Ontario, 
id. at 20:18 (the major reason charges were not laid was because of difficulties in proving the cause of these 
deaths). 

Wilson, D., "Medical regulatory body opposes euthanasia". Globe & Mail (Nov. 28, 1991). 

Rodriguez v. B.C.iAj3.), [1993] 3 W.W.R. 553 (B.C.C.A),per McEachem, C.J.B.C. at 561; Mullens, A., "Society 
must lead in determining Canadian position on euthanasia, doctors say". Can. Med. Assoc. J. 1993; 148: 1363- 
1368 at 1367. 

Wilson, supra, n. 54. 



116 



family physician) had been provided for pain relief and hence, constituted appropriate palliative 
care. The College commended Dr. Perry for his care of his father.^^ 

It was also reported that the disciplinary committee of the Quebec Corporation of 
Physicians and Surgeons recommended that criminal charges not be laid against a physician in 
that province who gave a lethal injection to a dying AIDS patient in accordance with the 
patient's wishes. The patient was suffering severe and intractable pain that even large doses of 
morphine were ineffective to relieve. The College was of the view that the physician "acted in 

CO 

the interests of his patient", and that a jury would not convict. 

As noted previously. Dr. De La Rocha was convicted of administering a noxious substance 
with intent to cause bodily harm. He received a suspended sentence and three years probation. 
He was also subject to professional disciplinary proceedings. He pleaded guilty to the charge of 
professional misconduct. The Discipline Committee of the College of Physicians and Surgeons 
of Ontario imposed a ninety day suspension of Dr. De La Rocha' s certificate of registration, 
with the proviso that he need not serve the suspension if he prepared a proposal for a protocol 
for use in community hospitals concerning the withdrawal of life support from terminally ill 
patients that would be suitable for publication in a professional journal. 

5. EVALUATING THE LIKELfflOOD OF CRIMINAL LIABILITY 

The possibility of charges of unlawful homicide being laid based on care at the end of a 
patient's life is understandably a matter of serious concern among health professionals. 
Disciplinary proceedings can also have very serious repercussions; the penalties that can be 
imposed include suspension from practice and revocation of one's licence to practice. The 
proceedings themselves could lead to criminal charges being laid. Nonetheless, two factors of 
significance must be kept in mind. First, no criminal charges for withholding or withdrawing 
treatment have gone forward in Canada. Second, even where charges have been laid on that 



57 
58 



59 
60 

61 

62 



Mullens A., supra, n. 55 at 1366-1367. 

Snelderman, B., "Don't make it murder, but don't make it legal", Globe & Mail (Aug. 17, 1992) at 15; 
Sneiderman B., "The Rodriguez Case: Where Do We Go From Here - A Multi-Dimensional (6-Layered) 
Approach" (1994) 2 Health Law J. 1 at 9, referencing King M., "Doctor reprimanded for lethal injection," The 
[Montreal] Gazette, (June 19, 1992) at 3. The suggestion regarding the likely outcome of a jury trial has particular 
resonance in Quebec where, when the Criminal Code prohibition of abortion except in very limited circumstances 
was still in place, juries on more than one occasion refused to convict Dr. Morgentaler for performing abortions 
illegally, even though the evidence was clear - see Morgentaler v. The Queen [1976] 1 S.C.R. 616. 

Supra, n. 16 to 19 and accompanying text. 

College of Physicians and Surgeons of Ontario, "Discipline Committee Case Summaries", Members' Dialogue 
(Nov. 1995) at 39 -43. 

Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, S.O. 1991, c. 18, 
s.51 (2). 

By way of recent example, no criminal charges were laid after the inquest at the Christopher Robin Home in 
Ontario, although testimony of medical experts indicated departure(s) from accepted medical practice in placing 
the children who died on a "comfort care" regimen pursuant to which antibiotics were not provided, but morphine 



117 



basis in the United States and the United Kingdom, the physicians have not been convicted.^^ 
With the attention focused recently on assisted suicide and on active and passive, voluntary and 
involuntary euthanasia (often lumped together as one generic topic), it is sometimes difficult to 
remember that courts at least have consistently drawn a distinction between allowing a patient to 
die from an underlying disease or condition and causing that death. The former is non-culpable; 
the latter is culpable conduct. While the foregoing review of cases might give the impression 
that prosecutions against physicians and other health care workers are increasing in both 
frequency and rate of conviction, the cases in which a conviction was secured - Mataya and De 
La Rocha in Canada, in both of which the accused pleaded guilty, and R. v. Cox in the United 
Kingdom — involved active administration of a lethal agent to the patient by the health care 
worker for the sole purpose of bringing about the patient's death. In each of these cases, the 
medication administered (potassium chloride) could not have been for therapeutic purposes. In 
cases where criminal charges were laid on the basis that treatment was unlawfully withheld or 
withdrawn - for instance. Barber v. Superior Court of California in the United States (artificial 
nutrition and hydration) - no conviction was obtained. Indeed, in Barber, the charges were 
dismissed at a preliminary stage. In the few cases that have come before courts, then, they have 
distinguished between affirmative acts and withholding and withdrawing treatment. It has also 
been accepted that where the patient's condition requires it, a physician can prescribe 
medication in doses sufficient to ensure the patient's comfort, even where such doses may have 
the (to the physician) secondary effect of shortening the patient's life. Courts have accorded a 



was— See Factum of the Intervener, Coalition of Provincial Organizations of the Handicapped in Rodriguez v. 
B.C. (A.G.), (S.C.C), para. 8 and n. 53, supra. 



63 



64 



65 
66 



See, e.g. R. v. Arthur, The Times, Nov. 6, 1982; Lancet, Nov. 14, 1981 at 1101; Gunn M.J., Smith J.C. "Arthur's 
Case and the Right to Life of a Down's Syndrome Child" (1985) Crim. L.R. 705 (verdict of not guilty on charge 
of attempted murder laid against pediatrician in connection with injection of morphine-type drug in a child bom 
with Down's Syndrome and other complications, for whom nursing care only had been ordered); R. v. Adams, 
(physician acquitted of a charge of murder for allegedly administering inappropriate or excessively large doses of 
drugs to an elderly patient, shortly after which she died. The judge instructed the jury that if the first purpose of 
medicine (relief of suffering) could not be achieved, the doctor could do everything necessary to relieve pain and 
suffering, even if the measures incidentally shortened life somewhat — Palmer H., '"Doctor Adams' Trial for 
Murder" [1957] Crim L.R. 365; Bedford S., The Best We Can Z)o (Collins, London: 1958); Devlin P., Easing the 
Passing (Bodley Head, London: 1985); Capen K., "Current Legislative and Judicial Approaches: England and the 
United States", in this volume); Barber v. Superior Court of California, 195 Cal. Rptr. 484 (Cal. App. 2 Dist. 
1983). 

Supra, n's.l4, 19; K v. Cox (unreported decision, Ognall J., Winchester Crown Court, Sept. 18, 1992, referenced 
in Airedale NHS Trust v. Bland, supra n. 8 at 368). Dr. Cox was found guilty of attempting to murder an elderly 
patient by administering an injection of potassium chloride. She was very ill, in extreme pain and near death. Pain 
medication had not been effective. Dr. Cox was given a twelve month suspended sentence — Guardian Weekly 
(Sept. 27, 1992) at 3; Richmond D., "Doctor on hot seat in U.K. euthanasia row," CMAJ 1992; 147:1555. It was 
later reported he was given permission to continue working by the General Medical Council, the governing body 
of the medical profession — Reuter, "MD can still work," (Globe & Mail) (Nov. 18, 1992) at A 12. And see R. v. 
Lodwig, where causation could not be established despite the administration of a lethal agent. Death could have 
resulted from the underlying cancer, massive (but ineffective) doses of heroin for pain relief, or the combination of 
lignocalne and potassium chloride Dr. Lodwig ordered. A directed verdict of not guilty was entered. See Brahms, 
D. "The reluctant survivor" (1990) 140 New L. J. 586 (Part 1), 639 (Part 11). 

Supra, n. 63. 

See eg. R. v. Adams supra n. 63. This reasoning was also accepted by the College of Physicians and Surgeons In 
British Columbia In the cases of Dr. Graff allegedly overdosing patients on morphine and Vallum and Dr. Perry 



118 



determinative role to primary or initial motivation. In R. v. Adams and R. v. Arthur, where the 
care could have had a therapeutic purpose (to ensure the patient's comfort with morphine and 
dihydrocodeine injections respectively) and that was the physician's avowed purpose, the 
physicians were acquitted. Courts have thus accepted the legal efficacy of arguments based on 
the principle of double effect. Indeed, this reasoning was explicitly adopted in Malette v. 
Shulman and Nancy B. v. Hotel Dieu de Quebec - in each case, the court affirmed that a patient 
may refuse treatment without intending suicide and that hence, in complying with that refusal, a 
physician would not be assisting in a suicide. 

It has been estimated that 6,000 deaths each day in the United States are planned or 
indirectly assisted, probably through the "double effect" of pain medications or discontinuing or 
failing to start life-prolonging treatments. While differences in health care funding and other 
factors may make such a figure not directly transferrable to Canada and the number itself is not 
certain, such deaths (sometimes referred to as "orchestrated" deaths) certainly do occur here.^° 
Despite this, in the past decade only a tiny number of prosecutions and even fewer convictions 
have resulted fi-om medical care at the end of a life in Canada, the United States and the United 
Kingdom. Against that background, it is apparent that the likelihood of a conviction being 
obtained or even of charges being laid as a consequence of withholding or withdrawing life 
support is very small; the likelihood of a conviction is even smaller. 



providing needed and prescribed pain relief- supra n. 54- 57 and accompanying text. See now Rodriguez v. B.C. 
(A.G.) [1993] 3 S.C.R. 519 at 607 per Sopinka J. 



67 



68 
69 



70 



The Coroner's Office in Ontario relies on this distinction as well in differentiating palliative care and euthanasia. 
Palliative care (including pain medication) is appropriate and indeed, to be encouraged, provided it is solely 
intended to relieve the person's suffering, is administered in response to symptoms and signs of that suffering, is 
commensurate with the suffering, and is not a deliberate infliction of death -per Dr. James Cairns, Deputy Chief 
Coroner of Ontario, supra, n. 21 (CBAO and Medical-Legal Society proceedings). 

(1990) 72 O.R. (2d) 417 (C.A.); supra n. 7. See now Rodriguez, supra, n. 66. 

Quill, T.E., Cassel C.K., Meier D.E., "Care of the Hopelessly 111 — Proposed Clinical Criteria for Physician - 
Assisted Suicide" NEJM 1992; 327: 1380-1383 at 1381 and references cited therein. See also New York State 
Task on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (Task 
Force, NY: 1994) at 147 (it is estimated 70% of the deaths in hospital involve some decision to withhold or stop 
treatment); Editorial, "Withdrawing Life Support. How is the Decision Made?" JAMA 1995; 273: 738-739 
(clinical studies reveal 40% to 60% of ICU [intensive care unit] deaths have been preceded by decisions to 
withheld or withdraw life support). 

This was explicitly acknowledged by McEachem, C.J.B.C. in his dissenting judgment in Rodriguez, supra, n. 55 
at 563: "... there have always been many cases in this and other countries where physicians, in the best interests of 
their patients, have furnished 'palliative' care where unusually heavy doses of pain relieving drugs are 
administered with or without the consent of the patient or surrogates, and with full knowledge that such 
medication may accelerate the death of the patient. As already mentioned, the various goveming bodies of the 
medical professions recognize and approve this ... No records or statistics for this kind of palliative care are kept 
but it is obvious that, assuming a patient is terminally ill and approaching inevitable death, there is only a 
conceptual line which lacks practical reality between physician assisted suicide and palliative care". Dr. James 
Cairns, Deputy Chief Coroner of Ontario, has stated that it would be naive to think physician-assisted suicide did 
not occur in Canada, although it is difficult to prove ("What Kind of Life? What Kind of Death?", supra, n. 23). 



119 



Nonetheless, it must be remembered that the very paucity of precedent that underpins the 
prediction that prosecution and conviction are unlikely also means that the prediction itself is not 
necessarily reliable. There are few cases in any of the jurisdictions considered clarifying the 
potential criminal liability of physicians and other health care workers for "end-of-life" 
decisions and care. As the Law Reform Commission of Canada noted more than a decade ago: 

The lack of legal proceedings is, paradoxically, for members of both the legal and medical 
professions, a serious handicap. Indeed, case-law and the accumulation of legal precedents make it 
possible at a certain point in time to determine the degree of social tolerance and, on the practical 
level, the exact content and intensity of legal duties. While it is probably relatively easy to establish 
the standard of behaviour that a Canadian driver must meet to avoid being charged with criminal 

71 

negligence, it is, in contrast, extremely difficult to do so for a doctor or a nurse. 

That observation remains true today. There is little health care providers can look to for 
guidance. There are supporting statements from professional organizations, such as the Joint 
Statement by the Canadian Medical Association, Canadian Nurses Association, Canadian 
Healthcare Association and Catholic Health Association of Canada confirming that m certain 
mstances, resuscitation may not be indicated (subject to the patient's right to accept or refuse 
treatment). An earlier version of the Code of Ethics of the Canadian Medical Association 
stated that for a "dying patienf , an ethical physician "... will allow death to occur with dignity 
and comfort when death of the body appears to be inevitable". The wording of such statements 
is frequently very general, but when taken together with the ahnost total absence of criminal 
prosecutions arising out of the care provided in and around the end of a patient's life, it is 
apparent that a literal and restrictive reading of these sections of the Criminal Code is clearly 
inappropriate, unwarranted and highly unlikely to prevail in this context. 



L.R.C.C. Working Paper 28, supra, n.9 at 22. 



72 

CMA Policy Summary, "Joint Statement on Resuscitative Interventions (Update 1995)", CMAJ 1995; 153: 
1652A-1652C. 

73 

Canadian Medical Association Code of Ethics and Guide to the Ethical Behaviour of Physicians, cl. 18, (C.M.A., 
Ottawa: 1980). 



CHAPTER 7 



CONSTITUTIONAL RIGHTS 



1. THE REACH OF THE CHARTER 

The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada' It 
sets out certain rights and freedoms that are fundamental to Canadian society. As such, they are 
constitutionally guaranteed, "...subject only to such reasonable limits as can be demonstrably 
justified in a free and democratic society". The purpose of the Charter is "...the unremitting 
protection of individual rights and liberties". When a claimant establishes that state action limits 
a Charter right or freedom, the burden of proof shifts to the government. The Supreme Court of 
Canada has held that in order to limit Charter rights, it must be demonstrated that the 
government objectives in doing so are sufficiently important to warrant overriding a 
constitutionally protected right, and that its chosen means are reasonable and demonstrably 
justified. The onus of proof is civil, but requires a very high degree of probability since it is 
constitutional rights that are being infringed. The Court has developed different approaches to 
the justification required depending on the context, such that if the government is the "singular 
antagonist" of an individual claiming an infringement of Charter rights, the challenged provision 
will be scrutinized with more rigour than in instances where Parliament or the legislatures have 
had to mediate and strike a balance among different groups in formulating legislation or policy. 
If a challenged law or governmental act is found to violate a Charter right or freedom and cannot 
be justified under section 1, then a court will declare the impugned law to be of no force or 

Q 

effect, or in some instances, may craft a narrower remedy. 



1 The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982, which is Schedule B of the 
Canada Act 1982, (U.K.) 1982, c. 1 1 (hereafter, the Charter). 

2 Ids.l. 

3 Hunter v. Southam (1984) 1 1 D.L.R. (4th) 641; [1984] 2 S.C.R. 145, 155-156. 
' Id. 

/tv. OflJbj [1986] 1 S.C.R. 103. 

Id at 137-138. 

AG. Quebec v. Irwin Toy Ltd [1989] 1 SCR. 927, 993-994; K v. Swain [1991] 1 S.C.R. 933, 983; R.J.R. 
MacDonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199, 269. 

Constitution Act, 1982, supra n. 1 , ss.52( 1 ), 24( 1 ). 

[121] 



122 

The Charter appHes to both levels of government, federal and provincial.^ As a matter of 
constitutional law, both may legislate with respect to health care (depending on the 
circumstances and content of the legislation), as "health", while primarily within provincial 
jurisdiction, is not a single matter assigned by the Constitution exclusively to one level of 
government. The Charter applies not just to Parliament and the legislatures, but also by its own 
terms to "government", such that bodies exercising statutory authority must also adhere to its 
requirements. While the Charter applies to government activity, it does not apply directly to 
private individuals acting as such. As a constitutional instrument, the Charter regulates the 
relationship between persons and the state. 

In the context of health care, modem medical realities are such that the complex and 
sophisticated technology associated with life-sustaining treatment is most often provided to 
patients in hospitals, nursing homes or other institutional settings, especially if the patient is 
decisionally incapable. Although the great majority of hospitals in Canada are public 
institutions, are fimded by government to a significant extent and are subject to wide-ranging 
government control through statutes, regulations and executive and administrative acts, public 
hospitals do not form part of "government" within the meaning of the Charter. The Supreme 
Court of Canada has held that even actions and policies adopted at the level of the hospital board 
are not subject to Charter review. It is clear that if hospitals are not engaged in governmental 
activity even when making policy and propounding regulations at the board level, they certainly 
will not be considered to be "government" when discharging their responsibilities in the day-to- 
day care of patients. This would be even more true of individual medical practitioners in their 
dealings with patients. Despite govemment-fiinded health insurance and extensive government 
regulation (albeit exercised through self-governing bodies of the profession, to whom the ability 
to control physicians' conduct has been delegated in large part ), the relationship between 



10 

11 

12 



13 



14 
15 



Charter, supra n. 1 , s.32. 

R.J.R. MacDonald, supra n. 7 at 246; Schneider v. R. [1982] 2 S.C.R. 1 12, \42per Estey J.; R. v. Wetmore [1983] 
2 S.C.R. 284; K v. Hauser [1979] 1 S.C.R. 984; Labatt Breweries of Canada v. AG. Canada[\9S0] 1 S.C. R. 914. 

See generally Hogg P., Constitutional Law of Canada (3rd ed) (Carswell; Toronto: 1992). 

Retail, Wholesale and Department Store Union v. Dolphin Delivery [1986] 2 S.C.R. 573; McKinney v. U. Guelph 
[1990] 3 S.C.R. 229 (universities imposing or agreeing with faculty associations to mandatory retirement of 
faculty and librarians at age 65 are not "government" and hence, the Charter guarantee agains discrimination on 
the basis of age is not engaged). 

StOjffrnan v. Vancouver General Hospital [1990] 3 S.C.R. 483 (Charter did not apply to hospital's policy of 
mandatory non-renewal of physicians' admitting privileges at age 65. The provision of a public service, even one 
as important as health care, did not per se amount to a governmental ftinction under s. 32 of the Charter) 

In Ontario, see the Health Insurance Act R.S.O. 1990, c.H.6. 

See discussion of the Regulated Health Professions Act, S.O. 1991, c. 18, supra, ch. 4. 4. 



123 

physician and patient is regarded as essentially private. As such, it, too, would be beyond the 
direct reach of the Charter. 

However, as noted previously, statutes and regulations are paradigmatic "government 
activity" within the meaning of section 32 of the Charter, and therefore must conform to it not 
only in their terms but in their application. Consenting to or refusing treatment on behalf of 
decisionally incapable others is now subject to a comprehensive legislative regime in Ontario. ^^ 
Because of this, some actions and decisions taken by hospitals, health care workers, substitute 
decision-makers and others may still come within the ambit of the Charter if it can be shown that 
some form of government action is involved. In Re B.(R.) v. Children's Aid Society of 
Metropolitan Toronto, the Supreme Court of Canada had to determine the scope and effect of 
the Charter rights of the child concerned and those of her parents, who had refused a medically 
recommended blood transfusion for her, because in bringing the matter to court for a 
determination of whether the child was "in need of protection", the Children's Aid Society was 

18 

acting pursuant to statutory provisions governing child protection. 

As the provinces increasingly place decision-making about health care for incompetent 
patients under statutory control through legislation governing advance directives and substitute 
decision-making, then the decision-making processes mandated by statute will similarly fall 
within the purview of the Charter. Even where the Charter does not apply, it has been held that 
Charter values should inform the interpretation of the law.'^ Charter principles show the respect 
which the law accords autonomy, self-determination and bodily integrity as well as the value 

20 

attached to life and liberty. 



16 



17 



18 



19 

20 



On the relationship between physician and patient, see Norberg v. Wynrib [1992] 2 S.C.R. 226; Mclnemey v. 
MacDonald [1992] 2 S.C.R. 138. 

Health Care Consent Act, 1996 being Schedule A to the Advocacy, Consent & Substitute Decisions Statute Law 
Admendment Act, 1996 S.O. 1996, c.2; Substitute Decisions Act, S.O. 1992, c. 30 as amended; Child and Family 
Services Act, R.S.O. 1990, C.l 1 as amended. 

[1995] 1 S.C.R. 315. See also Fleming v. Reid, (1991) 4 O.R. (3d) 74 (C.A.): the Charter applied to the decision- 
making process used to detemiine the psychiatric treatment appropriate for two incompetent patients because a 
statutory scheme existed to govern situations where the attending physician wished to administer certain treatment 
to patients who had become decisionally inc^able but had refused the medication while still competent. Hence 
the decision-making processes of the statutory review board, the physician and the institution where the patients 
were held were subject to some Charter review, albeit indirect, because the Charter applied to the statute at issue, 
the Mental Health Act. See also Re L.D.K.: Children 's Aid Society of Metropolitan Toronto v. K. and A: (1986) 48 
R.F.L (2d)164 (Ont. Prov. Ct.) and Re McTavish and Director, Child Welfare (1987 32 D.L.R. (4th) 394 (Alta., 
Q.B.).However, relative to more classically "private" disputes, albeit with a statutory basis, see Young v. Young 
[1993] 4 S.C.R. 3 at 90, 100 per L'Heureux-Dub6 J. 

Manning V. Hill (\995) 126 D.L.R. (4th) 129(S.C.C.). 

See Manoirde la Pointe Bleue (1978) Inc. c. Corbeil [1992] R.J.Q. 712, 722 (C.S.), quoting with approval from 
Baudouin, J.L. "Le droit de refuser d'dtre traitd", in Abella R., Rothman R. (eds.) Justice Beyond Oryvell (Les 
Editions Yvon Blais: 1985) at 209. See also Hill v. Canada (A.G.) [1988] 1 S.C.R. 513, 558 per L'Heureux-Dub6 
J. (even where there is no reliance on any specific section of the Charter, the values embodied in the Charter must 



124 
The Charter can also be invoked if the conduct in question could or did result in criminal 

21 

charges being laid. A defendant to a criminal charge may raise any constitutional defect in the 
law under which the charge is laid, whether or not the defendant could personally exercise that 
Charter right. 

2. THE CHARTER RIGHTS 

Charter rights and freedoms include the right to life, liberty and security of the person and 
the right not to be deprived thereof except in accordance with the principles of fundamental 
justice under section 7, freedom of conscience and religion under section 2, the right to equality 
before and under the law and to the equal protection and benefit of the law under section 15, and 
the right not to be subjected to any cruel and unusual treatment or punishment under section 12. 
Section 36 of the Constitution Act, 1982 also provides that the federal and provincial 
governments are committed to promoting equal opportunities for the well-being of Canadians 
and to providing essential public services of reasonable quality to all Canadians. While the 
phrasing of this last provision is more hortatory than obligatory, it is an important commitment 
to bear in mind when considering access to health care issues. 

Section 7 — The Right to Life, Liberty and Security of the Person 

Some rights in decision-making about medical treatment have clearly been accepted as 
being protected by the Charter in addition to being recognized at common law. In Rodriguez v. 
B.C. (A.G.), the Supreme Court of Canada confirmed that individuals have the right to consent 
to treatment and also to refuse any medical procedures, even those that are necessary to sustain 
life." 

Other attempts to assert rights under section 7 have equally clearly been rejected as having 
no constitutional basis. Thus, again in Rodriguez, a narrow majority of the Court (Sopinka, 
LaForest, Gonthier, lacobucci and Major JJ.) held that the Criminal Code prohibition on aiding 



be given preference over an interpretation which would run contrary to them (interpreting the Unemployment 
Insurance Act). 



21 



22 
23 
24 

25 



This possibility was sufficient to engage the Charter in Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519. See also 
Singh V. Minister of Employment and Immigration [1985] 1 S.C.R. 177, 101 per Wilson J. (section 7 must include 
freedom from the threat of physical punishment as well as the punishment itself). In this context, the possibility is 
a real one — see Report of the Sub-Committee on the Recodification of the General Part of the Criminal Code of 
the Standing Committee on Justice and the Solicitor General, First Principles: Recodifying the General Part of the 
Criminal Code of Canada (House of Commons, Ottawa: Feb. 1993) at 55. 

K V. Big M Drug Mart [1985] S.C.R. 295, 314; K v. Wholesale Travel Group [1991] 3 S.C.R. 174. 

Part III, Constitution Act, 1982, supra, n. 1. 

Supra n. 1, s. 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived 
thereof except in accordance with the principles of fiindamental justice." 

Supra n. 21 at 598; see also B.(R), supra n. 18 at 432 per lacobucci and Major JJ. (while individual can forego any 
medical procedures for herself, it is quite a different matter to speak for another who is decisionally incapable). 



125 

suicide did not contravene Sue Rodriguez' constitutional rights. While agreeing that the law 
did deprive Rodriguez of autonomy over her person and caused her psychological stress and 

27 

physical pain, the majority also held that any resulting deprivation was not contrary to the 
principles of fundamental justice and therefore did not breach the Charter. Human dignity is an 
underlying principle basic to society, but in itself it is not a principle of fundamental justice. ^^ In 
identifying principles of fundamental justice and determining whether they have been breached, 

29 

the state's interests must be balanced with those of the individual. The prohibition fulfills the 
government objective of protecting the vuhierable; it is grounded in the state interest in 
protecting life. There is no new consensus in society "opposing the right of the state to regulate 
the involvement of others in exercising power over individuals ending their lives";... "[to] the 
extent there is consensus, it is that human life must be respected and we must be careful not to 
undermine the institutions that protect it." Concerns about abuse and the insurmountable 
difficulties involved in creating effective safeguards mean that a blanket prohibition is not 
arbitrary or unfair. As for Charter equality rights, the Court held that any breach of Rodriguez' 
equality rights was justified under section 1 of the Charter as a reasonable limit imposed by law 
and demonstrably justified in a free and democratic society. Further, the law did not breach the 
prohibition on cruel and unusual treatment. 



26 
27 
28 
29 
30 



31 

32 
33 



Id. 

Id at 598. 

Id at 592. 

Id at 592-593, 594. 

Id at 585, 608. Basing constitutional rights on consensus is troubling, as the Charter is to protect individual rights, 
and often minority rights, against the majority. As for consensus relative to the blanket prohibition on assisted 
suicide, it does not exist. See Mullens, A., Timely Death. Considering Our Last Rights (Knopf Canada, Toronto: 
1996) at 27 and Sneiderman B., "The Rodriguez Case: Where Do We Go From Here - A Multi-Dimensional (6- 
Layered) Approach" (1994) 2 Health Law J. 1 at 10 relative to public opinion polls. Relative to physicians in 
Canada, see Kinsella D, Verhoef M., "Alberta Euthanasia Survey: 1. Physicians' opinions about the morality and 
legalization of active euthanasia" CMAJ 1993;(148(11):1921-1926; Kinsella D., Verhoef M., ""Alberta 
Euthanasia Survey: 2. Physicians' opinions about the acceptance of active euthanasia as a medical act and the 
reporting of such practice", CMAJ 1993; 148(11): 1929-1933; Verhoef M., Kinsella D., "Alberta Euthanasia 
Survey: 3-year follow-up", CMAJ 1996; 155(7): 885-890; Searles N., "Silence doesn't obliterate the truth: A 
Manitoba survey on physician assisted suicide and euthanasia", unpublished paper prepared for the Manitoba 
Association for Rights and Liberties (Mar. 7, 1995); Wysong P., Doctors divided on euthanasia acceptance. 
Medical Post (Oct. 8, 1996) at 1, 90 (in a recent national survey, close to 24% of responding physicians said they 
would be willing to practice active euthanasia and 23% assisted suicide if they were legalized. Almost 55% would 
practice neither, and 20-22% were uncertain). Relative to Australian physicians, see Part II in this volume; in the 
United States, see eg. Bachman et al., "Attitudes of Michigan Physicians and the Public Toward Legalizing 
Physician-Assisted Suicide and Voluntary Euthanasia" NEJM 1996; 334: 303-309; Lee et al., "Legalizing 
Assisted Suicide — Views of Physicians in Oregon" NEJM 1996; 334: 310-315. There is neither consensus to 
change the law nor to keep it. 

Id at 607-608. 

Idat612-613. 

Idat611. 



126 

The dissenting judges grounded their views on sections 7 and 15 of the Charter. 
McLachlin and L'Heureux-Dub^ J J. held that the law contravened the right to security of the 
person included in section 7 of the Charter and was not saved under section 1 . A legislative 
scheme that makes suicide lawful but assisted suicide unlawful denies some people the choice of 
ending their lives solely because they are physically unable to do so, such that they cannot 
exercise the autonomy over their bodies that others can.^"* The denial of the ability to end their 
lives is arbitrary, infringing the right in a way that cannot be justified given the objective of the 
legislation. Consequently, it is a limit on the right to security of the person that does not 
comply with the principles of fundamental justice. Lamer CJ. held that the prohibition on 
assisting suicide contravened the equality rights guaranteed under section 15 of the Charter 
because of its disparate effect on the choices open to those physically unable to commit suicide 
when others are at liberty to do so. Cory J. found the law invalid as contravening both sections 
7andl5oftheCharter.^^ 

Section 7 does, then, "encompass a notion of personal autonomy involving, at the very 
least, control over bodily integrity free from state interference and freedom from state-imposed 

38 

psychological and emotional stress." The "protection of individual autonomy and self- 
development" has been identified as one of the fundamental or "core" values in Canadian 
society.^^ The scope given this right, however, is limited by the Court's reading of the third right 
protected by section 7, the right to life. Sanctity of life excludes the involvement of others in 
carrying out a choice to end one's life The state acts properly and can limit individuals' right 
to security of the person in seeking to protect the lives of those who are vulnerable. 

Section 15— The Equality Rights 

Section 15 has been interpreted as a guarantee of substantive, not just formal equality. 
Both physical and mental disability are specifically included in the grounds listed in section 
15(1).'*^ The majority in Rodriguez chose not to pass on this issue, holding that any breach of 



34 
35 
36 
37 
38 
39 

40 
41 

42 



Id at 618. 

Id at 621. 

Id at 557. 

Id at 630-631. 

Id at 587-588 per Sopinka J. 

RJR MacDonald Inc., supra n. 1 per LaForest J. at 280, quoting Dickson CJ. in K v. Keegstra [1990] 3 S.C.R. 697 
at 762-763. 

Rodriguez, supra n. 21 at 585. 

Andrews V. LawSocietyofB.C. [1989] 1 S.C.R. 143 at 171. 

Supra n. 1. Section 15(1) provides: "Every individual is equal before and under the law and has the right to the 
equal protection and benefit of the law without discrimination and, in particular, without discrimination based on 
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." 



127 

Rodriguez' equality rights was justified under section 1. For Lamer CJ. and Cory J., the law 
breached Rodriguez' equality rights in its appHcation: it prevents people physically unable to 
end their lives unassisted from choosing to do so when that is an option in principle available to 
other members of the public without contravening the law. The burden the law imposes is its 
interference with self-determination and autonomy. McLachlin and L'Heureux-DubJ JJ. 
concluded that Rodriguez did not engage section 15, as it was not a case about discrimination."*^ 
This view is problematic. One can understand a concern not to have the development of section 
15 jurisprudence skewed by a focus on death and dying when the section is about life and living, 
and promoting equal opportunities in life for those who have often been excluded. Nevertheless, 
as lacobucci J. said in Thibaudeau v. Canada: 

"fr]he purpose of section 15 is to protect human dignity by ensuring that all individuals are 
recognized at law as being equally deserving of concern, respect and consideration. Consequently, it 
is the effect that an impugned distinction has upon a claimant which is the prime concern under 

The effect of this law is to deprive someone physically disabled of another ability: that of 
making a fimdamental decision about the course of his or her life that is open to those who are 
not so disabled. While the deprivation here is essentially of the ability to exercise another 
Charter-protected right, the right to liberty, to security of the person and to make autonomous 
choices, that does not mean section 15 is not engaged. Indeed, the implications if it does not 
apply to an instance of inequality clearly based on physical disability are troublmg. 

Section 2(a) — Freedom of Religion and Conscience 

Since individuals are free to choose to reftise treatment without justifying that decision, 
in practical terms it should not be necessary to rely on this right to support such a decision, 

49 

although it certamly could do so. Relying on the right to freedom of religion to make a 
decision refiismg medically recommended treatment on behalf of someone who is decisionally 



43 
44 
45 
46 
47 

48 
49 



Supra n. 21 at 612-613. 

Supra n. 36 and 37. 

Id at 552, 554. 

Id at 616. 

[1995] 2 S.C.R. 627 at 701. Further, discrimination must be assessed from a subjective as well as an objective 
perspective— £ga/7 v. Canada [1995] 2 S.C.R. 513 at 604 (per Cory J.); 553 (per L'Heureux-Dub6 J.). 

Rodriguez, supra n. 25. 

R. V. Big M Drug Mart supra n. 22 at 336. Section 2(a) of the Charter provides: "Everyone has the following 
fundamental freedoms: (a) freedom of conscience and religion" (supra, n. 1). 



128 

incapable raises different problems and is considered ftirther in connection with the 
constitutional rights of those who are not capable.^^ 

Section 12 — Freedom from Cruel and Unusual Treatment or Punishment 

It has on occasion been held both that the provision of life-sustaining treatment and 
withdrawing it would be "cruel and unusual treatment" within the meaning of this section.^ ^ 
These cases, however, sketch the reference to section 12 so briefly that it is difficult to assess the 
merits of the conclusion. It appears to have been added more as an afterthought than as essential 
to the holding. In Rodriguez, the majority held that, even if the section had any application 
outside a penal or quasi-penal context, it was not infringed by a blanket prohibition of an activity 
without more. Even if the section does apply to medical treatment, given the need for the law 
or actions in question to be egregious in the extreme to trigger the section, it is unlikely it will 
have much application in practice in this context. Statutory and common law safeguards for 
the rights of patients, mechanisms for obtaining consent from substitute decision-makers and 
hospital and professional review procedures mean that treatment is unlikely to be provided or 
foregone in a manner that would contravene the section. 

Affirmative Obligations 

A consideration of whether the Charter or section 36 of the Constitution Act, 1982 imposes 
any afffirmative obligations on the state to provide needed health care services (such as adequate 
palliative care) is beyond the scope of this paper. It would be a difficult argument to make, but 
the constitutional provisions should at least operate as guideposts in determining policy 
directions and choices. 



50 

si 



52 
53 

54 



Infra, n.69ff and accompanying text, "Decisionally Incapable Patients." 

The section provides: "Everyone has the right not to be subjected to any cruel and unusual treatment or 
punishment" (supra, n. 1). See tg.Re McTavish and Director, Child Welfare Act, supra n. 18 at 409 (s. 12 was 
never intended to apply to medical treatment generally, especially in the context of providing essential medical 
services under the child protection statute); Corbeil, supra n.20 at 722 and Re Goyette: Centre de Services Sociaivc 
du Montreal, [1983] C.S. 429 at 436 (s. 12 authorizes rejection of treatment); New Brunswick (Minister of Health) 
V. R.B. and SB. (1990) 106 N.B. (2d) 206, 210 (Q.B.) (foregoing antibiotic treatment for an infection in a severely 
disabled child would contravene s. 1 2). 

Supra n. 21 at 611. 

R. V. Miller and Cockriel, [1977] 2 S.C.R. 680, 686 (pre-Charter), accepted in R. v. Smith [1987] 1 S.C.R. 1045, 
1072, 1089, 1109(post-C;M[r/er). 

See generally Jackman M., "The Constitution and the Regulation of New Reproductive Technologies", Overview 
of Legal Issues in New Reproductive Technologies, Research Studies, Vol. 3 (Supply and Services, Ottawa: 1993) 
at 26 fif; Jackman M., "Women and the Canada Health and Social Transfer: Ensuring Gender Equality in Federal 
Welfare Reform", (Nat'l Ass'n of Women and the Law, Ottawa: 1996) at 17 and n.68; but relative to a Charter 
right to health care generally, see contra Canadian Bar Association, What's Law Got To Do With It? Health Care 
Reform in Canada (Canadian Bar Ass'n., Ottawa: 1994) at 19-26. See also Masse v. Ontario (Ministry of 
Community and Social Services) [1996] O.J. No. 363 (QL) (Div. Ct.) (Charter does not provide the right to 
minimal level of social assistance). 



129 

3. COMPARATIVE CONSTITUTIONAL LAW: THE UNITED STATES 

Three years after Rodriguez, the consensus in Western democracies opposing assisted 
suicide that the majority rehed on is no longer so solid. The sharply divided decisions and 
narrow majorities when courts and government committees and task forces address the issues 
evidence this. Not only have physician-aided suicide and voluntary euthanasia been legalized in 
one state in Australia and accommodated without legal liability (although not legalized) in the 
Netherlands, but in two recent American appellate judgments, courts have held that the right to 
assisted suicide is constitutionally protected. Both are being appealed further to the United 

57 

States Supreme Court. In Compassion in Dying v. State of Washington, the Court of Appeals 
(Ninth Circuit) sitting en banc considered a challenge to the state law prohibiting assisting 
suicide. It held that terminally ill competent adults who wish to hasten their own deaths have a 
constitutionally protected liberty interest in determining the time and manner of their deaths that 

58 

includes a right to physician assistance. The question is not whether there is a "right to commit 
suicide"; the liberty interest at issue is more accurately described in broader terms as the "right 
to die" or "controlling the time and manner of one's death" . While there are countervailing 
state interests, particularly in preserving human life, in the circumstances of this case none 
outweighed the constitutional right asserted. In the court's view, much of what is currently 
acceptable medical practice cannot logically be distinguished fi-om the prohibited conduct.^^ 
Consequently, the court concluded the state law prohibiting aiding another person to commit 
suicide,as applied to the prescription of life-ending medication for use by terminally ill, 
competent adult patients who wish to hasten their deaths, violated the Due Process Clause of the 
Fourteenth Amendment to the United States Constitution. 



55 



56 



57 
58 

59 
60 

61 



But see contra/?, v. United Kingdom, Application No. 10083/82 (July 4, 1983) D.R. 33, referenced in Rodriguez, 
supra n. 21 at 602-603. 

See Sneiderman B., Verhoef M., "Euthanasia in the Netherlands: A Report for the Ontario Law Reform 
Commission" in this volume; Rights of the Terminally III Act, No. 12 of 1995, Northern Territory of Australia; 
Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996) cert, granted {sub. nom. Washington v. 
Glucksberg), 65 U.S.L.W. 3218 (Oct. 8, 1996); Quill v. Vacco 80 F.3d 716 (2d Cir. 1996) cert, granted 65 
U.S.L.W.3218(Oct. 8, 1996). 

Id. 

79 F.3d 790 (1996) at 838, rev'g. 49 F 3d 586 (9th Cir. 1995), rev'g. 850 F.Supp. 1454 (W.D. Wash. 1994) . The 
decision to hear the matter en banc is reported at 62 F.3d 299 (9th Cir. 1995). 

Id at 802. 

Currently accepted practices include providing medication to ease the discomfort in dying of a patient who has 
refused artificial nutrition and hydration, or providing medication to terminally ill patients with the knowledge 
that it will have the double effect of hastening death. 

In arriving at this conclusion, the court necessarily overruled the Oregon District Court decision in Lee v. State of 
Oregon. (891 F. Supp. 1429 (D. Oregon 1995). Lee had held that the Oregon Death with Dignity Act, a voter 
initiative that permitted doctors to prescribe medications for terminally ill patients for use in ending their lives, 
violated the Equal Protection Clause of the Fourteenth Amendment because it deprived lemiinally ill persons of a 



130 

One month later in April, 1996, the United States Court of Appeals (Second Circuit) in 
Quill V. Vacco held that New York statutes penalizing assistance in suicide were unconstitutional 
to the extent they prohibited physicians from prescribing medications to be self-administered by 
a mentally competent, terminally ill person in the final stages of his terminal illness.^^ In 
Compassion in Dying, the court had chosen to rest its decision on the liberty interest protected 
by the Due Process Clause of the Fourteenth Amendment and did not reach the question of 
whether the statute also breached the Equal Protection Clause. In contrast, in Quill the court 
based its decision on the Equal Protection Clause, avoiding the Due Process Clause so as not to 
become embroiled in controversy over whether it was impermissibly recognizing "new rights" 
without proper foundation in the language of the Constitution. The court concluded that New 
York law does not treat equally all those who are in the final stages of fatal ilhiess and wish to 
hasten their deaths. The comparator groups, then, were terminally ill patients. Those who are 
dependent on life support systems can direct their removal and die, while those who are 
similarly situated except for the use of life-sustaining equipment cannot similarly hasten their 
deaths by self-administering prescribed drugs The court concluded that the distinctions made 
by state law with regard to such persons do not further any legitimate state purpose and 
accordingly, to the extent noted above, the law lacks any rational basis and violates the Equal 
Protection Clause. 

The court arrived at this conclusion despite the fact that the New York State Task Force on 
Life and the Law had considered the question of legalizing assisted suicide and recommended 
against it in 1994, largely out of concern for the vuhierable (in terms of decisional capability and 
voluntariness of choice given potentially unrecognized depression, improperly managed pain, 
and marginalized position in society). As in the Washington case, the court concluded that 
given what is ah-eady permitted at common law and by statute in relation to the withdrawal of 
life-sustaining treatment, the statutes do not serve any of the state interests put forward, 
including protection of the vuhierable. In its view, there is no defensible distinction between 
what patients, their surrogates and physicians can decide to do now in terms of withdrawing life- 



benefit afforded the non-terminal ly ill. The Court of Appeals overturned this decision, holding that the right to 
assisted suicide was a benefit and not a burden (supra n. 58 at 838). 



62 
63 
64 

65 



66 
67 

68 



80 F.3d 716 (2d Cir. 1996); rev'g. 870 F.Supp. 78 (S.D.N.Y. 1994). 

Supra n. 58 at 838. 

Supra n. 62 at 725 - 727. This is an argument with a long history in American constitutional jurisprudence — see 
eg. Bowersv. HardwickAn US 186, 191; 106 S.Ct. 2841. 

Id at 727, 731. Comparing "similarly situated" groups is the sine qua non of American equal protection analysis. 
Although that approach has been rejected in Canada, it is still acknowledged that equality is a comparative 
concept - Andrews v. LS.B.C. supra n. 41 at 164. Deciding what groups to compare - i.e. what the relevant 
characteristics are - can be determinative of the outcome. 

Id at 731. 

New York State Task Force on Life and the Law, When Death Is Sought, Assisted Suicide and Euthanasia in the 
Medical Context (The Task Force; New York: 1994). See especially 72 - 74. 

Quill, supra n. 62 at 730-73 1 . 



131 

sustaining treatment and terminally ill patients hastening death by the self-administration of 
prescribed drugs. Thus, it held that physicians who are willing to do so can prescribe drugs to 
be self-administered by mentally competent patients who seek to end their lives during the final 
stages of a terminal ilhiess. 

4. DECISIONALLY INCAPABLE PATIENTS 

In Canada, then, there is a constitutional right to forego even life-sustaining treatment, and 
no constitutional right to assistance in ending one's own life. But what of decisionally incapable 
patients? There is nothing in the Charter per se to change the appropriate considerations in 

70 

decision-making discussed previously. If anything, the Charter supports the choice of guidance 
principles evident in the statutes. The Charter's emphasis on the dignity of the person and 
protecting and promoting autonomy is consistent with legislation recognizing advance 
directives, and in the absence of any such formal document, according primacy to the 
individual's wishes expressed while still competent. The same can be said with respect to the 
application of the best interests test. However, where there is no reliable evidence of what the 
patient would have wanted, arguments about self-determination and autonomy that support 
abiding by the patient's wishes do not apply. 

Difficulties can arise when there is disagreement over which or whose constitutional right 
applies or prevails in a particular situation. Parents' Charter rights to freedom of religion and to 
liberty in nurturing and raising a child cannot outweigh the child's right to life and security of 
the person. But what of the Charter rights of the decisionally incapable person? In Eve, an early 
Charter case, the Court held that the Charter does not impose a duty on courts to choose between 
two alleged constitutional rights at the behest of a third party just because the individual cannot 
choose for herself 

There have been many attempts to develop a principled approach to decision-making in 

73 

those instances. Whether one agrees or disagrees with any of the frameworks proposed, what 



69 

70 
71 



72 



73 



Id at 725-731 

See discussion, chs. 3, 4. See also ch. 11. 

B.(R.) V. Children's Aid Society of Metropolitan Toronto, supra n.l8. Although the Court was divided on the 
jqjpropriate way to analyze the conflicting rights, and indeed whether a restriction on the parents' right to refuse 
medically indicated treatment, including a blood transfusion, infringed the parents' constitutionally protected 
rights at all, it was unanimous that the child protection proceedings did not breach the Charter and that the child 
should receive the medical treatment. 

Re Eve, (1987) 31 D.L.R. (4th) 2, 37 (S.C.C.) (Charter could not be relied on to support a claim that a 
developmental ly handicapped young woman should or should not be subject to a non-therapeutic sterilization). 

See, e.g., Callahan, D., "Terminating Treatment: Age as a Standard", 17 Hastings Center Report (Oct./Nov. 1987) 
at 21-25 (positing age - in the sense of a "biographical" not biological life - as a criterion to use in determining 
what treatment is appropriate); Wanzer, S. et al., "The Physician's Responsibility Toward Hopelessly 111 Patients" 
310 N.E.J.M. 955-959 (1984) at 958 (suggesting that for elderly patients with mild impairment of competence, 
physicians should have freedom from discomfort as their main goal, and that emergency resuscitation and 



132 

they do show very clearly is the profound difficulty of making this sort of judgment about 
another's life, even for those who have thought long and deeply about the issues. As Laurence 
Tribe has pointed out, there is a tension between the right to live and die with dignity and the 
right of the disabled not to be discriminated against that is hardest to reconcile when there is no 
possibility for self-determination. The issue can be looked at in another way as well - we want 
to protect the right to life and the sanctity of life as a general value, but we also want to feel 

75 

justified in letting life end in individual instances. The fact that the decision is not that of the 
person concerned but rather is that of another makes the attempt to analyze this question in 
constitutional terms very difficult. The issues are substantially different from those that arise 
with respect to decisionally capable individuals or once-competent individuals whose wishes are 
known. 

There are limits to a court's power to accomplish its goals of affirming individual 
autonomy and enabling individuals to protect their dignity. There are also serious possibilities 
for abuse and legitimate concerns with how to limit the rights themselves once recognized, 
particularly if their indirect implementation is accepted. It seems fair to conclude that similar 
concerns with inherent limitations on courts and with what is unknown and unknowable 
underlie the Supreme Court of Canada's comment in Re Eve that it would not choose between 
two constitutional rights asserted on behalf of an incompetent individual at the behest of a third 
party. At the same time, resolving the issue by not answering at all will not suffice. That is a 
resolution for the court only, not for the individual concerned. Maintaining the status quo may 
itself mean maintaining a suffering existence and no more. Courts have a place here, but the 
need for their decisions to be informed by caution is great. One way in which Canadian courts 
might affirm a cautious approach is by the framework within which they choose to analyze the 
questions. Constitutionalizing the individual's rights brings with it its own set of implications 
about the nature and weight of those rights that may not be sensible in this context. 

For competent patients and once-competent patients whose preferences with respect to 
treatment are known, constitutionalizing a right to be free from state interference with their 
treatment decisions is important, even if that right is simply a reiteration of their common law 
right and limited to instances of state-sanctioned treatment or decision-making about treatment. 
Constitutional status ensures both the right's durability and that departures from it must be taken 

77 

very seriously indeed. Caution is called for when considering how to analyze whether to allow 
the withholding or withdrawal of life-sustaining treatment from a decisionally incapable 
individual who never was competent or in relation to whom there is no clear indication of what 
he or she would have wanted. The abstraction that is a necessary part of constitutional analysis 



intensive care should be provided sparingly); Emmanuel, E., "A Communal Vision of Care for Incompetent 
Patients", 17 Hastings Center Report 15 (Oct./Nov. 1987) (community determination at a macro-level). 



74 
75 
76 
77 



Tribe, L., American Constitutional Law (2nd. ed.) (West Publishing; Saint Paul: 1987) at 1598, n. 27. 

Callahan, D., "Autonomy: A Moral Good Not a Moral Obsession" (1984) 14 Hastings Center Report 40. 

Supra, n. 72. 

It must be remembered that by far the largest part of patients' decision-making will remain outside the scope of 
the Charter, as it will not entail government action. 



133 

may not serve the person concerned well. By the time Cruzan v. Director, Missouri Dep 't. of 
Health went to the United States Supreme Court, it was as a fight over permissible evidentiary 
standards and no longer a contextualized inquiry into the circumstances of this patient, even 
though they are exhaustively recounted in the judgment. Best interests analysis (mandated now 
by statute and before that, by the common law), although sometimes worry ingly indeterminate, 
should remain the first line of inquiry. Underlying principles and values, including the right to 
life, to autonomy, to bodily integrity, to liberty, and others as appropriate, should inform that 
determination. They are the foundation of the inquiry. However, they ought not take it over, as 
is sometimes the tendency with constitutional argument. Determinations must remain patient- 
centred. 



^* 1 10 S. 0.2841(1990). 



CHAPTERS 



CURRENT LEGISLATIVE AND 
JUDICIAL APPROACHES TO 
EUTHANASIA AND ASSISTED 
SUICIDE: ENGLAND AND THE 
UNITED STATES 
by Karen Capen 



1. INTRODUCTION 

Medicine and law traditionally have made a sharp distinction between allowing and 
helping a person to die In the civil context, legislation had addressed issues of withholding and 
withdrawing treatment, competency and related clinical practice standards. In response to the so- 
called "mercy killings", criminal law has considered defmitions of homicide, defences and the 
distinction between intent and motive. These two areas of law coincide when physicians become 
associated or involved with practices that cross the boundary between accepted medical practice 
and criminal acts. 

There have been a number of attempts in the early twentieth century and in the past couple 
of decades to introduce legislative change related to euthanasia and assisted suicide. Recent 
interest has been stimulated by the legislative regime in the Netherlands and by highly 
publicized cases in the United States. The ethical dilemmas associated with the development 
and use of a variety of medical technologies which prolong life (and sometimes suffering) have 
come more often to the attention of the general public. As a result, polls suggest a shift in public 
opinion, including that of professionals and academics, to a growing support for some form of 
legislated euthanasia or assisted suicide. 

Medicine and law have also faced a growing concern with the issue of personal autonomy. 
Individual choice in the context of medical decision-making has become an issue as the nature 
of the physician-patient relationship has changed. For some people, this shift to patient 
autonomy includes the determination of the time and manner of one's own death. The issue of 



Lawrence O. Gostin, "Drawing a Line Between Killing and Letting Die: The Law and Law Reform on Medically 
Assisted Dying" (1993). 21 Journal of Law, Medicine & Ethics 94. 

In the Matter of Karen Quintan, 137 N.J. Super 277, 348 A.2d 816 (1975); 70 N.J 10, 355 A.2d 647 (1976); 
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 1 10 S. Ct. 2841 (1990). 

Tim Helme and Nicola Padfield, "Safeguarding euthanasia (need for legal framework)" (1992) 142 New LJ. 335. 

Ronald P. Kaplan, "Euthansia legislation: a survey and a model Act" (1976), 2 Am. J. of Law and Medicine 41, 
at 44; Griswoldw. Connecticut, 381 U.S. 479 (1965). 

[135] 



136 

competency has created a need for measures to provide for medical decision-making by others. 
Open discussion of euthanasia and assisted suicide is now frequent, and legal initiatives from the 
time of the Karen Anne Quinlan case in 1976 have become frequent and vigorous. 

Cultural anthropologist Ernest Becker described the thesis for his study of modem Western 
attitudes to death as "the idea of death, the fear of it, haunts the human animal like nothing else; 
it is a main spring of human activity - activity designed largely to avoid the fatality of death, to 
overcome it by denying in some way that it is the final destiny for man."^ Other analyses 
identify the need for control and for devices to manage anxiety in the face of uncertainty.^ 

These issues have been dealt with very differently in England and the U.S. In England, the 
provision of medical services through government-supported health care has generally been 
regarded as a desirable public "good". In contrast, Americans historically have dealt with health 
care services as a commodity within the context of a vigorous private enterprise system.^ 
Medical malpractice is another area where the two countries and cultures differ. Attitudes 
toward the status of physicians and to use of the legal system in settling disputes also provide 
some explanation as to why there is more visible activity (i.e. litigation) in the U.S. 

Even though many of the early initiatives, which emphasized the need (ahnost of an 
intellectual nature) for euthanasia legislation, originated in England and were acted upon shortly 
after in the U.S., the current activity appears to be centred in the United States and largely 
related to practical medical acts, often from a constitutional perspective. 



5 



Ernest Becker. The Denial^of Death. (New York: The Free Press, 1973) at ix. He £ilslo referred to the famous 
quotation of Dr. Johnson in his preface: "The prospect of death wonderfully concentrates the mind." The problem 
with the analysis of this work today is that the universality of such arguments is not as acceptable as it once may 
have been and anthropologists, in particular, are less likely to marginalize (as "primitive") the different cultural 
beliefs and practices they study. 

In her article "The Song of Death: The Lyrics of Euthanasia" ((1993), 9 Journal of Contemporary Health, at 
23-33), Margaret A. Somerville discusses possible reasons for a perceived need for euthanasia at this time. She 
considers attitudes to modem medical technology, individual rights, and the sanctity and quality of life as they 
relate to the current "perceived need" for euthanasia. She also questions why euthanasia is medicalized and 
technologized, suggesting that we must enquire "whether we may at least in part be dealing with euthanasia in a 
medical context in order to eliminate or reduce reactions that we would otherwise have to one person killing 
another". In her conclusion, she identifies what she considers is the crucial distinction in the debate on euthanasia: 
arguing for "the song of death as an inevitable part of life" but not "the lyrics of euthanasia" ((1993), 9 Joumal of 
Contemporary Health, at 76). 

George J. Annas and Frances H. Miller, "The Empire of Death: How Culture and Economics Affect Informed 
Consent in the U.S., the U.K., and Japan" (1994), Amer. J. of Law & Medicine 357, at 369. It is also noted that 
patient choices are constrained within these publicly funded health care services by budgetary considerations 
among other things, and, therefore, that the doctrine/practice of informed consent is less of an issue than in the 
U.S. 

George J. Annas and Frances H. Miller, "The Empire of Death: How Culture and Economics Affect Informed 
Consent in the U.S., the U.K., and Japan" (1994), Amer. J. of Law & Medicine 357, at 358. 



137 

2. ENGLAND 

In 1976, at the same time as Quinlan in the U.S., a proposal called The Incurable Patients 
Bill was introduced (and later defeated) in the Parliament in England. Its intent was "to enlarge 
and declare the rights of patients to be delivered from incurable suffering" and it sought to 
establish the patient's right to full relief from pain and physical distress, to remove the stigma of 
suicide should a person decide to end his or her life, and to give legal status to a person's written 
wish not to have life-sustaining treatment in the event of irreversible brain damage or 
degeneration. 

A few years later, another attempt was made to address concerns about decision-making in 
the medical context with the introduction of a Terminal Care and Euthanasia Bill (1990).*^ It 

12 

used as its reference point some of the principles from the Mental Health Act passed in 1983. 

In England, it seems that the legislature and the judiciary have preferred to leave the issue 
of euthanasia and related concerns to be addressed and handled by the medical profession. The 
British Medical Association published a report on euthanasia in 1988, in which the distinction 
was clearly made between a doctor withdrawing treatment from patients to allow them to die 
and prescribing a drug or initiating a treatment to accelerate death. The report denied that 
physicians engage in the latter practices. 

In 1990, the Institute on Medical Ethics published a report from its Working Party on the 
Ethics of Prolonging Life and Assisting Death. The Institute had been frequently requested to 
address the following concern: 



10 

11 

12 
13 



14 
15 



Tim Helme and Nicola Padfield, "Safeguarding euthanasia (need for legal framework)" (1992)\, 142 New LJ. 
1335. 

Tim Helme and Nicola Padfield, "Safeguarding euthanasia (need for legal framework)" (1992), 142 New LJ. 
1335. 

Tim Helme, "The Voluntary Euthanasia (Legalisation) Bill (1936) revisited" (1991), J. of Medical Ethics 17. 
Enlarge on this. 

Tim Helme, "The Voluntary Euthanasia (Legalisation) Bill (1936) revisited" (1991), J. of Medical Ethics 17. 

It is suggested that cultural homogeneity and diversity have an impact on how courts view medical practice 
generally and disclosure standards is particular. Where the country's culture is largely homogeneous, as in 
England, there is likely to be more agreement on treatment recommendations, making disclosure possibly less 
important. Class issues (where physician and patient are closely identified in terms of economic class and 
attitudes) also may affect acceptance of physician management of information. In the U.S., on the other hand, 
where cultural diversity is more apparent and accepted, there may be a need for more disclosure to accommodate 
the gap in "trust" due to differences in economic circumstances and belief systems of physicians and their patients. 
See George J. Annas and Frances H. Miller, "The Empire of Death: How Culture and Economics Affect Informed 
Consent in the U.S., the U.K., and Japan" (1994), Amer. J. Law & Medicine 35,. at 387. 

The Euthanasia Report (London: British Medical Association, 1988). 

(1990), 336 The Lancet 610. 



138 

The lives of an increasing number of patients, predominantly but by no means all elderly, are now 
being prolonged by modem medicine in states of coma, severe incapacity, or pain they consider 
unrelievable and from which they seek release. Doctors in charge of such patients have to decide not 
only whether they are morally bound to continue with life-prolonging treatment, but also, if no such 
treatment is being given, whether and in what circumstances it is ethical to hasten their deaths by 
administration of narcotic drugs. 

The Working Party asked the question, "in what circumstances, if any, is a doctor ethically 
justified in assisting death?" It concerned itself, in its report, solely with occasions when 
"assisted death" is requested — not the related issues of ending the lives of infants, or of patients 
who are unconscious or unable to make a valid request. Neither did it discuss the law, "living 
wills" (advance directives) or actions of health professionals other than physicians.'^ 

The use of the word "euthanasia" was avoided in the report of the Institute's Working 
Party. It used the term "assisting death", (presumably to lessen the stigma of suicide) which it 
defined as "an act by a doctor with the deliberate intention of hastening the death of a patient 
with a terminal illness.. The word 'terminal' here implies a progressive ilhess whose distressing 
symptoms cannot be eased by any alteration of treatment." The report also noted that "such 
patients are usually close to death, but there are some, such as those with disabling 
breathlessness or paralysis, who may have to face months or even years of increasing distress". 



19 



The Working Party put forward four mam arguments against the recognition of assisted 
death: First, if it were known that doctors would assist in this way, certain groups (including the 
elderly) might feel under pressure to ask for assistance in dying rather than continue as a burden. 
This argument was discounted because it was believed that the clinician responsible could 
adequately screen out such requests. 

The second argument in the report was that the existence of an option for physicians to 
assist in death would inhibit the search for new and better treatments and palliatives. The 
response to this concern was that advances have abeady been made which will reduce the 
number of patients asking for assisted death and that the stunulus for research is always there. 

Thirdly, it was noted that authorizing assisted death would negatively affect the physician- 
patient relationship. The group noted that this had not happened in the Netherlands where active 
euthanasia may be carried out. Finally, they addressed the "slippery slope" argument, 



16 
17 
18 
19 



(1990), 336 The Lancet, at 610. 
(1990), 336 The Lancet, at 611. 
(1990), 336 The Lancet, at 611. 
(1990), 336 The Lancet, at 611. 



139 

minimizing it by stating that disapproval of involuntary termination of patients' lives is strongly 
entrenched in the concept of medicine of both physicians and the general public 



20 



In conclusion, the Working Party's report stated: "Paradoxically, allowing doctors to assist 
death could be seen as a way of fulfilling their commitment to prolonging lives of satisfaction 
and dignity." The balance of the moral argument in this report shifted toward asking when 
death should not be assisted, recognizing the rights of individuals to make choices concerning 
what they will tolerate and when their life lacks sufficient quality for them to wish to continue 

it" 

The majority view of the Working Party may be summarized as follows: "A doctor, acting 
in good conscience, is ethically justified in assisting death if the need to relieve intense and 
unceasing pain or distress caused by an incurable illness greatly outweighs the benefit to the 
patient of further prolonging his life. This conclusion applies to patients whose sustained wishes 
on this matter are known to the doctor and should thus be respected as outweighing any contrary 
opinions expressed by others. Assistance of death, however, is not justified until the doctor and 
the clinical team are sure that the patient's pain and distress cannot be relieved by any other 
means - pharmacological, surgical, psychological, or social. To this end the views of medical 
and other professional colleagues and of the patient's family must be ascertained as fully as is 
consistent with maintenance of the patient's trust."^^ 

By the early 1990s in England, courts were actively involved in a number of issues related 
to assisting death — ^the treatment of pain for a dying patient and refusal of medical treatment. 



20 

Sheila A.M. McLean, "Euthanasia — some legal considerations" (1991) International Legal Practitioner \\\, see 
also Institute of Medical Ethics, Working Party on the Ethics of Prolonging Life and Assisting Death (1990), 336 
The Lancet, at 611. 

21 

(1990), 336 The Lancet 611. This statement was based on the report's final analysis as follows: 

The list of possible undesirable consequences... needs to be balanced against strong arguments for 
prevention of terminal suffering. Without this help, many patients would, as now, suffer persistent mental 
and physical distress while awaiting natural death. It would be unjust if only some doctors, as at present, 
continued to relieve terminal suffering by assisting death in the privacy of the home, while others, 
especially in hospital, did not do this. Continuing with the tacit agreement to overlook doctors' illegal 
actions might seem, to some, preferable to permitting them explicitly. But this would provide no safeguard 
for patients denied this kind of help by their doctors, nor legal safeguards, for doctors who acquiesced with 
their wishes. Public, explicit agreement on the circumstances in which these acts of mercy were to be 
allowed would benefit and protect both patients and their doctors. It is possible indeed that a public, 
explicit agreement of this kind might lead fewer patients to ask for assisted death. If everyone knew it was 
permissible, this could counter any fear that if they found themselves distressed in extremis, doctors would 
not be allowed to end their lives, however much they were suffering in mind or body. Abolition of such 
anxiety might enable both patient and doctor to concentrate on symptom relief, which might them become 
more effective. 

22 

(1990), 336 The Lancet 611, at 613; see also Sheila A.M. McLean, "Euthanasia — some legal considerations" 

(1991), International Legal Practitioner 1 1 1, at 1 14. 
^^ (1990), 336 The Lancet 6 1,1 at 6 13. 



140 

Two cases stand out as being illustrative of these issues: R. v. Cox^^ and Airedale N.H.S. Trust v. 
Blancf\ 

Rheumatologist Nigel Cox was tried and convicted of attempted murder after giving a 
terminally ill patient a lethal injection. The patient Lillian Boyes had been treated by Dr. Cox for 
13 years for rheumatoid arthritis in a severe and painftil form. In August 1991, she was 
terminally ill, with vasculitis, internal bleeding, gangrene and septicemia. She had been given 
repeated doses of diamorphine without the expected relief of her pain. When it appeared she had 
only hours to live she told her doctor that she wanted to die and her two sons supported her. 
(Five days earlier she had refused all therapeutic interventions.) 

The day his patient died. Dr. Cox had prescribed diamorphine and diazepam and later the 
same day had given an injection of potassium chloride. On his conviction he was given a one- 

26 

year suspended sentence. Not unexpectedly, there was strong reaction to this case. The editor 
of British MedicalJournal wrote: "The mood of the nation seems to be that the conviction may 
have been legally correct but that to destroy a caring doctor through such a trial was wrong: 
jurors burst into tears; the judge said that criminal trials could sometimes be an 'overwhehning 
burden'; and the family wished the trial had never happened. The law is in effect a codification 
of the will of the people, and when there is such tension between a legal verdict and the people's 
thinking then it is time to reconsider the law." 

Other comments on the case fell along predictable lines: the Euthanasia Society called for 
a royal pardon for Dr. Cox; individual physicians worried about their own liability; and concern 
was expressed that the law should not create another category of individuals who would have 
less protection than healthy ones. Generally, the difficulty was noted as to drawing a workable 
line between active and passive euthanasia. And the question of what to do when opiates do not 

28 

work was raised once again. 

In the Bland case, the patient, Anthony Bland, had been seriously injured in a soccer 
accident in April 1989 at the age of 17 and had suffered catastrophic and irreversible damage to 
the higher centres of the brain. He was left in a condition known as persistent vegetative state 



24 
25 
26 



27 
28 



(Unreported) (Crown Court, September 19, 1992). 

[1993] 2 W.L.R. 359, [1993] A.C. 785 (H.L.). 

"News: reactions to the Cox case" (1992), 81 Bull Med Ethics 3. Dr. Cox was also reprimanded shortly after his 
conviction by the General Medical Council but he did not lose his licence to practice medicine. His employer 
agreed to reinstate him provided he would agree to work under the supervision of a senior consultant and receive 
some retraining. "News: Dr. Cox" (1992) 83 Bull Med Ethics 4. 

Richard Smith, "Euthanasia: time for a royal commission"(1992), 305 BMJ 728. 

"News: reactions to the Cox case" (1992), 81 Bull Med Ethics 3, at 4. It was noted that in the case of Lillian 
Boyes, the doses used may not have been as high as in some hospice settings. For example, in hospital practice, 
150mg of diamorphine in 24 hours would generally be regarded as a fairly large dose, whereas sometimes 
hospices have used as much as 750mg in a day in order to gain control over pain, according to commentaries 
published in the media. 



141 

and the diagnosis was unanimous that there was no hope of improvement or recovery. Although 
he had not indicated his wishes before the accident, his father gave evidence that in his opinion 

29 

his son would not have wanted to be left like that. 

However, in this case, the authorities at the hospital where he was being cared for went to 
court seeking declarations that they might 1) lawfiilly discontinue all life-sustaining treatment 
and medical support measures (including ventilation, nutrition and hydration), and 2) lawfully 
discontinue and not furnish thereafter medical treatment to the patient except for the sole 
purpose of enabling the patient to end his life and die peacefully with the greatest dignity and the 
least pain, suffering and distress. 

The unanimous decision of the House of Lords confirmed that where a patient is in a 
persistent vegetative state and there is no hope of any improvement, then life-prolonging 
treatment is neither appropriate or required because it is useless. The judgment was limited to 
patients lacking consciousness and without hope of recovery. It was noted by Lord Mustill that: 
"I might not decide the same... where the glimmerings of awareness may give the patient an 
interest which cannot be regarded as null." 

Even though the course of either of the two preceding cases would not likely have been 
altered by the existence of a "living will" or advance directive, the British Medical Association 
published a statement in November 1992 supporting such documents. The BMA statement made 
the following points: 1) The principle of a written advance directive, which represents the 
patient's settled wish regarding treatment choices when the patient may no longer be competent 
to express a view, is acceptable; 2) legally binding advance directives are not supported (concern 
was expressed that the doctor's conscience be respected, that pregnant women may not be able 
to request discontinued treatment, and that futile treatment would not necessarily have to be 
provided); 3) the nomination of a proxy decision-maker may be acceptable, but no person has 
the legal right to accept or decline treatment on behalf of another adult; 4) advance directives 
should be reviewed at regular intervals and could be overridden by clinical judgment in 
exceptional circumstances; 5) doctors should raise the subject with patients and clearly inform 
patients if they have an objection in principle to advance directives; and 6) late discovery of 



29 
30 
31 



32 



[1993] A.C. 789. 

[1993] A.C. 789. These declarations were granted and on appeal, the Court of Appeal upheld the order. 

Joan M. Gilmour, "Withholding and withdrawing life support from adults at common law" (1993), 31 Osgoode 
Hall LJ. 473, at 529. In noting that preserving biologic existence is not a required goal of medical treatment, the 
judgment leans toward deference to tlie profession; the characterization of life-prolonging treatment as "useless" 
does not take into account the beliefs or feelings of the patient's family although they were in agreement in this 
instance. See also [1993] W.L.R. 359, at 37 1-72. 

Joan M. Gilmour, "Withholding and withdrawing life support from adults at common law" (1993), 31 Osgoode 
Hall U. 473, at 529-30; see also [1993] W.L.R. 359, at 400. 



142 

such a document after life-sustaining or life-prolonging treatment has been initiated is not 
sufficient grounds for ignoring it 



33 



In 1992 following the decisions in these two highly publicized cases, the House of Lords 
established a Select Committee on Medical Ethics with special reference to euthanasia and 
treatments regarding the end of life. It was noted that the dilemmas facing the Committee were 
made more complex as medical science evolves. The difficulty of addressing the issue of 
decision-making for competent patients was hard enough, but for those who care for 
incompetent patients, decisions are even harder. 

The Committee presented its report in 1994. Recognizing that competent patients are 
encouraged to be autonomous and to be an integral part of the decision-making process about 
their medical care, the Committee commended the use of advance directives for assisting health 
care teams in making decisions about appropriate treatment. 

However, the Committee also concluded that legislation was not required and suggested 
that medical colleges and faculties of medicine jointly develop a code of practice so that 
physicians are appropriately educated and informed. 



" "News: Dr. Cox" (1992), 83 Bull Med Ethics 4, at 4-5. 



35 
36 



34 

Its terms of reference were: 

To consider the ethical, legal and clinical implications of a person's right to withhold consent to life- 
prolonging treatment, and the position of persons who are no longer able to give or withhold consent; and 
to consider whether and in what circumstances actions that have had as their intention or a likely 
consequence the shortening of another person's life may be justified on the grounds that they accord with 
that person's wishes or with that person's best interests; and in all the foregoing considerations to pay 
regard to the likely effects of changes in law or medical practice on society as a whole. 

Francis Bennion, "Legal death of brain-damaged persons" (1993), 44 Northern Ireland L.Q. 269, at 269. 

(1994), 343 The Lancet, at 430. 

(1994), 343 The Lancet 430. On patients' consent the report stated: 

We strongly endorse the right of the competent patient to refuse consent to any medical treatment, for 
whatever reason. The doctor must ensure that the patient understands the likely consequences of such 
refusal, and the reasons for proposing a particular treatment, but no member of the health-care team may 
overrule the patient's decision... .We urge that, if an individual refusal of treatment by a competent patient 
is overruled by the Court, full reasons should be given. 

"House of Lords on care for dying" (1994), 95 Bull Med Ethics 13. 

37 

On the development of advance directives, the Committee stated: 

Doctors are increasingly recognizing their ethical obligation to comply with (them). The development 
of case law is moving in the same direction. Instead of legislation for advance directives generally, we 
recommend that the colleges and faculties should jointly develop a code of practice to guide their 
members. The BMA's Statement on Advance Directives has much to recommend it as the basis for a code. 
The informing premise of the code should be that advance directives must be respected as an authoritative 
statement of the patient's wishes in respect of treatment.... We also recommend that the proposed code of 



143 

With regard to incompetent patients, the Committee paid particular attention to the Bland 
case. They used the principle of "the best interests of the patient" for their analysis. The report 
indicated that doctors and nurses should consider the balance of burdens and benefits in order to 
facilitate the decision as to whether a treatment is appropriate or inappropriate. The Committee 
recommended that a definition of persistent vegetative state and a code of practice related to its 
management should be developed. 

The practice of euthanasia was opposed by the vast majority of those who appeared before 
the Select Committee to give evidence. Although the Euthanasia Society stated that public 
opinion throughout the country was very different from what the Committee was hearing, the 
report of the Committee indicated that the prohibition of intentional killing was "the cornerstone 
of law and social relationships which protects each one of us impartially". 

On the concept of "double effect", an issue related to proof of causation in criminal law, 
the Commission stated that the professional judgment of the health-care team should be relied 
on to enable increasing doses of medication to provide relief, even if this shortens life "in the 
small and diminishing number of cases in which pain and distress cannot be satisfactorily 
controlled." The report also emphasized the need for high-quality palliative care and more 
research into improved methods of pain relief and symptom control. 



practice should encourage, though not require, regular review and re-endorsement by patients of the 
provisions of their advance directives. 

"House of Lords on care for dying" (1994), 95 Bull Med Ethics 13, at 15-16. 

38 

On decision-making for incompetent patients, the Committee's report stated: 

The need for society to offer special protection to those who are vulnerable means that special 
provision should be made for medical decision-making in respect of incompetent patients. We therefore 
support the proposal ...that a new judicial forum should be established with power to authorize the 
commencement, withholding or withdrawal of treatment where this is in the patient's best interests. 

"House of Lords on care for dying" (1994), 95 Bull Med Ethics 13, at 14. 
^^ (1994), 343 The Lancet, at 430. 
The report stated: 

To distinguish between murder and "mercy killing" would be to cross the line which prohibits any 
intentional killing, a line which we think it is essential to preserve. Nor do we believe that "mercy killing" 
could be adequately defined, since it would involve determining precisely what constituted a 
compassionate motive. For these reasons, we do not recommend the creation of a new offence.... We 
strongly endorse the recommendation. ..that the mandatory life sentence should be abolished.... As far as 
assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no 
circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish 
between the act of a doctor or of any other person in this connection. 

"House of Lords on care for dying" (1994), 95 Bull Med Ethics 13, at 15. 

Bulletin of Medical Ethics, No. 95, February, 1994, at 14. 

"House of Lords on care for dying" (1994), 95 Bull Med Ethics 13, at 16. 



144 

In January 1994, the British government published its response to the report of the House 
of Lords Select Committee on Medical Ethics. In broadly endorsing the position of the 
Committee, it reserved the right to re-examine the recommendations in light of reports expected 
from Law Commissions later in 1994 on mental capacity and decision-making.'*'* 

The government's overriding concern in the area of euthanasia and related issues was 
described as follows: 1) To protect the interests of patients, particularly those who are in no 
position to make a competent decision for themselves, and to ensure that health care is provided 
in a way which is humane as well as ethical and legal; 2) to safeguard the patient's right to 
consent to treatment or withhold consent to treatment (save for the limited circumstances where 
the law provides for treatment without consent, e.g. the Mental Health Act 1983); 3) to ensure 
adequate protection is given to people in a vuhierable position — especially those who, by virtue 
of their medical condition, are unable to exercise their right either to consent to treatment or to 
withhold consent; and 4) to ensure that actions which have as their intention another person's 
death continue to be unlawftil. 

The government's conclusions based on the recommendation of the report and framed by 
its overriding concerns noted above were: no change in the law to permit euthanasia; 
endorsement of the right of the competent patient to refrise consent to any medical treatment; 
commending the development and growth of palliative care services; double effect not to be 
seen as a reason for withholding treatment which would give relief, as long as the doctor acts in 
accordance with responsible medical practice; encouragement of the development of a definition 
for persistent vegetative state and a code of practice relating to its management; rejection of 
euthanasia as an option for the individual, recognizing that this entails a compelling social 
responsibility to care adequately for those who are elderly, dying or disabled; support needed for 
pain relief and symptom control; no creation of a new offence of "mercy killing"; reftisal of the 
Committee's recommendation that the mandatory life sentence for murder should be abolished; 
no change in the law on assisted suicide; the need for legislation for advance directives to be 
reviewed after receipt of Law Commission reports; and support for the medical profession's 
development of a code of practice on advance directives. 

A private member's bill was presented to a session of Parliament in 1994 but failed to 
pass.'*^ Its preamble stated that it was a "Bill to prescribe circumstances in which medical 



43 
44 
45 
46 



47 



Government Response to the Report of the Select Committee on Medical Ethics. Cm2553, HMSO, London, 1994. 

Bulletin of Medical Ethics, No. 97, April, 1994, p. 8. 

Bulletin of Medical Ethics, No. 97, April, 1994, at 8. 

Bulletin of Medical Ethics, No.97, April 1994, at 8-1 1. Since 1994, several initiatives were launched to establish 
the use of advance directives in England, including a Law Commission report, which recommended that the 
legality of advance directives be established in new legislation. (See: Bulletin of Medical Ethics, No. 108, May 
1995, at 18.) 

Bill 79/94. "Failed Bill on treatment withdrawal" (1994), 102 Bull Med Ethics 1 1 . 



145 

treatment and nutrition can be withdrawn and to secure the continued provision in such 
circumstances of paUiative care; and for connected purposes." 

hi the first significant case to follow Bland, Frenchay NHS Trust v. S., is said to have 
sent out some messages to be concerned about regarding safeguarding the rights of incompetent 
patients/^ hi this case Mrs. S. was a patient being cared for at home. Her gastrostomy tube 
became disconnected and a decision was taken not to reinsert it. Critically, however, in the 
emergency there was no opportunity to secure independent evidence to confirm that the patient 
was defmitely in a persistent vegetative state (not all cases will take place in hospitals). The 
procedural safeguards laid down in Bland v^qtq set aside. 

Two other cases, Re G. and Swindon and Marlborough NHS Trust v. S., in which the 
recommendations set out in Bland have been followed carefully, still highlight difficulties which 
will need to be resolved in the future. Briefly, two issues related to these cases need to be 
addressed are: 1) disagreements on withholding life-sustaining treatment among family 
members, and 2) applications regarding withholding such treatment on behalf of patients cared 
for at home. 

In 1994, the Royal College of Physicians set up a working party to look into the 
implications of treatment of these in a persistent vegetative state. This action represented the 
profession's response to the House of Lords Select Committee on Medical Ethics (see above), 
which recommended the development of a defmition of persistent vegetative state and a code of 
practice relating to its management. This group intended to first address the medical aspects of 

53 

persistent vegetative state before considering ethical and legal implications of the condition. 

3. UNITED STATES 

In the United States, the issues of withholding medical treatment, withdrawing medical 
treatment, physician-assisted suicide and active euthanasia have become synonymous with the 
constitutional question as to whether there is a right to die. In the early stages of this debate, laws 
on suicide formed the basis for analyzing how society should address the issue. 

Currently, in the U.S., there is no penalty attached to a successful suicide because it 
generally has been accepted that punishment does not deter future suicides. Although suicide is 



^^ [1994] IWLR 601. 

49 

Julie Stone, "Withholding life-sustaining treatment" New Law Journal, March 10, 1995, at 354. 
(Fam. Div.), Sir Stephen Brown, November 22, 1994, unreported. 



51 
52 
53 



Reported in 77j£ Guardian, December 10, 1994. 

Julie Stone, "Withholding life-sustaining treatment," New Law Journal, March 10, 1995, at 354. 

Julie Stone, "Withholding life-sustaining treatment," New Law Journal, March 10, 1995, at 354-55. 



146 

still a common law offense in some states, no state makes suicide a crime by statute.^^ In the 
few states where suicide is a common law crime, assisting suicide derivatively may be a 
common law crime. 

In addition to the general problem of suicide, there has been the question as to whether a 
terminally ill patient has the right to refuse medical treatment. Although U.S. law does not 
generally criminalize failure to save another person, a physician who intentionally fails to save a 
patient's life when able to do so may be guilty of some form of culpable homicide. This aspect 
of criminal law has complicated medical practice as life-prolonging technologies have become 
widely available. 

Even before the practice of passive or indirect euthanasia became a legal issue, doctors 
and hospitals engaged in or tolerated acts or omissions which more or less indirectly resulted in 
a patient's death. A controversial letter that was published in the Journal of the American 
Medical Association {JAMA) stated: "Every day... respirators are turned off, life-perpetuating 
intravenous infusions stopped, proposed surgery cancelled, and drugs countermanded. So-called 
Code 90 stickers are put on many record jackets, indicating 'give no intensive care or 
resuscitation' 



.,„ 59 



Polls suggest that public opinion on euthanasia and assisted suicide (whether part of 
medical treatment or not) has shifted considerably in the last half of the twentieth century. 
There are equally significant changes to public policy, as reflected in case law and legislative 
responses in the U.S. The turning point appears to have been the case of Karen Arm Quinlan. 



54 



55 



56 



57 



58 



59 



60 



Juliana Reno, "A little help from my friends: the legal status of assisted suicide" (1992) 25 Creighton LR 1 151, at 
1 155. See also Griswold\.<:onnecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 1 13 (1972). 

Juliana Reno, "A little help from my friends: the legal status of assisted suicide" (1992) 25 Creighton LR 1 151, at 
1 155-56 citing Brenner, 47 Alb. L. Rev., at 65. 

Juliana Reno, "A little help from my friends: the legal status of assisted suicide" (1992), 25 Creighton LR 1 151, at 

1 155-56. Three cases are cited as support: Willis, 255 N.C. at , 121 N.E.2d at 856-857 (stating that one who 

assisted a suicide would be guilty as an accessory before the fact); McMahan v. State, 168 Ala. 70, , 53 So. 89, 

91 (1910) (criminalizing advising or counselling suicide); State v. Jones, 86 S.C.I 7, , 67 S.E. 160, 162 (1910) 

(finding that inciting suicide may constitute murder). 

Sanford H. Kadish, "Letting patients die: legal and moral reflections" (1992) 80 Calif L R 857 at 858-59. This 
observation does not take into account whether the physician has or does not have the patient's consent to non- 
treatment or to withdrawing treatment. 

These terms refer to acts of omission (withholding or withdrawing treatment) where death may be the effect but 
not the intent (which is to ease suffering). From the standpoint of medical practice, use of "withholding and/or 
withdrawing treatment" is preferred. 

"It's Over, Debbie, (1988), 259 JAMA 272. This anonymous letter told of the physician author's administration of 
a lethal dose of morphine to a dying patient who asked that she be helped to die. A subsequent editorial reported 
that 80 percent of responses to the letter from physicians were against the reported act ((1988) 259 JAMA 2142). 

Sanford H. Kadish, "Letting patients die: legal and moral reflections" (1992), 80 Calif LR 857, at 860. 



147 

In April 1975, Karen Ann Quinlan was taken to a New Jersey hospital in a coma caused by 
a combination of drugs and alcohol consumed during a party with friends. Although she was not 
technically (at the time) brain dead, she had stopped breathing and had suffered irreparable brain 
damage. Three months later her father signed a release to discontinue her respirator.^^ 

Quinlan' s physicians refused the request from her father to remove the respirator, arguing 
that to do so would be the criminal act of homicide. After a petition to the New Jersey Superior 
Court, Chancery Division was refiised, an appeal was made by the Quinlans to the New Jersey 
Supreme Court. In March 1976, the state high court reversed the lower court's decision, and 
held that a respirator could be withdrawn from a patient in a irreversibly comatose condition 
without criminal or civil liability for any participant. 

In its decision, the state Supreme Court stated that the constitutional right to privacy also 
encompassed a patient's decision to decline medical treatment under certain circumstances. 
The court reviewed the state's interest in protecting life and found that that interest diminishes as 
the body is invaded by the medical technologies being used to sustain it and as the prognosis 
becomes worse. It held that the individual's right to privacy outweighs the state's interest in 
preserving life based on the above analysis, and in Quinlan' s case, since her prognosis was 
"extremely poor^' found that her right of privacy should prevail. 



61 



62 
63 



64 



65 



66 



Thane Josef Messinger, "A gentle and easy death: from ancient Greece" (1993), 71 Denver Univ. LR 175, at 207. 
See also Yale Kamisar, "When is there a constitutioneil right to die? When is there no constitutional right to live?" 
(1991), 25 Georgia LR 1203; Sherri Schaeffer, "Death with Dignity: proposed amendments to the California 
Natural Death Act" (1988), 25 San Diego LR 781; and John A. Alesandre, "Physician-assisted suicide and New 
York law" (1994) 57 Albany LR 819. It is interesting to note that her parents did not request permission to remove 
the feeding tube which was to keep her alive for a further nine years. It has been speculated that if they had sought 
this permission, they probably would have been refused {see Kamisar, supra, at 1221). 

Thane Josef Messinger, "A gentle and easy death: from ancient Greece" (1993), 71 Denver Univ LR 175, at 207. 

Brain death in most states is a proper means of diagnosing death. However, it is a general term that is used to 
describe several medical terms dealing with various levels of brain injury (persistent vegetative state, comatose, 
permanently unconscious, etc.) The precise definition of the term for legal purposes is often argued, and has 
changed as technologies provide more detailed information on the brain's functioning. (President's Commission 
for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research Deciding to Forego Life- 
Sustaining Treatment, (U.S. Gov't. Printing Office; Washington, D.C.) 1983.) 

Sherri Schaefifer, "Death with dignity: proposed amendments to the California Natural Death Act" (1988), 25 San 
Diego LR 781, at 788. In the Matter of Karen Quinlan, 70 N.J. 10, at 55, 355 A.2d 647, at 672 (1976). 

70 N.J. 10, at 39, 355 A.2d 674, at 663. The court recognized that the right to privacy discussed in Griswold and 
Roe was broad enough to encompass a patient's decision to decline medical treatment in much the same way it 
was broad enough to encompass a women's right to terminate her pregnancy. 

70 N.J. 10, at 40-41, 355 A2d 647, at 663-664. "We have no hesitancy in deciding. ..that no extemal compelling 
interest of the state could compel Karen to endure the unendurable, only to vegetate a few measurable months 
with no realistic possibility of returning to any semblance of cognitive or sapient life." (355 A.2d 647 at 663.) 



148 

The Quinlan court criticized the use of court decisions that refuse to order Hfe-saving 
treatment as precedent for some sort of right to die. It also rejected the notion that an objection 
to life-saving treatment constitutes attempted suicide, stating that "suicide means something 
quite different in the law". The court added that although New Jersey was considering the 
passage of legislation proscribing "aiding suicide", such a provision "would not be 
incriminatory in circumstances similar to those presented in this case".^^ 

Several other cases since the Quinlan turning point have had an impact on the state of 
death and dying in the U.S. These cases have played a central role in legitimizing the right of 
dying patients to refuse medical treatment. Although the establishment of precedents has 
occurred incrementally across the states, there are a number of common elements among them.^^ 

First of all, the state courts have addressed the facts of the different cases from two legal 
perspectives: 1) the common law recognition of human autonomy and self-determination as 
expressed in the principle of informed consent, and 2) rights under the U.S. Constitution to 

72 73 

both privacy and liberty. Second, the courts have attempted to establish consistent criteria for 



67 
68 



69 



70 



71 



72 



73 



355A.2d647,at665. 

355 A.2d 647, at 665. "While some courts have used the statutory or common law condemnation of suicide as 
demonstrating the state's interest in the preservation of life, [there is] a real distinction between the self-infliction 
of deadly harm and a self-determination against artificial life support or radical surgery, for instance, in the face of 
irreversible, painful and certain imminent death." (355 A.2d 647, at 665.) 

355 A.2d 647, at 670. See also John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 
Albany LR 819, at 896. 

James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 342. 

This long-standing common law tradition dates back to 18th century English common law. In the U.S. this 
informed consent principle can be traced back to a U.S. Supreme Court ruling in 1891, Union Pacific Railroad 
Co. V. Botsford, and reaffirmed in 1914 in Schloendorff \ . Society of New York Hospital. In Union Pacific 
Railroad, the court stated: "No right is held more sacred, or is more carefully guarded by the common law, than 
the right of every individual to the possession and control of his own person, free from all resfraint or interference 
by others, unless by clear and unquestionable authority of law". (Cite 1891, at 25 1). 

In Schloendorff, Justice Benjamin Cardozo wrote that "every human being of adult years and sound mind has the 
right to determine what shall be done with his body". (Cite 1914, at 129-30.) 

The U.S. Constitution does not explicitly provide for a right to privacy. Case law has created the foundation for 
the privacy interest beginning with the 1965 case, Griswold\. Connecticut, 381 U.S. 479 in which the Supreme 
Court struck down state legislation which prohibited the use of confraceptives and the dispensing of birth control 
information to married couples. Writing for the majority, Justice William Douglas stated that "specific guarantees 
in the Bill of Rights have penumbras formed by emanations from these guarantees that give [those guarantees] life 
and substance" that provide "zones of privacy" for the individual. (These "penumbras" exist around the 
guarantees of the First, Fourth and Fifth Amendments as "protection against eill governmental invasions of the 
sanctity of a man's home".) 

This right to privacy laid in Griswoldwas extended in the 1973 landmark abortion case. Roe v. Wade, 410 U.S. 
113. 

The liberty interest in U.S. constitutional case law is supported by the Fourteenth Amendment. The 1990 decision, 
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 SCt. 2841 (1990) brought together the 



149 

surrogate decision-makers, and generally have been willing to allow decisions to be made by 
families and health care professionals whenever possible. Third, courts have accepted that 
artificial nutrition and hydration are medical procedures that patients and surrogate decision- 
makers (for incompetent patients) legitimately may choose to forego. 

Many of the cases that end up in court have to do with decision-making for incompetent 
patients. In Quinlan, the New Jersey Supreme Court took a relatively expansive position on the 
general issue of incompetency. It was argued in the case that the constitutionally protected right 
could be exercised by a family on behalf of an incompetent patient so long as the family could 
establish that its decision was consistent with the decision the incompetent principal would 
make, if the principal were somehow able to make it. In Quinlan, the court stated: 

We have no doubt in these unhappy circumstances, that if Karen were herself miraculously lucid for 
an interval (not altering the existing prognosis of the condition to which she would soon return) and 
perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life- 

77 

support apparatus, even if it meant the prospect of natural death. 

This reasoning in Quinlan has become known as the "substituted judgment" standard, 
which holds that the third party's best guess about the wishes of the incompetent patient may be 
substituted for that which it is impossible to ascertain: that is, the express wishes of that patient 



79 



Another important and relevant decision was handed down shortly after Quinlan. The 
Massachusetts Supreme Judicial Council adopted an approach similar to Quinlan in 



common law tradition of informed consent and the Fourteenth Amendment liberty interest. In this case the 
Supreme Court affirmed that the common law informed consent tradition could be appropriately construed to 
apply in right to die cases, and it also agreed that there were constitutionally protected rights (the liberty interest) 
at stake. See James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to 
tread" (1993), 14 Law and Policy 337, at 342-43 and 369-70. 



74 



75 



76 



77 
78 

79 



James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 342. 

In 1992, it was reported that state courts had heard approximately 100 right to die cases from 1976 to 1992, and 
nearly 85 percent involved a surrogate making decisions for a patient whose ability to decide and consent was 
somehow (often severely) impaired. See James M. Hoefler and Brian E. Kamoie, "The right to die: state courts 
lead where legislatures fear to tread" (1993), 14 Law and Policy 337, at 370 and National Center for State Courts, 
1992: 155-72.) 

This information might be based on knowledge about the principal's religious beliefs, general attitudes regarding 
medical care, and other substantial (even if indirect) evidence of the principal's frame of mind with regard to right 
to die issues. See James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures 
fear to tread" (1993), 14 Law and Policy 337, at 370. 

70 N.J. 10, at 39 (1976). 

This standard is based on what is known about the individual's preferences in such matters as expressed by that 
individual prior to being rendered incompetent. See James M. Hoefler and Brian E. Kamoie, "The right to die: 
state courts lead where legislatures fear to tread" (1993), 14 Law and Policy 337, at 345 and 370. 

James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 345. 



150 

Superintendent of Belchertown State School v. Saikewicz. This case addressed the important 
issue of how to proceed when there is a wish to terminate medical treatment of an incompetent 
patient. 

Joseph Saikewicz was a 67-year-old severely retarded individual who had been 
institutionalized for most of his life. Suffering from acute myeloblastic leukemia, he was a 
potential candidate for chemotherapy treatment, which could have caused a 30 to 50 percent 
chance of remission for between two and 13 months. However, there were also drug-related side 
effects to consider, and this issue of consent was believed to be beyond Saikewicz' s 
understanding. 

His physicians and guardian ad litem recommended that the chemotherapy be withheld 
and a probate judge supported them. Shortly after Saikewicz died from pneumonia, a 
complication of the leukemia, the Massachusetts Supreme Judicial Court issued an opinion.^^ 
The court held that all persons, whether competent or incompetent, have a right to refiise 
medical treatment because "the value of human dignity extends to both". The only state 
interest the court found applicable was that of preserving life, but it deemed such an interest of 
little weight given the hopelessness of Saikewicz's prognosis. 

The Massachusetts court also dismissed the notion that reftisal of treatment implicated the 
state's interest in preventing suicide. It concluded that a decision to reftise treatment when death 
is inevitable and the treatment offers no hope of cure, as in this case, did not constitute suicide 

85 

because the patient did not set into motion the natural processes that ultimately cause death, 
stating: 

In the case of the competent adult's refusing medical treatment such an act does not necessarily 
constitute suicide since 1) in refusing treatment the patient may not have the specific intent to die, 
and 2) even if her did, to the extent that the cause of death was from natural causes the patient did not 
set the death producing agent in motion with the intent of causing his own death. Furthermore, the 
underlying state interest in this area lies in the prevention of irrational self-destruction. What we 



80 



81 
82 

83 
84 
85 



373 Mass. 728, 370 N.E.2d 417 (1977). See also Sherri Schaeffer, "Death with dignity: proposed amendments to 
the California Natural Death Act" (1988), 25 San Diego LR 781, at 789; John A. Alesandre, "Physician-assisted 
suicide and New York law" (1994), 57 Albany L R 819, at 896; Robert A. Fletcher, "Assisted suicide for the 
terminally ill: the inadequacy of current legal models to rationally analyze voluntary active euthanasia" (1992), 13 
Crim Just. J. 303, at 310. 

Sherri Schaeffer, "Death with dignity: proposed amendments to the California Natural Death Act" (1988), 25 San 
Diego L 781, at 790, citing D. Meyers (see footnote 35, at 788). 

This was on November 28, 1977, but no explanation was given for the delay. See Sherri Schaeffer, "Death with 
dignity: proposed amendments to the California Natural Death Act" (1988), 25 San Diego LR 781, at 790, citing 
D. Meyers (see footnote 35, at 788). 

373 Mass. 728, at 741, 370N.E.2d417, at 425. 

373 Mass. 728, at 742, 370 N.E.2d 417, at 425-426. 

373 Mass. 728, at 743 n. 1 1 , 370 N.E.2d 4 1 7, at 426, n. 11 . 



151 

consider here is a competent, rational decision to refuse treatment when death is inevitable and the 
treatment offers no hope of cure or preservation of life. There is no connection between the conduct 
here in issue and any state concern to prevent suicide. 

The Saikewicz court further held that the courts are the appropriate fora to decide questions 

87 

concerning discontinuing treatment, unlike the New Jersey court in Quinlan. It is significant 
because it laid out what the relevant state interests are that will be balanced against the 
individual's right of privacy to refuse life-prolonging procedures. 



88 



Both Quinlan and Saikewicz are recognized as the cases which establish the required 
balancing analysis for so-called right-to-die cases. One of the first cases in which this analysis is 
applied to a competent patient's request to die was in Satz v. Perlmutter. 

Abe Perhnutter, 73 years old, was suffering from Lou Gehrig's disease. He was incapable 
of movement, unable to breathe without a respirator and unable to speak without extreme effort. 
He decided he no longer wanted to have the respirator and filed suit requesting permission to 
refuse further medical treatment. The trial court and the Florida District Court of Appeal 
granted Perhnutter' s request. 

The decision was affirmed by the Florida Supreme Court in 1980 afler Perlmutter had 

92 

been removed from the respirator and had died a year before. The state's Supreme Court 
analyzed the interests set out in Saikewicz, found none of them compelling, and held that, based 



86 
87 
88 

89 



90 
91 



92 



370N.E.2d417,at426,n. 11. 

373 Mass. 728, at 747, 370 N.E.2d 417, at 434-35. 

370 N.E.2d 417, at 424-427. See Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of 
personal choice: the competent incurable patient and the right to commit suicide?" (1992) 57 Missouri LR 1, at 
20. 

362 So.2d 160 (Fla.Dist.Ct.App. 1978), aff d, 379. So.2d 359 (Fla. 1980). See Rebecca C. Morgan, Thomas C. 
Marks and Barbara Harty-Golder, "The issue of personal choice: the competent incurable patient and the right to 
commit suicide?" (1992) 57 Missouri LR 1. at 20; Sherri Schaeffer, "Death with dignity: proposed amendments to 
the California Natural Death Act" (1988), 25 San Diego LR 781, at 791 and Steven J. Wolfhandler, "Voluntary 
active euthanasia for the terminally ill and the constitutional right to privacy" (1984), 69 Cornell LR 363, at 382, 
note 110. 

362So.2dl60,atl61. 

The court stated: 

It is all very convenient to insist on continuing Mr. Perlmutter's life so that there can be no question of 
foul play, no resulting civil liability and no possible trespass on medical ethics. However, it is quite another 
matter to do so at the patient's sole expense and against his competent will, thus inflicting never ending 
physical torture on his body until the inevitable, but artificially suspended, moment of death. Such a course 
of conduct invades the patient's constitutional right of privacy, removes his fi^edom of choice and invades 
his right to self-determination (362 So. 2d 160, at 164). 

379 So. 2d 359 (Fla. 1980). 



152 

on his constitutional right to privacy, Perhnutter had the right to discontinue use of the 
respirator. 

Quinlan, Saikewicz and Perlmutter demonstrate the evolution of judicial interpretation of 
right to die issues in various state jurisdictions. Two other cases, In re Conroy^^ and Brophy^^ 
are relevant. Claire Conroy was an 84-year-old nursing home patient who suffered from severe 
organic brain syndrome, chronic decubitus ulcers, urinary tract infection, heart disease, 
hypertension and diabetes. She had lapsed into a condition similar to that of Karen Ann 
Quinlan without having left any clear instructions regarding her further medical treatment. 

When asked by a nephew to allow the removal of life support from the patient, the court 
stated that even though there was not enough evidence for a substituted judgment to be made, a 
patient's right to die might be secured using another standard. The court found that adequate 
proof of the patient's wishes was required, and set forth three tests for determining the wishes of 

98 

the patient. 

The tests to be applied depend on whether the patient has made a prior statement on the 
issue, and the precise content and circumstances of that statement. Under a subjective test, life- 
sustaining treatment would be withheld or withdrawn from an incompetent patient when it was 
clear that the patient would have refiised treatment. Under a limited objective test, there must be 
some trustworthy evidence that the patient would have refused the treatment and that the 
burdens of the patient's life markedly outweigh any physical pleasure, emotional enjoyment or 
intellectual satisfaction. The pure objective test applies when the burdens of life outweigh the 

99 

benefits and further provisions of life-sustaining treatments would be inhumane. 



93 
94 
95 
96 
97 

98 

99 



362So.2dl60,atl62. 

98 N.J. 321, 486 A.2d 1209 (1985). 

398 Mass. 417, 497 N.E.2d 626 (1986). 

George J. Annas, "When procedures limit rights: from Quinlan to Conroy" (1985) Hastings Centre Report 24. 

James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 346. 

Francis A. Molenda, "Active euthanasia: can it be justified?" (1988), 24 Tulsa LJ. 165, at 180 and In re Conroy, 
98 N.J. 321, 486 A.2d 1209 (1985). 

Francis A. Molenda, "Active euthanasia: can it be justified?" (1988), 24 Tulsa LJ. 165, at 180, note 131 and In re 
Conroy, 98 N.J. 321, at 360-66, 486 A.2d 1209, at 1229-32 (1985). The court stated that by taking such evidence 
into account, the decision-maker could decide to withdraw treatment if clearly satisfied that: 

...the burdens of the patient's continued life with the treatment outweigh the benefits of that life for 
him, [such that, for example] the pain and suffering of [continued] life.. .markedly outweigh any physical 
pleasure, emotional enjoyment, or intellectual satisfaction that the patient may still be able to derive from 
[that] life. 



153 

In Brophy v. New England Ml Sinai Hospital, Inc., Paul Brophy was a healthy man 
who had been stricken with a ruptured aneurism. He was left at age 49 in a coma and a persistent 
vegetative state, and was maintained by a surgically inserted gastronomy tube through which he 
received nutrition and hydration. Patricia Brophy, the patient's wife, ajked the probate court 
to withhold or withdraw from her husband all treatment, including the feeding tube, but the 
court reftised. 

On appeal, the Supreme Judicial Court of Massachusetts held in 1986 that the right of the 
patient in this case outweighed the state's interest in the preservation of life. The judgment of the 
lower court was set aside regarding the feeding tube, but the high court concurred that the 
hospital need not take any affirmative steps against its ethical principles to remove the tube. 
Instead, the hospital need only assist in transferring Brophy to a hospital where this would be 

102 

done. He died at another hospital eight days later. 

103 

Bolivia V. Superior Court, decided by a California appellate court, represents the 
broadest application of the principle that refusal of treatment is to be clearly distinguished from 
suicide. Elizabeth Bouvia was a 28-year-old woman who had had severe cerebral palsy since 
birth. She was a quadriplegic under care of a public hospital. She had previously stated a wish to 
die, and had at one time attempted to starve herself. 



100 
101 



102 



103 



104 



398 Mass. 417, 497 N.E.2d 626 (Massachusetts Supreme Judicial Court, 1986). 

Robert L. Risley, "Voluntary active euthanasia: the next frontier" (1992) 8 Issues in Law and Medicine 361 at 
373. The ground-breaking case on withholding or withdrawing artificially provided nutrition and hydration 
(ANH) was Barber v. Superior Court of California, 147 Cal.App.3d 1006, 195 CaI.Rptr.484 (California Court of 
Appeal, 2d District, 1983). Sustaining the lower courts, the appeals court ruled that the administration of artificial 
nutrition and hydration could be categorized under medical treatment exactly as the use of mechanical supports 
was categorized, since ANH was "more similar to other medical procedures than to typical human ways of 
providing nutrition and hydrafion" (at 1016-1017). On the distinction between ANH and the medical procedures, 
the court pointed out that it seems to be based: 

...more on the emotional symbolism of providing food and water to those incapable of providing for 
themselves rather than on any rational difference. ...[Further] medical nutrition and hydration may not 
always provide net benefits to pafients. (at 1016). 

This case was the first to deal with murder charges brought against doctors for withholding or withdrawing these 
particular procedures. The court dismissed the charges, and rejected the judicial reliance on the disfinction 
between extraordinary and ordinary treatment. (See Hoefler, infra Kamoie, n. 126 at 349 and Berger, infra n. 102 
at 144. 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death (New York: Praeger, 1990),at 130-3 1 . 

179 Cal. App. 3d 1 127, 225 Cal. Rptr. 297 (1986). See John A. Alesandre, "Physician-assisted suicide and New 
York law" (1994), 57 Albany LR 819, at 897; Laura L. Marcinko, "To live or die: creating a choice of medically 
assisted suicide in Michigan's proposed law" (1991), 8 Thomas M. Cooley LR 609, at 620; Sherri Schaeft'er, 
"Death with dignity: proposed amendments to the California Natural Death Act" (1988), 25 San Diego LR 781, at 
808; Francis A. Molenda, "Active euthanasia: can it be justified?" (1988), 24 Tulsa LJ 165, at 177; and Rebecca 
C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent incurable 
patient and the right to commit suicide?" (1992) 57 Missouri LR 1, at 17, note 111. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819, at 897. 



154 

Because of this prior history, the hospital inserted a nasogastric tube to provide her with 
nutrition and hydration. Bouvia sought the removal of the feeding tube on the basis that it had 
been inserted and maintained without her consent and against her wishes. '^^ The California 
Court of Appeal issued a peremptory writ granting her relief' 

However, the appellate court admitted in its reasons that the desire to terminate one's life 

107 

"is probably the ultimate exercise of one's right to privacy". It also decided that the evidence 
did not support the trial court's conclusion that Bouvia intended to commit suicide. It concluded 
that: 

[A]s a consequence of her changed condition, it is clear she has now merely resigned herself to 
accept an earlier death, if necessary, rather than live by feedings forced upon her by means of a 
nasogastric tube. Her decision to allow nature to take its course is not equivalent to an election to 

108 

commit suicide with real parties aiding and abetting therein. 

Coming close to the dividing line between suicide and refusal of treatment, a concurring 
opinion provided an admission of the right to aid suicide under such circumstances.'^^ 
Application of the penal statute against aiding and abetting suicide was called "archaic and 
inhumane" and asserted that Bouvia was forced to "stultify her position before this court by 
disavowing her desire to end her life in such a fashion and proclaimmg that she will eat all she 

can physically tolerate. Even the majority opinion here must necessarily 'dance' around the 

)}iii 
issue. 



105 



106 



107 
108 
109 
110 
111 



John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819, at 897; 255 Cal. 
Rptr. 297, at 299. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819, at 897-98. The 
court reasoned that she had been "subjected to the forced intrusion of an artificial mechanism into her body 
against her will [and that] she had a right to refuse the increased dehumanizing aspects of her condition created by 
the insertion of a permanent [nasogastric] tube". (225 Cal. Rptr. 297, at 299.) 

225 Cal. Rptr. 297, at 306. 

225 Cal. Rptr. 297, at 306. 

225 Cal. Rptr. 297, at 307 (Compton J., concurring). 

225 Cal. Rptr. 297, at 307 (Compton J., concurring). 

225 Cal.Rptr. 297, at 307 (Compton J., concurring). He also wrote: 

The right to die is an integral part of our right to control our own destinies so long as the rights of 
others are not affected. That right should, in my opinion, include the ability to enlist assistance from others, 
including the medical profession, in making death as painless and quick as possible. 

That ability should not be hampered by the state's threat to impose penal sanctions on those who might 
be disposed to lend assistance (225 Cal. Rptr. 297, at 307 (Compton J., concurring)). 

This concurrence is often cited with approval by those arguing for the legalization of physician-assisted suicide 
and/or voluntary euthanasia (and strongly criticized by those who oppose legalization). In 1986, U.S. Surgeon 
General C. Everett Koop, objecting to the Bouvia decision, called it "the most forthright judicial 



155 

The court did clarify, in Bouvia, that there is a distinction between aiding and abetting 
suicide and merely being present during the exercise of a patient's constitutional right to refuse 
medical treatment. The court concluded that no criminal or civil liability would attach to a 
physician or hospital from honouring the refusal of medical treatment by a competent patient. ^^^ 

In June 1990, the United States Supreme Court decided its first case regarding the right to 
refuse life-sustaining treatment and its place in federal constitutional law.'^"^ The case was 
Cruzan v. Director, Missouri Department of Health and it addressed the issue of an 
incompetent person's right to die, based on a petition by the parents of Nancy Cruzan to 
terminate their daughter's artificial nutrition and hydration. 

Cruzan had sustained injuries in a 1983 automobile accident and had remained in a 

1 17 

persistent vegetative state for several years. Her parents recognized that their daughter would 
never recover and that she would not choose to continue to live in her condition, and sought to 

I 1 o 

have the tubes removed, thus ending her life. 

The trial court found that Cruzan would be deprived of equal protection of the law if her 
co-guardians were not allowed to terminate her artificial nutrition and hydration treatment. ^^^ 
The Missouri Supreme Court reversed the lower court decision and held that Cruzan' s personal 
choice to terminate treatment could be exercised for her only if the formal requirements of the 
Missouri "living will" statutes were satisfied or if there was clear and convincing and inherently 
reliable evidence presented by her guardians that she wished to die. The court found that the 

121 

evidence presented was not clear and convincing. 



112 
113 
114 



115 
116 
117 
118 
119 

120 
121 



acknowledgement yet of the 'right' to undergo euthanasia by omission". (See Alesandre, supra n. 105, p. 899, 
n. 462.) 

225 Cal. Rptr. 297, at 308, 179 Cal. App.3d 1 127, at 1 145. 

225 Cal. Rptr. 297, at 308. 

Susan Machler, "People with pipes: a question of euthanasia" (1993), 16 Univ. of Puget Sound L R 781, at 79. Of 
the more than fifty "right to die" cases considered by state courts since 1976, Cruzan was the first to be heard by 
the U.S. Supreme Court. {See Susan M. Wolf, "Nancy Beth Cruzan: in no voice at all" (1990),20 Hastings Centre 
Report, January /February 1990, at 38.) 

497 U.S. 261, 1 10 S. Ct. 2841 (1990). 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819, at 899. 

497 U.S. 261 (1990), at 269. 

497 U.S. 261 (1990), at 267. 

Susan Machler, "People with pipes: a question of euthanasia" (1993), 16 Univ. of Puget Sound LR 781, at 791 
and Cruzan, 760 S.W.2d 408, 411 (Mo. 1988), cert, granted, Cruzan v. Director, Missouri Department of Health, 
109 S.Ct. 3240 (1989). 

760S.W.2d408,at425. 

760 S.W.2d 408, at 426. 



156 

The Supreme Court, in the majority opinion by Chief Justice Rehnquist, ruled on 
extremely narrow grounds, concentrating on the state's right to require clear and convincing 
evidence, and concluded that such a state interest should prevail. In this holding, that the state 
of Missouri's evidentiary standard did not violate federal constitutional rights, the five to four 
majority decision rejected the request of Nancy Cruzan's parents to have their daughter's 
gastrostomy tube removed. 

Even though the Supreme Court described the principal cases on the right to refuse life- 
sustaining treatment, it limited its own attention to the question as to whether Missouri's 
evidence requirement was constitutional. The Court simply assumed Cruzan's constitutionally 
protected right to refiise life-sustaining nutrition and hydration in order to proceed to the issue of 
the evidentiary standard for acting on her wishes. (In considering this question, the Court also 
presumed that the refusal of medical treatment has nothing to do with suicide.)^^^ 

In the judgment, the Court affirmed that there was, indeed, a longstanding common law 
tradition of informed consent which appropriately could be construed to apply in right to die 
cases. More importantly, the Court agreed that there were constitutionally protected rights at 
stake — specifically the liberty interest supported by the Fourteenth Amendment. However, the 
Court qualified the constitutional defense for the right to die by arguing that the right was not 
absolute. 

128 

The Court referred to Bowers v. Hardwick in distinguishing the due process or liberty 
interests fi^om claims under the right of privacy. It appeared that liberty interests provide greater 
latitude in fashioning rights dependent on the Court's notion of their historical acceptability 
rather than on an individual's claim of entitlement under the Constitution. This subtle distinction 
is that liberty claims focus on the right being asserted, while privacy claims focus on the 



122 
123 
124 

125 
126 



127 



128 



William H. Colby, "Missouri stands alone" (1990), 20 Hastings Centre Report 5. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819. at 899. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819. at 899, citing the 
Quinlan and Saikewicz cases among others. 

497 U.S. 261 (1990) at 280. 

James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 344. It has been noted that there is a conspicuous absence of discussion 
regarding "privacy rights". The only reference to state court decisions referring to privacy rights and the right to 
die is found in a footnote of Chief Justice Rehnquist in which he stated: 

Although many state courts have held that a right to refuse treatment is encompassed by a generalized 
right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of the 
Fourteenth Amendment liberty interest. (Cnizan v. Director, Missouri Department of Health, 497 U.S. 
261, at 279 n.7, see also and Hoefler and Kamoie, infra, at 370.) 

James M. Hoefler and Brian E. Kamoie, "The right to die: state courts lead where legislatures fear to tread" 
(1993), 14 Law and Policy 337, at 344. 

478 U.S. 186(1986). 



157 

individual asserting the right. An analysis of Cruzan based on the Bowers principle suggests 
that acceptability of assisted suicide will turn on whether a court finds the right to commit 
suicide historically persuasive. 

In his concurrence, Justice Scalia reasoned that the U.S. Constitution has nothing to say 
about the subject. In his opinion the due process clause of the Fourteenth Amendment contains 
no basis to impose "reasonable and humane limits that ought not to be exceeded in requiring an 
individual to preserve his own life", concluding that the only federal restriction on the state 
evidentiary standards in this context would be the equal protection clause, "which requires the 
democratic majority to accept for themselves and their loved ones what they impose on you and 
me. 

Expanding on this issue in his opinion, Justice Scalia actually considered the refusal of 
life-sustaining treatment as related to suicide. He wrote: 

For insofar as balancing the relative interests of the State and the individual is concerned, there is 
nothing distinctive about accepting death through the refusal of "medical treatment," as opposed to 
accepting it through the refusal of food, or through the failure to shut off the engine and get out of 

131 

the car after parking in one's garage after work. 

It is important to keep Cruzan in perspective, however, because it is not generally seen to 

132 

be a right to die case. The Court ruled on extremely narrow grounds (as noted above), and so, 
in theory at least, any effects (ill or otherwise) of the decision are limited to the state of 
Missouri. 



129 



130 



131 



132 
133 



Mary Margaret Penrose, "Assisted suicide: a tough pill to swallow" (1993), 20 Pepperdine LR 689, at 736-37. 
This is an important distinction when applying it to suicide-related issues. Bowers held that homosexual sodomy 
is not protected under the U.S. Constitution. (478 U.S. 186 (1986), at 190-91.) The Court applied a historical 
analysis, basing much of its findings on the common law and early colonial prohibitions against sodomy. It is 
argued that the applicability of Bowers to an analysis of assisted suicide lies in a court's willingness to extend the 
historical approach to assisted suicide. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994), 57 Albany LR 819, at 900. Cruzan v. 
Director, Missouri Department of Health, 497 U.S. 261, at 300. 

Cruzan v. Director, Missouri Department of Health, 497 U.S. at 299 (Scalia, J., concurring). This part of the 
Cruzan judgment has been criticized as setting the stage for active euthanasia by granting "legal permission to 
surrogate decision-makers to engineer the death by starvation of profoundly disabled family members". (See 
Edward R. Grant and Cathleen A. Cleaver, "A Line Less Reasonable: Cruzan and the Looming Debate Over 
Active Euthanasia" (1991), 2 Md. J. Contemp. Legal Issues 99, at 252 (1991) as cited in John A. Alesandre, 
"Physician-assisted suicide and New York law" (1994), 57 Albany L R 819, at 900. 

Susan K Jezewski, "Can a suicide machine trigger the murder statute?" (1991), 37 Wayne L R 1921, at 1942. 

William H. Colby, "Missouri Stands Alone," (1990), 20 Hastings Centre Report 5. He does acknowledge that the 
"so-called 'right to die' advocates have hailed the decision as a victory for residents of the other forty-nine states, 
because the Court acknowledged for the first time that competent persons enjoy a constitutional right to refuse 
medical treatment". Note also Justice O'Connor's statement in Cruzan on the "laboratory of the states". 



158 

The Court also is seen to have given its support to judicial nonintervention in these areas 
and it recognized as well that the state legislatures are better equipped to resolve issues in these 
grey areas: 

[N]o national consensus has yet emerged on the best solution for this difficult and sensitive problem. 
Today we decide only that one State's practice does not violate the Constitution; the more 
challenging task of crafting appropriate procedures for safeguarding... liberty interests is entrusted to 
the "laboratory" of the States... in the first instance.'^'* 

A more recent case, Compassion in Dying v. State of Washington, faced the issue of 
physician-assisted suicide more directly. The case was initiated by "three termmally ill patients, 
five physicians who treat terminally ill patients and Compassion m Dying, an organization 
which provides support, counselling and assistance to mentally competent, terminally ill adults 
considering suicide". ^^^ 

137 

The plaintiffs challenged a Washington state statute that made it a felony knowingly to 
aid another person in committmg suicide, but "only insofar as it bans physician-assisted suicide 
by mentally competent, terminally ill adults who knowingly and voluntarily choose to hasten 
their death".'^^ 

The judgment referred to the protected liberty interest in the Fourteenth Amendment'^^ 
and particularly based the analysis of this interest on two cases: one, which the court said 
reflected the line of cases relating to marriage, procreation, contraception, family relationships, 
child rearing and education. Planned Parenthood v. Casey, and the other, Cruzan. 



134 

135 
136 

137 



138 
139 

140 



110 S.Ct. 2841 (1990), at 2859 (O'Connor, J., concurring) cited in Susan K Jezewski, "Can a suicide machine 
trigger the murder statute?" (1991), 37 Wayne LR 1921, at 1943, note 129. 

850 F. Supp. 1454 (W.D. Wash. 1994). 

Alexander Morgan Capron, "Easing the Passing" (1994), 24 Hastings Centre Report 25. 

RCW 9A.36.060(1), which states: 

A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt 
suicide. 

(Promoting a suicide attempt is a class C felony punishable by imprisonment for a maximum of five years and a 
fine of up to ten thousand dollars. RCW 9A.36.060(2) and 9A.20.020(l)(c)) 

Alexander Morgan Capron, "Easing the Passing," (1994) 24 Hastings Centre Report 25. 

The Fourteenth Amendment to the U.S. Constitution declares that the state may not "deprive any person of life, 
liberty or property, without due process of law." 

1 12 S.Ct. 2791, 120 L.Ed.2d 674 (1992), in which the Court stated: 

[T]hese matters, involving the most intimate and personal choices a person may make in a lifefime, 
choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth 
Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the 



159 

U.S. District Court Judge Barbara J. Rothstein considered the reasoning in Casey as 
instructive, and almost prescriptive on the issue of a terminally ill person's choice to commit 
suicide. ^'^^ Using the 1992 abortion decision as an analogy, Judge Rothstein argued that "the 
decision of a terminally ill person 'involv[es] the most intimate and personal choices a person 
may make in a lifetime' and constitutes a 'choice central to personal dignity and autonomy. '"'"^^ 

In citing Crnzan, Judge Rothstein stated that in making her ruling she was confident that 
the Supreme Court would reaffirm that case's tentative ruling that a competent person has a 
protected liberty interest in refiising unwanted medical treatment, even when that treatment is 
life-sustaining and refusal or withdrawal of the treatment would mean certain death. ^"^"^ On these 
bases, she declared Washington's statute RCW 9A. 36.060 unconstitutional, that is, in violation 
of the equal protection guarantee of the Fourteenth Amendment. 

The same lawyer who argued Compassion in Dying in the state of Washington 
subsequently filed suit in a federal district court in New York, challenging that state's criminal 
sanctions against physician-assisted suicide. Plaintiffs included Dr. Timothy Quill, who wrote a 
controversial article in a medical journal, describing his personal experience with a dying 

. • . 146 

patient. 

In March 1996, the United States Court of Appeals for the Ninth Circuit, sitting en banc, 
handed down a decision in the Compassion in Dying case. This judgment superceded an earlier 
appellate panel ruling that the federal district court had erred in deciding that the state's assisted 
suicide legislation violated both due process and equal protection clauses of the Fourteenth 
Amendment. The en banc decision affirmed the judgment of the district court, presumptively 
invalidating similar assisted suicide provisions in all nine states covered by the Ninth Circuit, 
"insofar as [they] prohibit physicians from prescribing life-ending medication for use by 
terminally ill, competent adults who wish to hasten their own deaths." 

Notable aspects of the majority ruling included the fmding that there are "compelling 
similarities" between what Judge Stephen Reinhardt called "the right to die" and abortion. 



universe, and of the mystery of human life, beliefs about these matters could not define the attributes of 
personhood were they formed under compulsion of the State. (Cite 1 12 S.Ct., at 2807) 



141 

142 
143 

144 
145 
146 

147 



497 U.S. 261, 110 S.Ct. 2841. 

The United States Law Week, 62 LW 2698, 5-17-94. 

1 12 S.Ct. 2791, at 2807. See also Alexander Morgan Capron, "Easing the Passing," (1994), 24 Hastings Centre 
Report 25. 

62 LW 2699. 

62 LW 2699. 

The Journal of Clinical Ethics, "Assisted Suicide and Euthanasia," Vol. 5, No. 3, Fall 1994, p.268. 

Compassion in Dying v. Washington, 79 F. 3d 790 (9th Cir. Mar. 1996) {en banc) as cited in Alexander Morgan 
Capron, "Liberty, Equality, Death!", (1996) 26 Hastings Center Report 23; cert, granted (sub. nom. Washington v. 
Glucksberg) 65 U.S. L.W. 3218 (Oct. 8, 1996). 



160 

Following the district court judgment, which invoked the U.S. Supreme Court's ruling in 
Planned Parenthood v. Casey, the appellate court found that "matters, involving the most 
intimate and personal choices a person may make in a lifetime, choices central to personal 
dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." The 
en banc panel ruled as well that "having lived nearly the full measure of his life" and "being 
reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, 
incontinent" a competent adult's "decision whether to endure or avoid such an existence" is as 
"personal, intimate or important" as any. 

Shortly after the Compassion in Dying en banc appellate decision, a three-judge panel of 
the United States Court of Appeals for the Second Circuit ruled on the Timothy Quill case in 
New York state. It is noted that the judgment found that "the alleged distinction between 
physicians forgoing treatment and providing lethal drugs could not survive equal protection 
scrutiny," and that "such laws... cannot be applied to physicians who wish to prescribe lethal 
drugs for 'mentally competent, terminally ill adults' to 'self-administer at the time and place of 
their choice for the purpose of hastening their impending deaths.'" This appellate ruling 
reversed the summary judgment in favour of the state which invalidated certain applications of 
the New York state penal law that criminalizes intentionally aiding another person to commit 

152 

suicide or to attempt suicide. 

The state of Michigan was also placed in the euthanasia spotlight because of the 
controversial and widely publicized acts of pathologist Dr. Jack Kevorkian. Before 1988 there 
had been only three reported cases dealing with either assisted suicide or caused suicide in 
Michigan. Then in 1988, a Michigan physician. Dr. Daniel Caraccio pleaded guilty to 
poisoning with intent to kill a seventy-four-year-old terminally ill patient suffering from 
gangrene, heart disease and kidney failure. 



148 
149 
150 
151 
152 

153 



154 



Planned Parenthood \. Casey, 1 12 S.Ct. 2791, 2807 (1992). 

Alexander Morgan Capron, "Liberty, Equality, Death!", (1996) 26 Hastings Center Report 23. 

Quill \. Vacco, 80 F. 3d 716 (2d Cir. 2 April 1996); cert, granted 65 U.S. L.W. 3218 (Oct. 8, 1996). 

Alexander Morgan Capron, "Liberty, Equality, Death!", (1996) 26 Hastings Center Report 23. 

Alexander Morgan Capron, "Liberty, Equality, Death!", (1996) 26 Hastings Center Report 23. In October 1996, 
the U.S. Supreme Court agreed to hear these two cases (Compassion in Dying and Quill) to decide whether 
terminally ill patients should have the right to have a physician's assistance in dying. 

Michael J Roth, "A failed statute, Geoffrey Feiger and the phrenetic (sic) physician..." (1994) 28 Valparaiso Univ 
L R 1415 at 1429 [need complete title]. The first case is People v. Roberts (178 N.W. 690 (Mich. 1920)), People 
V. Quicksall (33 N.W.2d 904 (Mich. 1948)), and People v. Campbell (335 N.W.2d 27 (Mich.Ct.App.), appeal 
denied, 342 N.W.2d 509 (Mich. 1983)). Cite also George J. Annas, "Physician-Assisted Suicide - Michigan's 
Temporary Solution," (1993) 20 Ohio Northern U L R 561 . 

He injected his patient with an overdose of potassium chloride, and after his plea he was sentenced to five years of 
probation. See Michael J Roth, "A failed statute, Geoffrey Feiger and the phrenetic (sic) physician..." (1994) 28 
Valparaiso Univ L R 1415 at 1433. 



161 

The issue of physician-assisted suicide came to the fore at the national level in 1990 when 
Dr. Kevorkian used a device that he had designed to assist Janet Adkins^^^, a fifty-four-year-old 
Oregon women with Alzheimer's disease in committing suicide. Kevorkian had decided to test 
his "suicide machine" in Michigan because he was convinced that Michigan had no laws against 
assisted suicide. 

As of October 1996, Kevorkian had been present at the suicide deaths of at least forty-two 

157 158 

seriously ill people, two of whom used his "suicide machine" and most of the rest, carbon 



Adkins was a member of the Hemlock Society and was aware that assisted suicide was illegal in her home state of 
Oregon. She apparently contacted Dr. Kevorkian herself (see Time, June 18, 1990, at 69.) 

George J. Annas, "Physician-Assisted Suicide - Michigan's Temporary Solution," (1993) 20 Ohio Northern U L R 
561. This belief was based on his reading of the People v. Roberts (178 N.W. 690 (Mich. 1920)) and People v. 
Campbell (335 N.W.2d 27 (Mich.Ct.App.), appeal denied, 342N.W.2d 509 (Mich. 1983)) cases. 

157 

The first twenty-four individuals whose lives were ended in the presence of Dr. Jack Kevorkian were: 

1 . Janet Adkins, 54, suffering from Alzheimer's disease. 

2. Maijorie Wantz, (details unavailable). 

3. Sherry Miller, (details unavailable). 

4. Susan Wiliams, 52, blind and suffering from severe multiple sclerosis. 

5. Lois Frances Hawes, 52, had lung and brain cancer and was in severe pain. 

6. Catherine A. Andreyev, 46 progressed stages of breast, lung and bone cancer. 

7. Marguerite Tait, 70, Lou Gehrig's disease (amyotrophic lateral sclerosis). 

8. Marcella Lawrence, 67, heart disease, emphysema and a failing liver. 

9. Jack E. Miller, 53, metastic bone cancer and extreme pain (given days to live). 

10. Stanley Ball, 82, pancreatic cancer. 

11. Mary Biemat, 73, progressed stages of breast and bone cancer. 

12. Elaine Goldbaum, 47, multiple sclerosis. 

13. Hugh Gale, 44, chronic emphysema and congestive heart failure. 

14. Jonathon Grenz, 44, throat cancer (he had had much of his throat and tongue removed). 

15. Martha Ruwart, 41, duodenal cancer and ovarian cancer. 

16. Ronald Mansur, 54, bone and lung cancer. 

17. Thomas Hyde, 30, Lou Gehrig's disease (ALS). 

18. Donald O'Keefe, 73, bone cancer. 

19. Merian Frederick, 72, Lou Gehrig's disease (ALS). 

20. Ali Khalili, 61, bone cancer. 

21. (Name unavailable.) 

22. John E. Evans, 78, lung disease. 

23. Nicholas John Loving, 27, Lou Gehrig's disease. 



162 

159 

monoxide. Kevorkian was charged with murder in connection with the deaths of the second 
and third persons he "assisted" (Marjorie Wantz and Sherry Miller). However, since Michigan 
did not at that time have a statute prohibiting assisting suicide, and since Kevorkian did not 
affirmatively act to assist in the deaths, the charges were dismissed. '^° 

The Michigan circuit court held that "in the absence of specific laws against assisting 
suicide, there could be no probable cause that the doctor had committed murder". '^^ The court 
did invoke state criminal law and the Public Health Code to support an injunction prohibiting 
Kevorkian from using his "suicide machine" in the future. Nevertheless, he indicated that he 
intended to continue in this practice. 

Kevorkian continued to assist in a number of deaths (as noted above) ignoring the 

If."! 

suspension of his Michigan medical license in 1991. Following Kevorkian's actions, and 
reflecting concern for unsettled case law and lack of a state statute addressing assisting 
suicide, the Michigan Legislature introduced anti-assisted suicide legislation in 1993.^^^ 



158 



159 



160 



161 



162 



163 



164 



165 



24. Erika Garcellano, 60, Lou Gehrig's disease. 
See also, The New York Times, October 20, 1996, p. 14. 

It consists of three hanging bottles connected to an intravenous line, which, when in place delivers a saline 
solution. The person can push a button that switches to a second bottle, containing the sedative thiopental. A third 
bottle, containing potassium chloride, is later activated automatically by a timer, and death presumably then 
occurs within minutes. See George J. Annas, "Physician-Assisted Suicide - Michigan's Temporary Solution," 
( 1 993) 20 Ohio Northern U L R 56 1 at 563 . 

Kevorkian's use of carbon monoxide occurred eifter he had difficulty starting the intravenous line in Adkins and 
was not able to do so at all with his second attempt, Sherry Miller. See George J. Annas, "Physician-Assisted 
Suicide - Michigan's Temporary Solution," (1993) 20 Ohio Northern U L R 561 at 564. 

Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L J 
1291 at 1301; John A. Alesandre, "Physician-assisted suicide and New York law" (1994) 57 Albany L R 819 at 
820; Laura L. Marcinko, "To live or die: creating a choice of medically assisted suicide in Michigan's proposed 
law" (1991) 8 Thomas M. Cooley L R 609 at 628. 

Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L J 
1291 at 1301 at note 61. 

People v. Kevorkian, No. 90-390963 AZ (Mich. Cir. Ct. Feb. 5, 1991) appeal docketed. No. 138155-6 (Mich. Ct. 
App.,May 18, 1992). 

Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L J 
1291 at 1301. 

People V. Roberts (178 N.W. 690 (Mich. 1920)) and People v. Campbell (335 N.W.2d 27 (Mich.Ct.App.), appeal 
denied, 342 N.W.2d 509 (Mich. 1983). 

The bill was signed by Governor John Engler on December 15, 1992, the same day Kevorkian assisted the 
suicides of his seventh and eighth subjects. It was to come into effect on March 30, 1993, but as Kevorkian's cases 
grew to fifteen, the legislature made the statute effective on February 25, 1993. (Mich.Comp. Laws Ann. 
752.10279b)(4) (West 1993). See George J. Annas, "Physician-assisted suicide — Michigan's temporary solution" 
(1993) 20 Ohio Northern U L R 561 at 564. 



163 

The new Michigan law had two basic provisions. The first established a Commission on 
Death and Dying to be composed of representatives from a number of interest groups, including 
the state's medical society, hospital association. Hemlock Society and right-to-life organization. 
The commission was given fifteen months to "develop and submit to the legislature 
recommendations as to legislation concerning the voluntary self-termination of life". ^^^ 

The second part of the statute temporarily criminalized assisted suicide (for up to twenty- 
one months) and was to be automatically repealed six months after the commission made its 
recommendations to the legislature. After the statute's enactment, the State of Michigan filed 
four charges of murder against Kevorkian for assisting suicide. Three of these charges were 
dismissed before trial because the trial judges believed the statute was unconstitutional. 

The State of Michigan appealed these pretrial judgments and the Michigan Supreme Court 
ordered immediate consideration by an appellate court. The Michigan Court of Appeals 
stayed the lower court's order pending its determination of the constitutionality of the assisted 
suicide ban.^^^ Then on May 10, 1994, the Michigan Appeals Court found the statute 
unconstitutional, not on its merits, but on narrow procedural grounds: that the statute was 
improperly enacted because the purpose of the statute was not clearly stated in its title. However, 

171 

the decision fell short of saying that assisted suicide itself is constitutionally protected. 

The Appeals Court also reinstated two murder charges against Kevorkian, originating from 
the 1991 suicides he participated in before the law had been passed. The court ruled that aiding a 
suicide falls within the common law definition of murder. Eventually, and after three 
prosecutions, Kevorkian was acquitted of the charges against him. 



166 



167 



168 



169 



170 



171 



172 



Mich. Comp. Laws Ann. 752.1024. See George J. Annas, "Physician-assisted suicide — Michigan's temporary 
solution" (1993) 20 Ohio Northern U L R 561 at 564. 

Mich. Comp. Laws Ann. 752.1027. It was intended to be a direct response to Kevorkian's actions, and he met the 
requirements of parts (l)(a) and (b) of the statute: i.e. he "provides the physical means" and "participates in [the] 
physical act". And since his intent is "to cause death", his actions do not fall within the exception in subsection 3. 

Michael J. Roth, "A failed statute, Geoffrey Feiger and the phrenetic (sic) physician..." (1994) 28 Valparaiso Univ 
LR 1415 at 1416, note 5. 

State V. Kevorkian, No. SC-98364, 1993 Mich. LEXIS 2986, at *1 (Mich. Dec. 21, 1993). See Michael J. Roth, 
"A failed statute, Geoffrey Feiger and the phrenetic physician..." (1994) 28 Valparaiso Univ L R 1415 at 1416. 

John A. Alesandre, "Physician-assisted suicide and New York law" (1994) 57 Albany L R 819 at 820-821, note 
37. Oral argument was heard on January 6, 1994. (Reported in N.Y. Times, January 28, 1994 at A17.) 

The Journal of Clinical Ethics, "Assisted Suicide and Euthanasia," Vol. 5, No. 3, Fall 1994, p. 268, and Michael J. 
Roth, "A Failed Statute, Geoffrey Feiger, and the Phrenetic (sic) Physician..." (1994) 28 Valparaiso Univ L R 
1415 at 1416 and 1464, noting that the effect of the events in Michigan is to again challenge the Michigan 
legislature to enact a statute, using constitutionally appropriate procedures, that does not abridge individual 
liberty. 

The Journal of Clinical Ethics, "Assisted Suicide and Euthanasia," Vol. 5, No. 3, Fall 1994, p. 268 citing Hobbins 
v. A.G., 1994 Mich. App. LEXIS 232. This article points out that it is worth remembering that Michigan's 



164 

To put the case of Dr. Jack Kevorkian into a broader context, it is important to review the 
current status of state law on suicide and assisted suicide. As of 1993 in the U.S., thirty states 
and two territories have statutes which impose criminal sanctions for aiding, assisting, causing or 
promoting suicide. In states which do not specifically place criminal sanctions on assisted 
suicide, the conduct may be covered by murder or manslaughter provisions. At least two states 
have passed statutes to prevent suicides assisted by physicians 



174 



On the issue of prohibition against assisting suicide, concern is expressed about problems 



175 



of enforcement and dangers in bypassing the law. Reasons for enforcement problems include 
how such cases come to be known (for example, through news stories and personal accounts) 

1 76 

and the usually broad discretion of prosecutors in bringing charges. In noting the dangers 



173 



174 



175 



176 



judiciary is an elected body, and two of the three judges who heard the case may be running for state supreme 
court in 1995. 

Warren L. Wheeler, "Hospice philosophy: an alternative to assisted suicide" (1993) 20 Ohio Northern Univ L R 
755 at 776. 

Alaska Stat. 11.41.120 (1989); Ariz. Rev. Stat. Ann. 13-1193 (1989); Ark. Code Ann. 5-10-104 (Michie 1987); 
Cal. Penal Code 401 (West 1988 and Supp. 1993); Colo. Rev. Stat. 18-3-104 (1986); Conn. Gen. Stat. Ann. 53-56 
(West 1985); Del. Code Ann. tit.l 1, 645 (1987 and Supp. 1990); Fla. Stat. Ann. 782.08 (West 1992); Haw. Rev. 
Stat. 707-702 (1988); Ind. Code Ann. 35-42-1-2 (West 1986); Kan. Stat. Ann. 21-3406 (1971); Me. Rev. Stat. 
Ann. tit. 17-A, 201 (West 1964); Act of Dec. 15, 1992, 1992 Mich. Pub. Acts 270 as amended by Act of Feb. 25, 
1993, 1993 Mich. Pub. Acts 3 (effective Feb. 25, 1993); Minn. Stat. Ann. 609.215 (West 1987 and Supp. 1993); 
Miss. Code Ann. 97-3-49 (1972); Mo. Ann. Stat. 565.023(2) (Vernon Supp. 1992); Mont. Code Ann. 45-5-105 
(1991); Neb. Rev. Stat. 28-302 (1989); N.H. Rev. Stat. Ann. 630:1 (1986); N.J. Stat. Ann. 20:11-6 (West 1982); 
N.M. Stat. Ann. 30-2-4 (Michie 1984); N.Y. Penal Law 120.30, 125.15(3), 125.25(l)(b) (McKinney 1987); N.D. 
Cent. Code 12.1-16-04 (Supp. 1991); Okla. Stat. Ann. tit. 21, 813-818 (West 1983); Or. Rev. Stat. 163.125(l)(b) 
(1991); 18 Pa. Cons. Stat. Ann. 2505 (1983 and Supp. 1992); P.R. Laws Ann. tit. 33, 4009 (1983); S.D. Codified 
Ann. 22-16-37 (1988); Tex. Penal Code Ann. (West 1989); V.L Code Ann. tit. 14, 2141 (1964); Wash. Rev. Code 
Ann. 9A.36.060 (West 1988); Wis. Stat. Ann. 940.12 (West 1982). 

Andrew Benton, "Personal Autonomy and Physician-Assisted Suicide: The Appropriate Response to a Modem 
Ethical Dilemma," (1993) 20 Ohio Northem University Law Review 776-777. See Conn. Gen. Stat. Ann. 401 
(West 1988 and Supp. 1993); Act of Dec. 15, 1992, 1992 Mich. Pub. Acts 270 as amended by Act of Feb. 25, 
1993, 1993 Mich. Pub. Acts 3 (effective Feb. 25, 1993). The constitutionality of the Michigan statute was 
challenged in court. Hobbim v. Attorney General, slip op. 93-206-178 CZ, 1993 WL 276833 (Mich. Cir. Ct. 
1993). The Michigan Circuit Court in Wayne County declared the statute void due to a technical violation of the 
Michigan Constitution, Art. IV, sec.24, which requires a statute to be singular in purpose and to have this purpose 
reflected in its title. (Cite as above, footnote #45.) 

Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L J 
1291 at 1297-1299. 

In "Physician Aid in Dying," (1991) 157 W.J. Med. 188 at 188-189, Faye J. Girsh wrote: 

The current law is being ignored. Police are not reporting mercy killings and assisted suicides; district 
attomeys are not prosecuting them; grand juries are not indicting; and, when a rare case does go to trial, 
juries are acquitting. Is this better than having a law that would provide regulations about a practice that 
desperate people are exercising surreptitiously? 

{See Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L 
J 1291 at 1297-1299.) 



165 
associated with bypassing law, problems include family members being drawn into aiding or 

177 

abetting the suicide of an ailing loved one. 

As well as influencing changes in state laws on assisting suicide, Quinlan and subsequent 
cases have drawn attention to the ethical and legal dilemmas of substitute decision-making for 

178 

incompetent persons. As of 1992, thirty-eight U.S. states have enacted legislation recognizing 

179 

"living wills". Most courts permit the refusal of medical treatment based on their statutes 
recognition of the common law right of informed consent, the right of privacy, or the liberty 
interest of the Fourteenth Amendment. Courts have clearly determined that incompetent patients 
have the same rights and privileges as a competent individual. 

However, the difficulty of the issues and the lack of unanimity in the courts have placed 
more and more pressure on state legislation to both clarify and protect the rights of patients to 
refuse life-sustaining treatment. Also, the state legislatures have had to take into account the 
need to ensure that patients' wishes will be carried out by physicians who might be concerned 
about civil and/or criminal liability for acceding to patients' wishes. 



177 



178 



179 



180 
181 



Julia Pugliese, "Don't ask - don't tell: the secret practice of physician-assisted suicide" (1993) 44 Hastings L J 
1291 at 1298. 

Incompetency is defined as an "individual that is legally unqualified to be responsible to make valid decisions." 
The Random House Dictionary of the English Language 967 (2d ed., unabridged, 1987). Also, incompetency is 
the "lack of legal qualifications or fitness to discharge the required duty and to show want of physical or 
intellectual or moral fitness." Black's Law Dictionary 688 (5th ed. 1979). 

These statutes are also referred to as "death with dignity" or "natural death" statutes, see Thane Josef Messinger, 
"A gentle and easy death: fi-om ancient Greece (1993) 71 Denver Univ L R 175 at 208. See Ala. Code 22-8 A- 1 to 
-10 (1975); Ariz. Rev. Stat. Ann. 36-3201 to -3210 (Supp. 1992); Ark. Code Ann. 20-17-210 to -217 (Michie 
1991); Cal. Health & Safety Code 7185-7194.5 (West Supp. 1992); Colo. Rev. Stat. 15-18-101 to -113 (1987 & 
Supp. 1992); Conn. Gen. Stat. 19a570 to -580c (Supp. 1993); Del. Code Ann. tit. 16, 2501-2508 (1983); D.C. 
Code Ann. 6-2401 to -2403 (1989); Fla. Stat. Ann. 765.101-.401 (West Supp. 1993); Ga. Code Ann. 31-32-1 to - 
12 (1991 & Supp. 1993); Idaho Code 39-4501 to -4509 (1993); 111. Ann. Stat. ch. 755, para. 35/1-35/10 (Smith- 
Hurd 1992);Ind. Code Ann. 16-8-1 1-1 to -22 (Bums 1990); Iowa Code Ann. 144A.1 -.12 (1989 & Supp. 1993); 
Kan. Stat. Ann. 65-28,101-28,109 (1992); La. Rev. Stat. Ann. 40:1299.58.1-.58.10 (West Supp. 1992); Md. Code 
Ann. Health-Gen. 5-601 to -614 (1990); Miss. Code Ann. 44-41-101 to -121 (Supp. 1992); Mo. Ann. Stat. 
459.010-.055 (Vemon 1992); Mont. Code Ann. 50-9-102 to -206 (1991); Nev. Rev. Stat. Ann. 449.535-.690 
(Michie 1991); N.H. Rev. Stat. Ann. 137H:1-16 (1990 & Supp. 1991); N.M. Stat. Ann. 24-7-1 to -10 (Michie 
1991); N.C. Gen. Stat. 90-320 to -323 (1990 & Supp. 1992); Okla Stat. Ann. tit. 63 3101. 1-.6; Or. Rev. Stat. 
127.605-.650 (1990); Tenn. Code Ann. 32-1 1-101 to -1 12 (1992); Utah Code Ann. 75-2-1 101 to -1 1 19 (1993 & 
Supp. 1993); Vt. Stat. Ann. tit. 18, 5251-5262 (1987); Va. Code Ann. 54.1-2981 to -2992 (1988 & Supp. 1989); 
Wash. Rev. Code Ann. 70.1 22.0 10-.920 (West 1992 & Supp. 1993); W.V. Code 16-30-1 to -13 (1985 & Supp. 
1993); Wis. Stat. Ann. 154.01-.I5 (West 1989 & Supp, 1992); Wyo. Stat. 35-22-101 to -208 (1988 & Supp. 
1993). 

E.g. Brophy v. New England Sinai Hospital Inc., 497 N.E.2d 626 (Mass. 1986). 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death (New York: Praeger, 1990) at 139. The statutes contain many of the same types of 
provisions. They all affirm the rights of competent adults to prepare and sign directives, duly witnessed as in 
testamentary documents, which declare that, in the event of a medically confirmed terminal illness or condition, 
they do not wish life-sustaining yeatment or procedures that artificially prolong their lives and that they be 



166 

To supplement the states' laws on "living wills", the National Conference of 
Commissioners on Uniform State Laws promulgated legislation known as the Uniform Rights of 
the Terminally III Act to address the lack of uniformity in these statutes. At the federal level, 
the law requires nursing homes, hospitals, home health agencies, hospices and health 
maintenance organizations to provide patients with written information on state laws governing 
advance directives ("living wills") and a statement of their own policies on implementing these 
rights. 

The Patient Self-Determination Act is federal legislation which was intended "to enhance 
an individual's control over medical treatment decisions" by promoting the use of advance 
directives. However, beyond requiring health care providers to inform competent adult patients 
of the possibility of executing directives, the Act intentionally gave providers little in the way of 
specific instructions. 

The Act went into effect on December 1, 1991 and has been shown in public opinion 

1 xs 

surveys to have the support of 84 percent of the general public. In this legislation, health 
facilities were given wide latitude as to its implementation. The Act may be used to improve 
patient decision-making, patient satisfaction and quality of care. 

A number of other initiatives at the state level reflect the on-going interest and concern and 
the wish of many U.S. citizens to retain even greater control over their own lives in cases of 
terminal ilhiess or irreversible coma. The following examples illustrate the pressures on the 



182 



183 



184 



185 



permitted to die naturally. The directives may also limit treatment to making patients as comfortable and free from 
pain as possible. The statutes generally protect health care professionals from civil liability and criminal 
prosecution for acting in accordance with the directives of their patients. 

The statutes are said to have shortcomings as well: the chief complaint being that physicians too often ignore the 
patients' "living wills", or that the documents are not easily accessible to the physicians. There is concern, too, 
that physicians are not necessarily required to disclose religious or ethical beliefs which may prevent them from 
acting according to a patient's wishes. (See Berger, infra at 140.) 

Arthur S. Berger and Joyce Berger, To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death (New York: Praeger, 1990) at 140. Uniform Rights of the Terminally III Act, 9B U.L.A. 
609 (1987 &Supp. 1994). 

Robert J. Blendon, Ulrike S. Szalay, and Richard A. Knox. "Should physicians aid their patients in dying? The 
public perspective" (1992) 267 JAMA 2658. 

Charles P. Sabatino "Surely the wizard will help us, Toto? Implementing the Patient Self-Determination Act" 
(1993) 23 Hastings Center Report 12. A subsequent "interim fin£il rule" was introduced in March 1992 to assist in 
the implementation of the Act (57 Federal Register 8194-8204 [6 March 1992]). Like the Act itself, this enabling 
legislation gave extensive latitude to institutions for the manner in which they undertake to fiilfill the federal 
mandate. Therefore there may be considerable variation in the ways the Act's requirements are met regarding 
information provided to patients on state law on advance directives, how the existence of directives is to be 
documented in patients' medical records and education in the community on advance directives and patient 
decision-making. 

Robert J. Blendon, Ulrike S. Szalay, and Richard A. Knox. "Should physicians aid their patients in dying? The 
public perspective" (1992) 267 JAMA 2658 at 2662, note 4. 



167 

medical profession regarding physician-assisted suicide, and on the legislators' responses to this 
issue. 

The 1988 Humane and Dignified Death Initiative in California was the first of the most 
recent state initiatives to propose a legislative solution to assisted suicide. It was sponsored by 

1 86 

Americans Against Human Suffering, Inc., and it sought to combine and expand on the 

187 

California Natural Death Act and the California Durable Power of Attorney for Health Care. 

188 

It also proposed an amendment to the California Penal Code. 

As drafted, the initiative would have extended the state's living will legislation. It allowed 

189 

a "qualified patient" to execute a directive requestmg a physician to withhold or withdraw life 



186 



187 



188 



189 



Americans Against Human Suffering, Inc. is a non-profit organization established in 1986 with the objective of 
changing state laws to permit physician-assisted suicide ("aid in dying") for the terminally ill. See Sherri 
Schaeffer, "Death with dignity: proposed amendments to the California Natural Death Act" (1988) 25 San Diego 
LR781at811,notel71. 

The California Natural Death Act (Cal. Health & Safety Code 7185-95 (West Supp. 1987)) was the first of the 
"living will" statutes in the U.S. The 1976 Natural Death Act was amended by Senate Bill 1808 by its original 
author Sen. Barry Keene. {see Sherri Schaeffer, "Death with dignity: proposed amendments to the California 
Natural Death Act" (1988) 25 San Diego L R 781 at 784-785 and 795.) This amendment had the support of the 
California Council of Churches, the California Medical Association and the American Association of Retired 
Persons. Its pregnancy provision was opposed by Planned Parenthood and the American Civil Liberties Union. 

Legislative findings fi^om the state of California state that artificial prolongation of life by modem medical 
technology may cause"loss of patient dignity and unnecessary pain and sn&Qxmg.iNatural Death Act, 7186). It 
therefore provides that a qualified adult pafient can direct his or her physician to withhold or withdraw life- 
sustaining medical care in the event of a terminal condition by use of a written directive or "living will". (7187) 

The Act does not apply to patients in a skilled nursing facility (with exceptions), to pregnant women or to 
terminally ill children. (7188) 

It also states that withholding or withdrawing life-sustaining procedures from a qualified patient does not 
constitute a suicide (7192(a)), and cannot be construed to condone mercy killing or to permit any deliberate act to 
end life other than by the natural process of dying. (7195) 

An earlier attempt at legislation was also proposed by Sen. Keene. In 1979, he introduced a bill to supplant the 
Natural Death Act, statute S.700, entitled the "Self-Determinafion in Medicine Act". It was not acted on in the 
1979-90 legislative session. Some of the proposed changes included allowing a terminally ill minor to refuse 
medical care if approved by a court, allowing the execution of a binding directive before a patient becomes 
terminally ill, allowing refusal of medical care by oral or written communication, and not requiring the directive to 
follow the specified form. (Self-Determination in Medicine Act, Cal. S-700, 1979-80 Sess. (1980). (Cited in 
Schaeffer, p.796, footnote #79.) 

See Linda Carl, "The right to voluntary euthanasia" (1988) 10 Whittier L R 489 at 539 and Sherri Schaeffer, 
"Death with dignity: proposed amendments to the California Natural Death Act" (1988) 25 San Diego L R 781 at 
81L 

The patient would have had to be certifiably terminally ill. (Initiative 2525.2(f)) {See Linda Carl, "The right to 
voluntary euthanasia" (1988) 10 Whittier L R 489 at 539.) 



168 

support of administer physician "aid- in-dying". The declarant did not need to be certified as 
terminally ill in order to either sign or renew the directive. 

The initiative had been approved for circulation prior to being placed on the November 
1988 ballot. It did not obtain a sufficient number of signatures for this to take place. One 
possible explanation was this failure was the lack of financial backing, having had only 
volunteer signature gatherers. 

The state of Washington voted on an initiative to legalize physician "aid-in-dying" in 
November of 1991. The proposal was submitted to the state legislature by Washington Citizens 
for Death with Dignity in an attempt to make the state the first to legalize physician-assisted 
suicide, but was turned over to voters as Initiative 119. The initiative asked the question 
"Shall adult patients who are in a medically terminal condition be permitted to request and 
receive fi'om a physician aid-in-dying?" 

The initiative failed by fewer than 100,000 of the 1.3 million votes cast. This narrow 
margin of defeat was believed to reflect the growing attitude that physician-assisted suicide 

195 

should be legalized with proper protections. It was reported in JAMA that support for the 
initiative could be interpreted as "a criticism of both existing law and the inability of many 
physicians to properly manage the chronic pain of terminally ill patients." And physicians 
who voted "no" reported that they did so because of the lack of safeguards for "the poor, for the 
depressed, for families, for people in pain, for the mentally incompetent, for seniors and for 
society. 



190 

191 

192 
193 

194 
195 
196 

197 



"Aid-in-dying" meant any medical procedure that would terminate the life of the patient swiftly, painlessly and 
humanely. (Initiative 2525.2(h)) {See Linda Carl, "The right to voluntary euthanasia" (1988) 10 Whittier L R 489 
at 539.) 

This proposed provision allowed individuals to make their arrangements for health care in advance through a 
legally recognized document. {See Linda Carl, "The right to voluntary euthanasia" (1988) 10 Whittier L R 489 at 
539, note 192.) 

Linda Carl, "The right to voluntary euthanasia" (1988) 10 Whittier L R 489 at 538, note 183. 

Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of dying" (1993) 40 UCLA L R 1545 at 
1546. 

Catherine L. Bjorck, "Physician-assisted suicide: whose life is it anyway" (1994) SMU Law Rev 371 at 384. 

Catherine L. Bjorck, "Physician-assisted suicide: whose life is it anyway" (1994) SMU Law Rev 371 at 384.1 

Dennis L. Breo, "MD-Aided Suicide Voted Down; Both Sides Say Debate to Continue," 266 (1991) JAMA 2895 
at 2895. 

Dennis L. Breo, "MD-Aided Suicide Voted Down; Both Sides Say Debate to Continue," 266 JAMA 2895 at 2895 
(1991). 



169 

One year after the Washington initiative, a Cahfomia group called Califomians Against 
Human Suffering presented California voters with Proposition 161.^^^ If passed, the measure 
would have amended the California Civil Code to permit active euthanasia under circumstances 
similar to those proposed in Initiative 1 19 in Washington. 



199 



Forty six percent of California voters supported the measure, which lost by a margin of 



200 



eight percent. There was strong opposition to Proposition 161 from the California Medical 
Association, the California Nurses Association, AIDS Care Los Angeles, and the Catholic 
Church. 

The defeat of these two recent state initiatives is not interpreted as the end of the active 
euthanasia movement in the U.S. Rather, the failed proposals provide reference points for future 
legislative attempts to legalized physician-assisted suicide. Following the defeat of Proposition 
161 in California, the Hemlock Society announced that it would present an active euthanasia 
proposal to Oregon in 1994, and that it would renew its efforts in the state of Washington. 

Oregon was the third state to have a "Death with Dignity Act" on its election ballot in this 
decade. On November 8, 1994, Oregon voters made their state the first in the U.S. to legalize 

203 

physicians directly helping patients to die. The margin of the vote was 51 to 49 percent 



198 



199 



200 

201 

202 
203 



Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of dying" (1993) 40 UCLA L R 1545 at 
1547. 

Much liice Initiative 119, Proposition 161 was criticized for its lack of safeguards. It included the following 
provisions: 

1. The patient must be certified as terminal (meaning a diagnosis of less than six months to live) by two 
physicians. 

2. The patient must be determined mentally competent (thereby excluding comatose patients or those in a 
persistent vegetative state). 

3. The patient must execute a revocable, written statement witnessed by two disinterested witnesses, and 
can be made at any time prior to the request for assistance. 

4. The patient must indicate an enduring desire for the "procedure" (meaning the request must be made 
more than once). 

5. Any licensed physician may perform the procedure and no witnesses need be present. 

Catherine L. Bjorck, "Physiican-assisted suicide: whose life is it anyway" (1994) SMU Law Rev 371 at 384. 

Once again, the strength of the opposition appeared to be based on poor legislative drafting and the potential for 
abuse, rather than because opponents believed that physician-assisted suicide is wrong. (See Catherine L. Bjorck, 
"Physiican-assisted suicide: whose life is it anyway" (1994) SMU Law Rev 371 at 384.) 

Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of dying" (1993) 40 UCLA L R 1545 at 
1547. 

Alexander Morgan Capron, "Sledding in Oregon" (1995) Hastings Centre Report 34. 



170 

(32,000 votes) approving Measure No. 16, which removed criminal penalties for physicians who 
prescribe drugs to enable patients to take their own lives 



204 



The Oregon bill legalized physician-assisted suicide but required patients to perform the 
final act. The law applies only to residents of Oregon eighteen years of age or older who have 
"the ability to make and communicate health care decisions," including "communication 
through persons familiar with [their] manner of communicating if those persons are 

205 

available." To be qualified to receive a lethal prescription, the person must also be suffering 
from a terminal disease, defined as "an incurable and irreversible disease that has been 
medically confirmed and will, within reasonable medical judgment, produce death within six 
months." The Oregon legislation contained four principal "safeguards": 

1. The attending physician must convey information not only about the prognosis and 
risks and results of taking the prescribed medication, but also the "feasible alternatives, 
including, but not limited to, comfort care, hospice and pain control." 

2. A consulting physician must confirm that the patient has a terminal illness, is capable, 
and has made a voluntary and informed decision. 

3. If either the attending or a consulting physician thinks the patient suffers from a 
psychiatric disorder, including "depression, causing impaired judgment," the patient 
must be referred for "counselling." Lethal medication may then not be prescribed until 
a licensed consultant rules out such a disorder or depression. 

4. A person wishing to commit suicide must make a series of oral and written requests to 
that effect. At least fifteen days must elapse between the initial oral request and the one 

207 

that immediately precedes the writing of the prescription. 

A number of other activities have influenced changes in the law related to physician- 
assisted suicide in the U.S. In 1983, a report was released by the President's Commission for the 
Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to 
Forego Life-Sustaining Treatment: A Report on the Ethical, Medical, and Legal Issues in 
Treatment Decisions. 

This Commission undertook to study the distinction between "acts" and "omissions", and 
while not abandoning the distinction, it acknowledged that these categories are "inherently 



204 
205 
206 

207 



Alexander Morgan Capron, "Sledding in Oregon" (1995) Hastings Centre Report 34. 

Death with Dignity Act, (1.01(6)). 

Death with Dignity Act, ( 1 . 1 0( 1 2)). 

Death with Dignity Act, (3.02(2), 3.05, 3.02, and 3.03). The Oregon legislation proscribes the attending 
physician's being a witness, and at least one of the two required witnesses must be disinterested (not a relative, 
someone entitled to a portion of the estate, or an owner or employee of the health care facility where the patient 
resides or receives care). (2.02) 



171 



unclear" and that "their invocation is often so mechanical that it neither illuminates an actual 

208 

case nor provides an ethically persuasive argument." The Commission concluded that such 
categories provide a "useftil rule-of thumb" for which cases require ftirther scrutiny, stating: 



[T]he mere difference between acts and omissions — which is often hard to draw in any case — never 
by itself determines what is morally acceptable. Rather, the acceptability of particular actions or 
omissions turns on other morally significant considerations, such as the balance of harms and 
benefits likely to be achieved, the duties owed by others to a dying person, the risks imposed on 

209 

Others in acting or refraining, and the certainty of outcome. 

The Commission ultimately took an ambiguous stand on euthanasia. Although it 
concluded that the distinction between acts and omissions "fails to provide an adequate 
foundation for the moral and legal evaluation of events leading to death," it nonetheless stated 
that "actions that lead to death are likely to be serious wrongs, while many omissions in the 

210 

medical context are quite acceptable. It rejected outright "the deliberate use of poisons or 
similar lethal agents" for patients who "wish that they [or someone acting at their request] could 

211 

administer a poison to end their suffering more quickly." 

The debate over euthanasia has had a long history in the U.S. and elsewhere. In the 
twentieth century one of the landmarks in this debate was the publication in 1957 (and re-issued 

212 

in 1970) of Glanville Williams' The Sanctity of Life and the Criminal Law. Williams began 
his chapter on euthanasia as follows: 

Whatever opinion may be taken on the general subject of suicide, it has long seemed to some people 
that euthanasia, the merciftil extinction of life, is morally permissible and indeed mandatory where it 
is performed upon a dying patient with his consent and is the only way of relieving his suffering. 
According to this view, which will be accepted in the present chapter, a man is entitled to demand the 



208 



209 



210 



211 



212 



Steven J. Wolhandler, "Voluntary active euthanasia for the temiinally ill and the constitutional right to privacy" 
(1984) 69 Cornell L R 363 at 368, note 27. 

Steven J. Wolhandler, "Voluntary active euthanasia for the terminally ill and the constitutional right to privacy" 
(1984) 69 Cornell L R 363 at 368-369, note 27. 

Steven J. Wolhandler, "Voluntary active euthanasia for the terminally ill and the constitutional right to privacy" 
(1984) 69 Cornell L R 363 at 369, note 27. 

Steven J. Wolhandler, "Voluntary active euthanasia for the terminally ill and the constitutional right to privacy" 
(1984) 69 Cornell L R 363 at 369, note 27. The Commission also found that "no particular treatments — including 
such 'ordinary' hospital interventions as parenteral nutrition or hydration. ..to be universally warranted" and 
maintained that "[t]he sensitivities of the family and of care giving professionals should determine whether or not 
permanently unconscious patients should be provided artificial feeding. {See Yale Kamisar, "When is there a 
constitutional right to die? When is there no constitutional right to live?" (1991) 25 Georgia L R 1203 at 1221- 
1222.) 

More recently, two states have released reports on assisted suicide and euthanasia in the medical context: New 
York's 1994 Slate Task Force on Life and the Law and the final report from the state of Michigan: Michigan 
Commission on Death and Dying, 1994. 

Glanville Williams, The Sanctity of Life and the Criminal Law. (1957) 



172 
release of death from hopeless and helpless pain, and a physician who gives this release is entitled to 

213 

moral and legal absolution for his act. 

This publication prompted an immediate response from and an on-going dialogue over 
several decades with U.S. law professor Yale Kamisar. Kamisar wrote in response to Williams' 
work on euthanasia that "the existing law... is hardly perfect... but the imperfections ...are not 
cured by [Williams'] proposal. Indeed, I believe adoption of [the proposal] would add more 
difficulties than it would remove."^ ^"^ 

Kamisar used the classic "slippery slope" argument to refrite the legalization of euthanasia 
position. In particular, he cited the possibility that legalization of voluntary active euthanasia 
would lead to involuntary euthanizing of the disabled, incompetents and others whose lives 

215 

society considers not worth living. This position has become known as Kamisar' s "wedge 
theory" and is considered to be a variant of the slippery slope argument, suggesting that once 
a rule of law is laid down, which permits active euthanasia in certain narrowly defined 
circimistances, there will be no way to contain the practice, and ultimately, people could be 

217 

euthanized against their will. 

In a more recent article, Kamisar reflected on this debate in light of current case law and 

218 

Statutory reform in the U.S. He noted that "the proposals Glanville Williams made some thirty 
years ago for legalizing euthanasia seem rather modest when compared with those being 

219 

advanced today." He also pointed out that, in his view: 

The Supreme Court is likely to make plain in a friture case what 1 think is implicit in Cnizan: as a 
matter of constitutional law there is no distinction between a patient (such as Nancy Cruzan) whose 
condition has "stabilized" or is not "terminal" (as that term is commonly defined) and a "dying" or 
"terminally ill" patient, that is, one facing an unpreventable and imminent death. To put it another 
way, if a patient otherwise "qualifies" for the "right to die" (for example, there is clear and 
convincing evidence of her wish to die under the circumstances), that right can probably no more be 



213 
214 

215 

216 

217 
218 
219 



Glanville Williams, The Sanctity of Life and the Criminal Law. (1957) at 3 1 1 . 

Yale Kamisar, "Some non-religious views against proposed 'mercy killing' legislation" (1958) 42 Minn L R 969 
at 974. 

Yale Kamisar, "Some non-religious views against proposed 'mercy killing' legislation" (1958) 42 Minn L R 969 
at 976. 

Steven J. Wolhandler, "Voluntary active euthanasia for the terminally ill and the constitutional right to privacy" 
(1984) 69 Cornell L R 363 at 377 and Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of 
dying" (1993) 40 UCLA L R 1545 at 1568. 

Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of dying" (1993) 40 UCLA L R 1545 at 
1568. 

Yale Kamisar, "When is there a constitutional right to die? When is there no constitutional right to live?" (1991) 
25 Georgia LR 1203. 

Yale Kamisar, "When is there a constitutional right to die? When is there no constitutional right to live?" (1991) 
25 Georgia LR 1203 at 1214. 



173 
denied solely for the reason that the patient is neither "dying" nor "terminally ill" than it can be 

220 

denied solely on the ground that the life support involved is a feeding tube rather than a respirator. 

Kamisar's "wedge theory" is often criticized by advocates for the right to die, in that his 
vision of the potential for abuses is considered to be unlikely in a civilized society. 

The role of the physician in the context of the euthanasia debate has also recently become 
a more public one. Articles appearing in U.S. medical journals reflect current views of the 
medical profession, and it has been noted that the significance of these articles can hardly be 

222 

overestimated. Three recent publications stand out as landmark events: 

1 . The publication in a 1988 issue of the Journal of the American Medical Association of 
an article entitled "It's Over, Debbie", by an anonymous physician telling about his 
administration of a lethal dose of morphine to a woman dymg of ovarian cancer. 

2. A statement published m the New England Journal of Medicine m 1989 by ten 
physicians associated with some of the U.S.'s leading medical schools and hospitals 
declaring their opinion that "it is not immoral for a physician to assist in the rational 
suicide of a termmally ill person.^^'* 

3. The 199 1 publication in the New England Journal of Medicine of a detailed account by 
Dr. Timothy Quill of his decision to help a patient suffering from leukemia to commit 

• A 225 

suicide. 

4. The publication in May 1994 of a report by the New York State Task Force on Life 
and the Law, which recommended unanimously that the state not consider the 

99/> 

legalization of euthanasia or physician-assisted suicide. 



220 



221 



222 

223 
224 

225 



Yale Kamisar, "When is there a constitutional right to die? When is there no constitutional right to live?" (1991) 
25 Georgia LR 1203 at 1214. 

Eugenie Anne Gifford, "Artes Moriendi: active euthanasia and the art of dying" (1993) 40 UCLA L R 1545 at 
1568 and Maria F. CeloCruz, "Aid-in-dying: should we decriminalize physician-assisted suicide and physician- 
committed euthanasia" (1992) 18 Am J Law and Medicine 369 at 384. Also note that Francis A. Molenda, 
"Active euthanasia: can it be justified?" (1988) 24 Tulsa L J 165 at 178 and Steven J. Wolfhandler, "Voluntary 
active euthanasia for the terminally ill and the constitutional right to privacy" (1984) 69 Cornell L R 363 at 376 
have written on the debate about Kamisar's "wedge theory". 

Stephen A. Newman, "Euthanasia: orchestrating "the last syllable of... time" (1991) 53 Univ of Pittsburgh L R 
153 at 154-155. 

(1988) 259 JAMA 272. 

Sidney H. Wanzer et al., "The Physician's Responsibility Toward Hopelessly 111 Patients: A Second Look," 

(1989) 320 NEJM 844 at 848. 

Timothy E. Quill, "Death and Dignity: A Case of Individualized Decision-making," 324 (1991) NEJM 69 L Dr. 
Quill has since published a book (in 1993) on his experience: Death and Dignity: Making Choices, Taking 
Charge. 



174 

The American Medical Association has issued a number of statements on euthanasia and 
physician-assisted suicide in recent years. Guidelines released in 1986 by the AMA's Council of 
Ethical and Judicial Affairs took the position that withholding or withdrawing life-sustaining 
medical treatment, including artificially provided hydration and nutrition, is not unethical for 
physicians if that is the choice of the patient or the surrogate decision-maker for an incompetent 
patient, especially one who is terminally ill or comatose.^^^ These guidelines were reiterated in 
1989 and 1992. 

Writing on the AMA's position, the Association's Ethics and Health Policy Counsel stated 
that the goal of the medical profession is to sustain life and relieve suffering. He concluded that 
physician participation in voluntary suicide is wrong because physicians could not ethically 



226 



227 



New York Task Force on Life and the Law, 5 Penn Plaza, third floor. New York, N.Y. 10001-1803. In 1995, this 
New York State Task Force was the only standing government commission in the U.S. regularly considering and 
reporting on medical ethics issues. It argued against relaxing the laws on euthanasia and assisted suicide in its 
report. 

The Task Force unanimously concluded that the dangers of legalizing euthanasia and assisted suicide (such a 
dramatic change in public policy) would far outweigh any possible benefits. It noted that in light of the pervasive 
failure of the health care system to treat pain and diagnose and treat depression, legalizing assisted suicide and 
euthanasia would be profoundly dangerous for many individuals who are ill and vulnerable. The risks would be 
most severe for those who are elderly, poor, socially disadvantaged, or without access to good medical caie.(See 
(1994) 100 Bulletin of Medical Ethics 8.) 

See Arthur S. Berger and Joyce Berger. To Die or Not to Die? Cross-disciplinary, Cultural and Legal 
Perspectives on the Right to Choose Death (New York: Praeger, 1990) at 145 and Yale Kamisar, "When is there a 
constitutional right to die? When is there no constitutional right to live?" (1991) 25 Georgia L R 1203 at 1222. 
The text of the AMA's 1986 statement is as follows: 

The social commitment of the physician is to sustain life and relieve suffering. Where the performance 
of one duty conflicts with the other, the choice of the patient, or his family or legal representative if the 
patient is incompetent to act in his behalf, should prevail. In the absence of the patient's choice or an 
authorized proxy, the physician must act in the best interests of the patient. 

For humane reasons, with informed consent, a physician may do what is medically necessary to 
alleviate severe pain, or cease or omit treatment to permit a terminally ill patient whose death is imminent 
to die. However, he should not intentionally cause death. In deciding whether the administration of 
potentially life-prolonging medical treatment is in the best interest of the patient who is incompetent to act 
in his own behalf, the physician should determine what the possibility is for extending life under humane 
and comfortable conditions and what are the prior expressed wishes of the patient and attitudes of the 
family or those who have the responsibility for the custody of the patient. 

Even if death is not imminent but a patient's coma is beyond doubt irreversible and there are adequate 
safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have 
responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging 
medical treatment. 

Life-prolonging medical treatment includes medication and artificially or technologically supplied 
respiration, nutrition or hydration. In treating a terminally ill or irreversibly comatose patient, the physician 
should determine whether the benefits of treatment outweigh its burdens. At all times, the dignity of the 
patient should be maintained. 

The AMA's Council on Ethical and Judicial Affairs also issued specific ethical guidelines in 1991 on foregoing 
life-sustaining treatment for incompetent patients. 



175 
choose a course of action, the primary purpose of which is to cause death rather than to preserve 

In a 1989 AMA Policy Compendium, the Association's position on physician-assisted 
suicide is set out in the following statement: 

The AMA opposes the participation of a physician, voluntarily or involuntarily, in the termination of 
a patient's life by the administration of any agent or the use of any means to actively terminate a 
patient's life.. ..The AMA opposes enactment of any type of federal or state legislation that would 
require a physician to provide the medicines, techniques, or advice necessary for a patient to pursue a 
course of suicide, or which would require a physician who is unwilling to participate in suicide to 

229 

refer the patient to a physician who would be so [sic] willing to do so. 

On the other end of the spectrum, the U.S. Hemlock Society, founded in 1988, also has 
been active m its advocacy for legal active euthanasia. One of its principal founders, Derek 
Humphry became the spokesperson for this group. The Society's position on voluntary active 
euthanasia is as follows: 

The Society is dedicated to exploring and expounding the options and rights of active voluntary 
euthanasia for the terminally ill. It believes that in compassionate and justified cases there is an 
obligation to help, if asked, a dying person to end his or her life with dignity. At the present this is 
against the law and the Hemlock Society wishes to see this rule modified so that a doctor may help 
without fear of prosecution. 

As noted above, the Hemlock Society was actively involved in California in the first of the 
two ballot mitiatives, the 1988 Death with Dignity Initiative. Its activity reached a peak in 
1991 with its support of Initiative 119 in the State of Washington, and with the publication of 
"Fmal Exit", by Derek Humphry. 



228 

229 

230 

231 

232 



Rebecca C. Morgan, Thomas C. Marks and Barbara Harty-Golder, "The issue of personal choice: the competent 
incurable patient and the right to commit suicide?" (1992) 57 Missouri L R 1 at 45, notes 280 and 281 . 

Michael J. Roth, "A failed statute, Geoffrey Feiger and the phrenetic physician..." (1994) 28 Valparaiso Univ L R 
1415 [need complete title] at 1453. American Medical Association, AMA Policy Compendium 22.005-.006 
(1989). 

Arthur S. Berger and Joyce Berger. To Die or Not to Die? Cross-disciplinary, Cultural and Legal Perspectives on 
the Right to Choose Death (New York: Praeger, 1990) at 162. 

See footnote 161, supra. 

This widely publicized book (which as of 1993 has sold more than 570,000 copies) made the N.Y. Times best- 
seller list in 1991, and presented a number of methods for committing suicide. These instructions ranged from 
instructions on asphyxiation to explanations of what amounts of certain drugs are necessary to induce death. It is 
printed in large type for ease of use by the elderly and disabled. It has come under criticism for promoting suicide 
among depressed, physically well persons, despite warnings on the book's jacket that it is intended only for the 
terminally ill. 



176 

In the context of the debate on legalization of active voluntary euthanasia, Humphry, as 
executive director of the Hemlock Society, proposed a number of considerations for state 
legislators: 

1 . The patient is making a consistent and persistent request for death because of suffering 
which is unbearable; 

2. Two doctors agree that the patient is dying; 

3. The patient has a clear understanding of his or her condition, and has exhausted all 
acceptable medical treatments; 

4. The family has been informed (but cannot promote nor veto the euthanasia); 

5. The timing of death is exclusively at the hands of the patient, and revocation can be 
made at any time; 

6. Only a doctor may cause death, in the most humane way known, which must be 
agreeable to the patient; 

7. The doctors and any medical staff (whose involvement is purely voluntary) are not at 



risk of prosecution 



233 



The Hemlock Society also published a "modem" version of the Hippocratic Oath of 
physicians, in part stating: 

Most especially must I tread with care in matters of life and death. If it is given to me to save a life, 
all thanks. But it may also be within my power to take a life; this awesome responsibility must be 

234 

faced with great humbleness and awareness of my own frailty. Above all, I must not play God. 

In 1992, Humphry ended his association with the Hemlock Society, stating that it had 
become "much more conservative". He currently operates a consulting and desk-top publishing 
business called Euthanasia Research Guidance Organization in Oregon. It has produced a 



At the height of its publicity following publication, Humphry's ex-wife, Ann Wickett Humphry killed herself with 
an overdose of drugs. In a suicide note, she blamed Humphry for psychological cruelty that drove her to suicide. 
Humphry denied these charges and took an ad in the N. Y. Times to publicize his ex-wife's mental problems. 

There has been some speculation as to the effect of this event on the outcome of Initiative 1 19 in Washington. 

(See Rob Carson, "Washington's 1-119" (1992) 22 Hastings Centre Report 7 at 9; Susan K. Jezewski, "Can a 
suicide machine trigger the murder statute?" (1991) 37 Wayne L R 1921 at 1948; Andrew M. Jacobs, "The right 
to die movement in Washington: rhetoric and the creation of rights" (1993) 36 Howard L J 185 at 188; and 2 



233 



234 



Susan K. Jezewski, "Can a suicide machine trigger the murder statute?" (1991) 37 Wayne L R 1921 at 1948, note 
155. 

Laura L. Marcinko, "To live or die: creating a choice of medically assisted suicide in Michigan's proposed law" 
(1991) 8 Thomas M. Cooley L R 609 at 622, note 93. 



177 

handbook on "self-deliverance," which is described as a legal manual for interested physicians, 
and a brochure illustrating the recommended pastic bag technique to be used long with a drug 
overdose. 

Finally, society including physicians, legislators and the judiciary remain largely uncertain 
as to how to deal with euthanasia and assisted suicide. Suicide has long been seen as one way to 
deal with terminal illness. Law reform to permit assistance in dying has been addressed by 
courts and legislatures. Two court decisions regarding the constitutionality of laws against 
assisted suicide, as they apply to physicians and their terminally ill patients are currently on 
appeal in the states of Michigan and Washington. 

State law also provides the opportunity for law reform on euthanasia and assisted suicide 
through the use of direct vote by initiative petitions. To date, the initiatives voted on in 
California, Washington and Oregon have been originated by the Hemlock Society, but there also 
appears to be wide public support for these initiatives based on the closeness of the election 
results. 

It is unclear, at this time, the extent to which Pope John Paul II's recent encyclical 
Evangelium Vitae (the Gospel of Life) will influence public attitudes on euthanasia and assisted 
suicide (of both Catholics and non-Catholics). It was presented in March 1995 as a "wake-up 
call" to mobilize against what the Vatican fears is growing social acceptance of a range of 
practices including euthanasia and assisted suicide. 

The document warns that modem society must scrutinize the implications of new 
technologies and describes a "culture of death" that seems to pervade many societies in the form 
of euthanasia (among other condemned social conditions and practices). The document 
describes health care workers who participate in assisted suicides as "agents of death", while 
distinguishing active euthanasia from the refusal of "forms of treatment that would only secure a 

238 

precarious and burdensome prolongation of life". 



235 
236 

237 
238 



Globe iSi Mail, December 7, 1994, p. Al. 

People V. Kevorkian, 205 Mich.App. 194, 518 N.W. 2d 487 (1994) and Compassion in Dying \. Washington, 850 
F.Supp. 1454 (D.C. Wash. 1994). See also George J. Annas, "Death by prescription: the Oregon initiative" (1994) 
331 NEJM 1240 at 1243. 

George J. Annas, "Death by prescription: the Oregon initiative" (1994) 331 NEJM 1240. See also notes 168 and 
173, supra, re the California, Washington and Oregon elections. 

Encyclical Letter Evangelium Vitae, (Ottawa: Canadian Conference of Catholic Bishops, 1995), and The Globe 
and Mail, March 31, 1995, p.Al and AlO. The article describes the 184-page document as the highest form of 
papal writing. 



CHAPTER 9 



EUTHANASIA IN THE 
NETHERLANDS 

by Barney Sneiderman and 
Marja Verhoef 



1. INTRODUCTION 

This chapter will address the Dutch law and public policy on the medical practice of 
euthanasia. The reference is to cases in which a physician either gives a deliberate lethal 
injection to a consenting (mentally competent) patient or else assists her to commit suicide. 
However, in the Netherlands the definition of euthanasia - 'the intentional termination of life by 
someone other than the patient at the patient's request' - is restricted to the first scenario; 
whereas assisted suicide is defined as 'intentionally helping a patient to terminate his or her own 
life at his or her request.' 

It should be stressed, however, that in public discourse in the Netherlands (as well as in 
Canada), the term 'euthanasia' has come to express these two scenarios; and consequently we 
shall use the term in that double-sided sense. In any event, the Dutch euthanasia policy does not 
distinguish between lethal injection and assisted suicide cases; and in fact Dutch commentators 
have taken to use the acronym EAS (euthanasia and assisted suicide) as a shorthand description 
of the policy in their English language publications. 

The Dutch definitions of EAS make three crucial distinctions: (1) euthanasia is an act of 
commission, not omission, thus excluding the withholding and withdrawal of life-prolonging 
treatment from its ambit; (2) euthanasia requires the consent of a mentally competent patient, 
thus excluding such patients as newborns and the demented from its ambit; and (3) if the 
treatment of pain by opiates results in a shortened lifespan, that is not considered euthanasia 
unless the physician acted with the deliberate intention of causing death by respiratory arrest. 

There is a common misconception that euthanasia has been legalized in the Netherlands. 
That is not the case, however, because the applicable prohibitions in the Dutch Penal Code have 
remained intact. According to article 293, '// is an offence for anyone to take the life of any 
person at his express and serious request' (the maximum sentence is 12 years imprisonment). 
And according to article 294, 'He who deliberately incites another to commit suicide, assists him 
to do so, or provides him with the means of doing so, commits an offence if the suicide takes 
place ' (the maximum sentence is three years imprisonment). 



Staatscommissie Euthanasie. Rapport van de Staatscommissie Euthanasie. 's Gravenhage: Staatsdrukkerij, 1985. 



[179] 



180 

The comparable provisions in the Canadian Criminal Code are sections 14 and 241. Yet 
since section 14 declares that 'no one can consent to have death inflicted upon him,' a 
consensual mercy-killing is treated as murder in our jurisprudence. In contrast, article 293 of the 
Dutch Penal Code labels such a killing as a lesser degree of culpable homicide than murder. (A 
deliberate nonconsensual killing is defined as murder, which is proscribed under article 289 and 
which carries a maximum sentence of life imprisonment. There are, however, no mandatory 
minimum sentences in the Dutch Penal Code.) Finally, although no offence is committed under 
article 294 of the Dutch Penal Code if the person aided to commit suicide does not complete the 
act, that is not the case in section 241 as the aider commits an offence whether or not the attempt 
succeeds. 

Although the Dutch Parliament has not legalized euthanasia, the Dutch Supreme Court has 
in effect carved out an exception whereby physicians are permitted to practice euthanasia in 
accordance with medico-legal guidelines. The basis of the judicial role is found in article 40 of 
the Penal Code, which provides that: 'It is a defence to a criminal charge if the accused was 
forced by overmacht to commit an offence. ' Overmacht translates literally as 'overpowering 
force.' Dutch case law also refers to the defence as force majeure (which like overmacht 
translates as overpowering force) and as noodtoestand (an emergency situation). The external 
agency can be either human-directed or the blind forces of nature. 

According to traditional Dutch case law, the defence oi overmacht envisions an emergency 
situation in which the accused is driven by his conscience to commit an offence which amounts 
to a lesser evil than would have ensued had he permitted events to run their course. It is in effect 
'a back to the wall' defence; the accused makes the deliberate moral choice to break the law 
because the force of circumstances precludes delaying action. However, the defence is not 
allowable if there was a reasonably available option whereby the accused could have avoided 
the commission of the offence. 

Overmacht is thus the Dutch analogue to the common law defence of necessity, which 
likewise requires that the accused be driven by desperation to commit an offence as the only 
way to prevent a greater harm. In sum, in the jurisprudence of both Dutch and common law, an 
accused can rely upon the defence of necessity only when he acted in an emergency situation in 
which there was no legal option reasonably available and in which the harm caused by the 
offence was outweighed by the harm that would have ensued had he stayed his hand. 

As we shall see, article 40 has served as the foundation for a precisely formulated defence 
of medical necessity in euthanasia cases. This does not mean that the physician who performs 
euthanasia is automatically charged with an offence to which he pleads the defence of 
overmacht. Rather, as the policy has evolved, physicians are obliged to fill out a standard form 
detailed questionnaire on euthanasia cases for submission to the municipal coroner. The latter 
then transmits a report of each case to the public prosecutor with a notation as to whether the 
physician has complied with the mandated guidelines. An inquiry is pursued in questionable 
cases, which may lead to a charge under either article 293 or 294 of the Penal Code. 



Sluyters B. 'Euthanasia in the Netherlands.' 57 Medico-Legal Journal 34, 37 (1988). 



181 

2. THE LAW 

(a) THE GENESIS OF A MEDICO-LEGAL POLICY 

The Dutch legal system first confronted the euthanasia issue in 1973, when a physician 
was prosecuted under article 293 for the mercy-killing of a 79-year-old nursing home resident. 
The deceased was not a patient of the accused, Dr. Postma. Rather she was the accused's 
mother, and she had repeatedly beseeched her daughter to end a life rendered unbearable by a 
cerebral haemorrhage, partial paralysis, deafiiess, and incontinence. Dr. Postma finally complied 
by giving a lethal injection of 200 mg morphine directly into a vein. She was arrested after 
informing the nursing home director of her act and brought to trial before the Leeuwarden 
District Court. The accused was convicted and placed on probation for one year. However, the 
Court then proceeded to specify guidelines that would exonerate an accused charged under 
article 293: the patient must be incurably ill and racked with unbearable suffering; the patient 
must explicitly ask for a lethal injection; and the injection must be given by the patient's treating 
physician or a medical colleague. It is noteworthy that the public reaction to Dr. Postma' s deed 
was largely favourable, and 18 physicians signed an open letter to the Minister of Justice 
avowing that they too had resorted to mercy-killing at patient request. 

Eight months after the Postma trial, the Executive Committee of the Royal Dutch Medical 
Association (KNMG) issued a working paper on the medical practice of euthanasia. It confined 
its focus to cases of physician-administered lethal injection to consenting patients, as the 
committee regarded physician-assisted suicide as a separate issue that it was not prepared to 
consider at that time. Its view was that the law should allow a defence to a physician charged 
under article 293, who 'shortens the life of a (consenting) patient who is incurably ill and in the 
process of dying.' 

In 1981 a layperson was convicted for assisting the suicide of a grievously ill fiiend by the 
Rotterdam District Court. However, the Court went on to enumerate the following criteria under 
which a physician - and only a physician - could lawftilly assist suicide: the patient is 
experiencing unbearable suffering; there is informed consent (the patient understands her 
condition and prognosis, and the decision to end her life is her voluntary choice); and there are 
no reasonable alternative measures to alleviate her distress. 

The pivotal year was 1984, when the medical practice of euthanasia was endorsed in turn 
by the KNMG and the Netherlands Supreme Court. The policy position of the KNMG was 
presented in a report titled ' Vision on Euthanasia,' published in its official journal, Medisch 
Contact. In its 1973 working paper, the KNMG had restricted its definition of euthanasia to the 



3 Euthanasia Case, Leeuwarden 1973, Reported in 3 Issues in Law and Medicine 439 (1988). 
4 



5 



'The Problem of euthanasia.' 28 Medisch Contact 587 (1973). 

Leenen H.J.J. 'Euthanasia, assistance to suicide and the law: developments in the Netherlands.' 8 Health Policy 
197,198(1987). 

'Vision on Euthanasia,' 39 Medisch Contact 990 (1984). 



182 

lethal injection scenario. A decade later its view was that: '(I)t makes no difference whether the 
lethal medicine is administered directly by the physician or that a physician assists the patient in 
administering it himself.' If the former is acceptable then so is the latter, since there is no moral 
distinction between these two means whereby the physician responds to the mentally competent 
patient's plea for a drug- induced death. As such, the term euthanasia appropriately applies to 
both cases. According to the report, the resort to euthanasia does not breach the code of medical 
ethics provided that the following conditions are satisfied. 

1. It must be the patient's decision - the exercise of his free will - not the decision of his 
family. The patient must be mentally competent; his plea for death must be discounted 
if it is the product of a disordered mind affected by psychiatric ilhiess. The patient 
likely will consult with his family regarding such a momentous matter, but that is 
beside the point. In fact, if the patient does not wish the family to know that he is 
asking for euthanasia, the physician must respect that wish. The report stresses the 
voluntariness of the request. If communicated in the presence of the family, the 
physician must confer privately with the patient. Since the desire for death must be 
'consistent, durable, and well considered,' the caveat is that the patient have 'a clear 
picture of his medical situation and the appropriate prognosis.' 

2. The patient's request cannot be granted unless he is experiencing 'unacceptable and 
hopeless suffering that cannot be rendered bearable.' By unbearable suffering, the 
report means either 'unbearable physical pain' or 'unbearable mental suffering as a 
result of a physical disorder.' The latter is illustrated by the hypothetical example of a 
patient with multiple sclerosis who is totally paralysed. The report also states that given 
current pain-control techniques, euthanasia is a rarely justifiable response to physical 
pain. 

3. In its earlier (1973) statement on euthanasia, the KNMG had stipulated that a 
qualifying condition was that the patient be in the so-called 'terminal phase.' It now 
scraps that requirement. Since the focus is upon a compassionate response to 
unbearable and unrelenting suffering that causes the patient to prefer death to life, it is 
unduly restrictive to insist that death be at hand. In this regard, it refers back to the 
example of the totally paralysed multiple sclerosis patient. 

4. The physician cannot act on her own but must consult with an experienced and 
independent colleague, who must confirm her judgment that the euthanasia criteria 
have been fulfilled in the particular case. 

Three months after the publication of the KNMG's 'Vision on Euthanasia,' the Supreme 
Court of the Netherlands rendered its decision in the landmark Schoonheim case. The case had 
arisen in 1982, when Dr. Schoonheim complied with the repeated plea of his 95-year-old 
nursing home patient, Mrs. Maria Barendregt, for a lethal injection. The patient had experienced 



Supreme Court, N.J. 1985, No. 106. Also see Judgment on euthanasia delivered by the Netherlands Supreme 
Court on 27 Nov. 1984, English text Company, The Hague, 1984. 



183 

a steady physical deterioration such that she was bedridden (unable even to sit up), incontinent, 
progressively losing vision and hearing, and finding it 'difficult to drink and impossible to eat.' 
She was, however, 'fully alert and completely lucid.' She repeatedly begged Dr. Schoonheim to 
end her life, which he did by lethal injection following lengthy conversations with the patient, 
her son, and another physician. In bidding farewell to her son and daughter-in-law, the patient 
expressed her gratitude to Dr. Schoonheim and urged them to 'Always honour this doctor.' 

The accused pleaded the defence of 'overmacht' and was acquitted on that basis. 
However, the acquittal was overturned by the Amsterdam Court of Appeal on the grounds that 
the defence could not be allowed to undermine the prohibition against active voluntary 
euthanasia as found in article 293. The Supreme Court in turn reversed that decision by rejecting 
the proposition that public policy precluded an 'overmacht' defence to a physician who had 
given a lethal injection to a consenting patient. 

Although the courts had on occasion dealt with an article 40 defence in a variety of cases, 
Schoonheim was the first case in which the defence was presented in the context of professional 
responsibility. The Supreme Court thus had the opportunity to refine the defence in the 
euthanasia context. In that regard, the Court conceptualized the defence around the concept of 
'conflict of duties' - when the physician is faced with an irreconcilable conflict between her duty 
to abide by the law and her duty to help her patient who pleads for active intervention to end a 
life marked by unbearable and irremediable suffering. In other words, the physician is caught in 
an ethical dilemma which she resolves by breaking the law in the interest of what is considered a 
greater good - ending the misery of a hopeless existence at the behest of the tormented patient. 

According to the Supreme Court, the key question was whether Dr. Schoonheim was 
confronted with an emergency situation 'according to responsible medical judgment, tested by 
norms of medical ethics.' Because the Supreme Court is not the final arbiter of the facts in Dutch 
law, it sent the case down to a lower court to apply its direction on the law to the facts 
surrounding the patient's death. In the process, it directed the court to consider: (1) whether 
according to professional medical judgment it was likely that Mrs. Barendregt would experience 
increasing 'disfigurement' of her personality and/or a worsening of her already unendurable 
physical and mental suffering; (2) whether the spectre of further deterioration made it necessary 
for Dr. Schoonheim to act when he did to enable the patient to 'die with dignity'; and (3) 
whether there were less drastic means to alleviate her suffering. 

In the subsequent proceeding, all the medical witnesses supported Dr. Schoonheim 's 
action and the charge was consequently dismissed by the public prosecutor. It is noteworthy that 
it was not the medical testimony alone that prompted the Public Prosector to terminate the 
proceedings. He had sought the advice of the KNMG as to whether the circumstances of the 
case fell within the medical guidelines. Its response was that 'if the criteria of voluntariness, a 
well considered request and unbearable suffering have been met... euthanasia is in principle 
allowed.' It is hardly surprising that the charge was dismissed, given that the medical witnesses 
and the KNMG had presented a united front favourable to Dr. Schoonheim 's action. 

We can thus see that the Dutch euthanasia policy is the result of a collaborative effort 
between the medical and legal establishments. The 1973 Postma case was followed by the 
KNMG's first position paper on euthanasia, and its more elaborate 1984 paper was followed by 



184 

the Schoonheim case. In addition, by omitting to stipulate that the euthanasia candidate must be 
in the so-called 'terminal phase,' the Schoonheim decision could be interpreted as aligning with 
the KNMG's position that euthanasia should not be restricted to the terminally ill. In any event, 
two years later the Supreme Court ruled that an accused physician acted within the guidelines 
when he performed euthanasia upon a 73 -year-old nonterminal patient with multiple sclerosis.^ 
That decision was in accord with the definition of 'unbearable suffering' (as a criterion for 
euthanasia) as contained in the KNMG's 1984 position paper - as either 'unbearable physical 
pain' or 'unbearable mental suffering as a result of a physical disorder.' 

However, in 1993 the KNMG released a position paper on 'Assisted suicide of psychiatric 
patients,' giving it cautious endorsement. According to the position paper, the crux of the 
matter is the state of mind of the patient. The issue is particularly complex in psychiatric cases, 
as the wish may stem from a disorder (e.g. depression or psychosis) that is treatable in the 
individual case. If, however, the patient's psychiatric disorder is not amenable to treatment, the 
physician must then determine whether the patient is mentally competent and whether the wish 
to die is persistent, voluntary, and well-considered. Of course, the physician must understand the 
source of the patient's suffering because otherwise she cannot consider alternative measures. 
Still, as regards the criterion of unbearable suffering, the paper stresses that what counts is the 
suffering itself, not whether it stems from a physiological ('somatic') or psychological 
condition. In short, the issue is whether the suffering that is in place - whatever its source - can 
be alleviated. (It should be noted that a position paper expressing the same view had been 
released the previous year by the Netherlands Association of Psychiatry. ) 

Once again, the law responded in kind to the public policy of the medical establishment, 
when in 1994 the Supreme Court ruled in the Chabot case that a physician could assist the 
suicide of a mentally competent patient whose irremediable suffering was not grounded in a 
physical disease process. ^^ The patient was a divorced 50-year-old social worker, who was 
devoted to her two sons. The elder son went into the army and at the age of 20 committed 
suicide after a broken love affair. She was devastated by his death but managed to get on with 
her life, drawing comfort from her relationship with her second son. About four years later, he 
was stricken with cancer. She quit work to devote herself to his care, and on the day he died 
(also at the age of 20) she attempted suicide. 

After a second attempt to take her life, she wound up entering into a contract with Dr. 
Chabot, a psychiatrist with extensive experience in treating suicidal patients. He would attempt 
to persuade her to alter her bleak outlook, and if he could not he would take her request for 
suicide under advisement. After 30 hours of therapy, she informed him that the sessions had 



g 

Supreme Court, N.J. 1987, No. 607. Also reported in 3 Issues in Law and Medicine 445 (1988). 

9 

Koninklijke Nederlandsche Maatschappij ter Bevordering der Geneeskunst. Assisted Suicide of Psychiatric 

Patients. Utrecht, 1993. 

Nederlandse Vereniging voor Psychiatric Mededeling Bestuur (Betreffende Commissie Ethiek). 'Assisted Suicide 
of Psychiatric Patients.' 86 Nieuws en Mededelingen 2-3 (1992). 

' ' Supreme Court, N.J. 1 994, No. 320. 



185 

failed to change her mind and that the time had come for him to fulfil his part of the bargain. He 
responded by sending a transcript of all their therapy sessions to seven experienced colleagues. 
All save one agreed that it was a hopeless case, and that near unanimity was enough to persuade 
Dr. Chabot to accede to her request. Soon thereafter, the patient died at home after ingesting a 
dose of lethal drugs provided by the psychiatrist. In his 25 years of practice. Dr. Chabot said that 
he had never come across a patient who had such a fixed determination to die. Her life had 
become a living hell, and he never saw even a glimmer of hope that she could turn her life 
around. 

Dr. Chabot was acquitted by the Assen District Court of the charge of aiding suicide. The 
accused testified that in his professional opinion there was no question of a psychiatric ilhiess or 
major depressive episode. According to the classification system of the American Psychiatric 
Association (D.S.M.-III-R), Hilly Bosscher was suffering from an adjustment disorder reflected 
by a depressed mood - but without psychotic signs - in the context of the bereavement process. 
She was experiencing long-term psychic suffering that for her was unbearable and unremitting. 
However, she was mentally competent, given that in letters and discussions she had consistently 
displayed a clear understanding of her situation and the consequences of her decision. 

Four of the clinical experts consulted by Dr. Chabot appeared as witnesses for the defence. 
They all testified that the case had been so well documented by the accused that it was 'highly 
unlikely' that any new information would have been gleaned by interviewing the patient. The 
Court of its own accord consulted three additional experts who provided written statements. Of 
the seven clinicians thus heard by the District Court, not one denied the strong possibility that 
the patient would have been driven to desperate measures to end her life and not one expressed 
disagreement with Dr. Chabot' s role in her suicide. 

Although the patient was suffering from neither a physical nor mental illness, the defence 
attorney argued that the case fit squarely within the medico-ethical principles of autonomy (self- 
determination) and beneficence that are the twin pillars of Dutch euthanasia policy. Regarding 
the former, he argued that respect for the person outweighs the duty to preserve life; and 
regarding the latter that the relief of unbearable and irremediable suffering likewise overcomes 
that duty. 

The District Court implicitly agreed with his line of argument by omitting to focus upon 
the cause of Hilly' s suffering. Rather, what was legally relevant was compelling evidence that 
her unbearable suffering (however caused) could not be alleviated. Given its fmding that there 
were no treatment alternatives and that the patient was mentally competent and acting out of her 
free will, the Court ruled that the accused had acted in compliance with the medico-legal 
guidelines for physician-assisted suicide. 

The Appeal Court of Leeuwarden upheld the acquittal. Given the absence of a somatic 
condition, the Court emphasized that in such a case the physician is duty bound to exercise 



12 

The Chabot case is discussed in Sneiderman B. & Verhoef M. 'Patient autonomy and the defence of medical 
necessity: five Dutch euthanasia cases.' 34 Alberta Law Review 374, 398-405 (1996). 



186 

"great care in establishing that the wish to die is not a direct symptom or consequence of a 
psychiatric sickness or condition and that - in this connection - the request for suicide is well- 
considered and voluntary." 

The Court added that, as a general rule, a finding of mental competency is not foreclosed 
simply because the diagnosis bears the label of a psychiatric syndrome, condition, or disorder. 

There was a further appeal to the Supreme Court, which overturned the acquittal in a 
ruling handed down on June 21, 1994. However, in the result the high court did not endorse the 
argument of the prosecution that physician-assisted suicide was permissible only for those 
afflicted with a somatic condition. In other words, it agreed with the two lower courts that the 
policy encompassed those whose suffering did not stem from a physiological disease process. 
According to the Supreme Court, it would have been inconsistent with 'the specific nature of the 
defence of overmacht' to accept such a 'general limitation.' Still, the Court was mindful of the 
implications of a ruling that did not foreclose the assisted suicide of a non-somatic patient. 

But the fact remains that when the suffering of a patient cannot be shown to follow from a somatic 
illness or condition, and does not consist only of the experience of pain and loss of bodily functions, 
it is more difficult objectively to demonstrate the fact of suffering and in particular its seriousness 
and hopelessness. For this reason, the trial court must in such cases approach the question whether 
there was a situation of necessity with particular care to that factor. 

In previous cases, the Supreme Court had rejected an ironclad rule that in somatic cases 
the treating physician must consult a colleague. Rather, it had ruled that notwithstanding the 
absence of such consultation, a tribunal could find that the circumstances of a particular somatic 
case were sufficient proof that the accused had acted in a state of overmacht. In sum, it is a 
question of fact in the particular case whether the physician should have consulted a medical 
colleague. According to the Court, the very nature of the defence of overmacht requires an 
individualized case-by-case approach in which the task before the court is to determme whether 
the accused had indeed beeh forced by circumstances to act as he did. It thus becomes a question 
of fact in the case at hand, and the imposition of an automatic rule requiring consultation would 
frustrate the intent of the overmacht defence. Even if such a requirement is appropriate as a 
general rule, the courts cannot be bound to find as a matter of law that the rule must always be 
followed. It really depends upon the facts of the particular case. 

Notwithstanding that general line of authority, the Supreme Court reversed the Court of 
Appeal decision in the Chabot case and entered a conviction under article 294 (assisting suicide) 
of the Penal Code. In so ruling, the Supreme Court accepted the contention of the public 
prosecutor that the defence of overmacht was not allowable because none of the experts 
consulted by Dr. Chabot had personally examined the patient. The Supreme Court agreed that, 
in a non-somatic case, the absence of such a face-to-face examination compels the conclusion 
that, as a matter of law, the physician cannot satisfy the tribunal that he had truly acted in a state 
of necessity. Thus, although the Supreme Court rejected a blanket rule that physicians cannot 
assist the suicide of patients in non-somatic cases, it nonetheless decided that personal contact 
between consultant and patient was a pre-condition to the acceptance of the defence of 
overmacht in such a case. Furthermore, its ruling was accompanied by the additional rider that 



187 

the physician cannot lawfully assist suicide if there is a 'realistic alternative to relieve the 
suffering which the patient has in complete freedom rejected.' 

Although Dr. Chabot was pronounced guilty for breaching the requirement that the patient 
be examined by at least one consulting physician, the Supreme Court exercised its prerogative 
under article 9(a) of the Penal Code to waive 'any punishment or other measure' in light of the 
circumstances of the case and/or the character of the accused. The absence of a sentence is 
comparable to an 'absolute discharge' in Canadian law. 

Dr. Chabot was also called to account by the Amsterdam Medical Disciplinary Court, 
which found him guilty of professional misconduct and imposed the sanction of a reprimand. 
(There are five such tribunals in the Netherlands, which hear claims of professional misconduct. 
Each court is composed of a five-judge panel; the presiding judge is a lawyer and the four 
associates are physicians. The tribunals are empowered to impose the following sanctions: 
warning, reprimand, fine, suspension for a specified period, and finally the most severe sanction 
- strikmg the offender from the medical rolls.) The Court's ruling was based upon two grounds. 
Firstly, he was faulted for not pressing the option of anti-depressant therapy more vigorously. 
Secondly, whatever the legal position on whether he was bound to arrange that the patient be 
personally seen by a consultant, the Court concluded that his failure to do so amounted to an 
ethical breach of duty. Dr. Chabot chose not to exercise his right to appeal the decision to the 
Central Medical Disciplinary Court in The Hague. 

The case has caught the imagmation of the Dutch public, and even proponents of their 
euthanasia policy have been quite vocal in denouncmg the precedent set by the Chabot ruling. In 
fact, the ruling has propelled calls to swing the pendulimi back to restricting euthanasia to the 
terminally ill. 

In a sense, there is indeed a logic that leads down the road from the case of a 95-year-old 
patient tormented by multi-organ system failure to a 50-year-old patient tormented by personal 
tragedy but with an intact body and no psychiatric history. As the renowned American jurist, 
Oliver Wendell Hohnes, once observed: 'The art of civilization is the act of drawing lines.' 
Where then does one draw the line: whose intolerable and irremediable torment qualifies for 
euthanasia and whose does not? Keep in mind that it is the twin pillars of autonomy and 
beneficence that provide the medical-ethical grounding to the Dutch euthanasia policy. At the 
very least, the idea of beneficence suggests an act of mercy or kindness - an act designed to 
mitigate harm or suffering. If we are prepared to accept euthanasia in principle we must then 
ask, For what kind(s) of distress will its mercifiil release be offered? 

There is, of course, physical pain - unrelenting, unbearable, and never-ending. (It is the 
rare case in which pain cannot be medically managed, but the fact is that there are such cases.) 
But surely we cannot stop there. Euthanasia cannot logically be restricted to pain cases because 
not only would we then exclude other forms of physical discomfort (e.g. nausea, vomiting. 



Information on the medical disciplinary courts and the Chabot ruling by the Amsterdam court were provided by 
defence attorney Eugene Sutorius. 



188 

dizziness, diarrhoea, itching) but also the emotional, spiritual, and psychological suffering that 
can wreak havoc upon its victims. After all, any health care-giver can recount cases of patients 
who were not racked by sheer physical pain but who were nonetheless entrapped by horrific 
suffering. What counts, then, is that the patient requesting euthanasia is overwhelmed by 
irremediable misery and torment; and in that sense it is pointless to assign weights to its physical 
and nonphysical components (assuming, of course, the absence of treatment options to mitigate 
the patient's distress). 

Yet we cannot logically restrict euthanasia to the terminally ill - to a patient whose torment 
is marked by a relatively limited time duration. Consider, for example, the 1986 Dutch 
Supreme Court ruling accepting euthanasia for a nonterminal patient afflicted with multiple 
sclerosis. How could one oblige that patient to live while granting euthanasia to a patient facing 
a shorter term prospect of unremitting suffering? It is arguable that one cannot, lest we betray 
our commitment to the principle of beneficence. (Recall that in its 1984 position paper, the 
KNMG invoked beneficence as the reason for reversing its earlier position that euthanasia be 
restricted to the terminally ill.) The Dutch medico-legal criteria accordingly stipulate that the 
patient must be afflicted with unbearable and intractable pain and/or suffering, but that the 
patient need not be in the 'terminal phase.' 

Moreover, if it can be suffering (not simply pain) and if the patient need not be terminal, 
why then must there be a somatic basis to the complaint in order for the aggrieved patient to 
qualify for euthanasia? The tormented patient of Dr. Chabot bears stark witness to the reality of 
egregious suffering that does not flow from physiological disease. Who can say that her 
suffering was of lesser magnitude than that undergone by the patient of Dr. Schoonheim? All 
that one can say is that both patients experienced life as a living hell; both were convinced that 
death offered the only release; and their physicians reluctantly came to the same conclusion. 
There is, after all, no objective measurement of a patient's agony. It is well and good to stipulate 
that the pain and/or suffering of the euthanasia candidate be both unbearable and irremediable. 
But still, the only way to 'prove' it is by asking the patient. 

In any event. The Chabot ruling has led critics of the Dutch euthanasia policy to invoke 
the spectre of the slippery slope - that a precedent involving a patient at the threshold of death is 
inevitably bound to lead to a physically healthy patient who wishes to die simply because of 
profound unhappiness. On the other hand, there are those who respond that the ruling is the 
logical outcome of a policy grounded in patient autonomy and beneficence because it is illogical 
to restrict unbearable suffering to that which is traceable to a physiological disease process. 



14 



15 



Although bear in mind that a terminal prognosis is simply a physician's educated guess as to the patient's life 
expectancy. Moreover, there is no standard definition of the time frame that defines a patient as terminal; to one 
physician it could be six months and to another a year. Moreover, even educated guesses of life expectancy can 
fall wide of the mark. 

Recall that in its 1984 position paper, the KNMG had restricted euthanasia to patients suffering 'unbearable 
physical pain' or 'unbearable mental suffering as the result of a physical disorder.' When one debates the question 
- 'Who qualifies for euthanasia? - it is arguable that the KNMG went over the edge by later including psychiatric 
patients, that from a pragmatic standpoint a line must be drawn, and that the logical place is by excluding cases in 
which there is no underlying somatic disease process. 



189 

Another recent case of note is van der Weerd^ a 1995 decision by the Leeuwarden Court of 
Appeal, which upheld a ruling by the District Court of Groningen that only physicians are 
privileged to perform euthanasia. In that case, the patient (a male nurse dying of AIDS) told the 
defendant-nurse that he preferred that she give him the lethal injection. She agreed on condition 
that his physician first ensure that the case fit within the guidelines and that he be present when 
she committed the act. She was nonetheless prosecuted under article 293 and convicted 
(although not punished). To no avail, the defence argued that she had simply performed a 
medical act under the supervision of the physician and that, as his 'extended arm,' she should be 
cloaked with his immunity. 

Over the years there have also been a number of successful prosecutions of physicians 
before the criminal and medical disciplinary courts. One such case involved a neurologist who 
was convicted of murder under article 289 because he ended the life of a 78-year-old patient 
who was 'incurably ill.. .with no prospect of improvement' but who had not explicitly asked for 
euthanasia. Another case involved a physician convicted of murder for terminating the lives of 
three nursing home patients without their consent. The convictions were overturned because 
crucial evidence had been obtained by an illegal search; however, he was reprimanded by the 
Medical Disciplinary Court of the Hague. There have also been homicide convictions of 
physicians under article 293 who had not sought a second opinion. However, since there was 
patient consent in such cases, the prosecutions fell under article 293. Convictions have also 
followed in cases in which the physician had filed a false death certificate attesting that the 
euthanized patient had died a natural death. As in Canada, when a patient dies an unnatural 
death, the physician cannot complete the death certificate but rather must notify the medical 
examiner's office. 

An unresolved issue is whether the qualifying patient must be an adult. Although the 
KNMG and the courts have yet to address this issue, Dutch physicians and lawyers have 
expressed the view that so-called mature minors (older minors with sufficient maturity to make 
informed judgments) would qualify. Also yet unresolved is the question of euthanasia by 
advance directive. What if a patient signs a directive in which he requests a lethal injection in the 
event that there comes a time when he is diagnosed as in a permanent vegetative state? The 
courts have yet to deal with such a case. 

Finally, there is irony in the fact that in Schoonheim, the Dutch Supreme Court has 
fashioned a defence to a charge of unlawful homicide that exonerates the accused-physician 
only when she has committed an act that in Canada (and elsewhere in the common law world) is 
defined as first-degree murder: the planned and deliberate consensual killing of the deceased. In 
other words, it is the mental element of the death-dealing act - its planned and deliberate nature - 
that grounds a defence of necessity under article 40 of the Dutch Penal Code. In the result, the 
Dutch Supreme Court has indicated that, however overpowering the facts of the particular case. 



Interview with the defence counsel, Eugene Sutorius. 



17 

Leenen, HJJ. 'Dying with dignity: developments in the field of euthanasia in the Netherlands. ' 8 International 
Journal of Medicine and Law 517, 521-3. 



190 

the physician's act is sheltered by article 40 only if she has expended sufficient time and effort 
to ensure that the plea for euthanasia was the voluntary choice of a mentally competent patient 
and that there were no other means to relieve his unbearable suffering. 

As previously noted, a physician who adheres to the medico-legal guidelines can rest 
assured that she will not be prosecuted. The matter of compliance with the mandated guidelines 
raises an issue which that will be discussed as we turn now to the next sub-heading. 

(b) Procedural Safeguards 

(i) CONSULTATION 

According to the KNMG guidelines, the physician cannot resort to euthanasia based solely 
upon his own judgment but rather must consult with an experienced and independent colleague. 
Given the awesome responsibility and power that the law has bestowed upon the medical 
profession, it is beyond dispute that a peer review process is essential. 

Hospitals that permit euthanasia (and some religious-based hospitals do not) have set up 
protocols to monitor the process. For example, according to one such hospital protocol, 
compliance with the patient's request cannot be granted unless the following personnel all agree 
that the case falls within the medico-legal guidelines: the attending physician, the chief of 
service, the head nurse, the head of the department, and the hospital director. Hospital protocols 
also require the attending physician to complete a detailed report documenting the history of the 
patient's ilhiess, her mental state (relating to the informed consent requirement), and the lack of 
other means to relieve her affliction. 

As will be noted when we turn to the data on Dutch euthanasia practice, most cases occur 
in the patient's home where the directing hand is that of the patient's family physician. In such 
cases, there is no oversight mechanism in place (as in hospitals) to ensure that the physician has 
complied with the KNMG's consultation requirement; and there is evidence of the failure of 
substantial numbers of family physicians to follow this procedural safeguard - i.e. to seek 
confirmation from an independent colleague that the substantive criteria have been met. 

In the precedent-setting Schoonheim case, the accused had consulted only with a 'junior 
physician' who was two years out of medical school and working under supervision in his 
office. However, the Supreme Court did not even comment on that aspect of the case; and in fact 
it was not until the Chabot case that it addressed the consultation issue, when it ruled that in 
'nonsomatic' assisting suicide cases (cases in which there is no physiological disease process) 
the physician must not only consult an experienced colleague but also must arrange for the 
colleague to interview the patient. 

The Supreme Court was of the view that such an ironclad requirement was not essential in 
'somatic' cases - that in such cases the physician ordinarily must involve a colleague but that it 
would still depend upon the facts of the particular case whether he must do so. However, in 
cases involving psychiatric patients with no somatic disease process the physician must consult 
and must arrange for the colleague to examine the patient. In short, the Supreme Court has not 



191 

endorsed the KNMG's position that consultation is a matter of prudent medical practice in all 
cases. 

As noted, when the patient dies at home, there is no oversight mechanism in place to 
ensure that the physician has complied with the KNMG's consultation requirement. 
Furthermore, there is evidence that even physicians who consult often turn to their partners in 
practice, which hardly fits the status of 'independent colleague' as found in the KNMG 
guidelines. It is true that in most home-based euthanasia cases the patient had discharged herself 
from hospital and come home to die after being informed of a terminal prognosis. Yet it is the 
family physician who may take it upon himself to determine that the patient is mentally 
competent, has made a voluntary choice for euthanasia, and that there are no reasonably 
available alternative measures. Or if he does receive confirmation from a close associate, there is 
the concern that the consultation is a mere srubber stamp. 

According to a study of the practice of euthanasia by family physicians covering the 
period 1986-9, 25% did not seek a second medical opinion before carrying out the patient's 
request (although about half did consult a district nurse or other professional health worker). 
But that still means that about 12% had no kind of consultation with any health professional. 
Furthermore, the physician who did consult often turned to his partner in practice, who would 
not likely qualify as an 'independent colleague' as found in the KNMG guidelines. It is true that 
in most home-based euthanasia cases the patient had discharged herself from hospital and come 
home to die after being informed of a terminal prognosis. Still, it is the family physician who 
may take it upon himself to determine that the patient is mentally competent and has made a 
voluntary choice for euthanasia, and that there are no reasonably available alternative measures 
to the euthanasia option. (There is no data indicating whether the situation has changed since the 
late 1980s.) Moreover, the failure to consult may be compounded by the physician's failure to 
adhere to the reporting requirement, to which we now turn. 

(ii) Reporting 

Dutch law provides that unless the patient dies a natural death the physician cannot sign a 
death certificate; and until 1990 the physician was obliged to notify the police of all unnatural 
deaths (which would of course include euthanasia cases). In the early years of euthanasia 
practice, whenever the death occurred in the home the inevitable response of the physician's 
telephone call was the dispatching of a police car to the patient's residence. 

That policy was enough to discourage most family physicians from reporting euthanasia 
cases. On the one hand, there was the wish to protect the family's privacy and to spare the 
family the stress of police contact. On the other hand, the nonreporting physicians also tended to 
assume that they had strictly adhered to the substantive criteria and therefore that there was no 



18 



Van der WaJ G. Euthanasia en hulp by zelfdoding door huisartsen (Euthanasia and Assisted Suicide by Family 
Physicians). Rotterdam: WYT Uitgeefgroep, 1991. This is the van der Wal study that is discussed in the Data 
section of this paper. 



192 

point to involve the authorities regarding a matter falling within the parameters of the physician- 
patient relationship. 

In November 1990 the reporting procedure was changed for the specific purpose of 
encouraging physicians to report euthanasia cases. Physicians are now directed to notify not the 
police but rather the municipal coroner, who in turn files a report of each euthanasia case with 
the public prosecutor who will conduct inquiries in questionable cases. And since 1993 
physicians are required to fill out detailed reports of their cases on a prescribed form. The new- 
procedure has resulted in a dramatic increase in the reporting of euthanasia cases. Whereas in 
1990 454 cases were reported, 1,415 were reported for 1993. Still, even that higher figure is less 
than half the estimated number of annual euthanasia cases. ^^ 

(iii) COMMENT ON FAILURES TO CONSULT AND REPORT 

A striking fmding from the aforementioned 1986-9 study was that physicians who failed to 
seek a consultation were also failing to report their euthanasia cases to the authorities. It may 
very well be that in such cases the substantive criteria - a mentally competent patient, afflicted 
with unbearable and irremediable suffering, who makes a voluntary, repeated, and well 
considered choice to die - were met. But that is hardly the point because the procedural 
safeguards are in place to ensure that the substantive criteria have been met. Critics of the Dutch 
euthanasia policy claim that in such cases physicians are not consulting and reporting because 
they have something to hide - i.e. that the failure of the procedural proves the failure of the 
substantive. On that note, Dr. van der Wal has expressed the view that the reason that 

20 

prosecutions hardly ever occur is that: 

physicians, having been informed about the requirements for prudent care, only report those 
cases of which they are almost certain that they will not be prosecuted; and if they report 
them, they tend to present the cases in such a way that it will fit better into the (legal) 
requirements. 

What, then, about the cases that are not reported? It does not necessarily follow that such 
cases are not reported only because the guidelines are not followed, as there are many known 
cases of physicians who conscientiously follow the guidelines but still omit public notification 
(in the process committing an offence under the Burial Act by signing a death certificate falsely 
reporting a natural death). But it is surely cause for concern that the physician who decides of 
her own accord to act upon a patient's request has cast herself in the one-person role of judge 
and jury. And if she consults but does not report, she has still foreclosed an independent review 
of her actions as mandated by law. It remains to be seen whether the new reporting requirements 
will diminish the widespread disregard of the procedural safeguards of consultation and 
reporting. In any event, the euthanasia policy of the Netherlands has placed awesome power in 



19 

Legemaate, J. 'Legal aspects of euthanasia and assisted suicide in the Netherlands.' 4 Cambridge Quarterly of 
Healthcare Ethics 112, 1 16 (1995). 

20 

Van der Wal G. 'Euthanasie uit strafrecht, maar sterven niet bureaucratiseren' (Take euthanasia out of the criminal 
law, but do not bureaucratize it). Nederlands Juristenblad, 1 April 1993, pp. 444-49. 



193 

the hands of physicians, and it hardly needs to be said that there must be constant and dihgent 
oversight of the exercise of that power. In our view, the fact that over 40% of the Dutch die at 
home is a commendable feature of their health care system. The downside is that the physician 
who performs euthanasia in the home can choose to insulate the act from public scrutiny. It is a 
dilemma that is apparently unresolvable, although the KNMG is doing its best to encourage its 
members to comply with the procedural requirements. 

3. THE DUTCH HEALTH CARE SYSTEM AND SOCIO-CULTURAL FACTORS 

(a) The Health Care System 

As Dutch commentators are quick to point out, their euthanasia policy is integrated into a 
health care system that provides equal and universal access to health care. The Netherlands 
features a system of mixed coverage of both private insurance and national health insurance 
under the Health Insurance Act. The majority of the Dutch - about 60% - are insured under the 
latter scheme for virtually all health care expenses. Only 2% are uninsured, but like their 
compatriots they are covered by the Exceptional Medical Expenses (Compensation) Act which 
provides a national insurance scheme under which everyone is insured regardless of income. 
The Act covers serious medical risks (e.g. hospital stay for longer than one year and admittance 
to a nursing home) which cannot be borne by the individual patient and for which it is difficult 
to obtain insurance coverage. 

In addition, patients at home are entitled to regular visits by nurses, and limited intensive 
home care by day and night nurses is available for dying patients. Of course, if such a patient 
requires fulltime nursing care, then the patient would have to be shifted to a hospital or nursing 
home. There are also programs training volunteers to assist in home care for critically ill and 
dying patients. 

As ahnost everyone is enroled in various health plans that cover all medical costs, there are 
no economic factors to influence requests for euthanasia (as, for example, would certainly be the 
case in the United States). As an aside, Dutch physicians are not paid by the health care system 
for practicing euthanasia. 

Another relevant feature of the Dutch health care system is the nature of the physician- 
patient relationship. Everyone is registered with a 'huisarts' (family physician), who tends to 
reside in the same neighbourhood as her patients, makes house calls when the patient is too ill to 
attend at her office (which is often in her home), and normally has the entire family in her care. 
The home is more central to the lives of the Dutch than is the case in North America, as 
indicated by the percentage of home births (about one-third of all deliveries) and of people 
choosing to die at home (42% as compared to 20% in Canada). In a health care system featuring 
such a high degree of personal contact, it is not surprising that family doctors and their patients 



21 

Van Delden, J.J.M. 'Euthanasia in the Netherlands: the medical scene.' In Sneiderman, B. & Kaufert J. (eds.) 
Euthanasia in the Netherlands: A Model for Canada (University of Manitoba, 1984), at 24. 



194 

develop longstanding and trusting relationships which facilitate the discussion of death-and- 
dying issues such as euthanasia 



22 



In that regard, recall that roughly two-thirds of euthanasia cases happen in the patient's 
home and that the family physician who helps manage her death is more like an old friend than a 
casual acquaintance or stranger. Moreover, because the physician will no doubt know the 
patient's family as well, he is thereby well positioned to determine whether the patient has truly 
made the euthanasia decision of her own accord. 

Certainly in stark contrast to the United States, the Dutch have exhibited great confidence 
and trust in their physicians, illustrated in part by the fact that Dutch physicians are rarely sued 
for malpractice. This does not necessarily mean that Dutch physicians are more adept at their 
work than their American counterparts. It is rather that the generally close physician-patient 
relationship means that the latter do not rush to sue simply because something has not gone 
right. The Dutch are an educated and relatively sophisticated people, who would not tolerate 
their euthanasia policy unless they were confident that the medical profession would not betray 
their trust. 

(b) SOCIO-CULTURAL FACTORS 

The religious tradition of the Dutch is Calvinistic, emphasizing individual responsibility 
for all aspects of life, including matters of personal conscience and salvation as well as 
involvement in public affairs. Notwithstanding the Calvinist heritage, the nation flourished 
within a tradition of religious tolerance and respect for freedom of thought. Even the Roman 
Catholic Church still retains Calvinist features - the concept of individual responsibility and 
resistance to official church dogma (penetration Calviniste). Neither any of the Protestant 
churches nor the Roman Catholic Church has attained a dominant political or moral position in 
the Netherlands. Given the separation of church and state, religious bodies do not exert a direct 
influence on legislation. 

According to historians, the emergence of the Netherlands in the 17th century as the major 
force in international trade is explained by two factors: (1) the Calvinistic belief that one should 
use one's talents to the maximum degree (reflected in a strong work-ethic); and (2) the nation's 
strategic location along the North Sea. The Dutch realized that a strong mercantile orientation 
required adaptation, flexibility, and the avoidance of conflicts. This national ethos was a reason 
why the Netherlands became a reftige for dissidents, persecuted religious minorities, and 
celebrated free thinkers such as Descartes and Spinoza. The development of humanism and 
socialism flourished in this climate. That climate of tolerance continues to flourish, and one 
often hears Dutch commentators explain that when so many people are crowded together in 
limited space they must learn to tolerate differences of opinion and life style. 

As mentioned, it was the 1973 Postma case that sparked the euthanasia debate in the 
Netherlands; and from that time forward the issue has been the focus of widespread and 



^^ Ibid., at 23. 



195 

vigorous public discussion, facilitated no doubt by the country's population density and 
relatively small land area. (It was also the Postma case that directly led to the founding of the 
Dutch Society for Voluntary Euthanasia.) The backdrop to the euthanasia debate is the 
emergence in the 1960s of an era of marked secularization, in which the populace generally 
ceased to abide by the dogmatic opinions of religious institutions. In the process, the churches 
have adopted new roles in society (e.g. passing critical judgments upon technological progress 
and the pursuit of material possessions). In the result, nonreligious moral principles have became 
increasingly important in a people who by and large do not attach negative connotations to the 
principles of secular humanism. 

Dutch physicians have played a vital role in the development of the euthanasia debate, as 
evidenced by the various position papers of the Royal Dutch Medical Association. Both Dutch 
physicians and laypersons have indicated widespread support for euthanasia. Surveys have 
indicated that 88% of physicians have either performed euthanasia or would be willing to do so. 
Roughly 80% of the general public also support the policy, and the 20% who do not are 
generally the same 20% who oppose the liberal Dutch position on abortion. 

It also should be noted that contrary to North American medicine, Dutch physicians tend 
toward less aggressive medical management. They are accordingly less likely to intervene in the 
disease process than their counterparts across the ocean. (At the other end of life, birth by 
Caesarian-section is a much rarer occurrence in the Netherlands than in North America.) 

Finally, as pointed out by law professor John Griffiths - a transplanted American who has 
taught law at the University of Groningen since 1977 - the medico- legal regulation of euthanasia 
is the product of a four centuries' Dutch tradition of tolerance and respect for autonomy that 
finds expression in other areas of social programming as well. That tradition is exemplified by 
the Dutch policies of abolition or nonenforcement of the so-called consensual crimes of 
abortion, pornography, prostitution, and possession of drugs for personal use. 

There is another cultural characteristic - pragmatism - that also informs Dutch social 
policy: if the consensual activity in question cannot be suppressed, then better it should be 
brought above ground and regulated. In short, there is a sense in which the medical practice of 
euthanasia in the Netherlands is part and parcel of Dutch policy approaches that are invariably 
commented upon by outside observers: the carefully demarcated red light districts; the sale of 
pornography; and not only coffee shops selling marijuana but also hydroponic stores selling the 
equipment for growing it. To its critics - whether the issue is euthanasia, abortion, or the other 
traditionally criminalized consensual crimes - the Netherlands stands indicted as a permissive 
society. Most of the Dutch don't see it that way. They would say about euthanasia what they 
would say about other consensual activities that all too often have been assailed by moral 
crusaders: it is better to react to human diversity with tolerance than intolerance; pragmatism is 
better than the no-win law enforcement war against consensual crimes; and respecting autonomy 



23 

Payer I. Medicine & Culture. New York: Henry Holt and Company, 1988. 

24 

Mullens, A. 'The Dutch way of death.' The Toronto Star, October 16th, 1994, p. CI. 



196 

is better than trying to force people to refrain from conduct that can directly harm only 
themselves. 

4. THE DATA 

The paucity of data on the euthanasia experience prompted the initiation of two carefully 
crafted studies of the medical practice of euthanasia which were both published in 1991. The 
earlier study was conducted by Dr. Gerritt van der Wal and colleagues.^^ The second study, 
which was more ambitious in scope than that undertaken by van der Wal, was commissioned by 
the Dutch government and in published form is referred to as the Remmelink Report.^^ 
(References to euthanasia in both studies include cases of physician-assisted suicide.) 

(a) The VAN DER Wal Study 

The study covered the years 1986-9 and involved a random sample of 667 family 
physicians. The focus was upon such practitioners because it was apparent that they were 
involved in most euthanasia cases. Over the surveyed time span, 27% of the family physicians 
received no requests for euthanasia, 18% one request, and 16% had six or more requests. In any 
given year within the 1986-9 time frame, 56% had no requests, 29% one request, and 1 1% two 
requests. In other words, only 4% annually received more than two requests. From 1986-9, 53% 
of the sample did not carry out a single euthanasia request, and in any given year within that 
period 76% had no such involvement. 

Over the years 1986-9, the number of euthanasia requests to the 311 physicians with at 
least five years' clinical experience totalled 232, 219, 251, and 291. The number of requests 
granted totalled 109, 86, 98, and 102. (In sum, although 46% of requests were granted in 1986, 
that figure fell over the next three years to 39%, 39%, and 35%).) This averaged out to 99 
euthanasia cases per 311 G.P.s over the 1986-9 time frame. Since there are 6,300 family 
physicians throughout the Netherlands, Dr. van der Wal extrapolated from that ratio to come up 
with an annual figure of around 2,000 euthanasia cases in which they were involved. 

Amongst the reasons for requesting euthanasia, the most common were: 'senseless 
suffering', 'fear of loss of dignity,' and 'unbearable suffering' (mentioned respectively by 56%, 
46%), and 42%)). Pain was mentioned as a reason by 35%) of the patients, but in only 5% was it 
the primary reason for asking for euthanasia. It is worth noting that according to the World 
Health Organization, in about 5% of cases pain cannot be alleviated by currently available 
methods of pain control. 

Data were collected on the time lapse from the first discussion of euthanasia to the 
patient's death, and from the first specific request for euthanasia to the patient's death. In 3% of 



25 
26 



Supra note 17. 

Van den Maas PJ, Van Delden JJM, Pijnenborg L. 'Euthanasia and other medical decisions concerning the end of 
life.' 338 The Lancet 669 (1991). The entire report appears as: Van den Maas PJ, Van Delden JJM, Pijnenborg L. 
'Euthanasia and other medical decisions concerning the end of life.' 22 Health Policy 1-262 (1992). 



197 

the cases, death occurred on the same day that the topic was first raised. In 9% the time frame 
from first discussion to death was between one day and one week, and in 26% from one week to 
one month. In 9% the time frame was more than one year. In 13% of the cases, death occurred 
on the same day as the first specific request for euthanasia. In 35% the time lapse was from one 
to seven days, in 30% from one week to one month, in 17% from one to six months, and in 6% 
from six months to one year. 

Recall that in its 1984 position paper, the KNMG had stipulated that the patient's request 
for euthanasia must be 'consistent and durable.' That is no doubt as it should be. The reason is 
that the patient's informed consent is not truly demonstrated unless she has maintained the wish 
to die over a reasonable time frame (after all, the patient who wishes to die in the morning might 
change her mind in the afternoon). Admittedly, one cannot quantify the time period over which 
the patient must so persist. 

We have seen, however, that in 3% of the cases reported by van der Wal the patient died 
on the same day that he first broached the subject of euthanasia, and in 13% on the same day as 
the first specific request for euthanasia. Although the absence of information on the facts of the 
particular cases precludes the judgment that the physicians acted precipitously, these data 
provide grounds to question whether physicians scrupulously ensure that the patient's request 
for euthanasia is truly well considered and not simply prompted by his having had a bad day. 

For such cases one could construct radically different scenarios. On the one hand, there is 
the physician who for whatever unseemly reason is only too quick to perform euthanasia when 
the subject comes up. His primary concern is not his patient's welfare but rather the wish to 
avoid the commitment and stress occasioned by hard cases. On the other hand, there is the 
compassionate physician whose long time patient is near death and suffering grievously. When 
the patient fmally raises the euthanasia option, the physician is not surprised and cannot fault the 
patient for suggesting a quick and merciful end to a hard dying; and the lethal injection is given 
later that same day as the culmination of heartfelt and intimate discussion between the parties. 
The point, of course, is that the data really tell us nothing about the particular cases. Critics of 
the Dutch euthanasia policy are quick to cite the data as 'proof that physicians are regularly 
flouting the voluntary choice/informed consent criteria. That may be so, but the simple fact is 
that the data do not prove that allegation. 

One can make the same comment about the van der Wal data on 'the initiative for the first 
discussion of euthanasia.' In 83% of the cases it was the patient who first broached the subject. 
However, in 10% of the cases it was the physician and in 6% a family member. So what does 
one make of the 1 6% of cases in which either the physician or a family member presented that 
option to the patient? Once again we can picture two scenarios. On the one hand, there is the 
physician or family member who for whatever selfish motives informs the patient of his right to 
euthanasia. On the other hand, there is the caring and compassionate physician or family 
member who is distressed by the patient's suffering, who knows that death is near, and who 
gently informs the patient that he has the right to seek the merciful end of euthanasia as an 
alternative to the prolonging of his agony. Once again, all that one can say is that the data do not 
tell us wherein the truth lies in any of the particulair cases. 



198 



(b) The Remmelink Commission Study 

In 1990 the Dutch government established a committee charged with the task of 
organizing a comprehensive study of 'medical decisions concerning the end of life' (for which 
the Dutch use the acronym, MDEL.) The focus was thus not restricted to euthanasia but rather 
upon decision-making generally in end of life cases. The study followed three avenues of data 
collection: (1) detailed interviews with 405 physicians (152 general practitioners, 50 nursing 
home physicians, and 203 specialists); (2) an analysis of 5,200 completed questionnaires by 
physicians signing death certificates (from an original stratified sample of 7,000 deaths); and (3) 
a prospective study in which 80% of the 405 physicians (322) were interviewed on the cause of 
death of all patients within a six month period. Physicians were guaranteed immunity from 
prosecution in order to secure their participation in the study. The results from the three 
substudies have been combined where possible, weighting the results of the separate substudies. 
Bear in mind that the data are from 1990. We thus learn about such decision-making over the 
course of that one year only, and whether the situation has markedly changed over the years 
awaits the findings of a second Remmelink study, which is currently under way but will not 
begin to generate data until late 1996. 

The study examined three categories of MDEL: non-treatment decisions (NTD); 
alleviation of pain and symptoms by opioids (APS); and euthanasia and related MDEL - 'the 
prescription, supply or administration of drugs with the explicit intention of shortening life, to 
include euthanasia at the patient's request, assisted suicide, and life-terminating acts without 
explicit and persistent request.' In short, 'related MDEL' refers to cases in which physicians 
performed euthanasia without strict adherence to the medico-legal criteria. 

There were 128,000 deaths in the Netherlands throughout 1990. About 30% were acute 
and unexpected. 'In the remaining 70% there was enough time to take medical decisions, and in 
more than half of these cases (54%), a MDEL was taken.' Therefore, 38% of all deaths resulted 
from a medical decision at the end of life (MDEL). The respective shares of that 38% are 
presented in Table 1 . 

Table No. 1 

Estimated Incidence of Medical Decisions at The End of Life, 

as Percentage of All Deaths, Per Year. 



Type of Decision 


Best 
Estimate 


Euthanasia 


1.8% 


Assisted suicide 


0.3% 


Life-terminating acts without explicit request 


0.8% 


Alleviation of pain/symptons 


17.5% 


Non-treatment decisions 


17.5% 


Total 


37.9% * 



♦ Deviations between 37.9% and 38% are due to rounding 



199 

(i) EUTHANASIA 

According to the findings, there were 2,700 euthanasia deaths: 2,300 cases in which 
physicians administered lethal drugs (usually a barbiturate followed by a muscle relaxant such as 
curare), and 400 cases of assisted suicide. The data on physician involvement in euthanasia 
cases invites comparison with van der Wal's finding that 53% of 311 G.P.'s had never 
performed euthanasia between 1986 and 1989. In the Remmelink sample of 152 G.P.s, 62% had 
ever performed euthanasia and 24% had done so over the 1989-90 period. In addition, the 
Remmelink study found that most cases of euthanasia were performed by G.P.s, concluding that 
1,900 such cases occur annually, whereas the corresponding figure in van der Wal's study was 
2,000. The study found that there were about 9,000 explicit requests for euthanasia throughout 
1990, of which only 30% were granted because 'in most cases alternatives are found that made 
life bearable again, and in some instances the patient dies before any action can be taken.' (Van 
der Wal's figures were somewhat higher - about 40% of requests granted over the 1986-9 
period.) Psychiatric ilhiess was the stated reason for denying 14% of the requests. 

If there is a typical euthanasia patient profile it is that of a male patient afflicted with 
cancer, who resides in the urbanized western part of the country and who dies at a relatively 
younger age than those whose deaths are not caused by euthanasia. Males account for 52% of all 
deaths, whereas they constitute 61% of the euthanasia cases. Although only 8% of all deaths 
happen to those under the age of 50, that age category accounts for 14% of euthanasia deaths. 
Those between 50-64 account for 13% of all deaths and 24% of euthanasia deaths. And while 
42% of all deaths occur to those over 80, they constitute only 25% of the euthanasia deaths. The 
fact that 68% of euthanasia deaths were cancer-related would help to explain the age 
differentials. Aside fi^om cancer, the major euthanasia disease categories were: cardiovascular 
disease 9%, pulmonary disease 6%, diseases of the nervous system 2%, and infectious diseases 
(mostly AIDS) 2%. 

What prompts such patients to conclude that life is intolerable and that they are better off 
dead? Physicians who took part in the Remmelink study reported the reasons of 1 87 patients, of 
whom 57% mentioned 'loss of dignity.' 'Unworthy dying' and pain were both mentioned in 
46% of the cases, but in only 6% was pain the sole reason. Recall that similar data were reported 
in the van der Wal study in its canvassing of 203 euthanasia patients: 'loss of dignity' cited by 
46%; 'senseless suffering' by 56%; and pain by 35%, although pain as the sole reason in but 5% 
of cases. 

These findings confirm observations by Dutch physicians that what fuels most euthanasia 
requests is not intractable physical pain but 'unbearable or senseless suffering.' Examples 
provided by physicians include: shortness of breath caused by tumour in the lung or mouth that 
leads to slow suffocation; nausea and vomiting that for some cancer patients cannot be 
alleviated; and total paralysis inflicted by ALS (Lou Gehrig's disease) and multiple sclerosis. 

Dutch physicians often comment that patients asking for euthanasia have lost the will to 
live; and a phrase that crops up in the literature is 'the disintegration of personality and the wish 



200 

to die with no further loss of dignity.' Dr. Borst-Eilers, vice-president of the Health Council of 
the Netherlands, has provided the following euthanasia patient profile:^^ 

The total decay and disintegration of the bodily functions and the certain knowledge that it will 
become worse cause a sense of slowly losing all dignity and cause the wish to die as soon as 
possible. Many patients at this stage feel completely prepared for death, and already begin to feel 
detached from life and from their environment. They have said goodbye to it all and they only long 
for the end. Every extra day alive means an extra day of unbearable suffering. 

(it) LIFE-TERMINATING ACTS WITHOUT EXPLICIT REQUEST (LAWER) 

It is this category of about 1,000 cases that has fuelled the controversy on the Dutch 
euthanasia policy, as well it should since these were cases of deliberate life termination in breach 
of the voluntary choice/informed consent requirements. In Dutch law, these cases - which the 
Dutch refer to by the acronym LA WER, would all fall under the Penal Code heading of murder. 

The cases break down into two categories. In 59% the patient had at some time during his 
illness expressed a wish for life-ending measures in the event of unbearable suffering - in words 
such as, 'Doctor, don't let me suffer; you'll know what to do when the time comes.' Still, at the 
time that the physician acted, there was no explicit request from the patient and the physician 
had taken it upon herself to act because m her judgment the patient was suffering grievously 
(and usually lapsing in and out of consciousness). In the remaining 41% of LAWER cases, the 
patient had never spoken to the matter. That latter figure would translate into about eight cases 
per week in which a physician had deliberately given drugs to end the life of a patient who had 
never indicated that he would want his life ended in that fashion. 

In most of the LAWER cases, the physician acted only after consulting others: medical 
colleagues in 70% of cases, nursing staff in 66%, and relatives in 83%. In only 2% of cases did 
the physician act solely of her own accord. In 86% of the cases, the patient's life was considered 
to have been shortened by a few hours or days at the most. Three-quarters of the patients were 
mentally mcompetent at the tune of death; however, the treating physicians indicated that 14% 
were totally competent and 1 1% partly competent. It is true that those who were not incompetent 
were deemed to be suffering grievously and that all were incapable of verbal communication. 
Even so, it is particularly disturbing that one out of four LAWER cases mvolved patients with 
varying degrees of competency. 

According to an oncologist at the Netherlands Cancer Institute, there are terminal cases in 
which the provision of morphine may work only at the cost of keeping the patient unconscious 
(and some patients ask for enough morphine to keep them that way). What then happens is the 
decision to shorten the coma by lethal injection. In her view, a patient-centred reason for so 
acting is that it is pointless and mhumane to continue the morphine as 'the patient will die very 
slowly with a number of complications unworthy of men.' Another reason is to relieve the 



27 

Dr. E. Borst-Eilers, 'The status of physician-administered active euthanasia in the Netherlands.' Unpublished 
conference p^)er delivered at the Second International Conference on Health Law and Ethics, London, 1989. 



201 

'heavy burden for the family members who have ah-eady had a very hard and exhausting time.' 
As the oncologist admitted, 'According to the rules this procedure is not pure euthanasia because 

28 

the patient did not ask for it, and it is not purely for the relief of pain.' 

In an article on LAWER cases published in The Lancet, the Remmelink researchers 

29 

present the following three cases to illustrate the category. The second and third cases fall 
under the 41% category (no indication that the patient had ever discussed the subject of 
euthanasia). 

(1) The patient, 81, who was terminally ill with breast cancer and widespread bone 
metastases, was being cared for at home where she wished to remain until her death. Her pain 
was becoming progressively more difficult to alleviate with opiates, and she had repeatedly told 
the family physician that 'everything should be finished' when her suffering became unbearable. 
However, she lapsed into unconsciousness before making an explicit request for euthanasia. 
After conferring with a medical colleague, the home care nurse, and the patient's son, the G.P. 
ended her life with a very high dose of morphine. In his estimation, her life was shortened by a 
week at most. 

(2) The patient, 75, had suffered a stroke three years earlier and was admitted to hospital 
with a basilar artery thrombosis. She was totally paralysed and suffering fi-om bronchitis, which 
antibiotics failed to relieve. Her consciousness deteriorated rapidly, and asphyxia seemed 
imminent. There were no treatment alternatives nor prospects for improvement. The treating 
physician discussed the situation with a medical colleague, nurses, and her husband, after which 
he ended her life with high dosage opioids. In his estimation, her life was shortened by less than 
24 hours. 

(3) The patient, 64, was permanently unconscious, and frequent seizures caused by a brain 
tumour could not be controlled. There were no treatment alternatives nor prospects for 
improvement. After discussing the case with a medical colleague, the nurses, and the patient's 
wife, the treating physician gave the patient an intravenous drip of potassium chloride that ended 
his life within three minutes. In his estimation, the patient's life was shortened by one to six 
months. 

Dr. van der Wal has also found LAWER cases in his research on the practice of euthanasia 
by family physicians. In an article published in the journal Bioethics, he quotes examples as 
described by the physicians, including the following case involving a mentally competent 

. . . 30 

patient: 



28 
29 

30 



Personal interview. 

Pijnenborg L, Van den Maas PJ, Van Delden JM, Looman C. 'Life-terminating acts without explicit request of the 
patient.' 341 The Lancet 1 196 (1993). 

Van der Wal G. 'Unrequested termination of life: is it permissible.' 7 Bioethics 330, 335 (1993). 



202 

Patient with ALS (Lou Gehrig's disease), who could no longer speak and was becoming increasingly 
breathless as a result of paralysis of the respiratory muscles; was in danger of suffocating. It had 
never been possible to discuss euthanasia with the patient herself, but discussion had been possible 
with the husband. No children or other members of the family were involved. At the explicit request 
of the husband I injected the patient with two ampoules of morphine; she died within an hour. 



As he sums up his findings on LAWER cases:^^ 

(G)enerally, the patients are seriously ill and dying of cancer and often are no longer able to express 
their wishes; some patients can still be consulted, but no further questions are put to them. The 
patient is known to be suffering unbearably and hopelessly and often the family cannot 'take' any 
more.... The doctor feels he is standing with his back to the wall; he sees that termination of life is the 
only way left to put an end to the patient's suffering. 

However compelling the circumstances of LAWER cases, they have been widely deplored 
by Dutch commentators on both legal and moral grounds. According to Dr. van der Wal:^^ 

One can appreciate and understand why doctors take action to terminate life without being requested 
by the patient who is suffering unbearably and pointlessly. But in my opinion such action is not 
permissible fi-om a moral point of view. In the first place, there is a danger that interests other than 
those of the patient will play a decisive role. Furthermore, it is not permissible because the interest of 
society as a whole is at stake. The safety of all ftiture patients would no longer be guaranteed.... In 
nearly every case it should be possible for doctor and patient to discuss the termination of life 
explicitly and at an early stage. The ultimate reason why termination of life without the request of the 
patient is not permissible is that in principle it will never be possible to draw a clear dividing line 
between unrequested and unwanted termination of life. 

A separate issue is whether the LAWER cases prove that the spectre of the slippery slope 
has come to pass: that when euthanasia is permitted for the patient who asks for it, it will 
mevitably happen that physicians will take it upon themselves to act in cases in which there is no 
explicit patient request. On the one hand, it is arguable that the data do not prove that Dutch 
physicians have interpreted theu- unique legal privilege as a licence to run amok and kill patients 
who they believe are better off dead. The 1 ,000 cases m which the guidelines were not followed 
are not necessarily the inevitable spin-off fi'om the policy permitting the 2,700 cases that fall 
within the guidelines, as it may be that the LAWER cases would happen in the Netherlands even 
if euthanasia were not legally tolerated. Furthermore (as shortly discussed), there is evidence that 
in common law jurisdictions, where euthanasia is prohibited, there are cases not only of 
euthanasia at explicit patient request but also cases without patient consent. 



31 

32 



Ibid., at 333. 

Ibid., at 337. Yet even Dr. van der Wal is not prepared to say that LAWER cases are never justified. For he adds 
the following comment to his quoted condemnation of such cases. 'However, it is conceivable that in certain cases 
the conflict of loyalties will be such that unrequested termination of life is justified. In the rare extreme case of an 
inescapable conflict of equally stringent duties, it may just be necessary to do something which in essence is 
impermissible.' 



203 

On the other hand, one must acknowledge the sHppery slope argument presented by John 
Keown, an English lecturer in medical law, who is an ardent critic of the Dutch euthanasia 
policy. As Keown contends: 

(T)he argument runs that acceptance of voluntary euthanasia leads to acceptance of at least non- 
voluntary euthanasia (that is, the killing of patients incapable of requesting euthanasia such as 
newborns or those with advanced senile dementia) because the former rests on the judgment that 
some lives are not 'worth' living, which judgment can logically be made even if the patient is 
incapable of requesting euthanasia. Doctors are not automata who simply execute their patients' 
wishes, however autonomous. They are professionals who form their own judgment about the merits 
of any request for medical intervention.... The doctor, if acting professionally, would decide in each 
case whether the intervention was truly in the patient's best interests. A responsible doctor would no 
more kill a patient who had, in the doctor's opinion, a life 'worth' living any more than he would 
prescribe anti-depressants for a patient who, in the doctor's opinion, was not depressed. 
Consequently, the alleged justification of voluntary euthanasia rests fundamentally not on the 
patient's autonomous request but on the doctor's judgment that the patient no longer has a life 
'worth' living. And, if the doctor can make this judgment in relation to an autonomous patient, he 
can, logically, make it in relation to an incompetent patient. Moreover, if death is a 'benefit' for 
competent patients suffering certain conditions, why should it be denied incompetent patients 
suffering from the same condition? 

Keown would no doubt consider his argument illustrated by the recent decision 
(November 1995) of the Amsterdam Court of Appeals in the Prins case. This was a case m 
which the accused physician administered a deliberate lethal injection to a three-day-old patient 
afflicted with multiple anomalies. The parents consented to the act after the medical team 
(including a neurosurgeon and neurologist) advised that the neonate's condition did not warrant 
life-extending measures. Even though the case lacked what had heretofore been defined as an 
essential element of the euthanasia guidelines - the explicit request of the patient - the District 
Court of Alkmaar nonetheless accepted the defence of medical necessity because of the patient's 
dire condition. The trial court ruled that the accused had 'acted according to scientifically and 
medically responsible judgments, and m line with ethical norms.' It also held that the consent 
requh-ement was satisfied by the explicit request of the patient's legal surrogates (the parents) for 
'life termination.' The appellate court affirmed the acquittal, and that decision will not be 
appealed to the Supreme Court. 

Once again, a judicial ruling has reflected the position of the medical establishment on the 
issue at hand. In 1990, a committee of the K.N.M.G. published a working paper on 'Life 



33 



34 



Keown J. 'Euthanasia in the Netherlands: sliding down the slippey slope.' In Keown J. (ed.) Euthanasia Examined 
(Cambrige University Press, 1995), at 262. 

Information about this case was provided by the defence attorney Eugene Sutorius. Professor Johan Legemaate, 
who teaches health law at Erasmus University in Rotterdam, has informed us of a second case involving a 
physician prosecuted for giving a deliberate lethal injection to a severely handicapped newbom. In the Kadijk 
case, the Leeuwarden Court of Appeals affirmed the acquittal of the accused under article 40 (the overmacht 
defence). As in Prins, the Court ruled that the physical suffering of the dying infant could not have been alleviated 
by palliative care. 



204 

35 

Shortening Treatment of Seriously Defective Newborns.^ Its premise is that there are situations 
in which it is questionable whether the prolonging of treatment is 'still in accordance with the 
primary goal of medicine, namely the ending or relieving of suffering.' Although most of the 
report dealt with terminating life-prolonging treatment, it did address the question of 
'administering euthanatic drugs.' 

It concluded that in 'very rare' instances, that option was permissible in two kinds of cases. 
Firstly, when there was no real chance of survival and when simply foregoing life-prolonging 
treatment would lead to the needless prolonging of suffering. Secondly, when the prognosis was 
of a short 'unlivable life' and likewise when simply foregoing life-prolonging treatment would 
lead to the needless prolonging of suffering. In such cases, death by lethal drugs was considered 
acceptable because such manner of death would cause less suffering than death by the 
withdrawal of life-support measures. Regarding 'unlivable life,' the Committee recognized that 
there are no criteria in place that define such a condition. It did, however, suggest that the 
following factors be taken into account: possibilities of verbal and/or non-verbal 
communication, degree of physical and/or mental suffering, possibilities of development and 
independence, and life expectancy. 

The report concluded that the criteria for neonatal euthanasia would apply to about three or 
four cases a year. 

Two years later, the Dutch Pediatric Association (N.V.K.) published a report on 
'Boundaries of Medical Action in Neonatology' under the subtitle. To Do or Not to Do' The 
report concluded that 'purposeful ending of life' (by administering lethal drugs) was permissible 
when: (1) medical life- lengthening action appears not to be in the interests of the neonate, and 
(2) such treatment has been stopped but death does not follow soon, leaving a situation of 
inhumane and irresponsible suffering with the likelihood of increased damage. 

In commenting on the Prins case, a health law professor on the staff of the Royal Dutch 

37 

Medical Association stated that: 

The signal to doctors is that under very specific circumstances, the path (of infant euthanasia) may be 
taken. The door is opened, but it's only a crack. We don't think it will open any further. 

Keown would of course disagree. 



35 
36 

37 



Levensbeeindigend handelen bij wilsonbekwame patienten. 45 Medisch Contact 553 (1990). 

Gezondheidsraad, intensive care voor pasgebomenen (To Do or Not to Do: Boundaries of Medical Action in 
Neonatalogy) (Dutch Pediatric Association, 1992). 

'Court drops murder charge against doctor.' November 7, 1995. Associated Press. 



205 

(iii) ALLEVIATING PAIN AND SYMPTOMS (APS) 

As a general rule, APS cases are those in which the physician's considered judgment is 
that the relief of pain necessitates an increase in the dosage of opiates. The physician thereby 
assumes the risk of shortening life by respiratory arrest. Although death directly attributable to 
the pain relief is a foreseeable outcome, the physician has not acted with the intent to end the 
patient's life. His intent is rather to relieve pain, and the foreseeable death of the patient by 
respiratory arrest is deemed the unintended byproduct of necessary pain control measures. Such 
manner of death - the so-called double effect cases - is likewise a feature of Canadian medical 
practice, although there is of course no data on its extent. In its 1982 working paper, Euthanasia, 
Aiding Suicide and Cessation of Treatment, the Law Reform Commission of Canada 
acknowledged that in the administration of pain control medication, a progressive increase in 
dosage may result in an injection that has 'the secondary effect of shortening the life of the 
patient.' The Commission went on to decry the absence of specific legal approval for this 
foreseeable outcome of the provision of medically appropriate palliative care. Unfortunately, 
Parliament has not seen fit to act upon its recommendation. Perhaps it may now be prompted to 
respond because in its 1995 report, the Special Senate Committee on Euthanasia and Assisted 
Suicide proposed that 'the Criminal Code be amended to clarify the practice of providing 
treatment for the purpose of alleviating suffering that may shorten life.' In any event, there is 
de facto legal recognition of such manner of death because no double effect case has ever been 
prosecuted. 

It should be noted, however, that in 6% of the APS cases, the physician administered 
morphine with the express purpose of shortening the patient's life. The Remmelink Commission 
came up with that figure because, in one of its three sub-studies (the physician interviews), 16 
respondents indicated that they had acted with such intent; from a statistical standpoint that 
relatively small number indicates that this finding is not necessarily a reliable estimate of such 
practice. By extrapolation, this 6% figure represents roughly 1,300 cases (6% of 17.5% of 
128,000 cases). In any event, the Remmelink researchers were prepared to describe these cases 
as falling within a 'boundary area' striding both euthanasia and LAWER cases. In other words, 
the cases fall under the heading of 'euthanasia and related MDEL' because they involved 
physicians who deliberately administered lethal doses of morphine. In 43% of the 1,300 cases 
morphine was administered at the patient's explicit request (i.e. euthanasia), whereas in 57% 
there was no explicit request (i.e. LAWER). When one adds these cases to the 
'euthanasia/MDEL category, it means that roughly 5,000 deaths can be attributed to the decision 
to use drugs specifically to end the patient's life, which amounts to about one in every 25 deaths. 

Recall that the APS category (the 'double effect' cases) accounted for 17.5% of all deaths 
in the Netherlands in the year under scrutiny. Is that percentage abnormally high? One has no 
way of knowing simply because there are no comparable data elsewhere. On the other hand, the 
view has been expressed by both Dutch and Canadian care-givers that in an unknown 
percentage of APS cases, the morphine may not have been the cause of death. These were very 
debilitated patients who might well have died when they did in fact die even without the 



38 

Special Senate Committee on Euthanasia and Assisted Suicide. Of Life and Death (Ottawa, 1995), at 32. 



206 

presumed lethal dose, albeit their physicians simply assumed that the morphine was the 
immediate cause of death. In other words, although the severely debilitated patient stops 
breathing shortly after the morphine is administered, the time sequence does not necessarily 
prove cause and effect. Admittedly, this is only speculation but those who have expressed it 
have had considerable experience with dying patients. 

(iv) NON-TREATMENT DECISIONS 

This category of cases involves decisions to hasten death by the withdrawal or withholding 
of life-prolonging treatment. As in Canada, such manner of death is commonplace and lawful. 
In roughly two-thirds of the cases, the patient was mentally incompetent when the decision was 
made to terminate treatment. This has led some critics to interpret the data as indicating roughly 
15,000 cases of 'involuntary euthanasia.' 

It is true that, if one applies the outdated active/passive euthanasia terminology, one would 
describe these 15,000 cases as falling under the heading of nonvoluntary passive euthanasia (not 
'involuntary' which implies against the patient's will). One need not belabour the point that 
these cases have no bearing upon the concept of euthanasia as it is currently understood. 

(v) COMMENTARY ON THE EUTHANASIA AND LAWER DATA 

As the data reveal, Dutch physicians have admitted to crossing the dividing line by acting 
with the 'primary intent' to end the lives of grievously suffering patients who were not then 
asking for euthanasia. The likely reason for their frankness is that the Dutch government 
guaranteed immunity from prosecution to physicians taking part in the Remmelink study. Who 
is to say that similar practices do not occur in this country? In Canadian law, a physician/nurse 
who gives a lethal injection to a patient commits murder if her 'primary intent' is to end the 
patient's life. If, however, her 'primary intent' is to relieve pain, albeit she foresees that the next 
dose might well bring on respiratory arrest, her act falls within the legally permissible 
parameters of palliative care practice. 

This subtle legal distinction between euthanasia and APS prompts two comments: (1) the 
impossibility of proving that a particular case falls under the former heading unless the 
physician/nurse records the precise dosage on the patient's chart, is otherwise indiscreet, or there 
is very strict monitoring of opiate allocation; and (2) that if Canadian physicians/nurses cross 
that dividing line and commit what the law defines as murder, they are not going to broadcast 
their actions. 

Is that line being crossed? In November 1991, the B.C. College of Physicians and 
Surgeons reprimanded a Vancouver physician who had issued orders for repeated doses of 
morphine and Valium for two patients diagnosed as 'near death.' The finding of a coroner's 
inquest was that the patients - one with cancer of the colon and the other with ALS (Lou 
Gehrig's disease) - had died from morphine overdose. The physician did not consider his actions 



39 

Personal interviews with Dutch and Canadian physicians and a Canadian palliative care nurse. 



207 

tantamount to active euthanasia (i.e. murder), and the College did not come to a contrary 
conclusion. According to the College's registrar, 'With family agreement, he (the physician) was 
withholding further active treatment and assuring relief from further suffering.' Still, the 
physician's actions sound suspiciously like having crossed the APS/euthanasia line. 

It is also pertinent to note the results of a 1995 survey conducted by the Manitoba 
Association of Rights and Liberties on 'physician assisted-suicide and euthanasia. '"^^ A 33-item 
questionnaire was mailed to a random sample of 400 Manitoba physicians (excluding 
paediatrician, dermatologists, ophthahnologists, and plastic surgeons), who were provided with 
the following definitions: 

'Assisted suicide' is when a physician, acting on a patient's request, helps a patient to end her or his 
life, by providing the patient with the means to commit suicide. 'Euthanasia' is when a physician, 
acting on a patient's request, administers a lethal injection to the patient, in order to end her or his 
life. 

The physicians were asked whether a patient had ever requested euthanasia/assisted- 
suicide and whether the physician had ever complied with such a request. Although the 
respondents were guaranteed anonymity, the survey produced only 1 12 usable returns. Still, the 
results were enough to attract nationwide media attention. Of the 111 who answered the 
statement - 'A patient has asked me to shorten her or his life through assisted-suicide or 
euthanasia' - 18 answered Yes. Of the 109 who answered the statement - 'I have facilitated a 
patient's request to shorten her or his life by way of assisted-suicide or euthanasia' - 15 
answered Yes. Unfortunately, there were no questions on diagnoses, prognoses, and the 
particular manner of death. Thus, one does not know how many were lethal injections cases and 
of that number how many involved drugs other than pain-killers (e.g. potassium chloride), and 
how many involved the crossing of the APS-to-euthanasia line with deliberate lethal doses of 
opiates. In any event, proponents of legalized euthanasia have broadcast the survey's findmgs as 
evidence that since euthanasia is being practised in any event, Parliament should step in to 
regulate it. 

The findings of the Manitoba survey are hardly surprismg, given that physicians elsewhere 
in the Commonwealth have acknowledged the resort to euthanasia at the behest of suffering 
patients. In that regard, we refer to three surveys, two from Australia and the other from 
England. 

In 1988, the Medical Journal of Australia reported the results of a survey conducted the 
previous year that had involved questionnaires sent to 2,000 physicians selected at random from 



40 
41 



Globe and Mail, November 28, 1991, p. A7. 

Manitoba Association of Rights and Liberties. Silence doesn't obliterate the truth: a Manitoba survey on physician 
assisted-suicide and euthanasia (1995). (Unpublished.) 



208 

the Victoria Medical Register for 1986; there were 869 completed returns.'*^ Amongst the 
questions asked was: 

In the course of your medical practice, has a patient ever asked you to hasten his or her death 
(whether by withdrawing treatment or by taking active steps to hasten death)? 

Of the 369 who had been asked to take active steps (i.e. euthanasia), 107 (29%) admitted 
to carrying out the patient's request. Of that number, 70 (61%) had done so two or three times, 
and 22 (19%) had done so 'more frequently' than two or three times. 

In 1993, a questionnaire modeled after that used in the 1987 survey was sent to a random 
sample of 1,667 physicians on the Medical Register of New South Wales; and the results were 
reported in 1994 in the Medical Journal of Australia.'*^ Of 1,268 respondents, 46% had been 
asked to take 'active steps to hasten death' (42% in the Victoria study), of whom 28% had 
complied (compared to 29% in the Victoria study). Furthermore (as m the Victoria study), 80% 
of those who had performed euthanasia admitted to doing so more than once. 

The English survey was also conducted m 1993. By means of a postal questionnaire ('with 
no possibility of follow-up') sent to 'all 221 general practitioners and 203 hospital consultants m 
one area of England,' the investigators sought to determine the proportion who had 'taken active 
steps to hasten a (competent) patient's death.' They received 312 completed* returns. Since the 
respondents were also asked about hastening death by the withdrawal and withholding of life- 
prolonging treatment, the questionnau'e thus distmguished between what the mvestigators 
referred to as 'active and passive euthanasia' (the deliberate lethal injection scenario versus the 
termmation of treatment scenario). As reported in the British Medical Journal, 273 of the 312 
respondents chose to answer the question whether they had ever been asked to hasten death by 
'active steps.''*'* Of the 273, 45% (124) answered Yes. Of that 124, 119 answered the next 
question, which was whether they had complied with the patient's request. And nearly one-third 
(32%) - 38 of the 119 - answered Yes. The results are thus remarkably consistent with those 
found in the two Australian surveys. 

Finally, note the comment by American bio-ethicists David Thomasma and Glenn Graber 
on the crossmg of the APS-to-euthanasia Ime in the United States: 



45 



Physician friends confide in us that several times during their practice they have induced death 
through injections in order to bring the relief to patients that only death could provide. In this 



42 

Kuhse H. & Singer P. 'Doctors' practices and attitudes regarding voluntary euthanasia.' 148 Medical Journal of 
Australia 623 (1988). 

43 

Baume P. & O'Malley E. 'Euthanasia: attitudes and practices of medical practitioners.' 181 Medical Journal of 
Australia 137 (1994). 

44 

Ward H.J. & Tate P. A. 'Attitudes among NHS doctors to requests for euthanasia.' 308 British Medical Journal 
1332(1990). 

Thomasma D.C. & Graber G.C. Euthanasia: Toward an Ethical Social Policy (Continuum Press, 1990) at 147. 



209 

decision, the goal was to induce death in order to relieve pain, not the opposite... to relieve pain 
without directly intending the death accompanying the relief. 

The aforementioned surveys would appear to lend credence to the sentiment often 
expressed by Dutch physicians who practice euthanasia that the major difference between them 
and medical colleagues outside the Netherlands is that they are doing openly what the latter are 
doing secretly. And if physicians outside the Netherlands are taking 'active steps' to end the 
lives of consenting patients, who can say that they are not taking 'active steps' to end the lives of 
nonconsenting patients? In other words, if there are data that non-Dutch caregivers are 
performing euthanasia, who can say that they are not also involved in what the Dutch refer to as 
LAWER cases? 

In that regard, it is pertment to cite a recent medical journal article, 'The Role of Critical 
Care Nurses in Euthanasia and Assisted Suicide' The article details the findings of a survey, 
in which 16% of critical care nurse respondents (129 out of 852) admitted to an act of either 
euthanasia or assisted suicide. Surprismgly, 58 of the 129 had acted without the explicit consent 
of the patient, although the author remarked that some (unspecified number) could be described 
as cases of 'tacit consent.' There are also two recent cases from Ontario, in which a physician 
and a nurse were charged with murder after giving deliberate lethal injections to nonconsenting 
dymg patients. The cases were resolved the same way: a guilty plea to a charge of administering 
a noxious substance followed by a suspended sentence. Are these cases the tip of a Canadian 
LAWER iceberg? 

5. COMMENTARY ON NURSING HOMES AND PALLIATIVE CARE 

(a) Nursing Homes 

Since there have been allegations that nursing home patients are at particular risk of being 
pressured to ask for euthanasia, the nursing home data merit special consideration. According to 
the Remmelink data, nursing home practitioners (who have done residencies in nursing home 
practice) are less likely to practice euthanasia than any other physician category. In fact, only 
12% had ever practised euthanasia as compared to 54% of physicians generally, and 53% had 
ever received euthanasia requests as compared to 84% of physicians generally. According to van 
der Wal et al, the relative infrequency of euthanasia in the nursing home setting is partly 
explained by the fact that the patients are often so debilitated that any mtercurrent illness, if not 
treated promptly, might cause death. In other words, nature will often take its course before the 
patient might otherwise request euthanasia. Others reasons could be that nursing home 
physicians are reluctant to comply with such requests and that, since older patients (over 85) 



46 

Asch, D.A. 'The role of critical care nurses in euthanasia and assisted suicide.' 334 New England Journal of 
Medicine 1374 (1996). 

47 

Sneiderman B, Irvine J. & Osborne P. Canadian Medical Law: An InU^oduction for Physicians, Nurses and Other 
Health Care Professionals (Carsell, Toronto, 1995), at 546-7. 



210 

living at home infrequently ask for euthanasia, it may be that the elderly are simply more able 
and willing to tolerate suffering. 

A study of euthanasia in nursing homes was reported by Dr. van der Wal and colleagues in 

49 

1994. An anonymous questionnaire was posted to all nursing home physicians (713 in 
number) affiliated with the Dutch Association of Nursing Home Physicians. Of the 86% who 
completed the questionnaire, 88% had never administered euthanasia (the same figure was 
obtained in the Remmelink study). Although about 300 nursing home patients per year asked for 
euthanasia, their physicians complied in only about 25 cases (a ratio of l-to-12). 

The authors did express concern with the finding that in 7% of cases (which would work 
out to two cases annually), the request for euthanasia was honoured on the same day as the first 
request. However, as they then commented: 

We should bear in mind that nursing home physicians have usually been the patient's physician for 
several years, visiting the patient as frequently as necessary. This means that there has been a long, 
ongoing contact between the physician and the patient and that the physician, therefore, probably 
has a good understanding of the values and wishes of the patient. 

According to Dr. Zbigniew Zylicz, the director of a Dutch hospice and opponent of the 
Dutch euthanasia policy, the low euthanasia figures may be an indication that the practice of 
palliative care is better in nursing homes than elsewhere and therefore that physicians qualified 
as nursing home specialists rarely need to perform euthanasia. Finally, there is no evidence to 
support the allegation that elderly Dutch citizens are flockmg to nursing homes elsewhere in 
Europe because they fear being 'euthanized' in Dutch nursing homes. 

(b) Palliative Care and Pain Control 

In theory, the Dutch policy regards euthanasia as the measure of last resort when the 
patient's pain and/or suffering is not only unbearable but also cannot be alleviated. As we have 
seen, the van der Wal and Remmelink studies reported that, although pain was often mentioned 
as a factor by patients requesting euthanasia, it was the sole reason is only 5% of cases. It may 
be that pain was in fact uncontrollable in these cases and that euthanasia truly offered the only 
way out of an intolerable existence (particularly in the few cases in which pain was the sole 
reason for the request). Regrettably, the absence of data on particular cases precludes a judgment 
on the adequacy of their pain control measures. 



48 



49 



50 



Van der Wal G. et al, 'Voluntary active euthanasia and physician-assisted suicide in Dutch nursing homes; 
requests and administration.' 42 Joumal of American Geriatrics Society 620 (1994). 

Mullen MT, Van der Wal G, Van Eijk JThM, Ribbe MW. 'Voluntary active euthanasia and physician-assisted 
suicide in Dutch nursing homes: are the requirements for prudent practice properly met?' 42 Joumal of the 
American Geriatrics Society 624 (1994). 

Zylics Z. 'The story behind the blank spot.' 10 American Joumal of Hospice and Palliative Care 29 (1993). 



211 

The state of palliative care and pain control in the Netherlands is a much debated issue. 
However, the evidence is merely anecdotal and virtually no empirical data are available (which 
is also the case in Canada). There is a study reported in 1989, indicating that of 240 patients in a 
large teaching hospital in Amsterdam 45% were found to be in pain (a figure similar to estimates 
obtained by investigators in other countries). Although 59% of these patients had found ways to 
reduce their pain, nearly one-third reported that it seriously limited their daily activities. Applied 
pain management strategies were rated by two physicians as inadequate in 54% of these cases.^' 
The study was based upon data that is now seven years old, but we cannot say whether the 
situation has improved because there is no recent data on point. However, a concerted 
nationwide effort is seeking to improve pain control techniques. Pain teams have been 
established in every regional hospital and cancer centre; pain research receives designated 
fimding in the health budget; and a 64-page brochure on pain management is sent to every 
physician. 

What about palliative care? The Netherlands is often criticized for an alleged lack of 
commitment to the concept of palliative care, particularly because of the absence of independent 
hospice care units in hospitals. It is true that, particularly compared to the English-speaking 
countries, the Dutch do not traditionally institutionalize the dying. As noted, double the number 
of the Dutch die at home as compared to Americans and Canadians; and the thrust of its public 
policy is accordingly in the direction of home care for the dying. As one of the Remmelink 
researchers puts it, that policy is summed up by the phrase: 'Bring the care where it is needed, 

53 

instead of bring the needy to the care.' 

Still, the Dutch are beginning to turn to the hospice model as well. For example, two 
facilities in home-like surroundings were opened by the Dutch Hospice Movement in 1990. The 
care in these units is provided by district nurses, the patients' family physicians, and trained 
volunteers. These hospices are designed as a back-up for home care in accordance with Dutch 
policy which prefers to keep the dying at home if possible. It is only when the patient cannot be 
kept at home that he is transferred to hospital or nursing home, and he will be sent back home if 
his condition improves and he can be managed in that environment. 

On the other hand, Dr. Zylicz claims that there is a dearth of university-based palliative 
care training programs in the Netherlands, that none of the academic medical centres give 
sufficient attention to palliative care, and that palliative care is often considered to be merely the 
same as pain control. He rightly argues that the better the palliative care, the less demand for 
euthanasia. (Although bear in mind that not all pain can be controlled, and that even with state- 
of-the-art palliative care there still will be patients wishing to end their lives. But it is certainly 



51 



52 



53 



Dorrepaal KL, Aaronson NK, Van Dam FSAM. 'Pain experience and pain management among hospitalized 
cancer patients.' 63 Cancer 593 (1989). 

Van Delden JM. 'Euthanasia in the Netherlands: the medical scene.' In: Sneiderman B, Kaufert JM (Eds.). 
Euthanasia In the Netherlands: A model for Canada? (University of Manitoba, Legal Research Institute, 1994), 
at 25. 

Ibid., at 24. 



212 

true that the numbers can be minimized by the provision of good paUiative care.) Despite his 
criticisms, Dr. Zylicz admits that there is no evidence for the oft-repeated accusation that Dutch 
doctors prefer to kill rather than to care. One should also note the opinion of Dr. A.P.M. Heintz, 
a gynaecological oncologist, that the numbers of euthanasia cases have been minimized by the 
quality of palliative care provided in hospitals and in the home setting. But as he goes on to 

54 

say: 

We have learned to accept that we cannot palliate every situation and not every patient wants to be 
palliated to the end, as we or others think they should. 

Although there is no consensus on the state of Dutch palliative care, their health care 
professionals clearly recognize that state-of-the-art palliative care (including effective pain 
control) is a necessary moral underpinning to a euthanasia policy. It remains to be seen whether 
the Dutch can fulfil that promise although they are clearly working at it. 

6. CONCLUSION 

Dutch commentators are often quoted as saying that their EAS (euthanasia/assisted 
suicide) policy is not for export. What they mean is that even if one endorses the Dutch 
approach, it does not follow that euthanasia should necessarily be tolerated in other societies. 
This is a reflection of the viewpoint that whether a euthanasia policy has moral standing depends 
upon the nature of the particular society's culture and health care system. In that regard, we 
would refer the reader back to our discussion of the Dutch health care system. 

As we have seen, the Dutch have accumulated a vast amount of data on their euthanasia 
experience. One can in fact become overwhehned by the data, and it is worth noting how often 
they are interpreted with an ideological slant. In other words, an ardent critic and an ardent 
proponent of the Dutch pblicy can come up with radically different interpretations of the same 
data. It is our own view that much of the data cannot really be interpreted without an 
understanding of the particular cases that get aggregated into numbers and percentages. It is the 
human element that often gets lost in the statistical process and that fiustrates one's attempt to 
get at the truth of the Dutch EAS policy. 

As the reader will recall, this point was illustrated by the data reported in 1991 by Dr. van 
der Wal on the time fi*ame between a patient's first mentioning or requesting euthanasia and the 
carrying out of the procedure by her family physician. It is also illustrated by the 1994 study co- 
authored by Dr. van der Wal on euthanasia deaths in nursing homes. One of us heard a 
conference presenter express horror and indignation at the study's finding that in 15% of cases, 
it was someone other than the patient who had first broached the subject of euthanasia. The 
presenter went on to conjure up a picture of scores of helpless old people being pressured by 



54 

Teleconference between Dutch physicians/lawyers and the Special Senate Committee on Euthanasia and Assisted 
Suicide. October 25, 1994. 



213 



uncaring physicians or next of kin to claim their 'right' to euthanasia. But as the study's authors 
comment: 

(L)etting the patient know that the subject is open for discussion can be interpreted as a sign of 
prudence on the part of the NHP (nursing home physician). It is not necessarily contrary to the 
patient's interest if the initiative is taken by a member of the patient's family. 

In other words, one can also conjure up a picture of a compassionate and devoted 
physician or family member gently saying to a grievously suffering patient or loved one: 'It 
doesn't have to go on like this. If you want a merciful release we can talk about it.' Furthermore, 
the focus is upon only ten deaths, since the total number of cases reported by the NHP 
respondents was 68. Suffice it to comment that the data do not reveal the reality of the human 
mteraction of the particular cases. 

In the meantime, the Dutch continue to struggle with the complexity of euthanasia 
practice. In that regard, the R.D.M.A. issued a policy revision m August 1995, in which it 
deplored the fact that far more patients die by lethal injection than by assisted suicide.^^ 
Accordmg to the report: 

The responsibility for requesting euthanasia lies with the patients, and they should be held 
responsible for carrying out the practice as much as possible, if they are physically capable. 

A spokesperson for the R.D.M.A. commented that the new emphasis upon patient 
responsibility was meant to alleviate the emotional distress that physicians experience when 
administering lethal drugs. 

What is clear, however, is that the medico-legal guidelines have not guaranteed the public 
accountability of physicians practising EAS, and as we have seen that is mevitable when so 
much of that practice happens m the patient's home. In formulating a euthanasia policy, the 
Dutch medico-legal establishments have bestowed not only enormous responsibility but also 
enormous power upon physicians. In a sense, then, the Dutch approach is a testament to their 
faith in the integrity and professional judgment of their physicians. Still, so long as there are 
physicians who refuse to follow the procedural safeguards of consultation and reporting, we will 
not know whether they are truly promoting the autonomy and best interests of theu" patients. 

In pressing for the legalization of euthanasia, its proponents must address not only 
substantive safeguards (what qualifies a patient for the procedure) but procedural safeguards as 
well. In that latter regard - assuming the push to legalization - one might consider a screening 
committee - composed, let us say, of a lawyer, palliative care specialist, and perhaps a person 
familiar with community resources for the disabled whose approval physicians must secure 



Supra note 45, at 628. 

'Dutch doctors revise policy on mercy killing.' Globe and Mail, August 26, 1995, at A2. 

" Ibid. 



214 

before granting the patient's request. Although the notion of death-by-committee strikes one as 
an awkward and time-consuming poHcy, the alternative is that the decision remains in in-house 
medical hands. (Of course, there is no guarantee that all physicians would comply with such a 
screening procedure, particularly when the patient is at home.) As we in Canada confront the 
issue of euthanasia, we shall have to decide whether we are prepared to entrust that awesome 
power to our physicians or whether some screening mechanism is necessary, however distasteful 
the prospect of adding another layer of decision-making to the accountability process. 



CHAPTER 10 



AUSTRALIA 



Until this year, the criminal law in relation to euthanasia and assisted suicide in Australia 
had been very like that in Canada. Although the criminal justice system is primarily a matter of 
individual State and Territory responsibility, euthanasia and assisted suicide were criminal 
offences in all jurisdictions throughout the country. However, on July 1, 1996, the Rights of the 
Terminally 111 Act 1995 was proclaimed in force in the Northern Territory, giving competent 
terminally ill adults the right to end their lives with physician assistance. Amendments seeking 
to repeal it the day after it came into force or to include a sunset clause were defeated in the 
territorial legislature. An application to the Northern Territory Supreme Court brought by 
medical and church groups seeking an interim injunction to prevent it from coming into force 
pending the resolution of their legal challenge to the law itself was unsuccessfiil. The case itself 
is to be argued later in 1996. In the federal Parliament, a private member's bill has been 
introduced seeking to overturn the Northern Territory legislation. In September, 1996, Robert 
Dent, an Australian man with prostate cancer, became the first person to die under the new 
legislation. With the assistance of his physician, he used a computerized device to give himself a 
lethal injection. Voluntary euthanasia and assisted suicide remain illegal in the rest of the 
country. The Australian Medical Association is opposed to the legislation. However, two large 
surveys have suggested that nearly 30 percent of Australian doctors have "taken steps to bring 



Otlowski M., "Mercy Killing Cases in the Australian Criminal Justice System" (1993) 17 Crim. L. J. 10, 11; 
Report of the Senate Special Committee on Euthanasia and Assisted Suicide, Of Life and Death (Supply and 
Services Canada, Ottawa: 1995) at A- 160. 

Rights of the Terminally III Act No.l2 of 1995, Northern Territory of Australia. The Act was originally passed 
May 25, 1995. 

Reuters, "Euthanasia law survives challenge". Globe & Mail (Aug. 23, 1996) at A 10. 

Associated Press, "Court to hear case against euthanasia". Globe & Mail (June 22, 1996) at A 14. 

Pritchard C, "CA patient first to use Australian suicide machine," Medical Post (Oct. 15, 1996) at 46, 47. Since 
this paper was written, it has been reported that the lower House of the federal Parliament adopted a bill to quash 
the territorial law. It is not expected to come before the upper House until sometime in 1997 (Reuters, "Suicide 
law may be quashed", Globe & Mail (Dec. 10, 1996) at A20.). 

"Debate rages over first legal euthanasia", Toronto Star (Sept. 27, 1996) at A3. 

Pritchard C, "Australian docs speak out against euthanasia legislation". Medical Post (May 18, 1995) at 39. 

[215] 



216 

about death" when requested by a patient, and approximately 60 percent believe the law "should 
be changed to allow active voluntary euthanasia". 

Under the new legislation, when a patient is eighteen or older and decisionally capable, he 
or she can ask a medical practitioner for assistance in terminating the patient's life, provided the 
patient is terminally ill and experiencing "pain, suffering and/or distress to an extent 

Q 

unacceptable to the patient". "Terminal ilhiess" is defined as an ilhiess which "in reasonable 
medical judgment will, in the normal course, without the application of extraordinary measures 
or of treatment unacceptable to the patient, result in the death of the patient". ^° There is no 
reference to death being anticipated within a certain time period, an estimate that is very difficult 
to make accurately in any event. 

The medical practitioner must ensure that the patient is fully informed about the illness, the 
prognosis, and all treatment options that might be available. ^^ A specialist in palliative care must 
provide the patient with information about that form of treatment.'^ The medical practitioner 
must be satisfied the patient is indeed suffering from a terminal illness that is causing severe pain 
or suffering, that there is no medical measure acceptable to the patient that can reasonably be 
undertaken in the hope of effecting a cure, and that the medical treatment that is reasonably 
available to the patient is confined to the relief of pain, suffering and/or distress with the object 
of allowing the patient to die a comfortable death. The open-ended nature of the definition of 
terminal illness could make determining its boundaries difficult, particularly when considering 
diseases that may progress slowly but do result in death. Is the disease "terminal" from the 
outset, or does it change character and become "terminal" as it progresses? Presumably, the 
requirement that the only treatment available be essentially palliative — "confmed to the relief of 
pain, suffering and/or distress with the object of allowing the patient to die a comfortable 
death" — will guide the understanding of what is meant by a "terminal ilhiess". A physician 
cannot assist in a patient's death if he or she believes there are palliative care options reasonably 



10 

11 

12 
13 
14 



Ryan C, Kaye, M., "Euthanasia in Australia — The Northern Territory Rights of the Terminally 111 Act" NEJM 
1996; 334: 326 -328, referencing Baume P., O'Malley E. "Euthanasia: attitudes and practices of medical 
practitioners", Med. J. Aust. 1994;161:137, 140, 142-4 and Kuhse H., Singer P., "Doctors' practices and attitudes 
regarding voluntary euthanasia" Med J Aust 1988:148:623-7. In March, 1995, seven physicians in the State of 
Victoria made a public declaration they had helped terminally ill patients die. Despite the admission, 
investigations by police and the state's medical practitioners' board were abandoned for lack of evidence — see 
Pritchard C," Euthanasia laws in Australia not always enforced". Medical Post (Oct. 3, 1995) at 30. 

Rights of the Terminally III Act, supra n. 2 , s.4. 

Ids.3. 

Ids.7(l)(e). 

Id s.7(3). 

Ids.7(l)(b),(d). 

Ids.7(l)(b)(iii). 



217 

available to the patient to alleviate the pain and suffering to levels he or she would find 
acceptable 



15 



The physician must also be satisfied the patient's decision has been made voluntarily and 
after due consideration, including consideration of the possible implications for his or her 
family. ^^ A second independent physician "who holds a diploma of psychological medicine or 
its equivalenf must confirm the diagnosis and prognosis and that the patient is not suffering 
from a treatable clinical depression in respect of the illness. A request by a patient for 
assistance under the Act shall not on its own be taken to indicate a disability for the purposes of 
an application for guardianship. In other words, the mere fact a patient is requesting a 
physician-aided death does not mean he or she is decisionally incapable. The safeguards to 
ensure capacity are greater than for medical treatment decisions in the normal course, as are the 
range of factors the physician must bring to the patient's attention. No health care provider is 
under any duty to participate in assisting a patient to die. 

The Act sets out the procedures to be followed in making the request for assistance and the 

20 

requisite waiting times between the various stages in the process. The physician must either 
provide the assistance and/or he or she must be present while the assistance is given until 
death.^^ Permitted forms of assistance include prescribing, preparing or administering a lethal 
substance or giving one to the patient for self-administration. There are specific provisions 
detailing the medical records to be kept and regarding notice to the coroner. A Schedule to the 
Act sets out the form in which the written request of assistance in ending one's life is to be 
made. 

Assistance given in accordance with the Act is deemed to be medical treatment for the 

25 

purposes of the law. There are wide-ranging guarantees of immunity from any legal 
consequences. Provided they comply with the statute, medical practitioners or health care 
providers acting under the direction of a medical practitioner do not contravene the Criminal 



15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 



Id S.8. 

Ids.7(l)(g),(h). 

Ids.7(l)(c). 

Id s.20(3). 

Id s.20(4). 

Id s.7(iHn). 

Ids.7(I)(p). 

Id S.3. 

Idss.12-14. 

Id: Schedule to s.7, "Request for assistance to end my life in a humane and dignified manner". 

Ids. 16(2). 



218 

Code. However, the Act applies only to medical practitioners or health care providers acting 
under their supervision. As the preamble states, its object is to "confirm the right of a terminally 
ill person to request assistance from a medically qualified person to voluntarily terminate his or 

27 

her life in a humane manner". Its terms do not extend to others who take the life of an 
individual or assist suicide at the individual's request. Persons acting in compliance with the Act 
are not subject to civil or criminal liability or professional disciplinary action, provided they 
were neither negligent nor acting in bad faith. Indeed, professional organizations and 
associations of health care providers are prohibited from imposing any sanctions on persons 

29 

acting lawftilly under the Act. Thus, a professional organization could not take the position 
that, whether or not assisting a patient to die was legal, it was unethical or professional 
misconduct and forbid its members to participate. 

The Act is the first to legalize voluntary euthanasia. It only came into force July 1, 1996. It is too 
soon yet to evaluate its broader or long-term effects — specifically, whether it will increase the 
vuhierability of people with disabilities, the elderly or others at risk or whether it is a legitimate 
part of humane care in the process of dying, such that individuals in extremis can choose to to 
put an end to their suffering. 



If* 

Id. s.l6(l). Both terms are defined in s.3. 

27 

Id, Preamble. 

2R 

Ids.20(l). 
^^ Id s.20(2). 

30 

Assuming it is maintained in force — see n.5, supra. 



CHAPTER 11 



THE HEALTH CARE CONSENT 
ACT: APPLYING THE GUIDANCE 
PRINCIPLES 



1. PRIOR CAPABLE WISHES 

The Health Care Consent Act, 1996 provides for two basic models of decision-making 
when the patient is decisionally incapable. If his or her prior competent wishes are known, then 
the substitute decision-maker is directed to give or refuse consent in accordance with those 
wishes.^ If the substitute decision maker does not know of a wish applicable in the 
circumstances or if it is impossible to comply with the wish, then he or she is to act in the 
person's best interests. Requiring the substitute decision-maker to consent to or refuse treatment 
in accordance with the patient's prior capable wishes responds to many of the same concerns 
that powers of attorney for personal care do, but will have a much broader reach, applying to the 
majority of people who will never execute a formal document. Both seek to ensure to the 
greatest extent possible that decisions about the use of life support are grounded in and express 
the patients' own preferences and values. This approach is most consistent with our societal 
emphasis on self-determination and autonomy. 

While the statute does give some substance to the concept of best interests, "wishes" is an 
undefined term. It does not require anything as formal as giving instructions. However, the 
minimum that is necessary in terms of sufficient evidence of the wish, clarity, specificity, 
application to the circumstances that now prevail, and conviction or commitment to the choice 
(a wish as opposed to idle conversation), and whether the standard of proof is affected by the 
gravity of the consequences remain to be settled. 

Questions surrounding the standard to be applied in decisions regarding life support and 
incompetent patients have been explored most fully in the United States. The dominant 
approach since the decision in Quinlan has been the substituted judgment standard, essentially 



1 



Health Care Consent Act, 1996, being Schedule 2 to the Advocacy, Consent and Substitute Decisions Statute Law 
Amendment Act, 1996, SO. 1996, c.2, s.21(l) (hereafter HCCA). 

Ids. 21(2). 

In the United States, even though living wills and durable powers of attorney have been recognized by statute for 
a considerable period of time, it is estimated that only 15 per cent of the population have executed one — see Areen 
J., "Advance Directives Under State Law and Judicial Decisions" (1991) 19 Law, Med. & Health Care 91 at 92. 

Id s. 5 (2) (wishes can be expressed in a power of attorney, in some other written form, orally or in any other 
manner). 

[219] 



220 

attempting to effectuate for incompetent patients the same rights competent patients have to 
choose and refuse medical treatment, albeit through arrangements by which those rights are 
exercised for the incompetent individual by others.^ Where there is not acceptable evidence that 
the patient expressed any explicit intent, then many courts have allowed a proxy decision-maker 
to base the determination on the patient's relevant values and preferences, expressed when 
competent. Each of these tests is considered to result in a determination of the (now- 
incompetent) patient's intent, and the exercise of the patient's right to refuse life-sustaining 
treatment. The standard of proof of the patient's choice varies among the different courts that 
have considered these matters, but the general analytical approach remains consistent. 

The substituted judgment standard has been severely criticized.^ It has been relied on even 
when clearly inapplicable in the circumstances, as with patients who were never competent and 
so could not have made the decision themselves,'^ or with patients about whom there is no 
reliable evidence from which to form a picture of the individual's value system and treatment 
preferences, hivoking the justification that the judicial decision merely elucidates the "patient's 
choice" is just not credible in these circumstances. It is also criticized for setting the standard of 



5 



10 



See, for example, In re Estate ofLongeway 549 N.E. 2d 292 (111. 1989); Re Conroy; 486 A. 2d 1209 (NJSC 1985); 
Re Jobes 529 A2d 434 (NJSC 1987); Barber v. Superior Court of California 195 Cal. Rptr. 484 (Cal. App. 1983) 
at 491-92; In the Matter ofHier, 464 N.E. 2d 959 (Mass. App. 1984); Re. A.C., 573 A.2d 1237 (D.C. App. 1990) 
at 1249-51 (applying sustituted judgment test regarding a caesarian section to be performed on a terminally ill 
woman). 

The substituted judgment test was commented on extensively in Conroy, id. at 1229-30, and was developed 
further in Jobes, ibid at 445. Sometimes, courts appear to conflate analyses of a proxy acting on an expressed 
choice and one acting on a perceived preference. See for example, In the Matter of Peter, 529 A. 2d 419 (N.J. 
1987); Jobes, id, where ^e New Jersey Supreme Court permitted the guardians of patients in a persistent 
vegetative state to have the patients' life support withdrawn even without clear and convincing evidence of the 
patients' intent, on the basis of the guardians' best judgment as to what the patients would have wanted. The court 
still characterised this exercise as "extrapolat[ing] the patient's choice" - see Jobes, id. at 444. 

See for example, the language used in Longeway, supra, note 5 at 300 to describe the analytical process and its 
results. 

Indeed, the appropriate standard of proof was the issue that confronted the United States Supreme Court in Cruzan 
V. Director, Missouri Dept. of Health 110 S. Ct. 2841 (1990). As Justice O'Connor noted in her concurring 
opinion at 2859, there is no "national consensus" in the United States as to the best solution to these difficult 
questions. That being the case, in her view, these matters are better left to individual states to resolve. 

For example, Rhoden, N.,"Litigating Life and Death" (1988) 102 Harv. L. Rev. 375 at 386; Dresser R. and 
Robertson, J., "Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the 
Orthodox Approach" (1989) 17 Law, Med. & Health Care 234 at 234-35, 238-39. 

A particularly striking example of this can be seen in Superintendent of Belcher town State School v. Saikewicz, 
370 N.E. 2d 417 (Mass. 1977) where the court purported to express the "choice" to reflise treatment of a 
profoundly retarded long-term resident of a state hospital who was suffering from leukaemia. The court decided 
that he should not undergo chemotherapy even though most competent people suffering from the disease would 
choose to do so. It based its decision both on the limitations of the freatment and the patient's inability to 
understand and therefore tolerate the pain associated with treatment. The reasoning (although not necessarily the 
result) has been roundly criticized by both commentators and courts in the United States. See, for example In Re 
Storar 420 N.E. 2d 64 (N.Y. 1981); Buchanan A., "Medical Paternalism or Legal Imperialism: Not the Only 
Alternatives for Handling Saikewicz - Type Cases", 5 Am. J. Law and Medicine 97. 



221 

proof imrealistically high, and when courts act on evidence that in fact falls far short of that 
standard. ^^ While the decisions themselves are generally reasonable, they do not always do what 
they claim. 

American experience with the substituted judgment standard is instructive. It cautions 
against trying to claim too great a justification for the decision. The Ontario legislation 
recognizes this by requiring substitute decision-makers to abide by the patient's wishes, not the 
patient's choice. It also cautions against requiring unrealistically high standards of proof 
Doing so and then acting on something much less cannot foster respect for the decisions made. 

2. BEST INTERESTS 

If the subsititute decision-maker does not know of a prior capable wish applicable in the 
circumstances or if it is impossible to comply with the wish, then the Health Care Consent Act 
directs him or her to act in the incapable person's best interests. In determining the individual's 
best interests, the statute directs that certain factors be taken into consideration: 

(l)the person's prior capable values and beliefs, if the substitute decider believes the 
person would still act on them if capable; 

(2) any wishes the person expressed even where the HCCA does not require them to be 
followed; 

(3) whether the treatment is likely to improve the person's condition or well-being, prevent 
deterioration, or reduce the extent to which or the rate at which the person's condtion 
or well-being is likely to deteriorate; 

(4) whether the person's condition is likely to improve, remain the same or deteriorate 
without the treatment; 

(5) whether the person's expected benefit from the treatment outweighs the risk of harm to 
him or her; and 



11 

12 



13 
14 



In Cruzan, supra n. 8, the U.S.S.C. affirmed a state's ability to set a standard of clear and convincing evidence. 

See Rhoden, supra n. 9 at 376; Dresser and Robertson, supra n. 9 at 240; Buchanan A., Brock D., The Ethics of 
Surrogate Decision-Making (Cambridge U. Press, Cambridge: 1989) at 112-122; Arras J., "Beyond Cruzan: 
Individual Rights, Family Autonomy and the Persistent Vegatative State" (1991) J. Am. Geriatric Society 39: 
1018-1024 at 1020. 

HCCA, supra n. l,s. 21 (1). 

HCCA, supra n. l,.s.2 1(1)2. 



222 

(6) whether there is a less restrictive or less intrusive alternative to the treatment that would 
be as beneficial .^^ 

Any assessment of an individual's best interests must be based on an underlying value 
system — a conception of what constitutes "the good" for that individual (and in life more 
generally). In the past, decisions about the treatment choice that is in the patient's best interests 
often have neither articulated the underlying choice as to the values on which the determination 
was made, nor justified that choice over other possibilities. In settling on these criteria to guide 
the determination of best interests, the legislature has made the values that are to prevail in 
decision-making for others express. They represent a combination of approaches: consistency 
with the person's value system formed while capable, satisfying his or her preferences, and 
weighing the effects, burdens and benefits of the treatment and any alternatives, including non- 
treatment. The assessment of values, needs, risks, benefits and burdens all necessarily takes 
place from an external stance. Obviously, there will be instances where these factors taken 
individually would result in different decisions about whether to consent to or refuse treatment. 
How such conflicts should be resolved is unclear. 

The legislation is too new for a body of case law to have developed. However, the best 
interests test was used at common law, although without the interpretive gloss added by the 
HCCA.^^ In cases applying that test, courts have recognized the need to weigh the burden to the 
patient against the benefit possible or likely from the treatment, all in light of the patient's 
background and individual circumstances. 

(a) Making Decisions 

In Re Superintendent of Child and Family Services and Dawson, the court, quoting with 
approval from the decision of the English Court of Appeal in Re B, recognized that there might 
be circumstances in which "...the life of this child is demonstrably going to be so awful" that a 
life-saving operation need not be performed, although that was not the situation of the child in 
that case.^^ It would seem from this observation and the cases where treatment was not ordered 



15 
16 

17 
18 

19 



Id,s.21(2). 

See eg, Buchanan A., Brock D., supra n. 12 at 31 -33 identifying three widely recognized theories of well-being: 
hedonist theories, preference satisfaction theories, and objective list theories. The three both compete and overlap. 
There are, of course, a number of other classification systems that have been proposed. 

See eg. Re Eve (1987) 31 D.L.R. (4th) 2 (S.C.C). 

See eg. Rasmussen v. Fleming, 741 P. 2d 674 (Ariz. S. C. 1987); In the Matter of the Conservatorship of Torres 
357 N.W. 2d 332 (Minn. S.C. 1984). 

1983) 145 D.L.R. (3d) 610 (B.C.S.C), rev'g {sub nom. Re S.D.) (1983) 42 B.C.L.R. 153 (Prov. Ct); Re B (1981) 
1 W.L.R. 1421 (C.A.) at 623 (B.C.S.C). More recently in England, see In Re C [1989] 2 All E.R. 783 (C.A.), 
relative to limits on treatment for a terminally ill child. See also In Re J, [1992] 4 All E.R. 614 (C.A.) (an 
extremely physically and mentally handicapped child who was not terminally ill need not be placed on a 
ventilator again should the need arise. The decision was based on both the child's medical prognosis with and 



223 

that Canadian courts are not committed to a firmly vitalist position no matter what the cost to the 
individual. The position is not one, then, that privileges the value of physical existence above all 
others; there is a recognition that it is not always necessary or in the patient's best interests to 

20 

treat at all costs and with all measures available. 

It is likely that the judges in Dawson and in Re B, sensitive to criticisms of a "quality of 
life" approach, singled out pain and suffering because they were the factors mitigating against 
continuing life as to which they felt able to confidently identify a broad, albeit not universal, 
societal agreement at the time and given the circumstances of these particular patients. But 
these decisions do not mean that pain and suffering are the only factors that justify cessation of 
treatment. Even if the notion of "pain and suffering" is read broadly to include elements of 
mental and emotional suffering as well as pure physical sensation (an interpretation the phrase 
legitimately and sensibly bears), that is not exhaustive of what might mean it is in a person's 
best interests to forego life-sustaining treatment. There are many patients in extreme 
circumstances maintained on life support to whom a test hinging on the presence or absence of 
pain is simply not applicable. Patients in a persistent vegetative state, for example, do not 

22 

experience pain - or anything else For these patients and for others, too, if pain were the only 
factor that would be "enough", it "...eclipses a whole cluster of other human values that have a 

23 

proper place in the subtle weighing that will ultimately determine how a life should end." 
These factors might include a strong personal disapproval of artificially extended existence at 
the end of life, an abhorrence of dependence on others, a high valuation of personal privacy and 
dignity and an ideal of bodily integrity rather than simply prolonging life. It must also be 
recognized that the presence of pain will not in and of itself always militate against continuing 



without the life support and an assessment of what the child's experience of life would be like with and without 
the treatment). See also In Re J [1990] 3 All E.R. 930 (C.A.); Re C [1996] 2 F.L.R. 43. 



20 



21 
22 

23 



24 



See eg. Couture-Jacquet v. Montreal Children's Hospital (1986) 28 D.L.R. (4th) 22 (Que C.A.); Re Minister of 
Social Services and P. (1990) 69 D.L.R. (4th 134 (Sask. Prov. Ct). The decision in Malette (1990) 72 O.R. (2d) 
417 (C.A.) at 430 lends support to this conclusion as well in its recognition that preserving the patient's life must 
be evaluated against the backdrop of her own values. See also Re C, (1989) id at 979; Re J, id at 938, 945. 

For a similar comment in the American context, see In Re Jobes, supra, n. 5 per Handler, J., at 458, n. 12. 

In Re Peter, supra, n. 6 at 425; Airedale NHS Trust v. Bland [1993] 2 W.L.R. 359 at 375 (per Lord Goff), 361 (per 
Lord Keith), 398 (per Lord Mustill). Further, the line between those in a persistent vegetative state and those who 
are barely conscious is often not all that clear - see Rhoden, supra, n. 9 at 397. 

Per Handler, J., Conroy, supra, n. 5, at 1247. See also Emanuel, E.J., "A Communal Vision of Care for 
Incompetent Patients," (1987) 17 Hastings Center Report 15, contrasting the hedonistic conception of an 
acceptable existence for incompetent patients (using pain and pain alone as the standard of definition for benefits 
and burdens) with other possible standards — physical existence (vitalist), affective (human interaction), autonomy, 
and utilitarianism (collective pain and pleasure). 

Various American judges have given some indication of the range of factors that might be important to a patient in 
the decision-making — see, eg. Conroy, supra, n. 5 at 1248, Barber v. Superior Court of California, supra, n. 5, at 
493, Jobes, supra, n. 5, at 462, per Pollock, J. (concurring). 



224 

treatment. Pain may be part of life with a particular disability, but that does not make the life 
itself one not worth living. 

(b) Withholding and Withdrawing Treatment 

We live in a pluralistic society; we are not often going to be able to claim universal 
consensus. There are grave dangers of abuse in deciding to let a life end. Still, continued medical 
treatment does not always serve a patient's best interests. Substitute decision makers can decide 
not to consent to life-sustaining treatment in appropriate circumstances. The difficulty, of 
course, is in knowing when that point has been reached. In foregoing life-sustaining treatment, 
there is no ethical, legal or medical distinction to be drawn between withholding and 
withdrawing treatment. While the latter may be emotionally more difficult because it requires 
ending some form of therapy that is staving off death, that does not affect the medical, legal and 

26 

ethical identity of the two. As the English bioethicist and lawyer, Ian Kennedy, has 

27 

commented ". . . death is not always necessarily an evil to be fought". 

(c) Artificial Nutrition and Hydration 

In considering questions of withholding and withdrawing life-sustaining treatment, it is 
sometimes suggested that the provision of artificial nutrition and hydration is in a different 
category, such that a substitute decision-maker could not decline that specific form of 

28 

treatment. Common bases for making such a claim are that medical therapies are invasive in a 
way that artificial nutrition is not, or that feeding is a form of care and not treatment at all, or that 
foregoing artificial nutrition differs fi'om refusing other forms of life-sustaining treatment 
because death will certainly result or because of its special symbolic and emotional 

29 

significance. The claim is not well-founded. Artificial nutrition and hydration are forms of 
medical treatment like other forms of life-sustaining treatment that support or replace normal 
bodily fimctions, such as ventilators and dialysis. A substitute decision-maker can decide to 
forego both on behalf of a decisionally incapable patient in appropriate circumstances and 



25 



26 



27 



28 



29 



Factum of the Interveners Council of Canadians with Disabilities and Saskatchewan Voice of the Handicapped in 
R. V. Latimer (Sask. C. A.) at paras. 12, 46. 

American Academy of Neurology, "Position of the American Academy of Neurology on certain aspects of the 
care and management of the persistent vegetative state patient", Neurology 1989; 39: 125-126 at 125; Report of 
the Senate Special Committee on Euthanasia and Assisted Suicide, Of Life and Death (Minister of Supply and 
Services, Ottawa: 1995) at 45 to the same effect (hereafter "Senate Cttee. Report"). See also Rhoden, supra n. 9 at 
427. 

Kennedy I., "Switching Off Life-Support Mechanisms," in Treat Me Right: Essays in Medical Law and Ethics 
(Oxford U. Press, Oxford: 1988) at 361 . 

As to the ability of the patient himself to refuse artificial nutrition and hydration, see Manoir de la Pointe Bleue 
(1978) Inc. c. Corbeil [1992] R.J.Q. 712 (C.S.). 

See eg. Derr P., "Why Food and Fluids Can Never Be Denied", (Feb., 1986) Hastings Center Report 28; Canadian 
Nurses for Life Brief to the Senate Special Committee, referenced in the Senate Committee Report, supra n. 27 at 
42. 



225 

according to the same procedures and standards, just as he or she could decide to forego other 
forms of Hfe-sustaining treatment. A decision to withhold or withdraw this form of therapy will 
require the substitute decision-maker to assess the factors set out in the Health Care Consent 

30 

Act, 7PP(5 just as with any other decision about life-sustaining treatment. 

Other than the decisions in Astafaroff, Niemiec and Corbeil, which involved decisionally 
capable individuals, questions about foregoing artificial nutrition and hydration have not come 
before Canadian courts. In the United States, however, the question has been considered in 
many cases.^^ There is a judicial consensus that artificial nutrition and hydration are forms of 
life-prolonging medical treatment like any other. Consent to such treatment can be refused, and 
the refusal can be that of a substitute decision-maker. That conclusion is shared by bioethicists 
and organized medicine. In the United Kingdom, the House of Lords permitted physicians to 
end artificial nutrition and hydration being provided to a young man in a persistent vegetative 
state.^^ The Court agreed with Bland's physicians that the artificial feeding could do no more 
than maintain his biologic existence, and that it was not in his interests to continue in a persistent 
vegetative state. It held that there was therefore no duty on the physicians to continue with the 
treatment. An understanding that substitute decision-makers must assess artificial nutrition and 
hydration as forms of life-sustaining treatment like any other and that it can be in the patient's 



30 



31 



32 



33 



34 



35 



HCCA, supra n. 1 s.21(2). The Senate Special Committee on Euthanasia and Assisted Suicide also concluded that 
artificial nutrition and hydration are treatment and therefore, just as with other forms of life-sustaining treatment, 
they can be withheld or withdrawn in appropriate circumstances — Senate Committee Report, supra n. 27 at 45. 

Attorney General of B.C. v. Astafaroff [m3] 6 W.W.R. 322 (B.C.S.C); afFd. [1984] 4 W.W.R. 385 (B.CC.A); 
Procureur General du Canada c. Hopital Notre Dame et Niemiec (1984) C.S. 426; Corbeil, supra n. 28. 

See Meisel A.,"Barriers to Foregoing Nutrition and Hydration in Nursing Homes", (1995) 21 Am. J. Law & Med. 
334 at 353 n.l08, listing the many appellate decisions in virtually every state that have accepted that artificial 
nutrition and hydration are forms of life-prolonging medical treatment and that cessation of treatment decisions in 
relation to this form of treatment modality can be considered in the same way as foregoing any other form of such 
treatment. 

Id at 352-354. The United States Supreme Court in Cruzan v. Director, Missouri Dept. of Health supra n. 8, 
assumed but did not decide that a competent individual had a constituionally protected right to refuse lifesaving 
hydration and nutrition. 

See eg. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral 
Research, Deciding to Forego Life-Sustaining Treatment (Govt. Printing Office, Washington D.C.: 1983) at 192 
n.52; American Medical Association Council on Ethical and Judicial Affairs, American Medical Association 
Code of Medical Ethics — Current Opinions with Annotations para.2.20 at 36 (1994), cited in Meisel, id. at 353. 
See also Nelson L., Rushton C, Cranford R., Nelson R., Glover J., Truog R., "Foregoing Medically Provided 
Nutrition and Hydration in Pediatric Patients" (1995) 23 J. Law, Med. & Ethics 33 at 36; The Hastings Center 
Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (The Center: 1987) at 57- 
62. 

Airedale NHS Trust v. Bland [\993\ 2 W.L.R. 359 (H.L.); see also Frenchay NHS Trust v. S [1994] 1 W.L.R. 601 
(C.A.) (court granted physicians' application authorizing them not to replace a gastrotomy tube that had become 
dislodged. Although the evidence of persistent vegetative state was not as "emphatic or unanimous" as in Bland, 
doctors were of the view the patient had "no conscious being at all" and therefore the application could be treated 
as a case like Bland). 



226 

best interests not to continue with that treatment is therefore consistent with the law in other 
jurisdictions. 

(d) Pallutive Care 

PalHative care has been defined as "a program of active compassionate care primarily 
directed towards improving the quality of life for the dying".^^ The goals of a palliative care 
program shift away from cure and prolongation of life familiar from most medical practice to 
"the alleviation of psychologic and spiritual suffering, the relief of pain and other symptoms, 
and the enhancement of the meaning and quality of the patient's remaining life" — "the 
affirmation of life even in the face of impending death". ^^ The experience of palliative care 
services in Canada has largely been with patients dying of rapidly progressing fatal ilhiesses, 
especially cancer, as well as amyotrophic lateral sclerosis and AIDS. Those with chronic or 
long-term conditions of heart, lung, kidney and other body systems have made up only a small 

"JO 

portion of palliative care cases. Despite its relatively short history, it is widely acclaimed as a 
treatment option in the care of dying patients. It is also widely accepted that access to palliative 
care programs is inadequate: not all patients who need or want palliative services can obtain 
them. It has been estimated that only 5% of dying patients in Canada receive palliative care."^^ 
Despite the universal approbation, the infrastructure to support palliative care remains 
inadequate. With cutbacks to health care fimding, all health care services are affected 



42 



An important focus of palliative care is the assessment and management of pain and 
disease symptoms. Palliative care specialists note that adequate pain control can be achieved for 



36 



Health and Welfare Canada, Palliative Care Services in Hospital Guidelines (cat. no. H39-32), (Ottawa: 1989), 
referenced in Latimer, infra n. 37. 



37 Latimer E., "Euthanasia, physician-assisted suicide and the ethical care of dying patients", CMAJ 1994; 151: 
1133-1 136 at 1133. 

38 

Canadian Palliative Care Association, Brief to the Special Senate Committee on Euthanasia and Assisted Suicide, 
p.2 (hereafter, "CPCA"). Palliative care began only twenty-five years ago in Great Britain and five years later in 
Canada. Nor is palliative care available to or appropriate for many patients who may have chronic, irreversible 
illnesses but are not yet near death. See Proceedings of the Senate Special Committee, Tesfimony of Janine 
Corbeil (Jan. 13, 1995) at 32:36, noting the lack of palliative care or needed respite care or appropriate support for 
patierfts with amyotrophic lateral sclerosis. 

39 CPCA, supra n. 30 at 1 ; Senate Cttee. Report, supra n. 27 at 23-24. 

40 A conclusion accepted by the Senate Special Committee on Euthanasia and Assisted Suicide, supra n. 27, at 19, 
24, and one also reached by the British Columbia Royal Commission on Health Care and Costs in its report. 
Closer to Home, Vol. 2 (Crown Publications, Victoria: 1991) at C-173-174. Relative to Ontario, see Senate Cttee. 
Report, id. at App. M, A-103-A-104. 

41 Van Bommel H., Dying for Care, (NC Press, Toronto: 1992); 3:33, referenced in Latimer, supra n. 37 at 1 134. 

42 Scott, J., "Fear and False Promises", in Gentles, I. (ed.), Euthanasia and Assisted Suicide, The Current Debate, 
(Stoddart, Toronto: 1995), 95 - 104 at 104 (noting that despite the rhetoric supporting palliative care, support for 
the necessary infrastructure has not been increased, and has in fact decreased in several provinces). See also Picard 
A., "Palliative care for AIDS on life support". Globe & Mail (May 30, 1995) at A2. 



227 

most patients.'*^ However, a small minority of patients remain whose pain cannot be 
controlled. ^ The Supreme Court of Canada has clearly accepted that the administration of drugs 
designed for pain control in dosages which the physician knows will hasten death where that is 
necessary to achieve the therapeutic purpose of relieving suffering is acceptable medical 
practice"*^ It is troubling, then, to hear the widely shared conclusion of many health 
professionals that despite medicine's ability to control pain, "health care professionals frequently 
do not provide patients with sufficient pain medication" out of misplaced concern for the 
possibility of addiction or, more frequently, because of its potentially life-shortening effects."*^ It 
is important that the education of health professionals and professional standards promulgated 
by the self-governing professions make it clear that relief of suffering through an appropriate 
regimen of pain medication is a professional duty health care providers owe patients. The duty 
to provide effective pain relief appropriate to the patient's condition is owed not just in palliative 
care situations, but generally. 

Dying patients also commonly experience other distressing symptoms, including difficulty 
breathing, nausea, and mental conftision. These symptoms need to be controlled as well. The 
brief of the Canadian Palliative Care Association to the Senate Special Committee referred to 
two Canadian studies of experience with palliative care. In one, eight per cent of patients sick 
enough to be hospitalized through the last week of life required medications to control pain, and 
a total of sixteen per cent required medication to control all symptoms, "meaning drugged to a 
degree which does not permit meaningfiil interaction with the family". As Dr. Marcel Boisvert, 
a palliative care specialist, noted in his testimony to the Senate Special Committee, what those 



43 

44 

45 



46 



47 



Senate Committee Report, supra, n. 27 at 25. 

Id at 25-26. See also Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide, 
Testimony of Dr. Marcel Boisvert, a specialist in palliative care (May 18, 1994) at 6:35:" palliative care still has a 
long way to go to pretend that it can, in the best of circumstances, relieve all suffering." 

Rodriguez v. A.G.(B.C) [1993] 3 S.C.R. 519 at 607 per Sopinka J. One would have thought that to be a clear 
statement of the law, but when the Minister of Justice appeared before the Senate Special Committee on 
Euthanasia and Assisted Suicide, he suggested it was not: 

When is it permissible to keep prescribing morphine when you know within the next six hours it will 
cause death? The underlying disease will not kill the person, however, the treatment for the pain will. At 
present, that is shrouded in obscurity. (The Hon. A. Rock., Dec. 14, 1994, 31:25.) 

The Senate Committee interpreted his comments as directed toward the need to clarify the law for health 
professionals and the general public rather than questioning the legality of the practice itself (Senate Cttee. Report, 
supra n. 27 at 27.). 

Senate Committee Report, supra n. 27 at 28-29; see also Canadian Nurses Association, "A Question of Respect: 
Nurses and End-Of-Life Treatment Dilemmas" (CNA, Ottawa: 1994) at 10 (noting the disparity among nurses 
consulted in developing these materials, some asserting that nurses had moved beyond this problem and others 
that some nurses still agonize about giving pain medication that depresses respiration). 

Supra n. 38 at 2. The other study reported 5% of patients experienced severe pain and 25% had "mental 
disturbance". 



228 

statistics show is that 'the dying process, [even] in the best of hands is a difficult adventure — and 
those statistics are from a very notorious, highly qualified palliative care group in the country. '"^^ 

One other aspect of palliative care of note is the use of total sedation, which the Senate 
Special Committee defined as "the practice of rendering a person totally unconscious through 
the administration of drugs without potentially shortening that person's life"/^ As the 
Committee notes, its legal status is clear: if done with the informed consent of the patient or his 
or her substitute decision maker, it is legal. One instance in which it is employed is for 
terminally ill patients suffering intolerable pain that cannot be relieved by other forms of 
treatment. Dyspnea (shortness of breath) and delirium with agitation may also sometimes 
require sedation. Palliative care physicians view it as their moral and professional 
responsibility to provide such relief As some witnesses before the Senate Committee 
remarked, the practice seems not unlike active voluntary euthanasia.^^ The practice is not subject 
to guidelines regulating its use. 

(e) Evaluating Decisions: Intervention Principles 

One cannot forget that the decision-making process established by the Health Care 
Consent Act has two parts — not just how to decide, but also who decides. In determininations 
about the use of life-sustaining treatment when a patient is decisionally incapable, one hopes to 
build on a history of connection and caring as likely to promote the most sensitive, careful and 
caring decision-making. Recognizing this may not always be possible as patients may not have 
had or may no longer have such relationships, then at least the aim should be to support 
carefully individualized attention to the condition and circumstances of the person concerned. 
This aim seems to have been incorporated into the legislation. Absent an appointed substitute, 
the substitute decision-maker will be either someone the person concerned chose as his or her 
attorney for personal care, or a family member willing and able to act, with priority being 
determined by how closely related the family member is. While not being naive or unrealistic 
about people's experience of families — for many, they have assuredly been sites of oppression 



48 

49 
50 
51 

52 

53 
54 



Supra n. 43 at 6:35. Dr Boisvert added: "To give individuals peace in dying, one in six must be drugged to the 
point of no meaningful interaction. I cannot boast of those figures." 

Senate Committee Report, supra, n. 27 at 33. 

Latimer, supra n. 37 at 1 134; Boisvert, supra n. 43 at 6:35. 

Id. See also Byock I., "Consciously Walking the Fine Line: Thoughts on a Hospice Response to Assisted Suicide 
and Euthanasia" (1993) 9 J. Pall. Care 25 (hospice response is aggressive, and appropriately so). 

See eg. Proceedings of the Senate Special Committee, Testimony of Alister Browne, B.C. Civil Liberties Union, 
(Sept. 26, 1994) at 14: 136. See also the comments of Dr. Michel Morissette (Jan. 13, 1995) at 32: 19. 

Senate Committee Report, supra n. 27 at 35, 36. 

Supra n. 1, s.20. 



229 

rather than support — because of the nature of the relationship, family members are most likely 
to be concerned about the patient and to know or be able to extrapolate what the patient's 
preferences or value system would have been. 

In evaluating the decision maker's choices, it is important to incorporate an awareness that 
the standard the decision must meet can be no higher than one of reasonableness — as one writer 
has put it, a choice that is "tolerable". In making that determination, societal norms and 

58 

accepted medical practice have a significant part to play. The decisions and the decision- 
makers must remain subject to collective control. At the same time, the more realistic threshold 
the decision must meet strengthens the authority of the substitute decision-makers. Concerns 
about abuse will remain and must be addressed effectively. However, the inquiry would not be 
to determine whether this is the right decision or the decision the reviewers would have reached, 
but rather, to decide whether it is a decision that is within reason — ^that is, tolerable in our 
society. 

3. FUTILITY 

(a) Decision-Makers and Determinations 

Since the beginning of this decade, the debate over decision-making about treatment has 
taken a new turn to address issues of futile treatment. The focus in these cases changes, as do the 
positions of the parties. In futility cases, it is generally health care providers who want to end 
treatment while the family wants it continued; physicians say treatment is useless because the 



55 



56 



57 



58 



59 



A.G. (Canada) v. Mossop [1993] 1 S.C.R. 554, 632-633 per L'Heureux-Dub6 J. (dissenting); B.(K) v. Children's 
Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315, 433 per lacobucci and Major JJ.; Barrett M., Macintosh 
M., The Anti-Social Family (2nd ed.) (Verso, London: 1991). 

Without entering the debate about the meaning and implications of "family status" (an important topic in its own 
right), the term "family" will be used to denote those most closely associated with the patient (Buchanan & Brock, 
supra n 12 at 136; Rhoden, N., supra n. 9 at 437 n.271). The category is not neatly defined, but then, neither are 
many people's relationships. To ensure the inclusion in the decision-making process of those whose relationships 
with the patient do not have formal legal status or pre-eminence in the hierarchy of substitute deciders, an actual 
designation of that individual as the patient's attorney for personal care may be required. The observation in Re 
Jobes, supra n. S,per O'Hem J. that one cannot build a theory of decision-making on intact family status need not 
mean that where there is a caring family member he or she should not have strong primary decision-making 
authority. 

Veatch R., Death, Dying and the Biological Revolution, The Last Quest for Responsibility (Yale U. Press, New 
Haven: 1989) at 1 17. See also Buchanan and Brock, supra n. 12 at 147, Rhoden, N., supra n. 9 at 437. This is 
precisely the inquiry in which the court engaged in Re Minister of Social Services and P (1990) 69 D.L.R. (4th) 
134 (Sask. Prov. Ct.) (upholding parents' decision to refuse liver transplant for their child). 

See eg Re B.(R.) v. Children's Aid Society of Metropolitan Toronto, supra n. 55; Re Minister of Social Services 
and P. , id. 

At least one commentator has concluded that whenever we put these decisions into a court context or any other 
context that presumes there is a right answer or a best answer by some measureable degree, we are making a 
mistake — see Miller, in Wong C.B., Swazey J. (ed.). Dilemmas of Dying. Policies and Procedures for Decisions 
Not to Treat (G.K. Hall Medical Publishers, Boston: 1981) at 189. 



230 

patient cannot benefit, while families say that breathing can be maintained or heartbeat restored, 
even if briefly, or biologic existence is worth preserving. Difficult decisions about access to 
resources and whose determinations will prevail have to be made. The issues are not just 
economic; health care providers raise legitimate concerns about the morality of being required to 
provide ineffective and possibly damaging therapy to a patient contrary to their own beliefs and 
those of the medical profession about sound medical practice. In the case of family requests to 
discontinue treatment for a decisionally incapable person, there has been an evolution in the 
accepted decision-maker from the physician to a substitute decision-maker, with the substitute 
generally being a family member or someone the person concerned chose while still capable. 
Indeed, that model is now mandated by statute in Ontario. There is not yet such a widely 
accepted model when the question is whether the treatment is futile — ^that is, need it be offered 
or continued. 

The futility debate began in the early 1980's, sparked by studies demonstrating the 
ineffectiveness of cardiopulmonary resuscitation (CPR) for certain categories of patients.^ ^ 
However, the issue did not come to the forefront in ethical debate until the early 1990's with the 
case of Helga Wanglie in the United States, an elderly woman in a persistent vegetative state 
who was dependent on a respirator. The hospital where she was a patient wished to remove her 
from the ventilator; her husband and family did not. Although the court in that case was only 
asked to determine who should act as substitute decision-maker (it settled on the husband), the 
question of futile treatment was clearly the sub-text that prompted the hospital to take the matter 
to court in the first place. Helga Wanglie died three days after the court made its order. 
Wanglie was followed by a number of American cases, most involving children, but all raising 
the question of when health care practitioners and institutions can cease providing treatment they 
have concluded is futile and in doing so, override the instructions of family substitute decision- 
makers. Courts in the United States have generally concluded that the wishes of the family 



60 
61 



62 

63 

64 
65 



HCCA, supra n. 1, ss. 10, 11, 20. 

Paris J., "Pipes, Colanders and Leaky Buckets: Reflections on the Futility Debate" (1993) 2 Camb. Q. Healthcare 
Ethics 147; Paris J., Reardon F., "Physician Refusal of Requests for Futile or Ineffective Interventions" (1992) 1 
Camb. Q.H.E. 127, 128; Gordon M., "Cardiopulmonary Resuscitation in the Elderly Long-Term Care Population: 
Time to Reconsider" (1994) 27 Ann. RCPSC 81-83. As one writer noted, the medical and social expectation that 
CPR will be provided in cases of cardiac arrest when taken together with the growing body of information about 
cases in which CPR is very likely to be ineffective "...put public policy and good medical practice on a collision 
course" — Griener G., "Stopping Futile Treatment and the Slide Towards Non-Voluntary Euthanasia" (1994) 
2 Health Law J. 67 at 73. 

In re Wanglie No. PX-9 1-283 (Prob. Ct., Hennepin Co., Minn., June 28, 1991), referenced in In the Matter of 
BabyKS32 F. Supp. 1022 (E.D. Va. 1993) at 1031. 

Johnson D., "Helga Wanglie Re-visited: Medical Futility and the Limits of Autonomy" (1993) 2 Camb. Q.H.E. 
161,167. 

Angell M., "The Case of Helga Wanglie. A New Kind of 'Right to Die' Case" NEJM 1991; 325: 51 1-512. 

Baby K, 832 F. Supp. 1022 (E.D. Va. 1993), afPd., 16 F. 3d 590 (4th Cir. 1994), cert denied 1 15 S. Ct. 91 (1994); 
see also Schwartz R., "Autonomy, Futility and the Limits of Medicine" (1992) 1 Camb.Q.H.E. 159 at 163 ff; 
Spielman B., "Collective Decisions About Medical Futility", (1994) 22 J. Law, Med. & Ethics 152. 



231 

member who wants treatment to continue should be followed. This should not be taken to 
indicate unqualified support for families as substitute decision-makers. Rather, courts are not 
prepared to go against family wishes and authorize a step that would result in life ending. The 
combination of factors — preserving life in keeping with family wishes — is key. 

In the United Kingdom, the analysis — and consequently the accepted paradigm of 
decision-making — has developed somewhat differently through the courts. English courts (like 
their counterparts in Canada and the United States) now accept that where a patient is 
decisionally capable, his or her refusal of medically indicated treatment must prevail, even if 
unreasonable. But when the patient is incompetent, the reasoning about appropriate decision- 
makers takes a different tack. In instances where one cannot say what the patient would have 
wanted, courts in the United Kingdom base their decisions about withholding or withdrawing 
life-preserving treatment on the best interests of the patient, but are explicit in recognizing that it 
is the patient's physicians and not the patient's family who determine that best interest, acting in 
accordance with a responsible and competent body of relevant professional opinion and subject 
to courts' ultimate power of review. In Airedale NHS Trust v. Bland, the House of Lords 
granted the declaration sought by the health authority and held that life-sustaining treatment for 

70 

a young man in a persistent vegetative state could be abated, as it was not in his interest. The 

71 

same reasoning about continuing treatment has been applied in other cases. 

In a related development, English courts also differ from American and Canadian in their 
willingness to openly acknowledge financial constraints on the healthcare system and accept that 
in decision-making about what treatment will be offered to whom, healthcare authorities can 
legitimately take cost, expected benefit of the treatment and the claims of other patients for 
resources into account. Thus, the Court of Appeal overturned a lower court decision that 
effectively required a health care authority to fund an experimental leukemia treatment sought 



66 
67 



68 



69 
70 
71 



Daar J., "Medical Futility and Implications for Physician Autonomy" (1995) 21 Am. J. L. & Med. 221 at 223. 

Cruzan v. Director, Missouri Dept. of Health supra n. 8 belies any such conclusion. The United States Supreme 
Court rejected parents' contention that their daughter would not have wanted to live in a persistent vegetative state 
and their application seeking permission to withdraw life support. The choice had to be the patient's. On 
presenting new evidence, the Probate Court determined it was the patient's choice, and life support was 
terminated — Martyn S., Bourguignon H., "Coming to Terms with Death", (1991) 42 Hastings L.J. 817. 

Re T. {Adult: Refiisal of Treatment), [1992] 3 W.L.R. 782; Re C. (Refusal of Medical Treatment) [1994] 1 F.L.R. 
310; Stem, K., "Competence to Refuse Life-Sustaining Medical Treatment" (1994) 1 10 Law Q. Rev. 541; /?e W. 
(A Minor) (Medical Treatment) [1993] Fam. 64; Sidaway v. Bethlehem Royal Hospital Governors (1985) 1 All 
E.R. 643; Sec. State for Home Dept. v. Robb [1995] 1 All E.R. 677 (Fam. Div.); but see Re SfAdult: Refusal of 
Treatment), [1992] 3 W.L.R. 806 (considerations of others' interests prevailed - dependent children and fetus - in 
ordering a Caesarian section be performed). 

Bland, supra n. 22 at 374; Re J [1992] 4 All E.R. 614 (C.A.). Most recently, see Re C [1996] 2 F.L.R. 43. 

Id. The parents agreed with the physicians' determination. 

Frenchay NHS Trust v. S, supra, n. 35; in Ireland, see In the Matter of a Ward of Court, (S.C.) (July 27, 1995) 
(Nos. 167, 171, 175, 177); [1995] 2 I.L.R. M. 401. 



232 

by the father of a 10 year old girl. All the girl's NHS physicians recommended against it as 
futile (i.e. no real chance of success in the sense of acheiving remission); the father had 
consulted a physician in private practice and some American physicians who said the treatment 
had a slight but real chance of working. The Court of Appeal concluded that it was not its 
function to consider the likelihood of the medical treatment being effective or the merits of the 
medical judgments, but rather simply the lawfuhiess of the health authority's decision. It was 

73 

one legitimately within its jurisdiction. In the result, an anoymous donor funded the treatment. 
After initially rallying, the girl died some months later. 

In Canada, the Canadian Medical Association, the Canadian Nurses Association, the 
Canadian Healthcare Association and the Catholic Health Association of Canada have recently 
issued a Joint Statement on Resuscitative Interventions. It categorizes treatment decisions 
about CPR in terms of likelihood of benefit. Where the individual ahnost certainly will not 
benefit from CPR "either because the underlying ilhess or disease makes recovery from arrest 
virtually imprecedented or because the person will be permanently unable to experience any 
benefif , then CPR should not be presented as a treatment option or provided. As a general 
guiding principle, the Statement also provides that "[T]here is no obligation to offer a person 
futile or nonbeneficial treatmenf . Relative to CPR, the document distinguishes between 
treatment that is medically futile or nonbeneficial, in that "...it offers no reasonable hope of 
recovery or improvement or because the person is permanently unable to experience any 
benefit" and instances where the benefit of the treatment can only be determined "...with 

78 

reference to the person's subjective judgment about his or her overall well-being". 

The guidelines accept that physicians can determine questions of medical futility, although 
they add that "[a]s a general rule a person should be involved in determining futility in his or her 

7Q 

case". This seems to contradict the later statement that individuals who ahnost certainly will 

on 

not benefit from CPR should not be presented with that treatment option. The guidelines' 
ambivalence about whether there are any circumstances in which physicians can determine 



72 

73 
74 
75 

76 
77 
78 
79 
80 



See R. V. Cambridge Health Authority, ex. p. B., (C.A.) (The Times, Mar. 15, 1995; The Independent, Mar. 14, 
1995). The lower court decision was overturned the same day it was made; see also Bland, supra n, 27 at 310 per 
Lord Goff. 

Id. 

McConnell H., "Girl at centre of British healdi care storm dies of leukemia," Medical Post (June 4, 1996) at 56. 

"Joint Statement on Resuscitative Interventions (Update 1995)", CMAJ 1995; 153: 1652 A - 1652C. The 
Statement was developed in co-operation with the Canadian Bar Association. 

Idatl652B, 1652C. 

Idatl652B. 

Id. 

Id. 

Id. 



233 

treatment is futile without the consent or at least acquiescence of the patient or the substitute 
decider results in a lack of clarity in this respect. While the Statement does not have the force of 
law, to the extent courts rely on and defer to institutional policies (and they do ), this one, the 
product of four national organizations of health care providers and institutions that was 
developed in cooperation with a fifth national body of lawyers, could be very influential. 
Clarification of this point would be helpftil. 

Labelling a situation "ftitile" places a construction on a particular state of affairs; it is not 
just a description. For instance, the Law Reform Commission of Canada in its review of 
potential criminal liability concluded that a physician acts legally in ending treatment that is 

83 

"useless or no longer offers reasonable hope". However, the question "reasonable hope of 
what?" is not explored. Using the language without addressing underlying questions and 
answers it assumes can give the illusion that the characterization of ftitility is not and cannot 
rationally be contested. 

There are two different emphases in defmition among the many writers on this topic. 
While both look to the utility of the procedure or treatment in question to the patient, one set 
focuses on probability of success of the treament in order to divide decision-making power 
between physicians and patients or substitute decision-makers, and the other on the overarching 
decision-making model in health care (which in this context sometimes becomes the stronger 

85 

claim of patient or substitute decision-maker choice rather than simply informed consent). Still 



81 

82 



83 



84 



85 



See eg Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519 at 608. 

Daar, supra n. 66 at 233: changing institutional realities and norms can affect the law in important ways. The 
predecessor policy, the Joint Statement on Terminal Illness, was certainly influential among hospitals and long 
term care facilities. Many adopted it verbatim or referenced it in their own policies: Choudry N., Ma J., Rasooly I., 
Singer P., "Long-Term Care Facility Policies on Life-Sustaining Treatments and Advance Directives in Canada", 
1994 J. Am. Ger. Soc. 1150; Rasooly I., Lavery J., Urowitz S., Choudhry S., Seeman N., Meslin E., Lowy F., 
Singer P., "Hospital policies on life-sustaining treatments and advance directives in Canada" CMAJ 1994; 150: 
1265-1270. 

Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment (Working Paper 28) 
(Dept. of Supply and Services Canada, Ottawa: 1982) at 55-56; see also British Columbia Royal Commission on 
Health Care and Costs, supra, n. 40 at C-184 (there is no obligation to provide therapeutically useless treatment); 
Senate Committee Report, supra, n. 27 at 45 (futility is to be understood narrowly, as treatment that will, in the 
opinion of the health care team, be completely ineffective. The question, "Ineffective in what sense?" needs to be 
asked and answered). 

See Solomon M.Z., "How Physicians Talk About Futility" (1993) 21 J. Law, Med. & Ethics 231, 235, suggesting 
"the tendency to cloak value judgments in technical, medical jargon may serve a psycho-social ftinction; the terms 
used may allow all involved to avoid discussing difficult value questions." See also Younger, S., "Who Defines 
Futility?", JAMA 1988; 260: 294-295. 

As to the former, see eg. Jecker N., Schneiderman L., "Medical Futility: The Duty Not to Treat" (1993) 2 Camb. 
Q.H.E. 151 (proposing that treatment that has been unsuccessful in the last one hundred cases need not be 
offered); Jecker N., Noseworthy T., "Cardiopulmonary Resuscitation: Prescription or Technologic Placebo", 
(1992) 25 Ann. Royal College Phys. Surg. Can. 453. As to the latter, see eg. Truog R.D., Brett AS., Frader J., 
"The problem with futility" NEJM 1992; 326:1560 -1564; Wolf S., "Near-death: in the moment of decision" 
NEJM 1990;322:208-10. 



234 

others meld the two, proposing that questions of physiologic futility (treatment cannot achieve 
the goal) be determined by physicians and qualitative futility (goal is examined) be determined 
by patients or their representatives. The Joint Statement adopts something like the latter 
position, but is ambivalent and hence, lacks clarity on this question. 

Arguments for physician determination of futility rest on some unproven assumptions of 
unanimity (among physicians at least): first, about the goals of treatment, and second, about the 

88 

likelihood of achieving those goals. A Canadian study of health care workers' decisions to 
withdraw life support from critically ill patients found wide variation in (projected) decision- 
making with respect to patients in the same condition. Health care workers (doctors, nurses, and 
others) faced with the same scenario said they would make very different treatment choices, 
sometimes being as far apart as comfort measures to full aggressive intensive care for the same 
hypothetical patient, even though the respondents were remarkably similar in their responses in 
the abstract to potential determinants (i.e. what would be important) in deciding to withdraw life 

89 

support. A third consideration is the extent to which physicians influence patient or family 

90 

determinations of qualitative futility . Finally, it must be recognized that unilateral physician 
decision-making on questions of futility is a departure from the model of shared decision- 
making in health care. It could become the exception that swallows the rule. That model 
assumes patients and substitute decision makers are capable of making reasonable choices with 
good information. It originated at least in part to address the power imbalance that exists 

92 

between doctors and patients. The power imbalance still exists; given the data outlined above 
about physician decision-making, there does not seem enough reason to depart from the model 



86 

87 

88 
89 



90 

91 

92 



See eg. Christiansen, K., "Applying the Concept of Futility at the Bedside" (1992) 1 Camb. Q.H.E. 242 at 244. 

Common statements of goals include preserving biologic existence, or restoring some degree of consciousness, or 
survival until hospital discharge. These are all quite different. 

Johnson, supra n. 63 at 164; Alpers A., Lo B., "When is CPR fiitile?" JAMA 1995; 273: 156; Swanson J., 
McCrary S., "Doing All They Can: Physicians Who Deny Medical Futility" (1994) 22 J. Law, Med. & Ethics 318. 

Cook D., Guyatt G., Jaeschke, R., Reeve J., Spaniar A., King D., Math B., Molloy W., Willan A., Streiner D. , 
"Determinants in Canadian Health Care Workers of the Decision to Withdraw Life Support from the Critically 111" 
JAMA 1995; 273: 703 at 706. See also Swanson et al, supra n. 88 (in a study of physicians at a Texas hospital, 
some would say a particular treatment of a terminally ill patient (undefined) was not flitile unless the chance of 
success (undefined) was 0%; others that it was futile if there was less than a 60% chance of success); Wachter R., 
Luce J., Hearst N., Lo, B., "Decisions about Reusucitation: Inequities among Patients with Different Diseases but 
Similar Prognoses", Ann. Int. Med. 1989; 111: 525-532 (documenting unexplained differences in DNR orders for 
patients: those with AIDS and lung cancer were considerably more likely to have a DNR order written than those 
with cirrhosis or severe congestive heart failure, despite physicians' awareness of similar prognoses for all these 
diseases at the stage to which they had progressed. It could not be determined if one group received too many 
DNR orders or the other too few.) 

Alpers and Lo, supra n. 88 at 157; McNeil B. et al,"On Elicitation of Preferences for Alternative Therapies" 
NEJM 1982; 306: 1259-1262; Murphy D. "Do Not Resuscitate Orders: Time for Re-appraisal in Long-Term-Care 
Institutions" JAMA 1988; 260: 2098, 2099. 

Alpers and Lo, supra n. 88 at 156. 

Norbergv. Wynrib [1992] 2 S.C.R. 226; Peppin P., "Power and Disadvantage in Medical Relationships" (1994) 3 
Tex. J.W.L. 222. 



235 

93 

of shared decision-making. Indeed, the finding of wide variabiHty in health care workers' 
decisions suggests a need to clarify standards with greater specificity than seems to prevail at 
present. There is also a need for shared and open decision-making, rather than leaving the choice 
up to either the physician or the patient/substitute decision-maker alone. Concerns to eliminate 
costly therapies that are ineffective are legitimate. There is no societal mandate to allow patients 
to demand unlimited treatment, regardless of any measure of efficacy. At the level of individual 
patients, shared decision-making based on effective communication of relevant information can 
be expected to resolve differences in the great majority of requests for treatment that health care 
workers perceive as non-beneficial. The shared decision-making needs to be taken to the level of 
policy formulation as well, such that policies represent a societal, rather than an exclusively 
medical determination about continued access to certain forms of medical intervention. The 
concept of futility in treatment is a social problem, not just a medical problem, entailing 
questions about the designation of decision-makers, boundaries on their authority, 
discrimination, resource allocation and access that need to be addressed. 

(b) Persistent Vegetative State 

The treatment of persons in a persistent vegetative state can raise difficult problems. On 
an individual basis, the substitute decision maker's decisions to consent to or refuse treatment 
must still be made in the person's best interests, taking into accoimt the factors set out in the 
Health Care Consent Act: diagnosis and prognosis with and without the treatment, benefits and 
burdens of the treatment or alternatives, and prior capable value system (to the extent the 

95 

substitute decision maker believes it would still prevail). Judgments will differ. Questions also 
arise as to the appropriate level of treatment as a general matter — for instance, can it be said to 
be in the best interests of an individual in a persistent vegetative state to continue to receive 
treatment directed at sustaining life, rather than simply comfort care? While an outline of the 
issue follows, the questions do present unique aspects and require further consideration. 



93 
94 



95 
96 



Bergsma J., "Medical Futility: Communication between Physicians and Patients" (1992) 1 Camb. Q.H.E. 239. 

A vegetative state is a clinical condition of complete unawareness of the self and the environment, accompanied 
by sleep-wake cycles with either complete or partial preservation of hypothalamic and brain-stem autonomic 
functions. The distinguishing feature is wakefulness without awareness. The person's capacity to perceive stimuli 
and the higher brain functions required to respond are destroyed. The person cannot experience pain or suffering 
(or anything else). The Multi-Society Task Force distinguishes persistent and permanent vegetative states. The 
former is a descriptive or diagnostic term: it describes a condition of past and continuing disability. The latter is a 
prognosis: a permanent vegetative state is irreversible — Multi-Society Task Force on PVS, "Medical Aspects of 
the Persistent Vegetative State (Part I)", NEJM 1994; 330: 1499-1508 at 1500-1501. PVS patients experience a 
shortened life span, generally of 3 to 7 years, but some have survived for more than 15 years and very rarely, for 
30 to 40 years — id. Part Two, 1572-1579 at 1575-1576. The label applied to this state is not universally accepted. 
The term is both employed and criticized because it distances those whom it describes from the larger community. 
However, it is widely used to identify a specific, well delineated clinical condition and for that reason, will be 
employed here. In doing so, it is not meant to ignore the underlying debate or the need to critically assess the 
terminology's connotations. 

HCCA, supra n. l,s.21(2). 

A conclusion the Senate Special Committee reached as well — supra n. 27 at 4. 



236 

Many medical societies and interdisciplinary bodies have worked to establish clinical 
guidelines for withdrawing and withholding treatment from PVS patients.^^ The issue has also 
been considered in relation to individual patients by courts in the United States and the United 
Kingdom, although not in Canada. Courts have concluded that it is not unethical or illegal to 
discontinue all means of life-prolonging treatment should the designated decision-maker so 
decide and meet the required standards and procedures. American courts have allowed substitute 
decision-makers to withhold or withdraw life-sustaining treatment, including artificial nutrition 

98 

and hydration, from patients m a persistent vegetative state. In the United Kingdom, the House 
of Lords concluded unanimously in its 1993 decision, Airedale N.H.S. Trust v. Bland, that where 
the patient is in a persistent vegetative state and there is no hope of any improvement in his 
condition, then life-prolonging treatment (artificial nutrition and hydration and antibiotic 
therapy) is neither appropriate nor required because it is useless. It follows, then, that for the 
House of Lords, preserving biologic existence is not a required goal of medical treatment. '^^ The 
permanent and complete loss of any level of cognitive, sapient life justified ending life support. 
The judgment is carefully limited to patients lacking all consciousness and without any prospect 
of any recovery - as Lord Mustill noted: "I might not decide the same... where the glimmerings 
of awareness may give the patient an interest which cannot be regarded as null". 

Physicians' ability to make a diagnosis and a highly probable prognosis in these cases is 

102 

essential; without that, there is no basis for a decision. Beyond that, questions arise with 
respect to the appropriate role for physicians and substitute decision-makers in the decision- 
making process and the existence of constraints on their decisions, in the sense of limits on how 
much treatment and of what type can be required. Whether one should look at this condition 
independently of other grave medical conditions and assign it a unique status also requires 
consideration. As the cases from the United Kingdom and New Zealand show, despite clinical 
cordoning off of the persistent vegetative state by careful definition, there is not such a bright 
line demarcating PVS in practice or perception as might appear. Other conditions approach it 



97 

98 
99 

100 



101 
102 



Supra n. 27; Multi-Society Task Force on PVS, "Medical Aspects of the Persistent Vegetative State (Part 2)", 
supra, n. 94, all with references cited therein. 

See eg. supra, n. 32. But see contra Mack v. A/acA: 618 A. 2d 744 (1993) (Md. C.A.). 

Supra, n. 22 at371-372 (/?erLordGofF). See dXso Auckland Area Health Board \. Attorney-General [1993] 1 N.Z. 
L. R. 235 at 245 to the same effect, although with respect to almost the converse situation - a man with extreme 
Guillain-Barr6 Syndrome, "a brain destitute of a body", rather than "a body devoid of a mind". 

The Court did not mean by this that human beings can necessarily be reduced to physical existence and "... that 
combination of manifold characteristics which we call a personality", or to deny that the human condition may 
also comprise a "...distinct spiritual essence", but rather, accepted that in arriving at its decision, it could only 
proceed on the basis of "what we do know". We cannot know whether there is such a spiritual essence distinct 
from both body and personality, nor whether it perishes with death or transcends it. On the basis of what is known, 
the court concluded that the patient's best interests no longer demanded continuance of his present care and 
treatment - Airedale Trust, supra, n. 22 at 400 (per Lx)rd Mustill). 

Id. at 400. 

Council on Scientific Affairs and Council on Ethical and Judicial Affairs, AMA, "Persistent Vegetative State and 
the Decision to Withdraw Life Support", JAMA 1990; 263: 426-430 at 429. 



237 

closely, and courts have applied the same analysis of the patient's interests (or lack thereof). 
These are questions that require societal resolution, informed by medical expertise. 



See eg. Auckland Area Health Board, supra n. 99; Frenchay supra n. 35. 



CHAPTER 12 



CRIMINAL LAW: THE 
QUESTION OF REFORM 



1. SEPARATE TREATMENT FOR COMPASSIONATE HOMICIDE 

The penalties for murder in Canadian criminal law are severe: for first degree murder, life 
imprisonment with no eligibility for parole for twenty-five years, and for second degree murder, 
life imprisonment with no eligibility for parole for ten years or such longer period as may be 
substituted. Acts of euthanasia that are planned and deliberate can clearly constitute first degree 
murder. Canadian criminal law does not take the motive of the person who commits homicide 
into account except in very limited circumstances. The severity of the mandatory minimum 
periods of parole ineligibility is problematic in instances of what has been called mercy killing 
or compassionate homicide, as it seems to be one of the factors resulting in significant disparities 
between the law as written and as applied. As noted previously in the review of criminal law 
enforcement in this area, there is little predictability or certainty in charging decisions, plea 
negotiation or sentencing. There is a perception on the part of at least some sections of the 
public that in cases where the conviction is for murder, the penalty is too harsh. Those involved 
with law enforcement are concerned there is a real risk juries would not abide by applicable 
legal principles and would return a verdict of not guilty to a charge of murder even though a 
conviction was warranted on the evidence. This would have serious repercussions for public 
confidence in the law, as does any disjunction of this magnitude between the law and public 
morality. The concern affects charging decisions, and may do so unevenly in different areas of 
the country. Unwillingness to convict is seen as particularly likely where the deceased was in 
the fmal stages of his or her life in any event, as in Mataya and De La Rocha. There is also 



Criminal Code, R.S.C. 1985, c. C-46, s. 742. The mandatory penalty of life imprisonment and the minimum 
periods of parole ineligibility were put in place when provision for the death penalty in the Criminal Code was 
abolished in \916— Criminal Code R.S.C. 1970, c. C-34, as am. by S.C. 1974-75-76, vol. 2, c. 105, ss. 4, 5. On 
the history of sentencing for murder, see Grant I,., Chunn D., Boyle C, The Law of Homicide (Carswell, Toronto: 
1994), s. 7.2(a). 

See ch. 5, supra. 

Ch. 6, supra. See R. v. Latimer (1995) 126 D.L.R. (4th) 203 per Bayda Ci Sask. at 278. This is true in other 
countries as well — see Glantz L., "Withholding and Withdrawing Treatment: The Role of the Criminal Law" 
(1987/88) 15 Law Medical and Health Care 231; Otlowski, M., "Mercy Killing Cases in the Australian Criminal 
Justice System" (1993) 17 Crim. L. J. 10. 

See, eg. Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide, Testimony of David 
Thomas, Crown Attomey in De La Rocha, (Dec. 12, 1994) at 29:40-29:54; testimony of Dr. James Young and Dr. 
James Cairns, Chief Coroner and Deputy ChiefCoroner of Ontario, (Oct. 17, 1994) at 20:1 1-20:13. 

Id at: 20:1 1. R. v. Malaya (as yet unreported, Ont. Ct. (Gen. Div.), Wren J., Aug. 24, 1992; summarized (1992) 
19 W.C.B. (2d) 118;/?. v. De La Rocha (as yet unreported, Ont. Ct. (Gen. Div), Loukidclis J., Apr. 2. 1993). 

[239] 



240 

concern about the implications of any decision not to lay charges at all in terms of the message 
that gives the public. Decisions not to charge or not to convict send a message that the practice 
is tolerated. To avoid this result, legal principles are manipulated in order to find a charge that 
allows leeway for a sentence perceived as just (or a conviction perceived as attainable). 

There are several possible responses. The law can remain as it stands at present, or it can 
be reformed to create a special category of homicide in which the accused's motive would be 
legally relevant, or sentencing discretion could be introduced, either by retaining the existing 
offences or adding a new one, with a provision allowing motive to be taken into account in 
sentencing. Both of the latter two possibilities are part of the law in other jurisdictions. In some 
countries, distinctions are made in sentencing, and sometimes in the defiinition of the offence, 
when murder is committed for a "humanly excusable motive (for example, compassion for 
suffering)." In testimony before the Senate Special Committee on Euthanasia and Assisted 
Suicide, the Chief Coroner and the Deputy Chief Coroner for Ontario both indicated that for the 
reasons identified above, as a practical matter, at present even a charge of second degree murder 
(which itself might be a manipulation of the charge, depending on the factual circumstances), 
would sometimes not be appropriate. As outlined previously in relation to criminal law 
enforcement, the current practice of leaving the matter entirely to prosecutorial discretion in 

12 

charging decisions and plea negotiation, as at present, is not satisfactory either. This was the 
option the federal Law Reform Commission settled on in its final report on the subject of 
euthanasia and assisted suicide in 1983, but greater experience with these types of cases over 
the intervening years has shown its shortcomings. A practice of quiet, ad hoc tolerance for or 
minimization of the consequences of instances where individuals have derogated fi^om the 



10 



12 



Dr. J. Young and Dr. J. Cairns, id. at 20:04-20:20 ( Oct. 17, 1994) and Mr. D. Thomas, Crown Attorney in R. v. 
De La Rocha, id. at 29:40-29:54 (Dec. 12, 1994). 

Simply redefining the offence as a type of manslaughter, which carries no minimum sentence, does not seem 
appropriate, as these deaths may well be planned and deliberate. 

See eg. Excerpt from the Brief of Professor Bernard Dickens to the Senate Committee, Report of the Senate 
Special Committee on Euthanasia and Assisted Suicide, Of Life and Death (Supply and Services, Ottawa: 1995) at 
A-43. 

See also Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment, Working 
Paper 28 (Supply and Services, Ottawa: 1982) at 48. 

LRCC Working Paper 28, supra n. 9 at 48. For a review of the law in relation to eutiianasia and assisted suicide in 
foreign jurisdictions, see Senate Cttee Report, supra n. 8 at A-149 - A-173. 

Supra n. 6. See especially 20:13 -20:15. 

Ch. 6, supra. See also the testimony of David Thomas before the Senate Special Committee, supra n. 4, at 29:51, 
commenting unfavourably on the option of maintaining the status quo. As one who had recently been involved in 
plea negotiations in such a case on behalf of the Crown (in De La Rocha, supra, n. 5), he concluded that it does 
not resolve many of the issues. 

Law Reform Commission of Canada, Report 20, Euthanasia, Aiding Suicide and Cessation of Treatment (Supply 
and Services, Ottawa: 1983) at 19-20. 

R. V. Latimer supra n. 3 at 261, 278-279. 



241 

shared commitment not to take life is no longer sufficient on its own. The gap between the Law 
in Action and the Law on the Books needs to be addressed more directly 



15 



The Senate Special Committe in its Report on Euthanasia and Assisted Suicide, Of Life 
and Death, recommended that in cases of nonvoluntary euthanasia (that is, done without 
knowing the wishes of a competent or incompetent individual ) the Criminal Code should be 
amended to provide for a less severe penalty, either by creating a third category of murder for 
which there would be no mandatory life sentence, or by creating a separate offence of 

17 

compassionate homicide that would carry a less severe penalty. The majority of the Committee 
also recommended the same reform in relation to voluntary euthanasia (that is, done in 

I o 

accordance with the wishes of a competent individual or a valid advance directive ), while a 
minority recommended legalization of voluntary euthanasia for competent individuals 
physically unable to commit suicide. The Committee unanimously recommended that in 
instances of involuntary euthanasia (done against the wishes of a competent individual or a valid 

20 21 

advance directive ), the Criminal Code should remain unchanged. 

This is a suggested change that arouses strong opposition as well as support. Many persons 
with disabilities and members of the public generally see it as greatly increasing the dangerous 
situation in which disabled people often ah-eady live, dependent on and vulnerable to caregivers, 
struggling with the effects of shrinking government budgets for health care and social services, 
and subject to societal prejudice and exclusion generally. The deterrent effect of the criminal law 
as currently fi^amed is highly valued. The proposal is also criticized for feeding into and 
reinforcing negative stereotypes of the lives of persons with disabilities as being so low in 
quality that they are not worth living. How else could the very fact of a disability constitute a 
"special circumstance" that makes the murder of a disabled person less wrong, and therefore 
subject to less severe punishment? From that standpoint, being able to claim the label 
"compassionate" for killing someone who is disabled when the individual never asked to die is a 
contradiction in terms and an affirmation of societal prejudice against people with disabilities. 
The question is asked, why is the claim of compassion for someone who is disabled the only 
occasion when the perpetrator's motive would be taken into account? 



19 
20 



22 



To use Yale Kamisar's phrase, in "Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation," 
(1958) 42 Minn. L. Rev. 969. 

Supra n. 8 at 14. 

Id. at 88. 

Id. at 14. 

Id. at 88. 

Id. at 14. 

Id. at 89. 

See eg. Press Release of the Council of Canadians with Disabilities in response to the Senate Committee Report, 
June 8, 1995; Sobsey D., "Compassionate Homicide versus Equal Protection: A Disability-Rights Perspective", 
(Dec, 1995) 7 The Bioethics Bulletin at 5 - 7; Factum of the Intervenors, Council of Canadians witli Disabilities 
and Saskatchewan Voice of the Handicapped, in the matter of the appeal from conviction and sentence in R. v. 
Latimer (Sask. C.A.). 



242 

These are powerful criticisms. People with disabilities are marginalized in society. They 
are vulnerable and often excluded from consideration; they bear the brunt of prejudiced attitudes 
and actions. There are good reasons to be concerned about the implications of changing the law. 
The reasons for change, however, still exist. Persons with disabilities and the public generally 
are not well served by a law that institutionalizes private (executive) discretion, such that there is 
little clarity or consistency in how the law will respond to this type of wrongfiil act, and no 
certainty that a jury will convict even when the offence is proven. That is the situation that 
prevails at present. In terms of public respect for and confidence in the law, it ought to mean 
what it says. At the moment, that is not always the case, and unpredictably so. As Yale Kamisar, 
a staunch critic of legalizing "mercy killing", noted: "When a mercy killing occurs, however. 
The Law in Action is as malleable as The Law on the Books is uncompromising".^^ Nor is there 
great public support for applymg the strict letter of the law, especially in instances where the 
person killed is ah'eady near the end of life and suffering. Unlike Latimer, there was no public 
outcry or debate when the charge facing eighty-one year old Jean Brush was reduced from first 
degree murder to manslaughter in the death of her husband, or that laid against Cheryl Myers 
and Michael Power was reduced from second degree murder to manslaughter in the death of her 
father. The suspended sentences Scott Mataya and Albert De La Rocha received for 
administering a noxious substance to their patients did not give rise to public expressions of 
outrage. For many people, theirs was an understandable even if wrong response to try to 
alleviate pointless human suffering. 

Allowing for discretion in the response of the criminal justice system in such instances 
makes sense. It would be preferable, though, to move the larger part of the exercise of that 
discretion to a more open, accountable forum. This is not to suggest that in the cases to date, 
discretion has been exercised wrongly or unfairly, nor that all discretion should be removed 
from prosecutors, any more than it is with respect to other types of criminal charge. Prosecutors 
have acted and should continure to act to achieve a fair and just result in individual cases. More 
open exercise of discretion is preferable, however, for reasons of certainty, consistency and 
accountability. This could be achieved by amending the law in relation to murder in general 
such that there was no mandatory life sentence and no minimum period for parole eligibility (an 
option for which there is little public support), or limiting the reform to specific, narrowly 
defmed instances where the defendant was motivated by compassion or mercy and allowing 
discretion in sentencing (a more defensible reform, given the limited reason for the change). 
Such a reform could be made either in the context of a charge of murder or through the creation 
of a separate offence. The former option retains the conviction for murder. The judge passing 
sentence would then be able to exercise discretion taking into account all the circumstances to 
determine if the offender should be dealt with more leniently. With either option, the forum is 



Supra n. 15 at 971 . The comment was accepting rather than critical. 

These cases are discussed in greater detail in ch. 6, supra. 

The House of Lx)rds Select Committee on Medical Ethics rejected the idea of establishing a separate offence of 
compassionate homicide because of concems about abuse and definitional problems. In their view, it was essential 
to preserve the prohibition on intentional killing, and distinguishing between murder and "mercy killing" would 
erode that prohibition. However, it did recommend abolishing the mandatory penalty of a life sentence for 
murder — Report of the Select Committee on Medical Ethics, Session 1993-94, HL 21-1 p. 54, referenced in the 
Senate Committee Report, supra n. 8 at A-152-A-153. 



243 

open, the judgment is public and must be made in accordance with known principles, and the 
decision is subject to the possibility of review. There would be no special regime governing 
parole eligibility. 

It is true that compassion is not the only motive for killing that society might accept as 
making the killing one that deserves a less severe penalty. Others reasons might be even more 
compelling. There may also be difficulties in proving motive, and motives are not always 
singular in any event. For instance, a desire to relieve another's suffering could be mixed with a 
wish to relieve oneself of a burden as the caregiver. Courts obviously do not view determining 
motive as an insurmountable problem, however, as evidenced by the Supreme Court of 
Canada's acceptance of the principle of double effect in cases of administering very large doses 
of pain medication in order to achieve relief of suffering. It seemed to see no difficulty in 
being able to identify the practitioner's motive. This was perhaps because a health care provider 
is assumed to be more detached and less personally involved and therefore less likely to act 
wrongfully. Such an assumption is not always borne out by the facts, as witnessed by Mataya 

27 

and De La Rocha. A general review of potentially permissible motives or extenuating 
circumstances that might justify a lesser penalty for killing is beyond the scope of this project. 
However, this is one instance where in some circumstances, the law when applied as written 
does seem too harsh, both relative to the individuals concerned and when compared to the 
penalties imposed on others who have committed culpable homicide. Within the frame of 
reference of this project, recognizing a separate category of murder or a separate offence with 
discretion as to sentencing would preserve principles of criminal liability, as there would be a 
conviction for a serious offence — a societal affirmation that such conduct is wrong — and 
punishment. As with manslaughter, the maximum penalty could remain life imprisonment and 
general rules for parole eligibility would apply. There would, however, be no mandatory 
minimum sentence. The punishment could then be responsive to the circumstances of the crime 
and the individuals concerned. 

2. THE CRIMINAL LAW AND AID IN DYING 

At present, descriptive differences of conduct and decisions that are not fully defensible 
carry major differences in legal consequences. They are definitional evasions or 
accommodations of the meaning of decisions authorizing the abatement of life-sustaining 
treatment. The practice has been characterized as one marked by "elasticity of act 

28 

descriptions". The reliance on the principle of double effect, pursuant to which courts and 
professional governing bodies accept the legality in medical practice of taking actions with good 
and bad effects, as long as the actor only intended the good effects, is a case in point. Providing 
large doses of pain medication to relieve suffering, but with the known likelihood of hastening 
death is a good example of this. The use of this rationale is also apparent in the decision 



^^ Rodriguez v. B.C. (A.G.) [1993] 3 SCR. 5 19 at 607 per Sopinka J. 

^^ Supra n. 5. 

Byrne P., "Homicide, medical ethics and the principle of double effect", in Byrne P. (ed.), Ethics and Law in 
Health Care and Research, (Wiley, Chichester, NY: 1990) at 151. 

A practice accepted by the Supreme Court of Canada in Rodriguez v. B.C. (A.G.) supra, n. 26 at 607. 



244 

authorizing Nancy B.'s removal from the ventilator that sustained her life. The only intent 
acknowledged is the patient's, to refuse treatment, and the health care providers', to accede to 
that refusal. Yet clearly, that was not the only or even the primary intent operative. Similarly 
truncated reasoning is used in identifying the cause of death as the underlying disease; it was, 
but removal from the ventilator was also a cause of death, although a non-blameworthy one.^' 
The distinction between acts and omissions is another such descriptive difference. It assumes 
legal significance because in criminal law, intentionally causing death by a positive act would be 
culpable, while allowing death to occur by omission would not attract liability unless doing so 
breached a duty owed to the victim.^^ It was in this way that the House of Lords justified its 
decision allowing physicians to end the life support being provided to Anthony Bland. However, 
the convoluted reasoning required to try to characterize the withdrawal of the nasogastric tube 
used in artificial feeding as an omission rather than an act is unconvincing, even to members of 
the court. Such important decisions ought not to rest on argument that reduces to contested 
linguistic usage. 

As a matter of philosophical argument, distinctions among allowing to die, physician- 
assisted suicide and active and passive euthanasia can be considered so porous as to be 
indefensible. They might ahnost be thought of in terms of the logician's concept of a "fuzzy 
set", where membership in the set is not precise because there are objects that do not 
determinate^ belong in one category (set) or its complement. Because the characterization of 
health care providers' conduct and decisions in this area is elastic, conduct from which death 
follows may come under more than one of these headings. One might well then argue that if that 
is the case, it is as acceptable to engage in active euthanasia as to "allow the patient to die" once 
a decision has been made not to prolong the patient's life. James Rachels has been a strong 
proponent of that view. Using the example of a patient who is terminally ill and suffering severe, 
intractable pain, he argues that: 



30 
31 
32 
33 



34 



35 



Re Nancy B. v. Hotel Dieu de Quebec, (1992) 86 D.L.R. (4th) 385. 

Id. 

Criminal Code, R.S.C. 1985, c. C-46, s. 219. 

Airedale NHS Trust v. Bland [1993] 2 W.L.R. 316 at 384, 387 per Lord Browne-Wilkinson, and 388-389 per 
Lord Mustill. See also Kennedy I., "Switching Off Life Support Mechanisms" in Treat Me Right: Essays in 
Medical Law and Ethics, (Oxford U. Press, Oxford: 1988) at 350; Bender L., "A Feminist Analysis of Physician- 
Assisted Dying and Voluntary Active Euthanasia", (1992) 59 Tenn. L. Rev. 519 at 531-532; President's 
Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to 
Forego Life-Sustaining Treatment (U.S. Gov't. Printing Office, Washington D.C.: 1983) at 61, 64-67 (rejecting 
the distinction as determinative, but suggesting its continued utility in identifying situations likely to require 
greater scrutiny). 

For arguments to that effect, see Rachels, J., "From Letting Die to Active Killing" in Arras J., Rhoden N., Ethical 
Issues in Modem Medicine (3rd ed.) (Mayfield Publishing Mountain View CA: 1989), and Fletcher, J., "The 
Courts and Euthanasia," (1987/88) 15 Law, Med. and Health Care 223. supra, n. 41. 

Baruch Brody used this analogy with respect to the concepts of life and death- see "Special Ethical Issues in the 
Management of PVS Patients", (1992) 20 Law, Medicine and Health Care 104 at 106. If anything, it seems even 
more applicable to these issues. 



245 

... once the initial decision not to prolong his [the patient's] agony has been made, active euthanasia 
is actually preferable to passive euthanasia, rather than the reverse. To say otherwise is to endorse the 
option that leads to more suffering rather than less, and is contrary to the humanitarian impulse that 
prompts the decision not to prolong his life in the first place. 

Part of my point is that the process of 'being allowed to die' can be relatively slow and painful ... My 
second argument is that the conventional doctrine leads to decisions concerning life and death made 
on irrelevant grounds." 

An instance of what Rachels means by 'irrelevant grounds' would be a patient in such a 
condition who contracts a secondary mfection, such as pneumonia. If antibiotic treatment is 
withheld, the patient may die as a result. Antibiotics would not be prescribed when the doctor 
and the patient's family conclude that because of the patient's condition, it is better for him to 
die. In Rachels' view, it is mdefensible to make the decision as to the patient's continued life 
contingent on the fortuitous occurrence of infection or some other complication. The matter 
ought to be decided one way or the other on its real basis - ought the life of this person be 
contmued? He concludes: "If a doctor lets a patient die for humane reasons, he is in the same 
moral position as if he had given the patient a lethal injection for humane reasons". 

While the mdividual physician may arguably be in the same moral position, there are other 
reasons to mamtam distinctions in the legal consequences of allowing to die, hastenmg death 
and causing death. Because some conduct by physicians and other health care workers that 
could be characterized as treating for dying rather than living will be acceptable in limited 
circimistances and mdeed, should be considered responsible medical care (for example, 
prescribing large doses of pain-relievmg medication when needed, or choosing not to 

38 

aggressively fight an mfection with antibiotics ), it does not necessarily follow that all such 
conduct should be legally acceptable provided a determination has been made that further 
aggressive intervention is unwarranted. Some of the existing distmctions and prohibitions m the 
criminal law continue to serve important societal interests. The philosophers James Rachels and 
Joseph Fletcher would assert that in retainmg distinct legal categories, we are simply using a 
palatable vocabulary such as "allowing to die" that avoids discomfitmg people with the reality 
of what is occurring when, for mstance, a patient is removed from a life-sustaining ventilator or 
cardiopulmonary resuscitation is not initiated. However, strong arguments can be made that the 
reasons for maintaming cruninal sanctions go much deeper and are far more significant. They 
are a response to and control for real dangers. The question is, ought those prohibitions be 
maintained in their present form? 



36 



37 
38 



39 



Supra, n. 34 at 241-242. With respect to Rachels' first point, see also Airedale NHS Trust v. Bland supra n. 33 at 
387 {pel Lord Browne- Wilkinson). 

Id. at 243. 

Rodriguez v. B.C. (A.G.) supra n. 26 at 607; see U.S. Congress, Office of Technology Assessment, Life-Sustaining 
Technologies and the Elder ly,(\J.S. Gov't. Printing Office, Washington, D.C.: 1987) at 25, 345-346 on antibiotics 
as a form of life support. 

Supra n. 34. 



246 

At present, courts are prepared to accept conduct by health care providers in limited 
circumstances that could be classified as allowing to die or hastening, but not causing death. Yet 
if the boundaries dividing these categories are fluid, how can distinctions in their legal 
consequences be justified? Those who support maintaining criminal sanctions argue that such 
distinctions serve useful public policy purposes even if the categories are not entirely separate 
and independent of each other, and that in reality, most cases clearly fall in one category or 
another - they are neither cross-overs nor "at the edges". Debates about the moral status of these 
types of conduct by health care providers have waxed and waned for some time now and we are 
no closer to consensus. Indeed, having recognized that these are not purely medical questions, 
the debate can be expected to intensify as the number and range of participants grow. Because of 
the conceptual ambiguity and emotional complexity of the issues, they are likely to remain 
unresolved. Rather than pursue that debate, what follows is a consideration of arguments based 
on pragmatic concerns - the dangers to which some of these practices may lead, and the need 
asserted to allow them in any event. 

(a) ASSISTED SUICIDE 

The protection of life and of those who are vubierable are fundamental objects of 
Canadian criminal law. The state has legitimate interests in preserving and protecting life and 
respect for the sanctity of life (in a secular sense). The state also has a responsibility to 
preserve and protect the autonomy of individuals — ^their ability to be self-determining and to act 
on those determinations. When a right to assisted suicide is claimed, those interests come into 
conflict. Aiding suicide is clearly not legal at the present time. Ought the law be reformed such 
that it would be permitted? 

The question has not only come before the courts; it has been examined by a number of 
government commissions and committees, both in Canada and elsewhere. As indicated 
previously, a narrow majority of the Senate Special Committee on Euthanasia and Assisted 
Suicide recommended in 1995 that the existing law not be changed and that aiding suicide 
remain a criminal offence.'*^ The British Columbia Royal Commission on Health Care and Costs 
in its 1991 report. Closer to Home, concluded that assisted suicide should be legalized and that 
the provincial government should request the federal government to amend the Criminal Code 
to that effect."^^ The Commission would have limited any amendment to the Code such that it 
applied only in instances of a terminally ill person receiving assistance from a health care 
worker acting in accordance with the ethical standards of his or her profession. In 1994, the 



40 
41 

42 



43 



Rodriguez, supra n. 26 at 585. 

R.J.R. MacDonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199 at 280. 

Senate Committee Report, supra, n. 8 at 74. The voting can be reconstructed from the Report itself, as it indicates 
that one of the seven members on the Committee, while favouring a change in the law with respect to assisted 
suicide, did not believe the law regarding euthanasia should be changed, (id at 87). The Report also indicates there 
was still more than one member who favoured that option (id at 87). This means the vote must have been 4 to 3 
against legalizing assisted suicide, and 5 to 2 against legalizing voluntary euthanasia. 

(Crown Publications, Victoria: 1991) Vol.2 at C-183. 

Id. 



247 

New York State Task Force on Life and the Law recommended against legalizing either assisted 
suicide or voluntary euthanasia. Despite the fact that some of its members held different views 
about the ethical acceptability of assisted suicide and euthanasia, relative to assisted suicide, the 
Task Force concluded that the dangers of such a significant change in public policy outweighed 
the benefits/^ This conclusion was based on the "pervasive failure" of the health care system to 
treat pain properly and to diagnose and treat depression (affecting both the patient's decisional 
capacity and the accuracy of the patient's assessment of his or her circumstances), coupled with 
concerns about access to needed medical services in the United States, particularly for 
marginalized groups. Relative to euthanasia, the large majority of the Task Force believed it 

AH 

ethically unacceptable under any circumstances. Also reporting in 1994, the Michigan 
Commission on Death and Dying voted by a narrow majority in favour of recommending the 
decriminalization of assisted suicide under limited circumstances in that state. The 
Commission Report recommending decriminalization of "aid-in-dying" argued it should be 
permitted for willing, competent adults "...when standard treatment fails to have its intended and 
usual effect, the relief of pain and suffering", on the basis that current law does not meet the 
"...needs, autonomy and dignity of acutely suffering individuals". Assisted suicide would not 
be limited to terminally ill persons, as those suffering from incurable but not terminal ilhiesses 
can experience unbearable suffering as well. Indeed, their suffering is sometimes made even 
more intense by the knowledge that it will not end soon, as with a terminal illness. The divided 
results both among and within these legislative committees, commissions and task forces show 
that the issues are no less divisive for these types of bodies than for the courts. 

Medicine has the capacity to achieve adequate pain control for the large majority of 
patients. Still, even leaving aside shortcomings in current medical practice that mean pain is 
often inadequately controlled out of persistent but misplaced fears of addiction or impermissibly 
shortening life, there remains a small percentage of terminally ill individuals with severe, 
unremitting pain that cannot be controlled. Others experience different but equally severe 
symptoms, including difficulty breathing, nausea and delirium. For others, the utter dependence 
and loss of dignity associated with the ilhiess are the worst prospects. Some of these patients 



New York State Task Force on Life and the Law, When Death Is Sought, Assisted Suicide and Euthanasia in the 
Medical Context,, (The Task Force, NY: 1994) at ix, xii, 140-141 

Id at IX. 

^^ Id at 141. 

Michigan Commission on Death and Dying, "Final Report" (The Commission, June, 1994). 

49 

Id, "Report Recommending Decriminalization of ' Aid-in-Dying'" (unpaginated). 
'' Id. 



52 



See ch. 11, supra ("Palliative Care"). 

Senate Cttee. Report, supra n. 8 at 21. See also Quill T., Cassel C, Meier D., "Care of the Hopelessly 111. Proposed 
Clinical Criteria for Physician-Assisted Suicide", NEJM 1992; 327: 1380-1384 at 1383 ("Those who have 
witnessed difficult deaths in hospice programs are not reassured by the glib assertion that we can always make 
death tolerable. In fact, there is no empirical evidence that all physical suffering associated with incurable illness 
can be effectively relieved."); Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide, 
Testimony of Dr. M. Boisvert (May 18, 1994) at 6:35 (". . . palliative care still has a long way to go to pretend that 
it can, in the best circumstances, relieve all suffering."). 



248 

find their only alternative to achieve relief of their symptoms may be sedation to the point of 
being unaware and unable to communicate, or unconscious. Indeed, total sedation, a 
recognized treatment modality in palliative care, entails maintaining that loss of consciousness 
for a period that can stretch to weeks — for some, until death. In addition to pain and other 
physical symptoms, many of these conditions are also associated with severe suffering. 
Suffering is not limited to physical pain; it also encompasses a psychological element that may 
be even more intense. Nor is suffering limited to those who are terminally ill. Persons with 
chronic, irreversible ilhiesses can also experience great suffering as well as significant pain and 
other symptoms. Much of this can be addressed through medical and nursing care, counselling, 
and other forms of support. However, some of these individuals are not being helped and cannot 
be helped by current medical practice to the point where they find their lives bearable.^^ Some 
want to die, and seek assistance in taking their own lives. The general presumption in medicine 
and expectation in society is that health care will be directed towards cure, towards alleviating 
symptoms. Failing that, we have come to accept that there comes a point when death is no 
longer to be fought and treatment is appropriately directed towards enhancing the quality of the 
patient's remaining life as he or she dies. But when those goals cannot be achieved, ought our 
legal system countenance acceding to the patient's request — ought assisted suicide be legalized? 

We know there are individuals in such circumstances now who would avail themselves of 
assistance in ending their lives if it were legal. Because it is not, some take their own lives but 
act alone, sometimes sooner than they might wish in order to ensure continued physical ability 
to do so, and sometimes harming themselves seriously but not killing themselves. We also 
know assisted suicide does occur now, both involving health care personnel and not. We do 
not know how many such occurrences there are, or how often it would be requested if it were 

58 

legal. To the extent it does occur, assisted suicide is unregulated and largely undocumented. 

There are powerful arguments made in favour of and against legalization. One of the most 
persuasive arguments against legalizing assisted suicide is concern for the vuhierable. As Yale 
Kamisar has put it, there is a real danger that "...legal machinery initially designed to kill those 

59 

who are a nuisance to themselves may some day engulf those who are a nuisance to others". 



55 



56 



57 



58 
59 



On the incidence of such cases in palliative care, see ch. 11, supra. 

Testimony of I>. Marcel Boisvert before the Senate Cttee., supra n. 52 at 6:35; Dr. Michel Morissette (Jan. 13, 
1995) at 32: 19. See also Senate Cttee. Report, supra n. 8 at 33 - 36. 

Boisvert, id at 6:35. ("The second lesson to be taken from those statistics [in the CPCA brief to the Senate Cttee.; 
see ch.l 1, supra] is that the dying process, in the best of hands, is a difficult adventure — and those statistics are 
from a very notorious, highly qualified palliative care group in the country. To give individuals peace in dying, 
one in six must be drugged to the point of no meaningful interaction. I cannot boast of those figures.") 

Ogden R., Euthanasia, Assisted Suicide and AIDS (Perreault Goedman, Pitt Meadows BC: 1994); see also 
Proceedings of the Senate Special Cttee., Tesfimony of R. Ogden (Sept. 26, 1994) at 14:76 

Id. See also Proceedings of the Senate Special Committee, Testimony of Dr. T. Boadway (Oct. 17, 1994) at 20:80, 
20:82-20:83; Dr. M. Wyman (Oct. 17, 1994) at 20:77-20:78; 20:75. 

Senate Cttee. Report, supra n. 8 at 55. 

Kamisar Y., supra n. 1 5 at 976. See also Burt R., "The Ideal of Community in the Work of the President's 
Commission", (1984) 6 Cardozo L. Rev. 267, 278 (the "underlying stubborn reality" is that communal inclusion is 
always met with resistance; communal bonds are fragile and easily repudiated - "...never more than tenuous 



249 

That concern is not limited to the effects of such a policy on health care providers or patients 
themselves, but extends to its wider effects as well. The fear is that "...society gets so 
conditioned to accept purposeful death in one case that it will be psychologically ready to accept 
it in the second" — ^that is, to extend it to "...killing the undesirable, useless or unconscious". 
While the first will not necessarily result in the second, it is a real possibility unless truly 
effective safeguards can be developed. Even relative to the individual concerned, it is argued 
that a free and rational choice to take one's own life cannot be made under current social 
conditions, which include "...the immense psychosocial pressures which rob persons with 
disabilities of our dignity and sense of worth". 

Nonetheless, despite these cogent arguments and its awareness of and keen sensitivity to 
the vulnerability of persons with disabilities, the Coalition of Provincial Organizations of the 
Handicapped intervened in Sue Rodriguez' application to the Supreme Court of Canada and 
supported her position that the prohibition on assisting suicide in the Criminal Code violated her 
rights under the Canadian Charter of Rights and Freedoms. It sought a constitutional 
exemption from the application of this section of the Code for decisionally capable individuals 
physically unable to take their own lives. The exemption would have been limited to suicide 
rather than also countenancing euthanasia — ^that is, it would have to be the person assisted who 
took the final step leading to death. The individual's rights of self-determination and autonomy 
were important enough to warrant taking the risks entailed in legalizing the practice, with 
safeguards built in to control and limit its exercise. 

It is also argued that the development of palliative care and advances in pain control not 
only obviate the need for assisted suicide, but that legalization would detract from the resources 
currently devoted to both. Medicine currently has the capability to address the needs of the great 
majority of people in these situations and could do even more. It is feared that the availability of 
assisted suicide would reduce the incentive to develop either further, as there would be a much 
easier, less costly alternative available. Whether there is truly a need for assisted suicide ought 
not be addressed until the limits of palliative care have been reached, both in terms of access and 
treatment modalities. 

Relative to the effect of assisted suicide on the medical profession and the physician- 
patient relationship, opponents also point to the goals of medicine, central to which are 
preserving life and healing. It is said that actions designed to bring about death form no part of 
the health care provider's role. Physicians should not cause death. Further, introducing that 



linkages built against powerful psychological and social forces that drive us apart", competing for limited 
resources). On such arguments generally, see Schauer F., "Slippery Slopes," (1985) 99 Harv. L. R. 361. 



60 



61 



62 



63 



Veatch R., Death, Dying and the Biological Revolution. Our Last Quest for Responsibility (rev'd ed.) (Yale U. 
Press, New Haven: 1989) at 68; see also Kamisar, supra n. 15 at 1031. 

Frazee C, (former Chief Commissioner, Ontario Human Rights Commission and Member, Human Rights 
Committee, Council of Canadians with Disabilities), Letter to the Editor, Globe & Mail ( May 15, 1996) at A15. 

Factum of the Intervener, Council of Provincial Organizations of the Handicapped (COPOH), in Rodriguez v. B.C. 
(A.G.) (S.C.C). 

Id at para. 3 1 . 



250 

possibility into the doctor-patient relationship would erode trust generally in physicians and 
health care providers and their commitment to the value of each patient's life and therefore, in 
working to preserve it. There is also concern that sanctioning such a role would result in abuse 
by physicians, with too ready acceptance of a patient's stated wish to end his or her life or 
extension to situations where no such request was made. The risk of abuse could be exacerbated 
by the nature of the patient-physician relationship, which is often neither long-standing nor close 
in the institutional settings where most extremely ill people are. 

It is also argued that patients may miss out on opportunities for reconciliation and joy in 
family and other relationships, and personal growth through suffering if allowed to die before 
the disease would have taken them otherwise. Finally, there are concerns that effective 
safeguards could not be drafted nor compliance ensured, and that illegal acts such as murder 
could easily be disguised as assisted suicide. 

Those supporting assisted suicide argue that in a small number of cases, it is the only way 
to relieve intense patient suffering, and that relief of suffering is an important goal of medicine 
too. Physicians and other health care workers are expected to avoid harming their patients. Much 
medical care, however, carries with it harmftil side effects or complications. The duty, then, is 
understood to require that health care professonals avoid harming patients in ways that are not 
balanced with benefits, or the prospect of benefits. Facilitating a patient's death has long been 
considered a great harm. However, "...patients can be harmed in several significant ways short 
of death, through the invasion of their important interests, the impairment of their mental or 
psychological welfare, physical injury, and technological abuse". Additionally, for some 
people, death is far fi-om the worst of harmftil events that could befall them; remaining alive 
with a terrible progressive ilhiess and all that it entails is. "The important question is whether 
physicians should have any role in facilitating one harmftil event (a patient's self-destruction) in 
order to help the patient avoid other harms (eg., intractable pain, progressive dementia, loss of 
personhood, incalculable damage to a family) that the patient regards as worse". It is not 
anticipated assisted suicide would occur often and only under carefully limited conditions, as it 
is only a small minority of patients who would fmd their lives intolerable even with good 
medical care and support. Legalizing assisted suicide would allow a compassionate response in 
those rare instances. It is thought the fact that the possibility exists may even reduce the number 
of requests for it because it would give patients a sense of reassurance that a way to end 
unbearable suffering exists, if needed. It is also argued that a system in which the practice is 
made legal in controlled conditions would be preferable to the current state of affairs, in which it 
occurs in an unregulated, unreported fashion, sometimes with terrible results from botched 



64 



65 
66 
67 



The foregoing summary of arguments against assisted suicide is drawn from the Senate Cttee. Report, supra n. 8 at 
55-63; Browne A., "Assisted Suicide and Active Voluntary Euthanasia" (1989) Can. J. L & Jurisprudence 35 at 
45-50; Weir R., "The Morality of Physician-Assisted Suicide", (1992) 20 Law, Med. & Health Care 1 16 at 120 - 
122. See also Callahan D., White, M., "The Legalization of Physician-Assisted Suicide: Creating a Regulatory 
Potemkin Village", (1996) 30 U. Rich. L. Rev. 1. 

Miller F., Brody H., "Professional Integrity and Assisted Death" (1995) 25 Hastings Center Report 8 at 11. 

Weir R., supra n. 64 at 124. 

Id. 



251 

suicide attempts and sometimes forcing an individual to take his or her own life sooner than he 
or she would otherwise, out of a fear of losing the physical capacity to do so. 

Assisting a decisionally capable patient in such extreme circumstances who wishes to take 
his or her own life respects the principle of autonomy and individual self-determination, both 
important values in Canadian society. It allows for the preservation of human dignity as the 
person concerned sees it. As Cory J. pointed out his dissenting judgment in Rodriguez v. 
B.C.(A.G.), dying is a part of life, and an individual's choices about the manner of his or her 
death should therefore be respected in the same manner as other personal choices about how to 

70 

live one's life. Human life is fundamentally important to human society, but respect for and 
preserving "life" means more than maintaining physical existence under whatever conditions 
may prevail. As the Ontario Court of Appeal noted in Malette v. Shulman in affirming an 
individual's right to refuse even life-sustaining medical treatment, preserving life at the expense 
of individual free choice and self-determination "can only lessen, and not enhance, the value of 
life".^^ 

The law as it stands at present is unequal in its application. The inequality is not limited to 
that identified by Lamer CJ. in Rodriguez, that individuals physically able to do so can take their 
own lives and no criminal liability befalls anyone, while individuals too physically disabled to 
do so cannot, such that the law prohibiting assisted suicide has an unequal effect in its 

72 

application. There is also the inequality noted in Quill v. Vacco, the recent decision of the 
United States Court of Appeals (Second Circuit) striking down the state law prohibiting assisted 

73 

suicide as it applied to terminally ill patients aided by physicians. The decision turned on the 

statute's breach of the constitutional guarantee of equal protection, and was based in large part 

on the great difference in legal result that flows from the fortuitous happenstance of whether a 

74 
terminally ill patient is dependent on life-sustaining technology for continued existence or not. 

If the patient is, then he or she can refuse the treatment, including artificial nutrition and 

hydration, and receive all necessary assistance not only to implement that decision but also to 

75 

die in comfort. The actions of the health care providers will not be analyzed as assisting the 
patient to die, although all involved know that this will be the resuh and that treatment is being 
refused in order to bring about that result. In other words, what health care personnel are 



68 
69 

70 
71 
72 
73 
74 

75 

76 



Supra n. 64, Senate Cttee. Report at 64 - 69, ; Weir at at 123 - 124; Browne at 38 - 40. 

On self-determination and autonomy in end-of-life issues generally, see Dworkin R., Life 's Dominion, An 
Argument About Abortion, Euthanasia and Individual Freedom,(y'miage Books, 1993), especially chs. 7, 8. 

Supra n. 26 at 630. 

(1990) 72 O.R. (2d) 417 (C.A.) at 430. 

Supra, n. 26 at 554, 557. 

80 F.3d 716 (2nd Cir. 1996), cert, granted 65 U.S. L.W. 3218 (Oct. 8, 1996). 

Id. at 727. See also Sneiderman B., "The Rodriguez Case: Where Do We Go From Here — A Multi-Dimensional 
(6-Layered) Approach", (1994) 2 Health Law J. 1 at 5 (comparing the situations of Nancy B. and Sue Rodriguez). 

Nancy B. v. Hotel Dieu de Quebec, supra n. 30; Manoir de la Pointe Bleue (1978) Inc. c. Corbeil, [1992] R.J.Q. 
712(c.s.). 

Id. 



252 

doing, and doing legally, is assisting the patient to die. It is not characterized as such, though, 
because it is seen as non-blameworthy in legal terms. Considerations of autonomy and self- 
determination prevail in the analysis rather than the value of continued existence and the state 
interest in preserving life and respect for the sanctity of life. Yet if the patient is not technology- 
dependent, then the law prohibits any assistance in bringing about his or her own death. 

This calls for some reflection on the way medical practice has changed to accommodate 
new realities, and in particular, what has come to be viewed as acceptable, and indeed, 
responsible medical practice. Change is a constant in medicine. It has meant that patients can 
live longer with serious disease. It has also meant that patients may end up for increasing lengths 
of time in some of the dire conditions from which they now seek release. Medical practice has 
changed to accommodate this as well. Practices that were once thought to be wrong are now 
seen as humane medical care. In appropriate circumstances, this includes writing Do Not 
Resuscitate orders, terminating artificial nutrition and hydration, not treating a secondary 
condition such as an infection when there is no benefit in doing so given the underlying 
condition, providing pain relief strong enough to relieve the patient's suffering even when the 
dosage may shorten or end life, and total sedation of the patient over periods that may stretch to 
weeks. A great many deaths each day occur because of decisions to withhold or withdraw life 

79 

support, decisions that not so long ago could well have been contentious. The term "passive 
euthanasia" has fallen into disfavour now, probably because the practices to which it referred, 

80 

such as these, are accepted and active euthanasia is not. Not using the language of euthanasia 
distances these practices from what still remains unlawfiil. Analyzing what occurs in terms of 
letting nature take its course and death resulting from the underlying disease rather than the 
decisions and actions of substitute decision makers and health care providers further distances 
the two as well. "Passive euthanasia" was, however, commonly used to describe many of these 
practices, and there was often great concern that they were wrong. There has been a 
considerable change in medical and societal norms over the course of the past two decades. The 
changes are reflected in the law, even though at the time some of these practices were first 



77 



78 



79 



80 



81 



Indeed, health care providers are portrayed as being choiceless in the matter, as the common law requires 
acceptance of the patient's instructions. It is said that they therefore are not making a choice that will result in the 
patient's death, unlike assisted suicide or voluntary euthanasia {Rodriguez, supra n. 26 at 606). 

See the interchange between Dr. Morissette and Senator Lavoie-Roux exploring how closely the last practice 
approaches euthanasia: Senate Committee Proceedings at 32:19 (Jan. 13, 1995). 

Quill et al, supra n. 52 at 1381; see also New York State Task Force on Life and the Law, supra n. 45 at 147 (It is 
estimated 70% of deaths in hospital involve some decision to withhold or stop treatment); Editorial, "Withdrawing 
Life Support. How is The Decision Made?" JAMA 1995; 273: 738-739 (clinical studies reveal 40% to 60% of 
ICU [intensive care unit] deaths have been preceded by decisions to withhold or withdraw life support). 

See generally Kamisar Y., "When Is There a Constitutional 'Right to Die'? When is There No Constitutional 
'Right to Live'?" (1991) 25 Georgia L. Rev. 1203 at 1203, 1206, 1227. 

See Canadian Palliative Care Ass'n Brief to the Senate Special Cttee on Euthanasia and Assisted Suicide at 6 
relative to DNR orders. Concern about the legality of many of these practices is evident in the extensive litigation 
in the United States about whether they could occur or not and under what conditions. Similar concerns are 
reflected in the CMA Code of Ethics that was in place during the 1980's and until 1996, which includes specific 
references to acceptable practices in the care of dying patients, and led to the Joint Statement on Terminal Illness 
in 1984 addressing when resuscitative interventions were and were not appropriate — see chs. 4 and 1 1, supra. 



253 

82 

allowed, they were not universally accepted as proper, and indeed, are not today. The practices 
are viewed as resulting in more humane, and hence, better, medical care. This is not to say that 
what is permitted now is the same as assisted suicide, but to draw attention to and reflect on the 
metamorphosis in medical and societal norms that has occurred. 

The difficulty with the distinction in legal consequences drawn in the criminal law is not 
just that the categories of permissible and impermissible conduct are themselves porous, but 
perhaps more importantly, that the reasons for allowing one type of conduct and not the other 
are increasingly less convincing in light of what is legal. Why is it that a likely lethal injection 
of pain killer can be lawful provided it is given for the primary or avowed purpose of pain relief, 
but an injection given to be lethal is not, no matter what the patient's condition or whether relief 
of pain is unattainable? The growing doubt and debate about what behaviour ought to continue 
to be sanctioned by the criminal law is in part the result of courts, health care providers and the 
wider public having to acknowledge that the law as presently framed does not allow for a 
humane response on the part of caregivers in a number of instances, nor does it ensure that 
treatment of those who are vuhierable will be in their interests. On the other hand, claims that in 
rare instances enabling a patient in extreme circumstances to end his or her own life is justified 
and indeed, is the humane response, are powerfully supported. 

It is a general premise underlying the criminal law that rightful conduct should not be 
punished - that is, that the criminal law should sanction conduct only if it is incompatible with 
the norms of proper behaviour in society. When those norms are changing, then maintaining 
existing criminal law prohibitions is increasingly difficult to defend. As Lord Lowry noted in 
Airedale N.H.S. Trust v. Bland ''{\\i is important, particularly in the area of criminal law which 

85 

governs conduct, that society's notions of what is the law and what is right should coincide". 
The conjunction of law and morality in this area is increasingly strained. 

Continuing the ban on assisted suicide does not really answer concerns such as those 
raised by the philosopher James Rachels respecting the inhumanity of a long, slow death by 
Starvation, which we do permit, since patients can refuse artificial nutrition and hydration. One 
response to that challenge is that it is misleading because it misdescribes the patient and 
incorrectly attributes to him or her the responses of one who is not very ill. Where patients are in 
extremis, it has been observed that they will frequently not want nourishment in any form nor 



82 

83 
84 
85 
86 



See eg. Brophy v. New England Sinai Hospital 497 NE 2d 626, 641 per Lynch J. (dissenting) (arguing against 
authorizing a substitute decision maker being allowed to decide to end artificial nutrition and hydration for a man 
in a persistent vegetative state). Relative to artificial nutrition and hydration, see ch. 11, supra. 

The two - the porosity of and weakening justifications for separate categories - are not unrelated. 

Fletcher, G., Re-thinking Criminal Law, (Little Brown, Boston: 1978) at 792. 

Supra n. 33 at 380. 

Corbeil, supra n. 75 ; Rachels J., supra n. 34 at 241-242. In his testimony before the Senate Special Committee, 
Dr. M. Boisvert described an instance of this occurring: a competent patient who died as a result of foregoing 
artificial nutrition and hydration (supra n. 52 at 6:46-6:47). See also Bland, supra n. 33 at 387 (per Lord Browne- 
Wilkinson as to the possibility that active euthanasia may reduce or minimize suffering more than passive 
euthanasia). 



254 

feel the lack of it. But another response is that something has gone seriously wrong. Assurances 
such as that offered by Lord Goff in Bland that not only will the patient not be in pain as he 
starves to death (since he was in a persistent vegetative state), but that "... the outward symptoms 
of dying, which might otherwise cause distress to the nurses who care for him or to members of 
his family who visit him, can be suppressed by means of sedatives" do not assuage misgivings 

87 

about the manner of death the law requires when death is sought. An ability to disguise that 
reality - to pretend it is not happening or to ensure we will not see it (itself achieved through 
medical technology - sedative drugs) - does not seem a satisfactory response to Rachel's charge 
of inhumanity. 

Nor does the ban on assisted suicide address the point made by McEachem CJBC. in his 
dissenting reasons in Rodriguez v. B.C.(A.G.) that not only is there just a "conceptual line which 
lacks practical reality between physician-assisted suicide and palliative care" when large doses 
of pain-relieving drugs are used and a terminally ill patient is approaching inevitable death, but 
that with the latter, the "quality of psychological pain" for patients and their families must be 
"infinitely greater" where the medication permits lucid intervals as the patient "awaits the failure 
of body processes from starvation, choking or pneumonia, hopefully under sufficient sedation so 

88 

that physical pain will be minimized." Far from preserving humanity in treatment, what the 
law may require is a course of care that is in fact less humane for these individuals. 

The five judges of the House of Lords in Airedale N.H.S. Trust v Bland were equally 
disturbed by the lack of a defensible moral distinction between putting the patient to death and 

89 

allowing him to die by withdrawing artificial nutrition in the circumstances of that case. 
However, all were clear that regardless of morality, the law maintained such a distinction - a law 

90 

which Lord Mustill characterized as "intellectually and morally misshapen". At present, the 
criminal law is reflective of the view that the dangers of this practice are such that even 
competent individuals wanting euthanasia must live out their lives if they are unable or 
unwilling to act on their own. It is little comfort to the patient to be told that the manner of one's 
death is for the good of society and to protect other vubierable persons, rather than for the 
patient's own good, which might lie in a mercifrilly quicker end. These individuals are, in a 
sense, hostages - a means to an end for the rest of us (maintaining humanity and humaneness 



87 



90 



Supra, n. 33 at 372-373. For a description of the physiological consequences that follow presented in the starkest 
terms, see the opinion of Lynch, J. (dissenting in part) in Brophy v. New England Sinai Hospital, supra, n. 82 at 
641 n. 2 (arguing against withdrawal) and Brahms D., "The reluctant survivor," (1990) 140 New L. J. 586 (Part I), 
639 (Part II) (quoting a writer who favours lethal injection as a more humane alternative to ending artificial 
nutrition). 

[1993] 3 W.W.R. 553 at 563 (B.C.C.A.). 

In Bland, supra n. 33, the patient was in a persistent vegetative state, so the reference is to active, non-voluntary 
euthanasia of a decisionzdly incapable person. That is very different than the argument made here in support of 
legalizing assisted suicide when the person concerned is competent to make such decisions. 

Id. at 388-389. See also Lord Lowry, at 379, Lord Browne-Wilkinson, at 387, and Lord Mustill, at 388 - "The 
acute unease which I feel about adopting this way through the legal and ethical maze [distinguishing the culpable 
act of actively "mercy killing" from the non-culpable omission of "witholding the basic necessities of life"] is, I 
believe due in an important part to the sensation that however much the terminologies may differ the ethical status 
of the two courses of action is for all relevant purposes indistinguishable." 



255 

overall, if not in each individual case). It must always be remembered, however, that the end 
itself may exact a very great price from those by whom it must be borne. 

There is a real need to revisit what criminal sanctions should be in place. The argument 
that in rare cases, assisting a decisionally capable patient to commit suicide is in keeping with 
the principles of medical ethics, as it can enable the physician to achieve other legitimate goals 
of medicine where the patient's underlying condition cannot be cured or ameliorated and the 

91 

patient is in pain or is suffering greatly, is persuasive. The option can enable a patient in 
extreme circumstances to still maintain some dignity and control over the life remaining to him 
or her, can effectuate the patient's wishes when he or she, though competent, is physically or 
psychologically incapable of doing so otherwise, and can allow the patient to worry less about 
the manner in which and the time over which his or her life will end. As Madam Justice Wilson 
said in R. v. Jones, quoting the words of John Stuart Mill: "... each is the guardian of one's own 

92 

health; it is better to live as seems good to oneself than to others". Given the ascendancy of the 
principle of autonomy in legal thinking and more broadly, it is time to recognize that the 
principles underlying the prohibition against assisting suicide - the state's interest in protecting 
the vulnerable and in preserving life and respect for the sanctity of life - are not diminished by 

93 

enabling a competent adult to "make decisions of fundamental importance" (to the extent he or 
she is able) about the circumstances and manner of his or her death, even if by reason of 
disability or otherwise, assistance is required to enable the person concerned to carry out such 
decisions. The principles can co-exist, particularly if it is recognized that respect for the sanctity 
of life refers to life in accordance with an individual's own value system, not as an abstract ideal 
unconnected to real lives. 

I reach the conclusion that assisted suicide ought to be legalized in limited circumstances 
reluctantly and with considerable ambivalence. However, the need (assessed not in numerical 
terms, which are unknown, but in terms of the great suffering of those who would avail 
themselves of assistance in ending their lives, if it were legal) seems too pressing to be ignored 
or left to be dealt with in a hidden fashion, as at present. 

For all that an individual's situation may pull towards what seems to be a merciful solution 
in a particular case, the fear that allowing physician-assisted suicide or euthanasia in controlled 
circumstances may have a deleterious effect on the general commitment to norms against taking 
life, and that it would be extended in a way that was harmfiil to those who are most vuhierable 
must be taken very seriously. Law is a principal instrument of public policy in this area. The 
general prohibition against taking the life of another conflicts with the reality that in medicine, it 
is common to make decisions and act in a way that may or does shorten or end life. The 
accommodations that have been relied on in the past to support interpretations of such conduct 



91 

92 
93 
94 



The term "suffering" is meant to encompass more than physical sensation; it is not so amenable to being 
controlled or suppressed with drugs as physical pain. 

R V. Jones, [1986] 2 S.C.R. 284 at 318-319. 

Per Wilson J., in R. v. Morgentaler [1988] 1 S.C.R. 30 at 164. 

Malette v. Shulman, supra, n. 7 1 at 427, 432. 



256 

as something other than causing death may no longer be adequate, but careful thought needs to 
be given to what any changes will or may set in motion - what legacy they will leave. 

We also need to be very conscious of pressures on and trends in the health care system and 
health care and social service funding. As outlined previously, it would be very difficult to make 
a successful argument that there is any constitutional right of access to health care generally, let 
alone to any particular type or level of care. In the result, there is no guarantee that even 
existing levels of service and care will be maintained, and in fact, many indications they will 
not. Leaving people in a situation where they resort to ending their own lives because the health 
care available to them is so limited and unsatisfactory in the face of their needs that they feel 
they have little other option is not acceptable. Assisted suicide is envisaged as a measure of last 
resort for that small minority of patients whose suffering cannot be alleviated to bearable levels 
with good medical care and other necessary supports. If the health care system is so reduced that 
it does not support that level of care, then legalizing assisted suicide becomes a more dangerous 
choice. In terms of safeguards, then, they should be put in place at the level of health care 
policy as well as at an individual level. 

Relative to individuals, a number of different procedural safeguards and requirements have 

98 

been proposed. Drafting a proposal for limited legalization is beyond the scope of the present 
undertaking. However, important safeguards would include the following: 

1. The option should be limited to adult, decisionally capable individuals, as it is being 
made available in order to assist the individual to carry out his or her own decision. 

2. Concerns about the presence and effect of treatable depression or other treatable 
psychological conditions would make it advisable that the applicant's mental state and 
ability to make such a decision be confirmed not only by his or her own physician but 
also by a psychiatric' or psychological assessment. 

3. Given the reason the law would be changed, assistance in taking one's own life should 
be limited to persons who are terminally ill or in a state of chronic irreversible ilhiess 
who are, in the individual's own judgment, experiencing unbearable suffering. 

4. It should not, however, be limited to those who are physically unable to end their lives 
without assistance. Despite Lamer CJ's reference in Rodriguez to those who are 
physically able taking their lives by the "usual means", there is no reason to require 



95 
96 



97 
98 



See ch. 7, supra. 

Pritchard C, "Suicide prevention should focus more on social issues", Medical Post (Mar. 12, 1995) at 64, 
reporting on an Australian study that determined that much suicide is the result of social and economic factors 
rather than serious psychiatric problems. 

See also Sneiderman B., supra n. 74 at 25 - 27. 

See eg. Rodriguez v. B.C. (A.G.) supra n. 26 at 519 per Lamer CJ; Factum of the Intervener COPOH, supra n. 62 
at para. 40; KJuge E.H., Senate Cttee. Report , supra n. 8 at A-45 - A-46; Dying with Dignity, Brief presented to 
the Senate Special Committee on Euthanasia and Assisted Suicide. 



257 

99 

individuals who are so ill to resort to violence to end their own lives. Other than by 
violence, the "usual means" is medication, and there is similarly no reason to require 
these individuals to try to obtain the needed medication surreptitiously and then utilize 
it on their own. 

5. The physician should confirm that in his or her judgment, the patient has arrived at the 
decision freely, and that there are no effective forms of treatment available that are 
acceptable to the patient (including foregoing treatment). If the patient could 
experience a reasonable quality of life with comfort care or other medical interventions 
he or she will accept, then assisted death is not appropriate. 

6. The diagnosis and the prognosis should be concurred in by two physicians. 

7. The individual should be advised of all options available in his or her care. Where 
necessary for a full explanation, the explanation should be provided by a health care 
worker with experience in the area, such as palliative care. 

8. While the decision must remain the patient's, the question of notification to and 
involvement of the patient's family must be considered. 

9. There should be provision for a waiting time between the time the request is made to 
the physician and the time the request is acted on, to ensure the patient is firm in his or 
her decision. 

10. Some of the suggested sets of procedures would not require advance authorization. 

102 

Others build in application to a judge of either a superior court or a lower level court. 
The Coalition of Provincial Organizations of the Handicapped has made the salient 
point that taking a matter to court is expensive and subject to considerable delay. 
That not only fails to serve the interests of the persons concerned, but could make 
assisted suicide unavailable to them in practical terms, either because of the cost or the 
length of time the application will take. Whatever its form, advance authorization is 
important to prevent extensions from what is legal and permitted to what remains 
illegal. The form that should take requires further consideration. 

1 1 . The assistance should be provided by a physician or health care provider acting under a 
physician's direction and supervision. 



99 

100 

101 

102 
103 



Id. at 552, 556. 

Miller F. , Brody H., supra n. 65 at 14. 

See eg.. Dying with Dignity, supra n. 98. The Australian legislation does not require advance authorization — see 
the Rights of the Terminally III Act, No. 12 of 1995, Northern Territory of Australia. 

Rodriguez, supra n. 26 at 519 per Lamer CJ. 

Factum of COPOH in Rodriguez, supra n. 62. 



258 

12. No physician or other health care worker should be under any obligation to participate 
in assisting a suicide, nor subject to any repercussions — legal, professional or 
otherwise-for participating as allowed by law. 

13. There should be notification to the coroner in instances of assisted suicide. While 
advance notification might enable the coroner's office to ensure all required procedures 
are being followed, it would also involve imposing on the patient and his or her family 
unnecessary and undesireable bureaucratic intervention with a very different focus and 
mandate than assisting the patient to die a more peaceful death. Prompt notification 
after the death has occurred should suffice for purposes of oversight, when coupled 
with advance authorization. 

14. Provision should be made for annual review and assessment of experience with the 
procedure. 

The form of any law permitting assisted suicide in limited circumstances requires more 
extensive consideration. However, these recommendations may form a useful starting point for 
discussion. 

(b) VOLUNTARY EUTHANASIA 

As outlined previously, there is a need for reform to the criminal law that would permit 
assisted suicide in limited instances and under controlled conditions. The question that 
immediately follows is with respect to active voluntary euthanasia. Ought a decisionally capable 
adult in the same circumstances as just described be able to have his life ended by another, rather 
than having to do so himself or herself? And what of those individuals who are too physically 
disabled to be able to take their own lives and could not, therefore, avail themselves of that 
option? Or those who want to wait until they reach that point before ending their lives? While I 
am arguing for reform of the criminal law in relation to assisted suicide, I am not making the 
same argument with respect to voluntary euthanasia. 

My concern is with the need to protect others who may be vuhierable. If the fmal act(s) 
leading to death need not be those of the competent individual who wishes to end his or her own 
life, then the potential to extend this alternative to other classes of people who have not 
requested assistance in ending their lives, and even to those who are decisionally incapable and 
could not have requested such assistance, is that much greater. The risk of coercion and abuse 
increases. If the patient must in the end take his or her own life, then he or she maintains the 
power of agency, and the power to reconsider at any time — ^there need never be any sense of 
being irretrievably committed to a particular course of action. The decision and the fmal 
responsibility rest with the person taking his or her own life. 

In terms of the moral significance of the act to either the patient or the physician providing 
assistance, it is difficult to conclude that there is any significant difference between the two. In 



'°^ This is also the position taken by Quill et al, supra n. 52. 



259 



each situation, the knowledge and intention are the same. The difference in how the two acts are 
actually performed may be very small. My concern, th( 
such change to the law, rather than its philosophical status. 



actually performed may be very small. My concern, though, is with the wider effects of any 



Not allowing active voluntary euthanasia will exclude a small number of decisionally capable 
people who might otherwise seek to end their lives but are physically unable to do so. It may 
also force some people to act sooner than they would rather to end their own lives, in order to 
ensure sufficient remaining physical capacity to do so. However, the risks in allowing such a 
practice are considerable, and grave enough to justify the exclusion. It may be that experience 
with allowing assisted suicide will alleviate these concerns, or suggest ways in which voluntary 
euthanasia can be permitted for that small group of individuals without opening the door to 
dangerous and wrongful extensions. At present, however, that step ought not be taken. 



See ch. 10, supra, relative to the first physician-assisted suicide in Australia under the new law in the Northern 
Territory. The lethal injection was delivered by a computerized device developed by the patient's physician but 
operated by the patient. 



CHAPTER 13 



RECOMMENDATIONS AND 
OPTIONS FOR REFORM 



1. An exemption should be added to s.241(b) of the Criminal Code to permit physicians and 
other health care professonals acting under the direction of a physician to assist in another 
individual's suicide. The person concerned must be either terminally ill or suffering from a 
chronic, irreversible illness and experiencing pain and/or suffering that he or she finds 
unbearable and that cannot be alleviated or treated by means acceptable to the patient. 
Assistance in suicide should only be provided under clearly defined limits and safeguards, 
including a system of advance authorization. Experience with assisted suicide should be 
reviewed and assessed annually. 

2. Euthanasia should remain a criminal offence. 

3. The Criminal Code should be amended to provide for a less severe penalty in cases where 
an offender who took the life of another individual acted out of compassion or mercy, 
either through the creation of a separate offence or a third category of murder, for which 
there would be a maximum penalty of life imprisonment but no minimum sentence, as 
with manslaughter. General rules for parole eligibility would apply. Instances in which 
motive could be taken into account in sentencing must be narrowly defined. 

4. The question of whether policy to govern the laying of criminal charges can be developed 
that would give some clearer indication of how the general factors used in charging 
decisions apply to circumstances in which investigation reveals an individual, motivated 
by compassion, participated in causing a death should be considered by government. 
Reiterating existing law and restating the conundrum that, while society has a 
responsibility to protect life, life need not be preserved or continued at all cost, are 
important reminders but are not a clarification. 

5. The Criminal Code should be amended to confirm the legality of providing necessary 
treatment for the purpose of eliminating or alleviating suffering, even if that treatment may 
shorten life. Any such amendment would only codify the law as it ah-eady exists. 
However, concern over the legality of such measures still seems to prevail to the point 
where it interferes with good medical care, as evidenced particularly by inadequate 
management of patients' pain. If a clear statement that the practice is legal would 



Seech. 12 supra. 

Rodriguez v. B.C.(A.G.) [1993] 3 S.C.R. 519 at 607. 

[261] 



262 



ameliorate the substandard care many patients currently receive, then it would be advisable 
to incorporate one into the law. 

6. The Office of the Public Guardian and Trustee should clarify its policy on circumstances 
in which it considers it has jurisdiction to consent or refiise consent to Do Not Resuscititate 
(DNR) orders, bearing in mind that a plan of treatment can legitimately provide for "...the 
withholding or withdrawal of treatment in light of the person's current health condition'. 
This may require making decisions in advance of an immediate need. Such policy should 
be clearly communicated to physicians and other health care professionals. 

7. Education and training about pain management and control should be expanded and 
improved for health care professionals. This should include a clear statement that properly 
managing the patient's pain (subject to the limits of what can currently be achieved) is a 
duty owed to the patient and one of the standards of practice of the profession. 
Professional guidelines should be amended to reflect this position as well. 

8. The relevant professional associations should be encouraged in their development of 
clinical practice guidelines in this area, in particular relative to the withholding and 
withdrawal of life-sustaining treatment and treatment at the end of life. 

9. The government, together with the Colleges and professional associations concerned and 
other affected groups, needs to develop policies with respect to questions of futile 
treatment. The development of clinical practice guidelines by a profession or specialized 
body within the profession is important, but these issues have a societal dimension as well. 
Public input should be sought in this process. 

10. Palliative care programs should be supported and expanded as an important part of a 
comprehensive health care system. 

11. It is essential that needed health and social services are adequately supported by 
government. A broad based approach should be adopted in identifying determinants of 
health. Regardless of whether assisted suicide is legalized in limited circumstances or not, 
individuals must not be put in a position where they may be making end-of-life treatment 
decisions based on or because of inadequate health care and social support. 



Health Care Consent Act, 1996, s.2(l), being Sch. A to the Advocacy, Consent and Substitute Decisions Statute 
Law Amendment Act, 1996,S.O. 1996, c2. 



APPENDIX A 



CONSULTATIONS 

In connection with the preparation of this study paper, consultations were held with the 
following, although the opinions expressed and conclusions reached remain those of the author. 

Advocacy Centre for the Elderly 

ARCH, A Legal Resource Centre for Persons with Disabilities 

Baycrest Centre for Geriatric Care 

Canadian Bar Association - Ontario 

College of Physicians and Surgeons of Ontario 

College of Nurses of Ontario 

Disabled Women's Network 

Dying With Dignity 

Hospital for Sick Children 

Ministry of Health 

Multiple Sclerosis Society 

Ms. Leah Parisi, Faculty of Health Sciences, McMaster University 

Office of the Public Guardian and Trustee 

Right to Die Society 

St. Joseph's Health Centre 

Sunnybrook Health Science Centre 

University of Toronto Centre for Bioethics. 

Dr. James Young, Chief Coroner for Ontario 

WRITTEN MATERIAL RECEIVED 

Canadian Palliative Care Association 
Community Hospice Association of Ontario 
Council of Canadians with Disabilities 
Ontario Medical Association 



[263] 



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