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

APPENDIX "C"

Carter Part VII: Filling in the Blanks

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C1.    Introduction

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 dying.(C3.4)

C1.3    Moreover, her treatment of ethical justification (as opposed to legal justification) is slender indeed. Part VII contained virtually no information about factors that are considered in decision-making about withholding or withdrawing interventions.

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 or statute.

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 religious views.

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 "care"?

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 and affordable.393

C3.6    Assisted nutrition and hydration as "extraordinary" or "disproportionate"

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 hydration

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 consent.401

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 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. 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.)

C3.7.5    Recall, 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 sedation:

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 "palliative sedation")406

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 circumstances.

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 avoided.413

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 autonomy.

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.    Intention

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 withdrawn.419 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 were ethically 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.    Summary

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.

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Notes 

377.    Carter BCSC, supra note 1 at para 231.

378.    Ibid at para 309.

379.    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 [2011] 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 [1993] 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).

389.    Carter BCSC, supra note 1 at para 207-220; CLF para. 42-44.

390.    Ibid at para 1065-1076.

391.    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 Faith, 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 Airedale NHS 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.

396.    Carter BCSC, supra note 1 at para 224.

397.    Ibid at para 245.

398.    CLF Submission, supra note 261 at para 46.

399.    Carter BCSC, supra note 1 at para 257.

400.    Ibid at para 1071.

401.    Ibid at para 312-313.

402.    Ibid at para 321.

403.    Ibid at para 323.

404.    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.)

406.    Ibid at para 200.

407.    Ibid at para 201, 202, 226.

408.    Ibid at para 201, 202, 226, 312.

409.    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.

416.    Ibid at para 324-325.

417.    Ibid at para 330.

418.    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.