Transparency essential in assisted dying applications.

This article was published by Advocate Daily on February 10, 2016.

Hugh Scher

While some anticipate that those seeking personal constitutional exemptions for physician-assisted suicide will want anonymity, Toronto human rights and constitutional lawyer Hugh Scher tells Lawyers Weekly that scrutiny and transparency in end-of-life practices are key to detecting and deterring abuse.

Although the Supreme Court of Canada ruled the ban on physician-assisted suicide unconstitutional in its landmark decision last year in Carter v. Canada (Attorney General), the ban has been left in force until June to allow Parliament time to draft a new law. In mid-January, the Supreme Court ruled that those who meet the criteria the court set out last year may apply to a superior court to be exempted from the Criminal Code’s blanket prohibition of assisted suicide.

In the meantime, Lawyers Weekly says some lawyers and judges could be faced with questions such as when should a lawyer take on this type of case, and should counsel seek anonymity for clients.

However, Scher, of Scher Law, counsel for intervener Euthanasia Prevention Coalition before the Supreme Court in the Carter case and in the case of Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341, tells Lawyers Weekly:

“The court has not provided an open-ended right to kill people…I think it’s absolutely essential that there is the ability to have clear transparency, that these proceedings be public, that they be accountable, and they are subject to appeal where appropriate.”

In some circumstances, says Scher, court interventions will also be in order, as they have been in cases involving patients’ objections to withdrawal of medical treatment, such as in the Rasouli case.

“I think it is important, in appropriate cases, that there be the means for interventions from publicly interested organizations who can help to define and explain the law to the courts, and serve a useful role as friends of the court to attempt to flesh out some of these concepts, and what the limits and parameters are," or should be, Scher says.

Ultimately, Scher says he doesn’t expect Carter applications to turn into legal battlegrounds, but that identifying vulnerability through before the fact judicial oversight should be a permanent requirement in any case of assisted suicide to ensure compliance with legislative or court-imposed safeguards.

For lawyers who do take on such cases, Scher says it is essential to “document, document, document. Be aware of the requirements," he says, both in terms of obtaining proper medical information and evidence and making sure that all second opinions relative to palliative care, capacity assessment, voluntariness and to psychiatric concerns have been accessed and met.

“Take all steps to identify vulnerability…because if you’re going ahead with somebody who is truly vulnerable in nature, that can potentially expose lawyers to other risks. You don’t want to be perpetrating a fraud on the court by effectively going through with somebody that is trying to unduly influence, or effect coercion, on somebody.”

It would also be prudent to videotape meetings and instructions, he says.

“You want to be able to truly assess the independence, the judgment of the person, [to] make sure the person you are taking instructions from has the capacity to give those instructions,” and isn’t being unduly influenced by outside sources, including family members.