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Supreme Court to rule today whether doctors can help patients die

02/06/2015 05:00 EST | Updated 04/07/2015 05:59 EDT
The Supreme Court will rule today on a question it last considered more than 20 years ago: should it be legal for doctors to help dying patients kill themselves?

The case that will be decided Friday was brought by the B.C. Civil Liberties Association on behalf of two women, Kay Carter and Gloria Taylor, both of whom have died since the legal battle began. Both women had degenerative diseases and wanted the right to have a doctor help them die. Carter went to Switzerland with her daughter, Lee, to die. Taylor died of amyotrophic lateral sclerosis (ALS).

A lawyer on behalf of Carter and Taylor argued that they were being discriminated against because their physical disabilities didn't allow them to kill themselves the way able-bodied people could. Further limiting their options, as degenerative diseases progress further, patients can lose the ability even to swallow.

A British Columbia court ruled in their favour, finding that much had changed since the last time the Supreme Court considered the issue — including the number of places where it's now legal for physicians to help patients die.

By 2010, eight jurisdictions, including three American states, allowed doctor-assisted suicide. More jurisdictions have since allowed it, including Quebec, which last June passed its landmark end-of-life legislation.

The Quebec legislation spells out the conditions in which a terminally ill patient could receive medical assistance in dying. The non-partisan bill was passed 94-22 with no abstentions and was the culmination of years of work.

However, because the act of helping another person kill themselves is a criminal matter, the new law remains a law in principle alone. For its part, the federal government has said it does not intend to change the criminal law against physician-assisted dying and hinted that it would seek to challenge Quebec’s new law.

Doctors told to follow conscience within law

Canada does allow doctors to induce a coma and turn off life-sustaining equipment for suffering patients near death, a practice known as palliative sedation that right-to-die advocates argue is ethically, morally and legally no different from assisted suicide or euthanasia.

Justice Minister Peter MacKay would only say that his department will review the decision in detail, whatever it is.

"It's an enormous decision. We're anxiously awaiting, of course, the Supreme Court's wisdom in this matter," he said Thursday on his way into the House.

It isn't just legislators who have changed their minds in the last 20 years: the Canadian Medical Association has also updated its long-standing policy against assisted suicide to one that lets doctors follow their consciences within the bounds of the law.

The CMA says there are rare occasions when patients have such a degree of suffering that palliative care isn't enough and they request help to die.

"In such a case, and within legal constraints, medical aid in dying may be appropriate. The CMA supports patients’ access to the full spectrum of end-of-life care that is legal in Canada," the CMA said in its policy, which was updated in December 2014.

​"The CMA supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether to provide medical aid in dying as defined in this policy."

That guidance will be important for Dr. Catherine Ferrier, who doesn't want to see doctors helping patients commit suicide. Ferrier is the president of the Physicians’ Alliance Against Euthanasia. 

"It's not the role of medicine to kill patients," she said in an interview with CBC News.

"I don't think it's good for our patients, I don't think it's good for any Canadian who is older, who's disabled, who's chronically ill, who's terminally ill. We have to accept what the court says, but I certainly hope the federal will intervene to limit the damage as much as possible.​"

21 years since Sue Rodriguez's death

The Supreme Court ruled in 1993 that Sue Rodriguez, a British Columbia woman with ALS, couldn't have a doctor help her commit suicide. Rodriguez was physically disabled because of the disease and rapidly losing her ability to move, speak or even swallow without assistance.

- CBC Archives: Sue Rodriguez chooses suicide

She did find a doctor to help kill herself less than six months later, on Feb. 12, 1994. This week's Supreme Court ruling will come almost exactly 21 years later.

The decision in 1993 split five justices to four, with the majority ruling that the prohibition on doctor-assisted suicide didn't violate Rodriguez's charter rights to life, liberty and security under Section 7. The court also ruled that even if the prohibition, section 241 of the Criminal Code, violated Rodriguez's Section 15 right to equal treatment, it was justified under the charter's Section 1.

Section 1 allows for reasonable limits that can be justified in a free and democratic society.

Chief Justice Beverley McLachlin is the only judge who was on the court in 1993.

The court heard the case last October.

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