A news item was posted on CBC news on October 30, 2013 after an elderly couple plunged 18 stories from their penthouse apartment to their death in Toronto. The article quoted mental health experts who say that suicide rates are climbing among the elderly. Given the increasing demographic bulge of aging baby boomers, that is an alarming fact. An increasing number of lawyers are developing an elder law practice to address the many challenges faced by elderly adults.
For many, this type of tragedy raises the issue of whether competent adults should be permitted to have their death facilitated by a physician in certain circumstances. That issue arose in R. v. Rodriguez [1993] 3 S.C.R. 519, where Sue Rodriguez who suffered from ALS or Lou Gehrig’s Disease, a terminal illness, sought the right to choose the time of her inevitable death. In a 5-4 split vote, the Supreme Court of Canada upheld s. 241(b) of the Criminal Code which prohibits assisted suicide.
In Carter v. Canada (Attorney General) 2012 BCSC 886, Madam Justice Lynn Smith struck down s. 241(b) on the basis that the section infringed on a number of the plaintiffs’ Charter rights. She urged Parliament to allow exceptions to s. 241(b) to permit physician-assisted death under stringent conditions.
That judgment was overturned by the BCCA on October 10, 2013 in a 2-1 decision. The majority found that it was bound by the SCC’s ruling in Rodriguez. The BC Civil Liberties Association has announced its intention to appeal the judgment to the Supreme Court of Canada, arguing that the government has no place at the bedside of seriously ill Canadians who have made firm decisions about the amount of suffering they will endure at the end of life.
Proponents of physician-assisted death call it part of the continuum of health care which would be only be permitted in a very small number of cases. Opponents say that it would lead down a slippery slope and would open to the door to elder abuse.
It is important to note that even if the Supreme Court of Canada restores the judgment of Madam Justice Smith, a physician-assisted death would be available only in narrowly circumscribed circumstances, in which the patient is mentally competent to make that decision. Smith J. contemplated a strict procedure that would only be available to grievously ill, competent, non-ambivalent, voluntary adults who were fully informed as to their diagnosis and prognosis and who were suffering symptoms that could not be treated through means reasonably acceptable to those persons.
Accordingly, while the issue of elderly vulnerable adults committing suicide necessitates attention and compassionate assistance, it is a separate issue from the legal implications of doctor-assisted suicide in terminal medical situations.
