Protecting Autonomy In End-Of-Life Care Means Not Leaving People To Die Alone

In last year’s Carter decision, the Supreme Court of held that, under certain circumstances, where a competent adult requests medical assistance to terminate his or her life, the criminal prohibition of aid in dying is unconstitutional. You don’t need to have a terminal illness or be physically unable to end your life yourself, but you must have a grievous and irremediable medical condition, which causes you to suffer intolerably.

The ruling boils down to a statement of what the principle of autonomy enshrined in the Canadian Charter of Rights and Freedoms will not abide — namely state interference into the most pressing and important decisions a person may make. One may welcome or lament the court’s decision, but neither gloating nor sulking will make one dent in the hard work there remains to be done.

Diminish the taboo, place assisted dying on the menu of options, and there is one less barrier to believing that anything short of an independent life is not worth living.

While law makers deliberate over how to develop the best regulatory regime in light of the court’s direction, it’s important to remember that every one of us is implicated in — and responsible for — the shared human endeavour that is governance through law. As we reflect on the implications of the court’s decision, we also need to recognize that a commitment to fostering the personal autonomy of Canadians requires more than just a repeal of criminal sanctions on assisted suicide.

There are many vexing questions to address — not least the unique ethical quandary posed by patients with debilitating cognitive function (due to Alzheimer’s or dementia) seeking to give advance directives requesting active medical aid in dying. Responses to other issues, such as reconciling the rights of patients, doctors, and religious institutions along with other public goods, can draw guidance and inspiration from previous efforts to work through ways of peacefully mediating the diverse practices, beliefs, and perspectives among Canadians.

For present purposes, though, let us just consider how this re-drawing of the boundaries of the criminal law may affect how those who are suffering badly endeavour to navigate the already difficult terrain of end-of-life decision-making. Diminish the taboo, place assisted dying on the menu of options, and there is one less barrier to believing that anything short of an independent life is not worth living. Then again, if treating it as a crime is the only thing keeping people from seeking assistance in terminating their lives, are there not more important questions to be asking?

​This point is as pertinent for assisted suicide skeptics as it is for supporters. If one is committed to ensuring that every person feels like he or she can (and should) go on living, then just trying to prevent them from receiving assistance in dying, is not adequate. Like the dog-owner with the unruly pup who only rests easy once the creature is locked up in his cage, our yearning for a certain type of order, our lust for a particular kind of obedience to rules, makes us forget that the purpose of order, the point of rules, is to facilitate freedom, not take it away.

Rather than lament the criminals law’s failure to proscribe every act or omission we believe to be morally repugnant, we should be thankful that it does not. Is a society in which divorce and adultery, or contraception and abortion, are punished with the full force of the law, really so preferable to this one? Surely one can oppose the practice of assisted suicide but support its de-criminalization on the principle that allowing people to lead ethical lives requires us to deploy law in such a way that fosters human agency.

Neither coercion nor isolation by itself enables human beings to flourish. And nothing can change the fact that each of us, whether we want to go or not, is bound for what Shakespeare called “[t]he undiscovered country from whose bourn/ No traveler returns.” Death is at once the most solitary and universal of human experiences. It shows mercy on no one.

A change in law signalling a reconceptualization of mercy killing as medical aid in dying obligates us to think about our own personal implication in elaborating the conditions necessary for people to make truly autonomous decisions. This is a function not just of absence, but presence. Removing chains on those confronted with “the cruel choice” of whether to go on, does not provide sufficient conditions for their exercise of liberty. Gentle touch, helping hands, loving eyes, and kinds words — our presence — is just, if not more, vital.

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About Thomas McMorrow