A constitutional right to palliative care

June 6, 2016

Starting today physicians in Canada can commit acts of assisted suicide and euthanasia without facing criminal penalties. The deeply flawed law proposed to regulate these “procedures” is still under debate in the Senate, so the present legal framework is murky. Looking for a silver lining in these dark clouds, I propose an argument I’ve not seen elsewhere.

In Carter v Canada the Supreme Court of Canada claimed to discover a right to assisted suicide (and euthanasia?) in the Canadian Charter of Rights and Freedoms, and more specifically in Section 7, which reads

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Initially — and perhaps also persistently — it seems mysterious that the Court would seek to ground a right to death in a constitutional provision protecting the right to life, but here is the Court’s reasoning in the Carter decision:

The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

Focusing for a moment on the first part of the argument: the Court claims that a prohibition on assisted suicide violates the right to life because it forces some people to kill themselves before they otherwise would were assisted suicide permitted.

Let’s try to put this into the form of a syllogism:

(a) Forcing someone to kill himself violates his right to life.
(b) Failure to provide assisted suicide forces someone to kill himself.
(c) Therefore, failure to provide assisted suicide violates the right to life.

This reasoning is obviously tendentious — premise (b) is false — but for the moment let’s take it for granted. I want to suggest that this same reasoning implies that Canadians enjoy a constitutional right to palliative care.

The argument is simple: absent effective palliative care some individuals will be “forced” to kill themselves — whether directly or through activation of our newly-minted right to assisted suicide — earlier than they would had they access to palliative care. Therefore failure to provide such palliative care to Canadians violates their right to life. In the syllogism above, just replace “assisted suicide” with “palliative care”.

The other arguments deployed by the Court in the section above, pertaining to the rights to liberty and security of the person, are just as relevant to the case of palliative care: without access to palliative care Canadians cannot truly “make decisions concerning their integrity and medical care” (for at least one option for which they might decide is unavailable), and failure to provide palliative care abandons patients “to endure intolerable suffering” and so “impinges on their security of the person”.

Today only 16-30% of Canadians have access to palliative care.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: