While Indian SC Constitution Bench starts mulling over the issue, Canada SC gives green signal for Assisted Suicide

Apoorva Mandhani
20 Jan 2016 6:38 AM GMT
While Indian SC Constitution Bench starts mulling over the issue, Canada SC gives green signal for Assisted Suicide
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In a 5-4 ruling, the Supreme Court of Canada on Friday gave a green signal for assisted suicide to begin now under certain circumstances, while providing the new Liberal Government four months time to pass a law regulating such practice.

The Court ruled that doctors in Quebec would be allowed to facilitate the procedure, as the Province of Quebec had already put the law into effect in December. People anywhere else in the country can apply to their Provincial Superior Court for judicial authorization "to those who wish to exercise their rights" to doctor-assisted death, in accordance with the criteria set out in the 2015 ruling.

The court observed that granting the further extension is an "extraordinary step," "since its effect is to maintain an unconstitutional law." Chief Justice Beverley McLachlin and three others disagreed with giving an exemption to Quebec and to other individuals.

It was noted by the Court that this was the first time that it had been asked to consider whether to grant individual exemptions during an extension of a suspension of declaration of invalidity. "Parliament was given one year to determine what, if any, legislative response was appropriate. In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter. An exemption can mitigate the severe harm that may be occasioned to those adults who have a grievous, intolerable and irremediable medical condition by making a remedy available now pending Parliament's response," it observed.

After overturning a ban in February last year, the High Court had granted a year to the Parliament, to regulate physician assisted suicide. The Court had observed that for undertaking such a procedure, the person must be a "competent adult … who clearly consents to the termination of life" and who "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."

In using the word "irremediable," the court said patients were not required to undertake treatments they deemed unacceptable. You may read the judgment and LiveLaw article here.

The General Elections in October and the subsequent change of Government had delayed the task of putting the legislation in place. The Justice Minister had now demanded that the decision be stayed for another six months.

The Canadian Government was quoted as saying that it respected the Court's decision and the additional time would help it develop an approach "that protects the most vulnerable among us while respecting the inherent dignity of all Canadians."

Meanwhile, the Nova Scotia College of Physicians and Surgeons has released a draft document to function as a guide for doctors who will be involved in physician-assisted suicide. The guidelines were formulated by a working group put together by the college, in the absence of any federal or provincial legislation. The working group included the province's Health and Wellness Department, Justice Department, Doctors Nova Scotia, the Nova Scotia Health Authority and Dalhousie University's Health Law Institute. The document has been released online, inviting comments from various stakeholders.

The delay in formulating the legislation has angered advocacy groups. Dying With Dignity Canada CEO Wanda Morris was quoted as saying, "We are disappointed that Canadians facing terrible diagnoses may have to wait even longer to realize their right to die in peace and dignity… Our hearts go out to the patients and families who will be harmed by this decision."

While Ms. Morris welcomes the exemptions granted, she said that when the extension expires in June her organization would accept "nothing less than a framework for assisted dying that serves patients' needs, not those of politicians."

Disability rights advocate Amy Hasbrouck, from a Quebec group called Not Dead Yet also expressed her disappointment with the ruling. She said, "The Supreme Court (in its 2015 decision) said it wanted to have a well-regulated scheme to protect people who needed to be protected…. To develop such a law is going to take more time than just a few months."

"Our goal is to protect vulnerable persons from being induced to commit suicide by the various problems, like the lack of palliative care," she added.

While Canada has chosen sides in the debate, the discussion in the Indian Supreme Court is alive once again, with a five Judge Constitution Bench demanding a reply from the Centre on whether prolonging a patient's life by putting him on ventilator or life support system against his will could amount to torture of the patient and be financially draining for his family.

The Bench comprised of Justice A.R. Dave, Justice Kurian Joseph, Justice A.K. Goel, Justice S.K. Singh and Justice R.F. Nariman. Additional Solicitor General P.S. Patwalia informed the Court that the Centre was analyzing Law Commission's 196th and 241st reports recommending legalization of passive euthanasia.

Representing the NGO Common Cause, Advocate Prashant Bhushan put forth the concept of a 'Living Will', in which a person when in sound mind and good health records his wish that he should not be kept alive with the help of ventilators if doctors at any stage of his life opine that he cannot be kept alive without life support system.

The issue was referred to a Constitution Bench in February, 20014, stating that while an earlier judgment of the court on voluntary passive euthanasia in Aruna Shanbaug' Case did lay down a certain procedure, the same was not clear.  Chief Justice P. Sathasivam had said that they were leaving it for the Constitution Bench to examine the whole issue exhaustively, without making any references. You may read the LiveLaw article here.

Earlier, a five Judge Bench of Supreme Court in Gian Kaur v. State of Punjab held that both euthanasia and assisted suicide are not lawful in India and overruled the two Judge Bench decision in P. Rathinam v. Union of India. The Court held that the right to life under Article 21 of the Constitution does not include the right to die. But later in Aruna Ramchandra Shanbaug v. Union of India the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court.

You also may read: 'No sanctity in suffering; nothing holy about agony' by Smrithi Suresh


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