Will there be a new Dr. Kevorkian?

The Supreme Court of Canada’s recent decision in Carter v. Canada (which we blogged about here) opens the door for physician-assisted suicide in Canada. The Court was asked whether the criminal prohibition on assisted suicide unjustifiably infringes upon the rights of certain individuals – and the judges unanimously agreed that it does. The impact of this decision is that physician-assisted suicide will be permitted in 12 months for eligible individuals in Canada. While the Court provided parameters for the law, it will be for Parliament, the provincial legislatures and regulatory colleges to provide clarity on how physician-assisted suicide will actually operate.

Some of the many questions this decision raises revolve around the practical administration of assisted suicide. What duties will be imposed on physicians? Will physicians be forced to perform assisted suicides? And will physicians be permitted – or required – to actively raise physician-assisted suicide as a treatment option to patients with a “grievous and irremediable medical condition”?

The idea of having a physician raise assisted suicide as an option will surely not sit well with many physicians, patients and families. However, the law of informed consent (which varies slightly by province) typically requires that when a treatment is proposed the alternative courses of action are also discussed so that the patient is fully informed. It is possible that under the new law proposing palliative care treatments will necessarily include a duty to raise assisted suicide as an alternative to the proposed treatment.

One problem with physicians raising assisted suicide as a treatment option – even in the context of informed consent to other treatment – is the issue of conflict of interest. It could be the case, or perceived to be the case, that physicians would propose assisted suicide where there is a shortage of health care resources. Families often feel (rightly or wrongly) that health professionals are not doing everything possible for their loved ones due to an obligation to manage scarce health care resources. It is easy to foresee disputes arising if assisted suicide were presented as an option to competent patients.

While it is possible that policies or regulation could compel physicians to provide such assistance in dying, the Court made a clear statement that there is no requirement to do so. And, further, it would be illogical and inconsistent with current practice for all physicians to be required to perform assisted suicides given the high levels of specialization within the field of medicine.

Some physicians will no doubt have moral or religious objections to assisting their patients to die as the medical community is far from unanimous on this issue. The controversial debate about the right of physicians to refuse to provide treatment on the basis of moral grounds has been raised before, including recently in the context of whether physicians can refuse to prescribe birth control.  Refusing treatment raises many legal, ethical and practical issues including discrimination and access to care. Given the nature of this service, and the positions released thus far by several medical organizations, it is anticipated that physicians will not be required to assist patients with suicide should it be contrary to their beliefs. However, physicians could be required or encouraged to make a referral to someone who is willing to assist.

You may recall that Dr. Kevorkian – nicknamed “Dr. Death” – was a U.S. physician who advocated for the right to die and assisted many people with their deaths using a “suicide machine” (ultimately serving time in prison). Despite all the controversy surrounding him, there is no doubt he was an expert in the area.

It may be that the best solution moving forward is to create our own experts – physicians who are supported, trained and willing to facilitate the suicides and the safeguards. These professionals could be removed from the conflict of interest that might plague physicians providing other types of care. Specialized training could include how to determine competence, recognize duress and assess voluntariness. Checks and balances could be implemented, with oversight from regulatory colleges, and services would be performed only by medical professionals who truly believe that physician-assisted suicide is a legitimate way to die with dignity.

Perhaps in the future Canada will have a few Dr. Kevorkians of its own.

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