Lessons from Rodriguez v. British Columbia.

• Author: Milton, Neil
• Position: Assisted suicide

At issue in Rodriguez v. British Columbia(1) was the constitutionality of a provision in Canada's Criminal Code (hereinafter "the ban" or "section 241(b)")(2) that prohibits assisting any suicide. The Supreme Court of Canada upheld the law in Rodriguez,(3) but the issue of whether physician-assisted suicide should be permissible has not gone away. For Americans Rodriguez should be of interest at two levels: it provides a primer on the constitutional arguments likely to be made in similar cases, and more generally Rodriguez provides insight into the social forces at play behind the controversy raging at the interface of law and medicine about what is and is not appropriate medical treatment in instances of severe disability and terminal illness.

My personal observation based on my experience as an attorney who worked on the Rodriguez case is that there are several quite distinct arguments for and against bans on suicide assistance that reflect profoundly different conceptual bases. The first goal of this article is to identify these different arguments and to use them to illuminate the differences between the judgments given. The second goal is to suggest, not which of these conceptual bases is "correct" for the purposes of constitutional adjudication, but which struck me as the most politically significant, and to develop some of the implications of this hypothesis.

The Facts of Rodriguez v. British Columbia

The case began in the fall of 1992. At that time Sue Rodriguez was forty-two years old, had amyotrophic lateral sclerosis (ALS),(4) and was given a prognosis that she would live between two and fourteen months.(5) ALS is a degenerative disease. Ms. Rodriguez wanted to keep living, but she anticipated a day when her condition would become so debilitating that her view might change.(6) By that time, however, she would be physically unable to commit suicide without assistance. if at that time she wanted to commit suicide but were denied assistance, she would have to allow the disease to run its course, which she feared would result in an uncertain, potentially lengthy, period of physical and psychological suffering.(7)

Ms. Rodriguez brought a constitutional challenge against Canada's assisted suicide ban, which absolutely prohibited anyone from assisting another to commit suicide under any circumstances.(8) She alleged that the ban violated sections 7, 12, and 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter"),(9) which provide:

7. Everyone has the right to life, liberty and security of the person and

the right not to be deprived thereof except in accordance with the

principles of fundamental justice.

12. Everyone has the right not to be subjected to any cruel and unusual

treatment or punishment.

15(1). Every individual is equal before and under the law and has the

right to the equal protection and equal benefit of the law without

discrimination and, in particular, without discrimination based on race,

national or ethnic origin, colour, religion, sex, age or mental or physical

disability. The extent of the guarantee of these rights is determined by section 1 of the Charter, which provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."(10)

Ms. Rodriguez's application was dismissed by the trial judge.(11) The majority of the British Columbia Court of Appeals upheld the trial judge.(12) A bare majority of the Supreme Court of Canada affirmed, with four of the nine justices dissenting.(13)

Ms. Rodriguez committed suicide with the assistance of an unnamed physician in February 1994. A member of Parliament was at her side.(14) The government of Canada has promised a parliamentary debate on the subject of physician-assisted suicide (enactment of criminal law is within federal jurisdiction).(15) The government of British Columbia has issued guidelines on the prosecution of assisted suicide (administration of criminal law is within provincial jurisdiction), which reiterate the prosecutor's discretion in bringing charges for assisted suicide.(16)

The Arguments Against a Prohibition of Assisted Suicide

Though it is a drastic oversimplification, attacks on a criminal prohibition of assisting suicides, such as the ban contained in Canada's Criminal Code, tend to have one of four distinct formulations. The claim is that the ban violates either (a) corporeal autonomy (a right to commit suicide), or (b) equality for people with disabilities, or (c) a right to die with dignity, or (d) a right of patient autonomy.

Corporeal Autonomy, Or the Right to Commit Suicide

This claim could be characterized as follows:

I am a competent adult. I have a right to autonomy. At the very least,

this right confers on me the right to do what I wish with my body

provided no one else is harmed. Therefore, I have a freedom to commit

suicide. Restrictions on aided suicide impair my freedom, and when I

am unable to commit suicide unaided, the ban creates a complete

barrier to exercise of my freedom.(17) In its pure form, this claim is motive-neutral--no terminal illness, or suffering, or any other condition must be satisfied to trigger it. It is essentially a philosopher's argument.

Equality for People with Disabilities

This claim could be characterized as follows: "The physically able can avail themselves of unaided suicide if they so choose. The ban impacts adversely on those who, because of physical disability, are unable to commit suicide unassisted. This adverse impact is discrimination."(18) The premise of this claim is that committing suicide is an element of freedom available to the physically able without assistance, and thus the ban is offensive because everyone should have equal freedom in substance and not just in form.

Death with Dignity

This claim could be characterized as follows: "Dying is a fundamental part of life, and a person who is suffering an undignified, lingering or painful end of his or her life should be entitled to choose a manner and time of death that entails more dignity and less suffering."(19) This argument has a strong choice or volitional component, but it differs from the pure corporeal autonomy argument in that it is not motive-neutral. Indeed, it is triggered by a substantive criterion, in the form of either terminal illness or acute suffering.

Patient Autonomy

In the early part of this century, it became a well-established element of Canadian tort law that medical treatment of a competent adult without the adult's informed consent (actual or constructive) is a battery.(20) In the second half of this century, a corollary proposition has also taken root in Canadian, English, and American tort law: In normal circumstances an informed competent adult may refuse to consent to medical treatment, and may demand the cessation of medical treatment, even if the failure to administer the treatment will hasten or lead to the patient's death.(21) This is a negative right of patient autonomy, and it is a common-law, not constitutional, right. So strong is this common-law right that it is unlikely to be overridden in preference to the wishes of the state, treating physicians, or relatives simply on common-law grounds; in particular, common-law duties are most unlikely to override the common-law right of autonomy, and people who heed the patient's wishes are unlikely to be subjected to criminal or civil liability.(22)

An expanded patient autonomy claim regarding physician-assisted suicide could be characterized as follows: "Patient autonomy is a constitutional right, and the distinction currently drawn in the common law between the physician's role in treatment withdrawal cases and the physician-assisted suicides, a distinction between `passive' and `active' causation of death, is arbitrary and unjustifiable."(23) This argument is for a positive right to a specific type of medical care--death-hastening treatment under certain circumstances. It most certainly is not motive- or context-neutral. Though the concept of individual choice plays an important role in this argument, here choice is used instrumentally, not as a pure, normative goal.

The Arguments for Criminal Prohibitions on Assisted Suicide

Not surprisingly, arguments in favour of a ban tend to take two forms: (a) denial of the existence of the rights asserted, and (b) if the rights exist, justification of any impairment of them by the ban.

The Rights Alleged Do Not Exist

Corporeal Autonomy. The counterargument generally runs:

There never is nor has been a right to commit suicide.(24) Even if there is

a right of corporeal autonomy, there is no corresponding right to third

party assistance, as there is for the right to vote, because committing

suicide is not the moral equivalent of voting and certainly is not an

unqualified good. Moreover, suicide assistance, unlike voting

assistance, does have deleterious societal effects, and real risks of

abuse.(25) In addition, it is quite common to challenge the competence of the applicant to make an informed, rational choice by asserting that the applicant is not of sound mind, or is being coerced, or is inadequately informed of his or her prognosis, of his or her disease and its course, or of the nature and availability of palliative care.(26) This can also be broadened to a general proposition about the circumstances of many, perhaps most, people, especially members of the vulnerable groups whom the ban is designed to protect. If put strongly, this argument amounts to an indirect but fairly wholesale denial of the existence in practice of autonomy rights.

Equality. The counterargument generally runs: "The fact that attempted suicide is not prohibited does not make suicide a right. Suicide is not a benefit legally available to the physically able. Denial of the ability to commit suicide is not a burden, or`an adverse...