In what is being called a landmark ruling, the Supreme Court of Canada yesterday struck down the total ban on doctor assisted suicide. The Court found that the ban went again the Charter right of “Security of the person” and as such struck that section of the law down.
Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241(b) and 14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under s. 7 of the Charter. 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.
In my opinion, the Court used an interesting term when they said “competent adults”, as it underlies a basic freedom that most of us should be seen to have. If we are of sound mind, in other words, a “competent adult”, then decisions that we make in accordance with the use, misuse, or end of use of our bodies should not be impinged by other people if we are not causing harm or undue hardship to others, or costing other people or society unreasonable sums of money.
In the case of assisted suicide, a competent adult person should be able to determine the end date of their life. With multiple safeguards in place to protect the vulnerable, I see no reason why it is any of modern society’s business when any mentally competent person decides that they do not wish to live any longer. To me whether or not the person is in grievous pain does not enter the picture. If you are going to protect the sanctity of my life, then you must also protect my right to not live that life too, if I choose. If you do not leave me to determine what is best for me and my body, then you do not respect my right to my security of the person. I can and will determine what is best for me and my body and I do not give anyone the right to tell me differently. To put it mildly, my body, my choice.
This does not mean that the concerns of the disabled are not without some merit. I do however think that some of the fears are overstated, or perhaps more likely, misplaced. The arguments that I heard yesterday from disabled individuals opposed to this decision was that they feared that some disabled people would choose to die because they were not able to live with pain in instances where proper pain management techniques were not being offered to them, or even withheld. To me, that would not be covered by this decision. That would be a failure of the medical system to provide care. As my spouse pointed out yesterday, the hope would be that palliative care in this country would now become more front and centre as many in the industry tried to improve end-of-life conditions so that fewer people would feel the need to end their life prematurely. Perhaps terminal patients in this country will now find their pain-management and quality of life are more important now than they ever were before.
This idea of competent persons should really be seen to apply in other instances as well. We have too many laws that infringe on what a person can do with their own body, when doing so causes no harm to others. Cases in point; drug use and prostitution laws.
As I have argued before, the right of an adult person to decide who they will have sex with should be a basic right. The fact that money may be a deciding factor in that decision should not be the business of the government. If the people involved are competent adults and they make the choice freely without duress, then it is their choice, and theirs alone whether or not they proceed with that action. What we as a society have a responsibility to do is to make sure that anyone who makes that choice is doing it with free will and not seen as a last resort or as an only choice. Yes, many people are in that industry that do not want to be there, our duty is to them to make sure that nobody finds themself in that position. However, telling those that want to be there, and are of competent mind to make that decision, that they cannot, takes away their right of self determination.
As for those that take drugs. Yes, many people abuse drugs or alcohol and it has a devastating effect on their life. However, many people use alcohol and drugs recreationally and never have a problem functioning, or in fact thriving, in our society. I personally do not drink, smoke, or ingest any illicit drugs, but I do not for one second feel that it is my right to tell others who seem to be able to do it in a responsible manner, to not do it. Again, what a competent person does with their own body is none of my business.
Now, this does not mean that people should now be able to do what they want with no consideration for other people or of the common good. For example, I was challenged yesterday as to whether or not this means that I am against seatbelt use. No, I am not, and I think that you are an idiot if you do not use one. I would argue though that not doing up your seatbelt is your right, just do not expect an insurance company to pay for your choice in the case of injury, or more likely death. If you do not take the reasonable precautions to avoid grievous injury as prescribed by your insurer, then you should not expect them to pay large sums of money to your estate in the event of your untimely death. The same would go for not putting children in seatbelts, they are not competent adults and it is not the right of the parent or guardian to make a decision that will increase their chance of death or injury. It is not in the child’s best interest.
Another case in point is the anti-vaccine movement. The choice to not vaccinate is not one that affects only the person, but of all of those around the person also. Because the true effectiveness of vaccines only really exists in the “herd immunity” achieved when 95% of the population is immunized, by not immunizing one also makes medical choices for those other than one’s self. If immunization was 100% effective for every person, and every person could get it, then your choice not to would be yours alone. Immunizations do not work that way though, so for the greater good of society, everyone who can get the vaccine should get it, to protect those who cannot for other than philosophical reasons. In other words, not just your body, so not just your choice.
We definitely need to consider the rights of a competent adult person more often when we are crafting public policy. The litmus test I would say is whether or not the choice made by someone infringes on the rights of another. If nobody else’s right are being impinged on, then perhaps we should stay out of these decisions.