Legalizing therapeutic homicide and assisted suicide: A tour of Carter v. Canada
Carter v. Canada (Attorney General) 2012 BCSC 886 |
Supreme Court of British Columbia | 15 June, 2012.
Carter Part VII: Filling in the Blanks
C1.1 Much that is necessary to understand the ethical issues and
controversies associated with end-of-life practices is absent from Part VII.
While the judge's explanation of the law of informed consent is
satisfactory, as is her explanation of the law concerning withdrawal and
refusal of treatment,377 her discussion of the
ethics of end-of-life
decision-making was seriously deficient.
C1.2 Thus, her assertion that there was no disagreement about the facts related to "existing clinical end-of-life practices and the understood legal and ethical justification for them"378
cannot be accepted at face value, particularly in view of the studied
vagueness that attends her discussion of palliative sedation. One reason for
this may be that the evidence appears to have been focused on palliative
care - the care of those who are dying - while the most spectacular
controversies about euthanasia have concerned patients who are not
C1.3 Moreover, her treatment of ethical justification (as opposed to
justification) is slender indeed. Part VII contained virtually no information
about factors that are considered in decision-making about withholding or
C1.4 As a result, Part VII is likely to contribute to confusion and make
it more difficult for conscientious objectors among health care workers to
be heard with respect. Accordingly, this Appendix reviews Part VII with a
view to providing information that was obscured by the ruling or left out of
it altogether, so that readers will be better placed to understand the basis
for objections when they arise.
C1.5 Note that the trial court decision is now
(2023) over ten years old. The law discussed in the present tense in C2 was the same at the time of the decision. References here are to contemporaneous sources. To preserve their relevance to the decision they have not been updated.
C2. Patient autonomy: the distinction between legal and ethical evaluation
C2.1 In Canada, a competent person can legally refuse any kind of
intervention or assistance, or require that it be discontinued, even if that
will result in death. When the wishes of a competent person are known, they
will be respected if he becomes incapacitated and unable to communicate.
C2.2 Incompetent persons are those who, by reason of age or disability, are
unable to provide or withdraw informed consent to intervention or
assistance. Such decisions must be made by a proxy or substitute
decision-maker, typically a family member or relative defined by common law
C2.3 Health care workers commit an assault and are able to civil action and
perhaps criminal charges if they provide intervention or assistance against
the wishes of a competent patient, or, in the case of an incompetent person,
against the direction of a substitute decision maker.
C2.4 The preceding explanation of the law in Canada was offered in Part VII in
the Carter ruling,379 but there
was no discussion of the associated ethical or
moral issues, even though, in Part VII, the judge claimed to be addressing
ethical rather than legal questions.
C2.5 What was missing from the judge's account
was an acknowledgement that a
decision to refuse intervention or assistance or require that it be
discontinued has a moral or ethical dimension, and that different religious,
moral and ethical traditions may disapprove of the decision, even though the
law does not. This can cause conflicts within families, between families and health care
workers, and among health care workers who have different moral, ethical or
C2.6 Consider, for example, a decision by a competent patient to commit
suicide by refusing food and fluids. It was acknowledged at trial that this
cannot be prevented, but nothing in the representations of the parties or in
the comments of the judge suggested that the decision might be morally or
ethically controversial. In fact, the defendants argued that the law against
assisted suicide is not discriminatory precisely because everyone could
commit suicide in this manner (C3.7.7).
C2.7 No one disputes that this is the law, and that health care workers are
bound by the law. But it is misleading to imply that the fact that health
care workers comply with the law is evidence of an ethical consensus in
favour of suicide, so that health care workers might reasonably be expected
to help someone commit suicide.
C3. Withdrawal and refusal of assisted nutrition and hydration
C3.1 Nutrition and hydration are different needs and in a clinical
situation should be considered separately, but for present purposes they
will be discussed together because the ethical considerations relevant to
withdrawing, withholding or refusing them are the same.
C3.2 Assisted nutrition and hydration: the methods
C3.2.1 Assisted nutrition and hydration (also known as "artificial nutrition and hydration" or "clinically assisted nutrition and hydration") include techniques for the delivery of nourishment and fluids to sustain life when a patient is unable to eat or drink, or when there is a significant risk of aspiration. They involve medical interventions like nasogastric tubes, percutaneous endoscopic gastrostomy (PEG) or radiologically inserted gastrostomy tubes inserted through the abdominal wall.
C3.3 The dying patient
C3.3.1 A patient who is approaching death will naturally
and gradually lose the ability to assimilate food and fluids, so that
assisted nutrition and hydration will at some point serve no purpose and may
even be contra-indicated. There was no dispute that discontinuation was justified in such circumstances, even though there may be some practical
difficulty in determining whether or not the patient has reached this stage
in the dying process.380
C3.4 Patients who are not dying
C3.4.1 If a patient is incapacitated, assisted nutrition and hydration may
be instituted while his condition is stabilized and assessed, and maintained
until the patient has recovered sufficiently to resume eating and drinking.
This is uncontroversial. However, if recovery does not occur and the patient
does not die from the underlying illness or injury, he will be dependent
upon assisted nutrition and hydration to sustain his life. At this point, a
conflict may occur between those who want to terminate assisted nutrition
and hydration, and those who want to continue it.
C3.4.2 A patient who is capable of assimilating food and
fluids and is not dying will not die merely because he is unconsciousness,
whether as a result of an injury or illness or because of sedation. But
withholding or withdrawing assisted nutrition and hydration will cause his
death, and this is controversial.381
C3.4.3 Moreover, it not just “somewhat” controversial; it
is highly so. There had been several high-profile court rulings over the
three decades prior to Carter that have led to the withdrawal of nutrition and
hydration from patients who were not dying, all of whom then died: Patricia Brophy,382 Nancy Cruzan,383 Tony Bland,384 Terri Schiavo385 and Eulana Englaro.386 A number generated heated public debate; the Englaro case precipitated a constitutional crisis in Italy.387 Three Canadian cases cited in Carter concerned withdrawal of interventions, but none had raised the specific issue of assisted nutrition and hydration.388
C3.5 Assisted nutrition and hydration: optional "treatment" or obligatory
C3.5.1 In Canada (and in many other jurisdictions), assisted nutrition and
hydration are legally considered to be forms of medical treatment, and, from
the perspective of the patient, the law considers all forms of treatment to
be optional. Reflecting the primacy of the principle of personal autonomy, a
competent patient can legally refuse any kind of medical treatment, even
life-saving or life-sustaining treatments like assisted nutrition and
hydration.389 It was acknowledged at trial that a
patient cannot be prevented from committing suicide in this manner.390 In the case of incompetent patients, substitute decision-makers
can legally refuse all forms of treatment on their behalf, including
assisted nutrition and hydration.391
C3.5.2 The law reflects the opinions of widely influential ethicists, but
cannot be said to represent an ethical consensus, unless one discounts the
views of those who disagree. Notwithstanding the law and the opinions of
influential schools of bioethics, some ethical traditions consider assisted
nutrition and hydration to be forms of care, not medical treatment.392
C3.5.3 The distinction is important, because those who make it typically
insist that, unlike treatment, care is not optional; it is a duty one owes
to others by virtue of our common humanity. While acknowledging that
assisted nutrition and hydration may be withheld or withdrawn when it cannot
be assimilated or is otherwise medically contra-indicated, they assert that
it must be provided in other circumstances if it is ordinarily accessible
C3.6 Assisted nutrition and hydration as "extraordinary" or
C3.6.1 Two other approaches can be identified. Some deem assisted
nutrition and hydration to be part of an overall treatment regime that may
include other medical interventions, like the artificial evacuation of
bladder and bowels.394 Alternatively (or, in addition) they may consider
assisted nutrition and hydration to be an artificial substitute for a failed
organ system, analogous to a ventilator used by someone unable to breathe
independently.395 On either view, refusal or withdrawal of the intervention
could be justified by reference to the principle of proportionality (C5).
C3.7 Carter and withdrawal/refusal of nutrition and
C3.7.1 Justice Smith was aware of the
controversies concerning the withdrawal of assisted nutrition and hydration
because she referred to the case of Tony Bland396 and to the cross-examination
of Professor John Keown concerning it.397 Professor Keown’s point was that
Bland was not dying and would not have died but for the withdrawal of
assisted nutrition and hydration; the intervention was withdrawn, not because it was futile, but with the intention of causing his death. The Christian Legal Fellowship drew this to
judge’s attention in its written submission.398
C3.7.2 Moreover, the judge quoted the evidence of
Dr. Michael Klein, who stated that he had been required to stop both
ventilator and tube feeding and hydration for competent patients who
specifically intended to die by such means,399 and evidence from Dr. Rodney
Syme that appears to describe the death of someone being killed by
dehydration and starvation while under palliative sedation.400
C3.7.3 It appears that, in considering all of this, the
judge overlooked the issue of intention and acknowledged only an ethical
controversy associated with the withdrawal/withholding of treatment from a
patient who had not provided informed consent or an advance directive.
She considered this irrelevant because the plaintiffs’ claims concerned
only competent adults who were acting freely on the basis of informed
C3.7.4 The plaintiffs asserted that, assuming the
requirements of informed consent had been met, deliberately causing the
death of patients by dehydration and starvation was legally and ethically
acceptable in Canada, so deliberately causing their deaths by other means
should be equally so. Justice Smith summed up their position:
In brief, the argument is that withdrawing a ventilator tube
a patient under sedation without hydration or nutrition are acts that will
result in death, just as much as the act of providing a lethal prescription
or administering lethal medications. To perform those acts, knowing of their
inevitable consequences, is to hasten death. Similarly, refraining from
life-saving treatment may result in the death of the patient, and is a
passive form of hastening death. If those practices are ethical, then so is
physician-assisted dying. ”402(Emphasis added.)
on the one hand, the distinction between withholding
nutrition and hydration from a patient when they are of no benefit or
contra-indicated, and, on the other, deliberately causing the death of a patient by
starvation and dehydration (C3.3, C3.4). This difference was ignored and
obscured by the judge’s generic reference to “maintaining a patient under
sedation without hydration or nutrition.”
C3.7.6 Withdrawing a ventilator tube, sedation, and
refraining from life-saving treatment are different kinds of acts that may
or may not be ethically justified, depending upon the circumstances and the
ethical norms applied. Moreover, physicians are legally prohibited from
providing or continuing treatment against the wishes of a competent patient
(C2). Again, the judge failed to acknowledge the differences between the
acts, the ethical and legal significance of differing circumstances, and the
existence of conflict between ethical norms drawn from different sources.
C3.7.7 The defendant governments insisted that “legally
approved end-of-life practices in Canada” could be ethically distinguished
from physician-assisted suicide and euthanasia, but they did not assert that
any “legally approved” practices were unethical.403 In fact, both Canada and
British Columbia argued that committing suicide by dehydration and
starvation was a legal option available to everyone.404 Neither suggested
that this would be considered ethically unacceptable by anyone.
C3.7.8 More to the point, they did not assert that it was
unethical for an incompetent patient who was not dying to be deliberately
starved and dehydrated to death on the orders of a substitute
decision-maker, a “legally approved” practice in Canada that remained ethically
controversial.405 Here the plaintiffs had the advantage, because the
defendant governments would have been hard placed to distinguish the
practice from euthanasia; that is how it was characterized by their own
witness, Professor Keown (C3.7.1). However, they could not identify it with euthanasia without acceding to the plaintiffs’ argument, provoking a heated response from those in the medico-ethical establishment who
supported the practice and generating widespread controversy.
C4. Palliative sedation
C4.1 Justice Smith offered the following explanation of palliative
In the context of palliative care, it is fairly widely accepted that when a
patient is close to the end of life, and is experiencing symptoms that are
severe and refractory (that is, resistant to treatment), it is ethical
practice for her physician to sedate her and maintain her in a state of
deep, continuous unconsciousness to the time of death, with or without
providing artificial hydration or nutrition ("terminal sedation" or
C4.2 Palliative sedation was unregulated, had not been judicially considered
in Canada, and standards were under development. The judge noted that
palliative sedation could not be assumed to "hasten death" when provided to patients "in the final stages of dying," and was usually provided when a
patient was within a week of death, "although it is not always possible to be
accurate in such assessments."407
C4.3 According to the judge, the practice of palliative sedation "remains
somewhat controversial,"408 and she elsewhere admitted that "some aspects of palliative sedation" were "possibly" problematic for Canadian ethicists and practitioners. For example, she mentioned controversy about the use of palliative sedation for “relief of existential suffering,” which referred to “a profound sense of loss of dignity.”409 However, she did not elaborate further.
C4.4 The controversies were not about palliative sedation per se: rendering a patient unconscious in order to provide relief from otherwise intractable symptoms. The controversies were about using palliative sedation as an anaesthetic while withdrawing or withholding food and fluids (assisted nutrition and hydration) in order to cause death, or suppressing consciousness in order to eliminate awareness of gravely trying personal circumstances, circumstances not unique to some seriously ill patients.
C4.5 The two acts (sedation on the one hand,
withholding/withdrawing nutrition and hydration on the other) are clearly
distinguishable in terms of their structure and their potential
consequences. There is no evidence that properly administered sedation can
cause the death of a patient, but it is clear that depriving a patient of
food and fluids will do so. A competent patient can commit suicide and an incompetent patient can be killed by deliberate dehydration and starvation, and palliative sedation can be used to ameliorate and mask the effects of the process.410
This is unquestionably legal when the requirements of informed consent have
been met, but, as the evidence of Professor Keown indicated, there was no
consensus - let alone a strong consensus - that deliberately causing the
death of a patient by dehydration and starvation was ethically acceptable. In
these circumstances, the controversy was not about the ethics of palliative
sedation, but the ethics of euthanasia and suicide (C3).
C5. Proportionality of interventions
C5.1 The distinction between ordinary and extraordinary (or proportionate
and disproportionate) interventions relates to the principle that one is not
ethically obliged to preserve one's health or life by recourse to
extraordinary interventions or those that are disproportionately burdensome.
Similarly, health care workers are not ethically obliged to provide
extraordinary or disproportionate interventions. This principle is
acceptable to many who believe that human life is sacred (or of inestimable
value), but who also believe that life need not be preserved at all costs.411
C5.2 One of the most common applications of this principle is in
advance directives or orders that specify "Do Not Resuscitate" (DNR) or "No
Cardiopulmonary Resuscitation" (No CPR). These are often prepared for
elderly people in frail health or those with terminal illnesses because
CPR can cause harm (such as broken ribs), while
research indicates that there is very little likelihood that CPR will have a
positive outcome for such patients. In contrast, CPR is encouraged when
there is a prospect of recovery ( such as a witnessed collapse) because the benefits outweigh adverse effects.412 The
example illustrates another important point: that interventions are not
categorized as "proportionate" or "disproportionate" without reference to
C5.3 Evaluation of the proportionality of interventions and
assistance is a ubiquitous feature of the provision of health care, so much
so that in non-critical situations it may hardly be noticed. However, in
critical care and palliative care the importance of and difficulties
associated with this kind of evaluation are likely to be more pronounced:
so, too, in the case of patients who are in persistently
minimal consciousness. Much depends on
circumstances of each case, and some degree of subjectivity cannot be
C5.4 In particular, since the patient bears most of the burdens — and usually the most significant burdens — one would expect the patient’s views about interventions and assistance to carry the greatest weight. A competent patient (or substitute decision-maker) can, in fact, refuse any kind
of intervention or assistance, even those others would consider ordinary or
proportionate. The legal basis for this is the principle of personal
C5.5 The law notwithstanding, a broad spectrum of significant religious traditions and medical
ethics derived from them hold that one is morally obliged to seek and accept
ordinary or proportionate interventions and assistance that will preserve
one's health and life, and that health care workers are obligated to provide
and maintain such services.414 From this perspective, the decision of a patient
who is not in the final stages of dying to refuse an intervention (or of a health care worker to provide it) may be
seen to be blameworthy, as in the example above of suicide by starvation.
C5.6 Again, health care workers are expected to comply with the law.
However, a health care worker who believes that a patient is wrong to refuse
an intervention may conform to the patient's wishes, not primarily because
of the law, but because that response is somehow respectful of the human
person who is the patient. It may, in short, be an ethical response, and one
that can be described as ethically correct.415 But such a response is not
indicative of an "ethical consensus" about the patient's choice. This
becomes clear when someone who has moral or ethical objections to a
patient's decision is asked to do something to make it effective.
C6.1 The subject of intention as an ethically significant element in
decision-making was introduced,416 but the judge did not pursue it because, in
her view, the focus of the Supreme Court of Canada's discussion of intention
in Rodriguez was law, not ethics.417
C6.2 The judge’s
failure to attend to intention had consequences. For example, in summarizing the plaintiffs' claim that
physician-assisted suicide and euthanasia cannot be distinguished from
accepted end-of-life practices, she said:
. . .the argument is that withdrawing a ventilator tube or maintaining a
patient under sedation without hydration or nutrition are acts that will
result in death, just as much as the act of providing a lethal prescription
or administering lethal medications. To perform those acts, knowing of their
inevitable consequences, is to hasten death.418
C6.3 However, withdrawing a ventilator may not, in fact, result
in death; Karen Ann Quinlan lived nine years after her ventilator was
The judge did not properly analyze the argument she presented because she conflated three different procedures (withdrawing a ventilator, palliative sedation, withdrawing hydration/nutrition) that may be motivated by different intentions and can
have three different outcomes.
C6.4 Note that her reference was to knowing the consequences, not
intending them. The plaintiffs claimed and that knowledge and intention
equivalent in this situation; the defendants denied it; the judge failed to
articulate a rational and coherent position on the distinction and the
ethical significance of intention because she ignored it.
C7.1 In Part VII of the Carter ruling, Justice Smith failed to
articulate and address ethical issues associated with the withdrawal/refusal
of treatment or care and euthanasia/assisted suicide. She also failed to
distinguish between palliative sedation used as a last resort to relieve
intractable symptoms during the dying process, on the one hand, and used as
anaesthesia for euthanasia or assisted suicide by dehydration and starvation
on the other.
C7.2 The judge also failed to consider the distinction between legal and ethical evaluation of patient autonomy and ignored the principle of proportionality and its application to refusing or withdrawing interventions. Further, she ignored other factors, principles and concepts that relevant to an ethical evaluation of refusing or withdrawing assisted nutrition and hydration, such as the nature of the intervention and the distinction between treatment and care. Finally, she failed to provide a satisfactory explanation of her view of intention in relation to the ethics of end-of-life decision making.
C7.3 In sum, assertions made by the appellants at the Supreme Court of Canada that Justice Smith had established that physician-assisted suicide and euthanasia were ethical or that physician-assisted suicide and euthanasia were ethically equivalent to legal end-of-life practices420 were without foundation. Her review of the ethical debate in Part VII was inadequate for that purpose and she did not claim to have made such findings.
Carter BCSC, supra note 1 at para 231.
Ibid at para 309.
Ibid at para 231.
380. For an exchange of views on this and an introduction to some of the complexities of providing assisted nutrition and hydration, see Gillian M Craig, “On withholding nutrition and hydration in the terminally ill: has palliative medicine gone too far?” (1994) 20:3 J Med Ethics139; RJ Dunlop et al, “On withholding nutrition and hydration in the terminally ill: has palliative medicine gone too far? A reply” (1995) 21:3 J Med Ethics 141; Michael Ashby M & Brian Stoffell B, “Artificial hydration and alimentation at the end of life: a reply to Craig” (1995) 21:3 J Med Ethics 135.
381. “To withdraw fluids and food from a person who is not otherwise dying, even if that person has a significant cognitive disability, is euthanasia because death is directly and intentionally caused by the withdrawal of basic care, that being fluids and food. Whether fluids and food are provided by a fork, a spoon or a tube, they represent a basic necessary of life that should be provided unless the person cannot assimilate or is actually nearing death.” Alex Schadenberg, “UK Judge decides not to dehydrate woman to death” (29 September, 2011), Euthanasia Prevention Coalition (blog) (Commenting on W v M & Ors  EWHC 2443 (Fam).
382. Brophy v. New England Sinai Hosp, Inc, 497 N.E (2d) 626, 398 Mass 417 (Sup Jud Ct Mass 1986).
383. Cruzan v Director, MDH, 497 US 261 (1990).
384. Airedale NHS Trust v Bland  UKHL 17 [Airedale].
385. Fred Charatan, “US Supreme Court refuses to intervene in 'right to die' case” (2005) 330(7494) Brit Med J 746, online: .
386. Corte Constituzionale, Rome, 8 October, 2008 (2008) Order 334 of 2008 (Italy).
387. Rachel Donadio, “Death ends coma case that set of furor in Italy”, The New York Times (9 February).
388. Golubchuk v. Salvation Army Grace General Hospital et al, 2008 MBQB 49 (CanLII); Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Sawatzky v. Riverview Health Centre Inc, 1998 CanLII 19469 (In Golubchuk and Rasouli the patients were on ventilators as well as having assisted nutrition and hydration, while in Sawatzky the issue was a “Do Not Resuscitate” order that had been improperly issued).
Carter BCSC, supra note 1 at para 207-220; CLF para. 42-44.
Ibid at para 1065-1076.
Ibid at para 221-224.
392. Arnold J Rosin & Moshe Sonnenblick, “Autonomy and paternalism in geriatric medicine. The Jewish ethical approach to issues of feeding terminally ill patients, and to cardiopulmonary resuscitation”(1998) 24:1 J Med Ethics 44.
393. Congregation for the Doctrine of the
Responses to Certain Questions of the United States Conference of
Catholic Bishops Concerning Artificial Nutrition and Hydration (1
August, 2007) (Accessed 2012-07-27).
394. This was the view of Lord Keith in
Trust (Respondents) v.Bland (acting by his Guardian ad Litem) (Appellant)
(4 February 1993) (Accessed 2012-07-26 )
395. Somerville 2001, supra note 84 at 362, note 161.
Carter BCSC, supra note 1 at para 224.
Ibid at para 245.
398. CLF Submission, supra note 261 at para 46.
Carter BCSC, supra note 1 at para 257.
Ibid at para 1071.
Ibid at para 312-313.
Ibid at para 321.
Ibid at para 323.
Ibid at para 1049, 1067, 1068.
405. Ng v Ng, 2013 BCSC 97 (While the case was decided after the trial court ruling in Carter, the relevant statutory framework predated the Carter decision.)
Ibid at para 200.
Ibid at para 201, 202, 226.
Ibid at para 201, 202, 226, 312.
Ibid at para 190, 312.
410. Udo Schuklenk (Chair) et al, “Report of the Expert Panel: End of Life Decision Making” (November, 2011), Royal Society of Canada (website) at 34.
411. Sachedina 2009, supra note 159 at 170.
412. Mark Hilberman et al, “Marginally effective medical care: ethical analysis of issues in cardiopulmonary resuscitation (CPR)” (1997) 23:6 J Med Ethics 361.
413. Somerville 2001, supra note 84 at 73.
414. Daniel Eisenberg, “The Sanctity of the Human Body” (undated), Protection of Conscience Project (website); Catechism of the Catholic Church (Vatican City: Libreria Editrice Vaticana, 1993), at para 2288–2291; Sachedina 2009, supra note 159 at 168, 183–184.
415. CLF Submission, supra note 261 at para 45.
Ibid at para 324-325.
Ibid at para 330.
Ibid at para 321 (At para 335 she said she found this argument “persuasive”).
419. “The Story of Karen Ann Quinlan Made Headlines!” (Undated) Karen Ann Quinlan Hospice (website).
420. Carter SCC webcast, supra note 80 at 00:38:35 to 00:40:31.