“There are broad, constitutional propositions involved here,” he said.
Some of the issues involved are more philosophical than legal, and Horgan wonders whether Canadians can ever be satisfied merely with legal rulings on such basic questions.
“Are we engaged in just further and further radical personal autonomy, or do we actually understand the human condition as one of interplay, of engagement with community?” Horgan asked.
With the passing of Bill-52, “An act respecting end-of-life care,” June 5, the Quebec legislature redefined physician-assisted suicide as medical treatment — part of a continuum of palliative care options. A legal challenge based on the criminal code is widely expected.
“The laws that prohibit euthanasia and assisted suicide exist to protect all Canadians,” said federal Justice Minister Rob Nicholson in a statement. “Including those who are potentially the most vulnerable, such as people who are sick or elderly and people with disabilities.”
The Supreme Court ruled in 1993 that there could be no exception to the criminal code prohibition of assisted suicide. But more than 20 years on popular opinion has shifted.
“There’s a substantial number of people who think this should be an available process. If we are to recognize individual, personal autonomy, this is just a further extension of that,” said Horgan.
In the Rasouli case last year, the Supreme Court ruled in favour of the patient’s wishes as expressed by his substitute decision maker. Doctors argued that keeping Hassan Rasouli on life support with no prospect of recovery is not medical care and therefore they are not obliged to continue the treatment. However, the court ruled that the wishes of Rasouli’s wife, who was his legal decision maker, superseded the doctors’ judgment.
With courts tilting more to protecting the autonomy and rights of the patient, there may be less room for the conscience rights of doctors who feel lethal injections are not medical care.
“Is a doctor now to be a mere service provider?” asks Horgan.
Even though the Quebec law concedes to doctors the right to refuse to participate in any treatment intended to cause death, Horgan doubts the conscience rights are truly protected.
“If you’re a doctor who conscientiously objects, are you going to be hired?” Horgan asked. “Are you going to be discriminated against because you in fact don’t believe it is your role to effectively euthanize elderly people or disabled people or people who can’t defend themselves because their family wants their death hastened?”
The Quebec law also specifies that all health care institutions must have a palliative care plan that includes medical aid in dying. Historically Catholic institutions in Quebec will have problems drawing up such plans.
While the debate plays out in court, it also has to play out in the culture, in the media and around dining room tables, said Horgan.
“There’s a great role for faith communities to wade in here. Otherwise the debate is going to be dominated by what they consider to be the rational, secular players.”