Peter Hogg

Doctor-assisted suicide cannot be restricted to terminally ill: lawyer

By 
  • January 27, 2016

OTTAWA - Legislation that tries to restrict assisted suicide and euthanasia to the terminally ill would likely fail a court challenge, a prominent constitutional lawyer told a Parliamentary committee.

Appearing as an expert witness Jan. 25 before the joint Parliamentary Committee on physician-assisted suicide, Peter Hogg, who argued on behalf of the previous Conservative government against euthanasia and assisted suicide, warned against creating what he called substantive safeguards, such as limiting access of the practice to the terminally ill. He said last year’s Supreme Court decision, which struck down the blanket ban against assisted suicide, did not limit assisted suicide to people who are dying.

If the new law says the person’s illness “has to be terminal,” Hogg pointed out, “you will certainly get challenges.”

Hogg also said a law that made assisted suicide available to children 16 or under would unlikely survive a legal challenge, because the high court restricted the practice to competent adults. But there could be some leeway for those between 18 and 21, he said.

Hogg told the committee that the previous government had opposed physician-assisted suicide because it believed it was “impossible to design effective safeguards to prevent error or abuse.” The Supreme Court, however, ruled that safeguards could be implemented, which is the reason it gave the government 12 months and recently added four additional months to design those safeguards.

Hogg urged the committee to recommend adding safeguards to the Criminal Code to ensure that there is a uniform law governing assisted suicide across the country. Without Criminal Code amendments, there is no guarantee all provinces and territories will enact statutes.

“You have to design a law effective across the country” even if some provinces or territories decide to do nothing, he said.

Without federal legislation, the right granted by the Supreme Court to assisted suicide would be uneven across the country.

“It’s very important to recognize that there’s no guarantee that all provinces will enact statutes,” Hogg said. “So you have to design a law that can be effective throughout the country even on the assumption that there is no provincial law or territorial law in part of the country.”

Physician-assisted death, according to the court, includes both voluntary euthanasia, where a physician administers the lethal drug with the person’s informed consent, and assisted suicide, where the patient administers the lethal drug prescribed by the physician, Hogg said.

Hogg also recommended procedural safeguards, such as requiring a second doctor be consulted to assess competence, as well as a waiting period and perhaps making it mandatory that a request be in writing.

Outside the hearing room, Hogg said the Supreme Court has created a “positive right” to physician-assisted death. It is left to Parliament to establish guidelines that are in accordance with the Charter, he said.

Bioethicist Margaret Somerville disagreed with Hogg’s interpretation that physician-assisted death is a right subject to certain conditions. Rather than a right, she believes the court has granted an exception to the ban on physician-assisted death that only applies in certain circumstances.

“The difference is major,” she said in an e-mail.

“The former is a basic presumption that ‘yes, you may have physician-assisted death, provided you fulfill these conditions.’ The latter is, ‘no, you may not have physician-assisted death, but an exception will be granted if you fulfill these conditions.’

“The former is much more damaging to the right to life value, although both damage it, and rejects the long-established legal maxim of a presumption in favour of life,” she said.

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