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Confusing the issue
By Tom KochForget issues of terminal illness and the end of life. The court case that began Monday in the B.C. Supreme Court is not about the right to die (you will die) or a right to life (you’ve got that). It is not about the right to be free of pain in the midst of an illness. Palliative care, all agree, is the basis of good chronic care medicine.
In the case currently before the B.C. Supreme Court, the principal plaintiff, the British Columbia Civil Liberties Association, argues in its statement of claim that Section 7 of the Charter of Rights — which gives us all the right to life, liberty and security of person — should be read to mean a right to medical termination upon request. Any state-imposed restriction on the right they champion is an affront, their petition says, to human dignity.
They further argue there is a duty under the Charter’s Section 15 to provide terminal assistance to those who by dint of physical limits cannot kill themselves. Anything less would be a kind of disability discrimination.
That’s the question, in a nutshell. Does a right to freedom and security of person include the right to be killed upon request by state-licensed physicians?
The case is being presented — in the public and in the courts — as if it was about the desire of those at the painful end of life to be released early from it. And, too, the Royal Society of Canada’s report is called “End-of-life decision-making.” The plaintiffs’ lawyer, Joe Arvay, told the Toronto Star’s Petti Fong, “For a small and important percentage, the process of dying will be very painful. . . It is about those people this case is about.”
But the sole medical plaintiff, 63-year-old Gloria Taylor, a person with Lou Gehrig’s disease, is not in pain. Court filings instead state her condition is well managed and any physical discomfort well palliated. Nor is she in danger of imminent death. Taylor is not cachectic (wasting), is not losing her voice (at least according to TV clips) and is mobile, using a wheelchair. She fears incontinence as a future complication.
Other plaintiffs include Lee Carter and her husband, Hollis Johnson, who two years ago accompanied her mother, Kathleen, to Switzerland where she was given a fatal overdose of barbiturates at Dignitas, a euthanasia clinic. In their statement they agree that Kathleen Carter’s condition, while limiting, was well palliated and that she received fairly extensive care and support. She might have lived for some years had she not gone to Switzerland for termination.
And yet most of the affidavits filed for and against the plaintiffs’ case focus upon the condition of the seriously ill if not also end-stage patient in pain and suffering. That’s the public face of the libertarian argument advanced by the plaintiffs and by members of the Royal Society of Canada’s expert panel.
Those opposing the plaintiffs’ argument do so on a number of grounds. They worry, for example, that making death a convenient option will make it the preferred treatment in cases where medical resources are limited. They fear, too, a “slippery slope” in which what is argued for the terminally ill, and then the seriously ill, will become a vehicle for the depressed and those challenged in any number of ways.
Both the plaintiffs’ filings and the Royal Society’s report make this concern real.
Others filing against the plaintiffs’ claims note that people who have suffered a grievous injury or stroke resulting in paralysis or the loss of a limb are often depressed. With time, rehabilitation and treatment, most find that after a period of adjustment, life, while different, is well worth living. Many continue as valuable members of society. But if the plaintiff’s petition were accepted, then people depressed by the effects of an illness (stroke, for example) or an injury (paralysis) could choose to die immediately. As a result, we would lose those among us whose challenges would otherwise not have been terminal.
To guard against that, the issue is framed by both sides as one of medical judgment, one in which doctors would be the ones who assessed a patient’s life and fitness to continue. But if one takes the argument by some whose affidavits the plaintiffs have enlisted in support, this is unacceptably paternalistic. If it’s a person’s choice, so be it. Doctors may be technicians in the enterprise but not the arbiters of life and death.
That, the plaintiffs’ brief implies, is okay. It’s . . . their choice. Some argue that laws in U.S. states (Washington and Oregon, for example) and European countries (Belgium, Holland, Switzerland) lay to rest those fears. Others quoting the same studies say they prove the slippery slope is real.
But in none of those jurisdictions is termination anything but a medical judgment, the last procedure in the extreme case and one that is never easy. This is an argument made by one of the proponents of the Dutch euthanasia system, Amsterdam physician Gerrit Kimsma. A practising physician and proponent of liberalizing physician termination, he has used it on patients with late stage, incurable conditions. But even in those extremes it is, he says in his lectures, always an emotional and traumatic last choice made at the end of life when all other palliative and treatment options have failed.
That is not what is argued here, however, although the B.C. Supreme Court case and the Royal Society’s report are dressed up as if that were the case.
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