California and Canada introduce new medically assisted dying laws

TOM BANGAY

In June 2016, California became the fifth US state, alongside Washington, Oregon, Montana and Vermont, to allow physician-assisted suicide (PAS) when its 2015 End of Life Option Act came into force. In the same month, a bill to legalise and regulate assisted dying was passed in Canada's Parliament. The legislation makes provisions for professional help for a person suffering with an incurable illness to lawfully end their life.

As with much of the law reform relating to assisted suicide, the California Act was introduced following public outcry after a high-profile activist gained prominence in the media. Brittany Maynard had received a terminal brain cancer diagnosis and moved from California to Oregon to qualify for the state’s Death with Dignity Act. ‘Oregon has a very well decided and well tested procedure, which has been tested by the US Supreme Court,’ explains John Vernon of the Vernon Law Group, Dallas, and Chair of the IBA Human Rights Law Committee.

The Oregon Act legalised PAS, in certain restricted circumstances. A competent adult with a diagnosis of a condition that will prove fatal within six months can request in writing a lethal dose of medication from his or her doctor. Physicians are protected from liability and their participation in the scheme is voluntary. The Supreme Court considered the statute in Gonzalez v Oregon in 2005, ruling in Oregon’s favour.

Those opposing PAS argue that ending a patient’s life contravenes a doctor’s Hippocratic Oath, and many feel such actions should not be performed by public servants like doctors. In 11 US states, however, the authorities can legally end the life of criminals who have been sentenced to death. ‘There are states that have no problem putting people to death,’ Vernon explains, ‘but at the same time are prepared to stop people dying who want to.’

Around the world, the picture is no clearer. Opponents of PAS fear that by legalising assisted suicide, ill or elderly people who might feel burdensome would be more likely to choose suicide, where previously they may not have. Israel modelled its 2005 Dying Patient Law on Oregon’s legislation, but it operates in a more limited way, according to Eli Zohar, Chairman of Goldfarb Seligman. ‘The Israeli law excludes any incurable patients who suffer unbearable pain but whose life expectancy exceeds six months or can't be determined at all,’ he explains. Doctors can avoid the issue by refraining from making a determination of life expectancy. While the Oregon law ‘recognises the condition of terminally ill patients and entitles them to receive drugs, our law only allows them to refuse treatment,’ adds Zohar.

Colombia, the Netherlands, Switzerland and Belgium are among those countries to have accepted PAS. In Belgium, the law extends to terminally ill children, and also to people with certain psychiatric conditions. In 2015, a 24-year-old woman with depression was granted the right to die. The Netherlands has seen a sharp increase in PAS since extending its application to those with mental health issues: total reported euthanasia deaths rose from 3,695 in 2011 to 5,516 last year.

In the UK, as in other jurisdictions, debates relating to PAS have followed legal actions brought by prominent campaigners. Music journalist Debbie Purdy, suffering from primary progressive multiple sclerosis, sought clarification as to whether her husband would face prosecution if he assisted her suicide in any way (such as helping her travel to Switzerland). Representing Purdy, Saimo Chahal QC (Hon), partner and Joint Head of Public Law at Bindmans, took her fight to the House of Lords and won in 2009, when the Lords accepted Purdy’s right to know if her husband would be prosecuted. This forced the UK Director of Public Prosecutions, Keir Starmer, to publish guidelines clarifying when an individual would or would not be prosecuted.

‘The guidelines provide as useful a framework as is likely to be available for those wishing to assist a loved one to have an assisted death to know their legal position,’ Chahal says. However they don’t make PAS lawful, which means that a person could accept the amateur assistance of a friend or relative, but not professional assistance from a doctor, unless they can afford to travel elsewhere. Starmer, now an MP, raised this point in the most recent parliamentary debate on assisted dying last year: ‘There is no rational or moral case for confining that assistance [in committing suicide] to the amateur assistance of relatives in England and Wales, or the professional assistance of medical practitioners in Switzerland for those that can afford it.’

In the previous UK parliamentary debate on assisted dying in the House of Commons in 1997, MPs voted against legalisation by about 72 per cent. In 2015, the division was almost identical: 74 per cent opposed the proposed Assisted Dying Bill. However, polling at the time showed that the general public was roughly 70 per cent in favour of legalisation.

‘The debate in the Commons last year was just two-and-a-half hours, and didn’t scratch the surface of this highly charged and complex issue,’ Chahal explains. ‘It needs cool and clear analysis and evidence, rather than anecdotal information and discussion, which is what we saw in the debate.’ The spectre of people feeling pressurised to choose PAS against their best interests was raised, but Starmer pointed out that a 2012 report on the subject from Lord Falconer found no evidence for this. ‘The same view was expressed in the 2011 report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making and in the 2012 report of the Quebec National Assembly “Dying with Dignity” Select Committee,’ he explained.

The two Canadian reports are pertinent, as Canada has recently settled this question definitively in its courts and its legislation. Carter v Canada combined various challenges, including sufferers of degenerative spinal stenosis and amyotrophic lateral sclerosis, who argued that a prohibition on assisted suicide was contrary to the Canadian Charter of Rights and Freedoms. The court agreed and struck down the relevant provision in the Criminal Code, suspending its ruling for a year so the government could amend its laws.

Chahal praises the approach taken in the case: ‘The court heard evidence for over four weeks, from lay and expert witnesses, with approximately 14 interveners all putting forward arguments for and against decriminalising assisted dying. The court could then arrive at a considered decision, having weighed up all the views. That is what is needed [in the UK].’

In Canada, the House of Commons passed its bill this June, which provides that ‘only patients suffering from incurable illness whose natural death is “reasonably foreseeable” are eligible for a medically assisted death’.

The judiciary in England and Wales has tended to leave the matter to Parliament. Whether MPs are able or willing to empower the courts to undertake the kind of forensic analysis needed to settle the question satisfactorily is doubtful. Although Debbie Purdy’s victory clarified the prosecutorial position, her condition had deteriorated to the point that she couldn’t travel to Switzerland. Without an assisted dying law in the UK, she felt she had no option but to choose starvation to end her life, and died in late 2014.

‘Here, the debate is fixated on people who are against assisted dying feeling that a law change will infringe their rights – rather than understanding that it is about giving rights to people who currently have none,’ says Chahal.