Thursday, February 12, 2015

Is Death a Right?

"Death: a basic right" was the headline in The Toronto Star after the Supreme Court of Canada made its historic and far-reaching decision to allow assisted suicide. The articles claims that "desperately suffering patients have a constitutional right to doctor assisted suicide."

Contrary to media reports, the court did not strike down the law against physician-assisted suicide. There is no such law. It simply rendered the criminal prohibition invalid. The existing criminal prohibition said that everyone who aids or abets a person to commit suicide is guilty of an indictable offence. 

The court has given Parliament exactly one year to find a way to exempt doctors at the very least from this prohibition. Aside from the question of why doctors should be exempted, the court did not declare assisted death to be a right. 

On the contrary,the court carefully hedged any new law. The ruling limits physician-assisted suicides to "a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition"

The court also ruled that in such cases of assisted suicide not to allow doctors to help these people to die would deprive them of the rights to life, liberty and security of the person as spelled out in Sec. 7 of the Canadian Charter of Rights and Freedoms.

The court did not create a new constitutional right to death, in spite of what The Star asserts. Nor should it. Parliament alone makes laws; the courts merely interpret them. Moreover, life is a right, but not death.

No doubt, some form of assisted suicide will take place after Parliament passes a new law permitting doctors to assist under the conditions set down by the Supreme Court. Parliament has to do something, even if the government would prefer not to discuss this contentious topic, especially in an election year.

The government does have the option of using the notwithstanding clause in the Charter, but that is unlikely. This clause allows Parliament to override sections of the Charter. For this reason, it is highly controversial and dangerous.

Contrary to the laws in some other countries, the court does not permit euthanasia, although the distinction between euthanasia and assisted suicide is not always clear. Euthanasia is generally voluntary, but sometimes not. The latter is the fear of some who are opposed to assisted suicide.

In the US, euthanasia -- where a physician or another third party administers a lethal medication -- is illegal in every state, while assisted suicide -- where the physician or third party gives the patient the means to end his/her own life -- is permitted in four states. The map should be revised to reflect this.

These states require that the patient be of sound mind when requesting assisted suicide, as confirmed by a doctor and other witnesses, and that the patient be diagnosed with a terminal illness.

Those who argue most vehemently for assisted suicide view the world from the perspective of the autonomous individual. The word autonomy first arose in the writings of Immanuel Kant.

Kant’s notion of autonomy of the will involves not only a capacity for choice that is independent of motivation but it also has a law-giving capacity that is independent of external influences; instead, it is guided by its own internal principle.

According to some philosophers, autonomy is normative, not merely descriptive. Autonomous individuals have the capacity to make their own laws. This includes the right to decide on their own deaths.

The same principle lies behind the right of women to have abortions, although a similar claim could be made on behalf of the unborn child. Abortion is a complex issue, as are euthanasia and suicide.

The claim of autonomy can be viewed as a valid reason for accepting voluntary euthanasia. The basic argument is end-of-life decisions made by competent, autonomous persons should be respected, although some have cast doubt on whether a decision to die can be an autonomous decision at all, given the likely presence of psychological factors such as fear, hopelessness, and despair. 

Even when reasons of mercy are not in play, as in cases of suicide, at least the agent must be sufficiently competent and rational. This is what the court argues when it attaches conditions to its decision.

Some philosophers have argued that autonomy-based defenses of voluntary euthanasia and suicide involve a contradiction insofar as they invoke the value of autonomy to justify an act that destroys autonomy. The claim of the autonomous individual to commit suicide is, therefore, equally complex.

Many people of faith, and even many of no faith at all, dispute the claim of normativity by the autonomous individual. Human rights cannot be based merely on a capacity for autonomy, pace some post-Kantian philosophers.

One alternative to the doctor-assisted suicide that the Supreme Court proposes to is provide better home and palliative care for those who are suffering a lot of pain or are debilitated because of old age or some other infirmity. Such care would go a long way to refute the claim of those whose who want the right to die because of their suffering and that assisted suicide is thus the preferred solution.

Health Canada describes palliative care as "an approach to care for people who are living with a life-threatening illness, no matter how old they are. The focus of care is on achieving comfort and ensuring respect for the person nearing death and maximizing quality of life for the patient, family and loved ones."

It continues: 

Palliative care addresses different aspects of end-of-life care by:
  • managing pain and other symptoms
  • providing social, psychological, cultural, emotional, spiritual and practical support
  • supporting caregivers
  • providing support for bereavement
If I may give the example of my own mother, who suffered greatly during the lastr years of her life. She wanted to die, but she might not have satisfied the conditions set by the court, especially if they are interpreted most strictly. I prayed with her that God would take her home, but I am not convinced that she would have asked for assisted suicide.

Only in the last week of her life did she receive the care and pain relief that she deserved. She should never have been allowed to suffer for such a long time and so severely. That is totally unacceptable. A possible addiction to morphine should not have been the issue.

Late last year, the Catholic Organization for Life and Family launched a national Campaign for Palliative and Home Care, and against Euthanasia and Assisted Suicide. The campaign's theme is "Life-Giving Love." They did this with the blessing of the Catholic Bishops of Canada who have repeatedly called for positive steps to secure compassionate palliative care options for all Canadians.

Similarly, the Evangelical Fellowship of Canada has long supported the need for improved palliative care resources and availability in Canada. The EFC is convinced that we must not abandon those in need, and we must not deliberately bring about their death, even for seemingly compassionate reasons.

Other faiths have made similar pleas for more and better home and palliative care. Everyone wants to be merciful, but is assisted suicide the best or only solution?

We live in a pluralistic society and some form of assisted suicide is inevitable in the near future. However, there must be very strict guidelines provided in the enabling legislation to prevent misuse.

The debate on assisted suicide is not over because of the decision of the Supreme Court. On the contrary, it has been resurrected. It promises to become very heated and divisive. In an election year, politicians will want to avoid it, Thus do not expect any new legislation until after the election.

I hope that the discussion may remain civil and, very importantly, respectful not only of those doing the debating but especially of those who are the focus of the debate: the people who are suffering the most.

Everyone wants to be merciful and provide relief to them. The question is how to do so. Is assisted suicide the solution or are there alternatives? I suggest there are. And I insist that that death is not a right.


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