Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada

Appendix "A"

The Witnesses

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A1.    Overview

A1.1    The defendant governments called 18 expert witnesses. Four came from outside Canada; of these, three were from the United States and one from the United Kingdom.207  Only two came from a jurisdiction (Oregon) where assisted suicide and/or euthanasia were legal.

A1.2    In contrast, the plaintiffs called more than twice the number of expert witnesses as the two defendant governments (40 to 18). 24 of their witnesses came from outside the country, and 11 of these were from jurisdictions where assisted suicide and/or euthanasia are legal (Oregon, Washington, Belgium, Switzerland, Netherlands).208 Their evidence included testimony from two physicians who actually provided assisted suicide or therapeutic homicide, something quite outside the experience of defendant witnesses.209

A1.3    Of the plaintiff witnesses, 12 Canadian physicians210 and six physicians from other countries211 gave evidence that they believed that assisted suicide and euthanasia could be ethically provided. Canada challenged the weight to be given to the opinions of two of the Canadian physicians,212 who were not among the four witnesses whom the judge cited as representative of the views of the group.213

A1.4    Only six physicians, all from Canada, spoke against the notion that the procedures could be ethical.214 Of these, Dr. Romayne Gallagher spoke strongly against it,215 one was not cited or quoted, but presumably did so as well,216one did not speak directly to the issue,217 and three appear to have been ambivalent.218

A1.5    The numbers alone suggest that the plaintiffs were at an advantage, but numbers alone do not tell the whole story. The judge was required to assess the credibility of the witnesses and the weight to give their evidence. To some extent this was an unavoidably subjective process, so it is important to take note of factors that might reasonably be considered in weighing the evidence, and to pay particular attention to the judge’s explanation of why she accepted or rejected the evidence of witnesses.

A2.    Defendants' witnesses

A2.1    Three of the defendant witnesses were somewhat ambivalent about the ethics of participation in or morality of assisted suicide or euthanasia.

A2.2    Professor of psychiatry Dr. Harvey Chochinov stated, "At this point in time, I would not be prepared to participate in a scheme permitting physician-assisted suicide or intentional death by medical practitioner," (emphasis added),219 which suggested that he might be willing to do so in future. The judge took note.220

A2.3    Dr. Eugene Bereza, Director of the Biomedical Ethics Unit, McGill University Faculty of Medicine, was not sure if it was possible in all cases to clearly distinguish between withholding or withdrawing life-sustaining treatment and assisted suicide or euthanasia.221 He allowed that "there may be morally persuasive arguments for physician-assisted death in some cases," though he was against a change in the law because of the risk "of unjustifiable death to vulnerable individuals."222 His admission at trial was consistent with comments he made after the Carter decision was announced, to the effect that, in rare cases, assisted suicide or euthanasia might be considered, and that it may be possible to have both good, accessible palliative care and assisted suicide and euthanasia.223 That statement was not inconsistent with the outcome of the trial. Although it cannot be said that Dr. Bereza testified in favour of legalizing the procedures, neither were the plaintiffs unjustified in citing his evidence in support of their proposition that "assisted dying and palliative care are not mutually exclusive."224

A2.4    Dr. Douglas McGregor, a palliative care specialist, agreed that if the procedures were legalized, with appropriate safeguards, physicians could comply with the law without violating tenets of medical ethics, though he added, "I'm not sure that's the right thing to be doing in our society."225 The judge took note.226

A2.5    With respect to the effectiveness of safeguards and the consequences of legalization in other countries, the text of the ruling indicates that the defendants' evidence was provided primarily by six witnesses: Baroness Ilora Finlay, Dr. Charles Bentz, Professor John Keown,Professor Brian Mishara, Dr. Herbert Hendin and Dr. Jose Pereira.

• Baroness Finaly, a pioneer and specialist in palliative care, offered opinions, not research results, though the judge considered her opinions to be within her field of expertise as a palliative care physician.227
•  Dr. Bentz was an internal medicine specialist who had published nine papers about tobacco smoking cessation. His evidence about safeguards was based upon his experience with only one patient.228
• The evidence of Dr. Keown, a professor of law who held the Rose Kennedy Chair of Christian Ethics at Georgetown University in Washington, D.C., consisted of his opinions, apparently unsupported by empirical research.229
• Professor Mishara stated that the high rate of assisted suicide in Switzerland resulted from the absence of legal controls,230 a point that did not speak to the effectiveness of controls where they existed.
• Dr. Pereira acknowledged that he had not done original research, that he relied entirely on secondary sources, that his interest in the subject was of recent origin, that he had not made a lengthy study of the effectiveness of safeguards, and that his single paper on the subject appeared in a relatively low-ranking medical journal.231
• The judge acknowledged that Dr. Hendin was a leader in suicide prevention, but noted that he had not done empirical research into euthanasia and assisted suicide. His evidence was challenged,232 and his testimony that "voluntariness is compromised, alternatives not presented and the criterion of unrelievable suffering is bypassed" was "significantly weakened" on cross-examination.233 The judge was left in doubt about his impartiality.234

A2.6    The evidence provided by Dr. Pereira on the subject of safeguards proved unexpectedly problematic. He testified all day on 22 November, 2012. He was cross-examined at length the following day about the paper published in Current Oncology,235 which had been submitted in evidence and formed the basis for his expert report.236 The Farewell Foundation, an intervenor supporting the plaintiffs, described the cross-examination:

Again and again, counsel for the plaintiffs handed up the references that Dr. Pereira had cited, saying that his references did not seem to support the propositions he was making in his paper. Repeatedly, Dr. Pereira conceded that he had not provided an appropriate source for various propositions and facts. Sometimes he even interrupted counsel, admitting "That was an error," because he could see the improper citation before counsel could finish the question.237

A2.7    Although the Farewell Foundation writer asserted that the paper was "strongly discredited," the judge made no comment on Dr. Pereira's performance under cross-examination. It is possible that intervenor bias coloured the writer's assessment (perhaps accounting for the absence of comment by the judge), but subsequent developments support the view that the impugned paper was poorly written, and that Dr. Pereira's credibility as an expert about safeguards was severely damaged.238

A2.8    However, the judge's adverse comments about Dr. Hendin were consistent with the following account, also provided by the Farewell Foundation:

When counsel for the plaintiffs asked Dr. Hendin to confirm references that were cited in his affidavit for Canada, Hendin declared that he could not actually affirm that the references supported his propositions. He told the Court that he never actually read some of the articles, it was a mistake, and he did not have the chance to check his own references. . .

. . . It was expected that Dr. Hendin’s testimony would last a minimum of 4 hours, but it terminated after only 2.5 hours. His very long and rambling answers appeared to bewilder the court when a yes or no response was all that was requested. A number of times counsel apologized for interrupting Dr. Hendin in order to redirect him to the question. Justice Smith intervened a couple of times to ask Dr. Hendin to please answer the question directly.239

A3.    Plaintiffs' witnesses

A3.1    The plaintiffs provided evidence from nineteen witnesses about jurisdictions where assisted suicide and euthanasia are legal. Six of these appear to have contributed primarily factual information and some explanatory commentary on the text and operation of laws and regulations. Their evidence seems to have been largely neutral with respect to the issues before the court, and the judge relied on a number of them when describing legal regimes and practices.240

A3.2 Of the plaintiff witnesses who addressed the effectiveness of safeguards and the consequences of legalization,

• three members of a euthanasia/assisted suicide advocacy group spoke of their experience in counselling about 2,900 terminally ill patients and their physicians,241
• two physicians discussed their direct involvement in assisted suicide or euthanasia,242
• a retired director and CEO of the Oregon Hospice Association explained how her observations and experience had moved her from opposing assisted suicide to supporting it,243
• two specialist/researchers offered opinions that safeguards can be effective in preventing the abuses and reducing the risks feared by the defendants.244

A3.3    The most extensive evidence on the subject of safeguards was provided by six plaintiff witnesses with notable credentials: Professor Luc Deliens, Professor Helene Starks, Dr. Gerritt Kimsma, Dr. Linda Ganzini, Professor Margaret Pabst Battin and Dr. Johannes J.M. van Delden.

• Professor Deliens was the co-author of numerous empirical studies on end-of-life decisions,245 several of which were cited in the ruling.246
• Professor Starks spent five years as a research manager and co-investigator in a study exploring assisted suicide and euthanasia from the perspective of the patients and families involved in the procedures.247
• Dr. Kimsma developed and was an instructor in a Netherlands program that supports and consults with physicians dealing with euthanasia requests and, with Professor Battin, co-authored one of the studies cited in the ruling.248
• Professor Battin's research focus was assisted suicide and euthanasia; the judge referred to three of her papers.249
• Dr. Ganzini, an Oregon pyschiatrist, had fifteen years' experience studying physician-assisted suicide in the state, co-authoring numerous studies on the subject.250
• One should also note that defendant witnesses, including Dr. Keown and Dr. Pereira, sought support for their positions in research done by Dr. Ganzini.251
• Dr. van Delden is said to have participated in "all of the major empirical studies into end-of-life care that have taken place in the Netherlands since 1990."252

A4.    Assessing the evidence of the witnesses

A4.1    Madam Justice Smith described Dr. Ganzini and Professor Battin as "impressive, respected researchers, who have both made a long-term study of the ethics, and risks, of assisted suicide and euthanasia" and had carefully analyzed the evidence. She said that Dr. Starks' evidence was "carefully and fairly presented" and accepted it, commenting favourably on her objectivity.253

A4.2    In contrast, the judge acknowledged the expertise of Dr. Pereira, Baroness Finlay and Dr. Hendin, but commented that none had done empirical research to support their opinions.254 She accepted the anecdotes provided by Dr. Hendin and Dr. Bentz, but the value of anecdotal evidence is limited: in this case, to demonstrating that "safeguards cannot be assumed to be 100% effective." 255

A4.3    Justice Smith did not uncritically accept all of the plaintiffs' evidence. For example, she found Professor Luc Deliens evasive with respect to one point on cross-examination, and that it seemed he did not want to admit that a study he had co-authored reported that patients 80 years of age and older were especially vulnerable to "life-ending acts without explicit request."256 In other respects she appears to have found his evidence satisfactory.

A4.4    The judge also reviewed the evidence of fourteen defendant witnesses257 and eleven plaintiff witnesses258 to consider the feasibility of establishing effective safeguards in Canada.

A4.5    With respect to risks associated with patient competence, she gave greater weight to the evidence of plaintiff witnesses Dr. Donnelly, Dr. Smith and Dr. Ganzini, two of whom (Dr. Connelly and Dr. Smith) were psychiatrists with particular expertise in assessing competence. In comparison, she noted that defendant witnesses the expertise of Dr. Hendin, Professor Heisel and Professor Mishara lay in suicide prevention, that of Dr. Gallagher and Dr. Finlay in palliative care, and appears to have disregarded Dr. Sheldon's views as outside the "mainstream."259 On the issue of risks arising from subtle pressures or coercion, she reached her conclusion by drawing on the evidence of both defendant and plaintiff witnesses.260

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Notes

207.    Carter BCSC, supra note 1 at para 160 (Dr. Charles Bentz and Dr. N. Gregory Hamilton [Oregon]; Prof. John Keown [USA]; Baroness Illora Finlay of Llandaff [United Kingdom]).

208.    Ibid (Dr. Jean Bernheim and Prof. Luc Deliens [Belgium]; Dr. Georg Bosshard [Switzerland]; Dr. Linda Ganzini, Ms. Ann Jackson and Dr. Peter Rasmussen [Oregon]; Dr. Gerrit Kimsma, Prof. Johan Legemaate and Dr. Johannes J.M. van Delden [Netherlands]; Prof. Helene Starks and Dr. Thomas Preston [Washington state]).

209.    Ibid at para 743-745 (Dr. Gerrit Kimsma, Dr. Nancy Crumpacker).

210.    Ibid at para 254 (Dr. William Shoichet, Dr. David Bell, Dr. Marcel Boisvert, Dr. David Boyes, Dr. Eric Cassell, Dr. Sharon Cohen, Dr. Michael Klein, Dr. S. Lawrence Librach, Dr. Scott K. Meckling, Dr. Derryck Smith, Dr. Ross Upshur, Dr. Philip Welch).

211.    Ibid at para 261 (Dr. Michael Ashby [Australia], Dr. Nancy Crumpacker [Oregon, USA], Dr. Kimsma [Netherlands], Dr. Thomas Preston [Washington state, USA], Dr. Peter Rasmussen [Oregon, USA] and Dr. Rodney Syme [Australia]).

212.    Ibid at para 255 (Dr. David Boyes and Dr. Marcel Boisvert).

213.    Ibid at para 256, 257 (Dr. Michael Klein), 258 (Dr. Sharon Cohen), 259–260 (Dr. S. Lawrence Librach), 262 (Dr. Thomas Preston).

214.    Ibid at para 263 (Dr. Harvey Chochinov, Dr. G. Michael Downing, Dr. Herbert Hendin, Dr. Romayne Gallagher, Dr. Douglas McGregor, Dr. José Pereira, Dr. Leslie J. Sheldon).

215.    Ibid at para 271 (Dr. Romayne Gallagher).

216.    Dr. José Pereira.

217.    Ibid at para 272 (Dr. Herbert Hendin).

218.    Ibid at para. 265 (Dr. Douglas McGregor), 267 (Dr. G. Michael Downing); 268-270 (Dr. Harvey Chochinov).

219.    Ibid at para 270.

220.    Ibid at para 353.

221.    Ibid at para 251.

222.    Ibid at para 253.

223.    In response to the interviewer’s question, “Why can’t we have both?” (i.e. accessible palliative care and assisted suicide/euthanasia for the 3-6% who can’t be palliated) he said, “. . . What I think I’m saying to you is ‘exactly,’ right? Um, in my experience - and it’s just my experience - I would honestly say that in the thousands and thousands of cases I’ve been party to. . . there probably has been, have been a very few where I would argue that it was ethically permissible to consider something like physician assisted suicide or euthanasia. But I’m talking about, possibly I could count on one hand. Because all the others . . . the 98% of the others would have been very well and better handled through good palliative care. For those other rare ones, what can we do? Well, maybe then we should consider some kind of exception, but that’s not what we’re doing now. We’re jumping to that other one before we’ve taken care of that huge percentage. So my concern - I mean, at the end of the day, I think we might possibly need both, but we’re already thinking about changing the second one way before we’ve addressed the issue of, you know, 65-70% of Canadians can’t access the very thing that, if they had, wouldn’t make us have to consider this option.” CBC Radio, Cross Country Checkup, 24 June, 2012.

224.    Carter v. Canada (Attorney General) 2012 BCSC 886 (Written Submissions of the Plaintiffs: Plaintiffs’ Application – Rule9-7) at para 225.

225.    Carter BCSC, supra note 1 at para 265.

226.    Ibid at para 354.

227.    Ibid at para 387.

228.    Ibid para 411.

229.    Ibid at para 244-245, 374-375, 452, 501.

230.    Ibid at para 603.

231.    Ibid at para. 377.

232.    Ibid at para 373.

233.    Ibid at para 504.

234.    Ibid at para 664.

235.    José Pereira, “Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls”(2011) 18:2 Current Oncology 38.

236.    J Downie, K Chambaere K & JL Bernheim, “Pereira’s attack on legalizing euthanasia or assisted suicide: smoke and mirrors” (2012) 19:3 Current Oncology 133 [Downie et al 2012] at 133.

237.    “Carter Trial, Day 8: Wednesday, November 23, 2011" (24 November, 2011), Farewell Foundation for the Right to Die (blog).

238.    Downie et al 2012, supra note 236 (“Pereira makes a number of factual statements without providing any sources. Pereira also makes a number of factual statements with sources, where the sources do not, in fact, provide support for the statements me made. Peirera also makes a number of false statements about the law and practice in jurisdictions that have legalized assisted suicide and euthanasia.”) Dr. Pereira acknowledged “some errors in the references and subtleties that are regrettable” but insisted that most of the paper was correct: (José Pereira, “Casting stones and casting aspersions: let’s not lose sight of the main issues in the euthanasia debate” (2012) 19:3 Current Oncology 139 at 139.

239.  “Carter Trial, Day 9-10: November 24-25, 2011" (30 November, 2011), Farewell Foundation for the Right to Die (blog).

240.  Professor Penney Lewis (professor of law, researcher, commentator); Professor Mary Shariff (researcher); Professor Sabine Machalowski (law); Professor Johan Legematte (professor of health law); Mark Connelly (lawyer, civil liberties advocate); Dr. Georg Bosshard (family physician, ethicist, researcher).

241.    Carter BCSC, supra note 1 at para 407–408 (George Eighmey, Jason Renaud and Robb Miller of Compassionate & Choices).

242.    Ibid at para 744–745 (Dr. Gerritt Kimsma and Dr. Nancy Crumpacker).

243.    Ibid at para 409 (Ann Jackson).

244.    Ibid at para 582–587 (Dr. Michael Ashby, Dr. Jean Berheim).

245.    Ibid at para 521.

246.    Johan Bilsen et al, “Changes in medical end-of-life practices during the legalization process of euthanasia in Belgium” (2007) 65:4 Soc Sci Med 803;  • Kenneth Chambaere et al, “Physician-assisted deaths under the euthanasia law in Belgium: a population-based survey” (2010) 182:9 Can Med Assoc J 895; • Kenneth Chambaere et al, “Trends in Medical End-of-Life Decision Making in Flanders, Belgium 1998-2001-2007" (2011) 31:3 Med Decis Making 500; • Luc Deliens, “End of Life Decisions in Medical Practice in Flanders, Belgium: A Nationwide Survey” (2000) 356:9244 Lancet 1806; • Tinne Smets et al, “Legal euthanasia in Belgium: characteristics of all reported euthanasia cases” (2010) 48:2 Med Care 187; • Tinne Smets et al, “Euthanasia in patients dying at home in Belgium: interview study on adherence to legal safeguards” (2010) 60:573 Brit J Gen Pract; • Tinne Smets et al, “Reporting of euthanasia in medical practice in Flanders, Belgium: cross sectional analysis of reported and unreported cases” (2010) 341:c5174 Brit Med J; • Yanna Van Wesemael et al, “Process and outcomes of euthanasia requests under the Belgian Act on euthanasia: a nationwide survey” (2011) 42:5 J Pain Symptom Manage 721.

247.    Carter BCSC, supra note 1 at para 439 (Ashok J Bharucha et al, “The Pursuit of Physician-Assisted Suicide: Role of Psychiatric Factors” (2003) 6:6 J Palliat Med 873.

248.    Ibid at para 160, 489 ( Frances Norwood, “Vulnerability and the ‘slippery slope’ at the end-of-life: a qualitative study of euthanasia, general practice and home death in The Netherlands” (2009) 26:6 Fam Prac 472.

249.    Margaret P Battin et al, “Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on ‘vulnerable’ groups” (2007) 33:1 J Med Ethics 591; • Margaret P Battin, “Physician-Assisted Dying and the Slippery Slope: the Challenge of Empirical Evidence” (2008) 45 Willamette L Rev 91; • Margaret P Battin et al, “Legal physician-assisted dying in Oregon and the Netherlands: The question of ‘vulnerable’ groups. A reply to I.G. Finlay and R. George” (2011) 37:3 J Med Ethics 171.

250.    Carter BCSC, supra note 1 at para 160.

251.    Ibid at para 447, 451 (Linda Ganzini, Elizabeth R Goy & Stephen K Dobscha, “Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey” (2008) 337:a1682 Brit Med J.

252.    Ibid at para 160.

253.    Ibid at para 651–652.

254.    Ibid at para 664

255.    Ibid at para 653.

256.    Ibid at para 576-577.

257.    Dr. Eugene Bereza: para 807, 821; Dr. Harvey Chochinov: para 801, 815, 827-828, 830; Dr. G. Michael Downing: para 839; Euthanasia Prevention Coalition: para. 853; Baroness Ilora Finlay: para 774, 797, 808, 841; Professor Catherine Frazee: para 811, 815, 848-851, 853; Dr. Romayne Gallagher: para 765, 771-772, 797, 801, 808, 815, 821, 822-823, 840; Professor Marnin Heisel: para 768-769, 792, 796, 812, 815, 827, 845; Dr. Herbert Hendin: para 794, 796; David Martin: para 848; Professor Brian Mishara: para 766-767, 791, 796, 799-800, 809, 832-834, 838; Dr. Jose Pereira: para 821; Dr. Gary Rodin: para 827-828; Dr. Leslie J. Sheldon: para 776, 796; Rhonda Wiebe: para 848.

258.    Professor Margaret Battin: para 833, 835, 842-843, 847, 852; Professor Jean Bernheim: para 807, 821, 846; Professor Luc Deliens: para 846-847, 852; Dr. Martha Donnelly: para 762-764, 781-784, 790, 803-804, 815; George Eighmey : para 836; Dr. Linda Ganzini: para 775, 777, 788-789, 793-794, 802-803, 805, 809, 815, 824, 828-829, 835, 847; Dr. Scott K. Meckling: para 773, 825; Dr. Peter Rasmussen: para 810; Jason Renaud: para 836; Dr. Derryck Smith: para 778-780, 786-787, 794; Professor Helene Starks: para 828, 835; Dr. Johannes J. M. van Delden: para 847; Professor James Werth: para 813-814, 833.

259.    Carter BCSC, supra note 1 at para 795-797.

260.    Ibid at para 815.