Debbie Purdy, who wants her husband to accompany her to Switzerland for an assisted suicide without fear of prosecution, took her case to the United Kingdom’s highest court, the House of Lords, for a final appeal this week. Ms Purdy, who has progressive multiple sclerosis, scored an important victory on the first day of the two day hearing, when the director of public prosecutions, Keir Starmer, conceded that article 8 of the European Convention on Human Rights, the right to respect for private life, applies to cases like hers.
The House of Lords in Purdy forced the DPP to issue offence-specific guidance on assisted suicide, but Jacqueline A Laing argues that the resulting interim policy adopted last September is unconstitutional, discriminatory and illegal. In July 2009, the law lords in R (on the application of Purdy) v Director of Public Prosecutions [2009] All ER (D) 335 required that the DPP publish guidelines for those contemplating assisting another to commit suicide. The DPP produced a consultation paper (23 September 2009) seeking to achieve a public consensus, albeit outside Parliament, on the factors to be taken into account in determining when not to prosecute assisted suicide. Although the consultation exercise is hailed by proponents of legislative change as a democratic, consensus-building and autonomy-enhancing initiative, there is much to suggest that, on the contrary, the guidance is unconstitutional, arbitrary and at odds with human rights law, properly understood.
In this report, Professor Knaplund discusses the Montana Supreme Court case of Baxter v. State of Montana (2009 MT 449), which ruled on the issue of a doctor's liability in a physician aid in dying (PAD) situation. In this case, the plaintiff was suffering from mutual symptoms related to his terminal lymphocytic leukemia and the chemotheraphy treatments he was receiving for it. Along with several other named plaintiffs, including board-certified physicians and the group Compassion and Choice, Mr. Baxter sued to have the state's homicide statute declared to of the constitutional rights of those who are dying to seek a physician's aid in achieving death.
Russel Ogden has seen enough people end their own lives to convince him that a planned and fully accountable suicide is a right all Canadians should have. This week in the Supreme Court of British Columbia, Mr. Ogden and the Farewell Foundation For The Right To Die will be fighting both the provincial and federal governments to make “self-chosen death” a legal option.
Nearly two decades after the country’s highest court ruled against a B.C. woman who wanted to be euthanized, another B.C. woman’s case has laid the groundwork for a challenge to Canada’s assisted-suicide laws. The B.C. Civil Liberties Association – along with a daughter who helped arrange her elderly mother’s death – announced the lawsuit at a news conference in downtown Vancouver Tuesday morning. In a notice of claim filed in B.C. Supreme Court, the parties argued that Criminal Code provisions against physician-assisted death are unconstitutional because they deny individuals the right to control their physical, emotional and psychological dignity.
The B.C. Civil Liberties Association is awaiting a decision that could fast-track the lawsuit of a dying woman pleading for help to end her life before she gets even sicker. A judge is expected to rule Wednesday on whether Gloria Taylor can fast-track a lawsuit to gain the right to doctor-assisted suicide. The Kelowna resident, who has amyotrophic lateral sclerosis, or ALS, is part of one of two challenges in B.C. to the laws against assistant suicide. The last challenge was 18 years ago, when B.C. woman Sue Rodriguez narrowly lost her bid to end her suffering from the same disease.
The B.C. Civil Liberties Association says it wants to challenge Canada's assisted-suicide laws alone. The BCCLA represents four plaintiffs seeking to change Canada's assisted-suicide laws, including a dying woman who won the right to have her trial expedited because her health is failing. Gloria Taylor suffers from amyotrophic lateral sclerosis, also known as Lou Gehrig's disease. On Wednesday, a B.C. Supreme Court judge ruled Taylor's trial should be heard in November because of the woman's rapidly deteriorating condition. A similar lawsuit is simultaneously being brought forward by the Farewell Foundation. The group's co-founder Russell Ogden is lobbying to join the BCCLA's lawsuit if its own challenge is struck down. Ogden argues testimony from his application should be part of the civil liberties association's case because it's unfair to assess the quality of either challenge.
Terminally ill patients who want to commit suicide should be able to receive medical help to die, a government adviser on care for the elderly has said. Martin Green, a dementia expert for the Department of Health, said patients who were too frail to take their own lives were being denied “choice” and “autonomy” because assisted suicide is illegal in the UK. In an interview with The Daily Telegraph, he urged ministers to review the law and suggested that a referendum or a free vote in Parliament should be called to settle policy on the issue. “If you’re going to give people ‘choice’, it should extend to whether or not they want to die,” he said.
A man who is almost completely paralysed is taking legal action in a bid to end his life. His solicitors have told the BBC that they believe his case could have major implications for the way prosecutors in England, Wales and Northern Ireland deal with assisted suicides.
Last week, the European Court of Human Rights decided in the case of Haas v. Switzerland (judgment in French only) that the right to private life is not violated when a state refuses to help a person who wishes to commit suicide by enabling that person to obtain a lethal substance. The applicant in the case, Ernst Haas, had for two decades been suffering from a serious bipolar affective disorder (more commonly known as manic depression). During that time he attempted to commit suicide twice. Later, he tried to obtain a medical prescription for a small amount of sodium pentobarbital, which would have allowed him to end his life without ain or suffering. Not a single psychiatrist, of the around 170 (sic!) he approached, was willing to give him such a prescription. This would have been necessary, under Swiss law, which allowed for assisted suicide if it was not done for selfish motives (in the opposite case, the person assisting could be prosecuted under the criminal code).
The Claimant seeks three declarations, namely: i) A declaration that it would not be unlawful, on the grounds of necessity, for Mr Nicklinson's GP, or another doctor, to terminate or assist the termination of Mr Nicklinson's life. ii) Further or alternatively, a declaration that the current law of murder and/or of assisted suicide is incompatible with Mr Nicklinson's right to respect for private life under Article 8, contrary to sections 1 and 6 Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide. iii) Further or alternatively, a declaration that existing domestic law and practice fail adequately to regulate the practice of active euthanasia (both voluntary and involuntary), in breach of Article 2.
In a decision released Friday, Madam Justice Lynn Smith says the Criminal Code provisions “unjustifiably infringe the equality rights” of the plaintiffs in the case, including Gloria Taylor, who suffers from amyotrophic lateral sclerosis (ALS). Joseph Arvay, who represented Ms. Taylor, said that his client cried with relief on hearing the decision. He said that he does not know what her plans are. Mr. Arvay said he imagined that the government would appeal the ruling, but hoped they would not. A spokesperson for the federal government said the minister needed time to read the extensive ruling, but that they would be reviewing the judgment.
The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
British Columbia’s Supreme Court ruled last week [in Carter v AG Canada] that provisions of the Criminal Code that ban physician-assisted suicide are unconstitutional. Madam Justice Lynn Smith suspended her ruling for one year to give Parliament time to draft new legislation. A government spokeswoman said Ottawa is still reviewing the judgment, but her reminder that Parliament voted not to change the physician-assisted suicide law just two years ago has only added to the sense that there will be an appeal. Ms. Taylor – a 64-year-old who suffers from Lou Gehrig’s disease – was granted a constitutional exemption that permits her to proceed with physician-assisted suicide during the one-year period, though she must meet a number of conditions.