Thank you for inviting us to speak with you today. I am very grateful for this opportunity.
I am a law professor who has been researching issues around physician-assisted suicide and palliative care since approximately 2008, and I was an expert witness on comparative laws for jurisdictions at past termination-of-life legislation for the Carter case.
In terms of legislative response, one possibility would be to construe Carter, of course, as narrowly as possible, which would be to construe it to the specific facts of the case. But of course you could always use Carter as a legislative entry point to include individuals and medical conditions not deliberated or decided upon by the Supreme Court.
Today I am here to speak to the matter of children, and with respect to children, I would argue that you should not go beyond the Supreme Court's pronouncement.
In termination-of-life legislation there are two main organizing streams when it comes to deciding whose request for physician-assisted dying can be legally granted.
First there are the substantive criteria, which we understand are the patient qualifiers, what criteria qualify a patient's request to be entertained by a physician. Then there are also the procedural due-care criteria, meaning what procedures you put in place to make sure that the patient has actually met the substantive criteria.
As we know, in cracking open the Criminal Code to allow willing physicians to provide termination-of-life services without prosecution, the Supreme Court only expressly identified the substantive criteria, namely, competent adult, grievous and irremediable condition, enduring suffering that is intolerable to the individual, and clear consent to termination of life. The court did not expressly articulate procedural due-care criteria, meaning that it didn't articulate the safeguards to be implemented to make sure the patient satisfies those four to six qualifying criteria.
As we know, the Supreme Court provided the substantive criteria of “adult” but did not define “adult”, but again, if we go back to the facts of the case, the court was making and could only make a pronouncement on those facts. Non-adults were simply not part of the equation.
First, I would argue that it's not arbitrary to exclude non-adults from qualifying criteria in any first iteration of Canadian termination-of-life legislation. Again, there is no evidence before the court on the issue of children or adolescents. But also note the evidentiary finding by the trial judge, as articulated by the Supreme Court, that while there is no clear societal consensus on physician-assisted dying, there is a strong consensus that it would be ethical only with respect to adults who are competent, informed, and grievously and irremediably ill who voluntarily chose it.
Second, there is a massive ethical question as to whether children and adolescents should be able to qualify in the first instance for lethal injection. This ethical question was not considered in Carter, and to the best of my knowledge, it has not been fully considered by Canadians. There is no ethical data on minors to inform the Canadian legal analysis. Dr. Davies will speak more to the issue of data.
Third, the argument is being made that the law has already allowed mature minors to make medical decisions even if doing so would result in their death. But let's think about that a little more closely. In those death cases, the decision is about rejection of treatment whereby if the child rejects treatment, the child runs the risk of dying. This is an entirely different consideration for children than is children being expected to consent to lethal injection.
Fourth, we also see from those cases in the Canadian case law that if the odds of survival are good with treatment, the court will override a minor's refusal. We know that Carter does not use the criteria of terminal illness, so how does one figure out the odds of survival for a child whose medical condition is a mental health issue or other form of disability?
This leads me to my fifth and final point, and then I'll turn it over to Dr. Davies.
Yes, we absolutely have processes that help us to discern a child's capacity and maturity for a particular decision, but the process for determining a minor's capacity does not answer the substantive question. It was more than just an acknowledgement of adults' capacity that actually drove the Carter result.