Nuala Kenny discusses the Supreme Court of Canada’s decision to remove the prohibition on assisted suicide.
In a long-awaited decision for many, the Supreme Court of Canada has removed the Criminal Code prohibition on assisted suicide based on a Charter of Rights and Freedoms challenge. This decision was inevitable, but is one that I receive with great sadness. While physician assisted suicide is heralded as humane and compassionate care, in my view, it is an instance of technology triumphing over alternative standards of care for persons who are suffering and dying.
From my perspective, the most powerful arguments against assisted suicide and euthanasia come from the religious beliefs that life is sacred and that humans are the stewards and not the absolute masters of life. However, these views are not shared in our pluralist and secular public space. Indeed, they have been widely rejected as having any role to play in public debate. We live in a secular, death-denying, death-defying culture, dominated by the discourse of individual rights and autonomy, the medicalization of all aspects of life, and a consumer culture. This context provides the “perfect storm” of forces situating assisted suicide as a right; death as a medical act; and an obligation of doctors to participate.
The legal history of the Supreme Court’s current decision can be traced to the 1993 Supreme Court ruling in Rodriguez. In that ruling, the prohibition on assisted suicide was recognized as infringing on Rodriguez’s rights, but that infringement was deemed a “justifiable infringement”. Since that 1993 decision, there has been a relentless movement to legalize assisted suicide.
I trace the history of the Court’s decision to my personal experience as a physician and bioethicist. I entered medical school in September, 1967. In December of that same year, Dr. Christiaan Barnard performed the first successful heart transplantation in South Africa and medicine was changed forever! His achievement was made possible by unprecedented medical advances, including cardio-pulmonary resuscitation, the portable ventilator, and immunology. In England that same year, Dame Cicely Saunders opened the first purpose-built hospice, St Christopher’s. The hospice was opened largely in response to deep fears that technological advances in medicine would bring with them undesirable consequences. For example, some people feared that those who could not be cured would be abandoned, or that applying medical technologies to those who were dying was dehumanizing.
When I began medical school, formal ethics education was virtually non-existent. Notions about medical morality and physician ethics were instead conveyed by the “Hippocratic tradition” and professionalism’s commitment to acting to promote patient welfare, doing no harm, and acting justly. The advances of modern medicine and the rights movements of the 1960’s and 1970’s raised questions about health care decision-making. In 1979, Beauchamp and Childress introduced their “Principles of Bioethics” as guiding principles for ethical health care decision-making in our pluralistic and secular world. These principles included: respect for autonomy; beneficence (i.e., do good); non-maleficence (i.e., do no harm), and and justice. Despite the fact that there was no formal ordering of these principles, patient autonomy became the trumping principle, with little consideration of the need for respecting other collective interests.
In 1982 Eric Cassel’s landmark work on suffering and the goals of medicine identified crucial distinctions between pain, where medicine has much to contribute, and suffering, where medicine has a more modest contribution. In 1993 at the Kennedy Institute of Ethics at Georgetown University, I studied the internal morality of medicine with Dr. Edmund Pellegrino and participated in the Hastings Center international project on the Goals of Medicine in light of advances in science and technology and patient rights. Despite this research the Canadian Medical Association’s 2014 policy “supports the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding to provide medical aid in dying” with no mention of the morality or goals of medicine. How physician conscience is formed is unclear.
I have experienced technology’s dominance in medical care; the rejection of notions of the internal morality of medicine and inherent goals for medicine; the rise of a bioethics dominated by patient autonomy; the failure to accept palliative care’s vision of dying as a normal and natural human reality; and the conflation of pain and suffering. The inevitable consequences are the medicalization of suffering and of death itself.
The legal debate over the right to assisted suicide is over, but there is much legislative and ethical work to do. The Canadian Medical Association and other physician organizations will need to develop criteria, competency determination, education, and standards of care for this new medical act. As well, there will be a need for ongoing critical analysis and reflection on the Canadian experience. Palliative medicine will be particularly affected. Moreover, protection of conscience will be no easy task when the right to assisted suicide is construed as a Charter right.
Life will go on; dying will continue; but death and medicine have been changed forever.
Sister Nuala Kenny is Emeritus Professor, Dalhousie University and former Ethics and Health Policy Advisor to the Catholic Health Alliance of Canada