Tuesday, October 10, 2017

UK High Court rejected assisted suicide but it also rejected part of Canada's Supreme Court euthanasia decision.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition



On October 5, the UK High Court rejected assisted suicide in its Conway decision by rejecting the claim that prohibiting assisted suicide and euthanasia was a breach on Mr. Conway's human rights.

In the Conway decision, the UK High Court also rejected parts of Canada's Supreme Court Carter euthanasia decision. Paragraphs 122 and 123 dealt with issues relate to Carter:

Mr Gordon also referred to the decision of the Supreme Court of Canada in Carter v Canada [2015] SCC 5, in which the court held that the ban on assisted dying in Canada was invalid under the Canadian Charter of Rights and Freedoms. He relied in particular on [114]-[115], in which the court referred to concerns about decisional capacity and vulnerability and observed that these concerns already arise in all end-of-life medical decision-making, including in relation to refusal by an individual of life support treatment. 
We did not find the decision in Carter to be of assistance. It turned critically on provisions of the Canadian Charter (section 1 and section 7) which are in different terms from Article 8 of the ECHR and which engage a different analysis: see in particular [76]-[78]. It also turned critically on findings by the trial judge in the proceedings on evidence before her in relation to the effectiveness of safeguards for vulnerable people which the Supreme Court held could not be challenged on appeal: [108]-[121]. The evidence before us is different and we have made our own findings in the light of it. Our reasoning in relation to the comparison with cases where an individual refuses life support treatment, such as In re B, is set out above. Moreover, the decision in Carter was concerned with the category of people who face unbearable suffering, rather than the category which Mr Conway identifies of people who face death within six months.
Conway also upheld the long held position that there is a clear difference between killing and letting die. Canada's Carter decision rejected this logical position. Conway stated:
Moreover, in our opinion it is clearly legitimate for parliamentarians to take the view that there is a crucial distinction between cases where medical treatment is withdrawn because it can no longer be justified, with the result that the patient dies, and the present case where Mr Conway seeks to have steps taken actively to assist him to end his life. It is a distinction which they are entitled to regard as similar to the “crucial distinction” referred to by Lord Goff in Bland at p. 865D between cases where medical treatment is being withdrawn and cases in which steps are taken actively to end a person’s life. Parliamentarians are entitled to conclude that the cases on either side of this principled dividing line are and should be treated as legally and morally distinct.

The Care Not Killing Alliance noted that the decision also found that doctors cannot determine, with certainty, whether or not someone has six months to live. Conway found:
'Mr Strachan says that the criterion that assistance for suicide would only be available to individuals with less than six months to live would not be capable of being applied with any certainty. Medical science does not permit such an assessment to be made with any degree of accuracy. There is force in this point... [as in] Baroness Finlay's assessment that time of death for a particular individual with MND cannot be predicted with any reasonable accuracy. Professor Barnes confirmed that it is not possible to find it out from testing simple biomarkers and that prognostication of time of death would be a very difficult matter of clinical judgment. Professor Stebbing also gave evidence that "a clinician's prediction is not a very reliable or robust method of predicting survival."'
In conclusion, Conway stated that parliament has the right to legislate on these matters:
It is legitimate in this area for the legislature to seek to lay down clear and defensible standards in order to provide guidance for society, to avoid distressing and difficult disputes at the end of life and to avoid creating a slippery slope leading to incremental expansion over time of the categories of people to whom similar assistance for suicide might have to provided.
The UK court has consistently opposed assisted suicide and has upheld the right of parliament to legislate on euthanasia and assisted suicide.

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