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Why judges should have the final word in medically assisted suicide

Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.

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Bill C-14 will legalize medically assisted suicide and euthanasia in Canada. How it does that, on what conditions, and in which circumstances matters. The bill would legislate these actions as an "exemption" from – an exception to – prosecution for the Criminal Code offences of culpable homicide and assisted suicide that would otherwise be committed.

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Treating medically assisted dying as an exception will help to ensure, as is essential, that it does not become part of the norm for how Canadians die; that it must only be employed in exceptional circumstances and rarely (as both the trial court judge in the Carter case and the Supreme Court of Canada envisaged would be the situation); and only as a last resort for those who clearly qualify for it.

If, as has occurred in both the Netherlands and Belgium, it were to be normalized and, as in those countries, 3.5 per cent of total deaths were deaths by euthanasia, Canada would have more than 9,000 such deaths each year.

Ellen Wiebe, the first doctor to oversee the death of a patient in Canada pursuant to judicial authorization, told a webinar of about 300 pharmacists that she believed deaths from euthanasia and assisted suicide in British Columbia would match the Netherlands rate. That would mean around 1,212 deaths annually, about three a day, in British Columbia.

Recognizing medically assisted dying as an exception also helps to establish that access to it is not a right but rather, under certain conditions, an immunity from prosecution for a criminal offence – which carries an important anti-suicide public health message. As well, this characterization of legal immunity for providing a hastened death, not a right to access it, will assist in protecting the Charter rights of health-care professionals, who refuse involvement for reasons of conscience or religion.

Although Bill C-14 unavoidably damages the value of respect for life and puts vulnerable Canadians at risk, its goals include, as its preamble recognizes, maintaining respect for human life at both individual and societal levels and the protection of vulnerable people. Achieving those two goals demands another goal be explicit in the preamble: not allowing medically assisted suicide to become part of the norm for how we die.

So how can we, as far as possible in the current circumstances, achieve these three goals?

The conditions legislated for qualification for hastened death will be critical. They must be very limited and strictly controlled; they underline that it is an exceptional intervention, limited to adults competent at the time of death, terminally ill from a physical disease or disability, in unbearable suffering and giving their informed consent.

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For practical and symbolic reasons, I propose an additional essential condition not yet in Bill C-14: that a Superior Court judge should be required to review and approve each request that has been granted for medically assisted death. (Remote-area cases could be accommodated via Skype.)

Judicial involvement would not only underline the seriousness of the decision, it would also assist in doing the least damage to the foundational value of respect for human life; provide better protection against abuse of medically assisted suicide and of vulnerable people than the proposed legislation does; and help to ensure that it is rarely used and only where all necessary conditions are complied with.

This safeguard has a history of judicial recognition and use in the context of medically assisted dying. Supreme Court Chief Justice Beverley McLachlin imposed it in her dissent in the Rodriguez case, as did the trial court judge in Carter and, similarly, the five Supreme Court justices in the majority ruling that granted Parliament a four-month extension to prepare the legislation now before Parliament.

We also have an established precedent for legislating quasi-judicial or judicial reviews of physician decision making in another area of health care. Provincial mental-health laws often require such involvement in the involuntary commitment of a person to a psychiatric hospital.

Surely, inflicting death is at least as momentous a decision and the potential for abuse of the power to inflict death, especially on vulnerable people, is just as serious a concern as restricting a person's liberty through involuntary commitment.

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