Legalizing Physician-Assisted Death for a Dignified End of Life

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Laura Chan 07731390
A Dignified Departure:
An Argument for the Legalization of Physician Assisted Death
Field Focus: Criminal Justice and Corrections
Dennis Bracken & Phil Simon
Friday December 5, 2014

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Introduction
“Probably not many people would use such an option, but making it legal would certainly
prompt a much-needed discussion about what it means to prolong life without prolonging the
capacity to enjoy it.” – (Appleby, 2014)
End-of-Life options are not new concepts in Canadian medicine, but are part of an ongoing
debate that has ebbed and flowed through the last thirty years. To define terms commonly heard
from both sides; physician assisted death, (PAD), is where the patient actively ends their own life,
for example, ingesting life-ending medication prescribed to them by a doctor. Euthanasia can be
described as passive or active. This refers to the doctor’s role; either hastening death by
withholding treatment or administering life-ending drugs. For the purposes of this paper, the term
physician assisted death will include the variations mentioned above, they will be distinguished
between when needed. Under current legislation both acts hold equal chance of persecution, if not
so much socially as in the past, legally. The onus is therefore on the courts to reconsider the impact
of current law on the population as well as that of changes to what actions will be allowed.
I have always been aware of the issue, but my interest peaked when I came upon a
documentary, “How to Die in Oregon”, which chronicled the path taken by the state to legalize
PAD in its least intrusive form, allowing a prescription to be written and filled for use by the
individual. As a private citizen and after viewing the film, I am concerned with the limitations of
traditional medical care, particularly what is allowed in palliative settings. As a social work
student, I see this type of legislation as needing expansion to include PAD, in all its forms, to allow
us as individuals control over our own lives, convey respect for our dignity as human beings and
preserve the integrity of the relationships formed with others, specifically caregivers.

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Restriction to End-of-Life options results in the oppression and denial of rights of everyone
and is a primary concern in regards to those affected by chronic, degenerative or critical illness.
My interest in pursuing a law degree brought me to cover the issue for this brief as the current
penalty for assisting in a suicide is quite severe. Though the term “suicide” is rejected by
proponents and replaced with the less stigmatizing ‘death’, the act of assisting in a suicide carries
with it a loss of license as well as a lengthy prison sentence.
Background
“If I cannot give consent to my own death, whose body is this? Who owns my life?”
– Sue Rodriguez, (in Einstat-Weinrib, 1994, emphasis added).
Sue Rodriguez, Gloria Taylor and many others have brought the issue of physician assisted
death to the fore on many occasions, yet with these opportunities we had done nothing. The
Supreme Court of Canada has recently heard arguments for the decriminalization of Physician
Assisted Death, (PAD). This issue has had a long history in our country and across the world. Once
a very contentious issue, recent polls indicate support for the move to amend the criminal code has
grown. Even so, it remains to be seen if changing social attitudes will be a strong enough factor to
influence the final decision. In a poll taken just after the start of the Gloria Taylor case began, The
National Post reported that 67% of Canadians supported legalizing assisted suicide, whereas only
3% of physicians consulted agreed (Blackwell, 2011). That support has grown to 85% for the
general population. Surprisingly, medical professionals in favour of decriminalizing PAD now
match that number (Dying with Dignity Canada, 2014).
The issue has been successfully in several jurisdictions, in varying ways. In all examples,
enough time has passed that the changes have proven successful, especially the definitions guiding
their implementation. There have been social conditions shown to be conducive to this type of

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legislation being passed such as careful phrasing when codifying the laws, public education of the
new acts and , cultural, religious/spiritual heterogeneity, nothing that could not be accomplished
in Canada, and certainly, environmentally speaking, anything that is not found here. So in taking
the lessons from these earlier models, we would not be reinventing the wheel, but repositioning
the individual to be the driver of their life’s path.
The Problem
“I think our society is very confused about liberty. It makes no sense to prevent people who wish
to die from doing so.” – Andrew Solomon (in Reynolds, 2014)
In Canada, 100,000 people are living with various forms of Multiple Sclerosis, a chronic,
progressive and degenerative disease that in some cases begins in children as young as two years
old, (MS Society of Canada, n.d.). For individuals dealing with such degenerative diseases, the
restriction of access to end-of-life options for them and their caretakers is an abuse of authority
and a form of oppression. When dealing with matters of life and death, the oppression resulting
from the limitations on choice of action can create undue stress, anxiety, and hardship for the
patients and their families.
The issue of PAD affects several professions: Social Work, Health Care and Law. The
focus of the argument is there is a need for the practice in order to carry out the mandates of all
three professions, and more importantly to assure the individual that they will have choice and
control at the end of their life.
Collaboration is needed between the professions to ensure the individual is put first. This
would include the legalization of assisted dying, all forms in a medical context; the extension of
palliative care protocols to include such practices; thorough education to all health care providers

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of them, as well as education and activism aimed at the public to inform them of their options and
remove the stigma that makes death an often uncomfortable topic of conversation.
A Social Work Stance
“For all but our most recent history, dying was typically a brief process. These days, swift
catastrophic illness is the exception; for most people, death comes only after long medical struggle
with an incurable condition….or the multiple debilities of very old age.” (Gawande, 2010)
As social workers, we strive to meet the person where they are. In building rapport we aim
to find ways for them to navigate through their difficulties, often imposed by society. For all our
clients, especially someone suffering from a terminal, degenerative or critical illness, we champion
a holistic view of health; we are a profession focused on the bio-psycho-social and spiritual aspects
of one’s life as critical to their overall health. What we do with our lives brings meaning to them,
one should have the choice as to what this meaning is and the same control when facing death. In
a study of the individuals involved in palliative care, both professionally and personally many
trends were shown. One was that the personality of those who opted for Physician Assisted Death
were consistent with such choice, not out of character due to their circumstances. These traits
included wilful, fiercely independent, as well as reflective (Miller, Hedlund & Soule, 2006). Their
self-image, and sense of autonomy can be hampered by the restrictions they face at such a critical
time. Even if they were to go through with an assisted death, the burden of the consequences for
the parties involved can weigh heavily on them and their family. With this barrier, we carry much
responsibility in helping what is, for now, an irreconcilable situation. We have to work to make
end-of-life options the decision of those affected by acute or prolonged illness or injury.
Our ethics and values seem to be in line with the health care professionals who are involved in
palliative care and other critical care areas of medicine. In Gloria Taylor’s case, the right to die
follows only after we tend to the subjective aspects of the individual’s life such as their self-image,

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self-esteem, sense of worth and autonomy, all which affect their quality of life. The belief that
patients have a right to self-determination is entrenched Social Work values, as well as in law and
medical ethics. Unfortunately, the existing laws do not communicate the same. Subsequently, the
patient is denied options to a decision that should ultimately be in their hands. Pursuing the (social)
justice aspect of our code, we offer an alternate view of the physician’s actions as compassionate
not criminal. Gawande’s statement expresses the issues faced when death remains imminent, but
the timing not so. As Social Workers we are granted fluidity to work in and impact all areas of our
society. Legally speaking, we must see those who assist others with their final wishes as benevolent
players in an act which recognizes the empowerment of others at a crucial time. In this sense,
social justice includes seeking justice for these allies by pushing for amendments to the criminal
code which currently put these people at risk of legal sanctions.
The Impact on Health Care
“I worry that we have put medicine out there as a potential saviour, almost a new religion
over the last 100 years….and every death is a preventable death- and that death is, in some way, a
failure” – Dr. Robert Fowler (in Priest, 2011).
In debates, PAD has been compared to abortion, which before legalized, went underground
(How to die in Oregon, 2011). The same restrictions that hamper efforts by social workers to help
the individual apply to many in the health care field who wish to offer their patients choice at the
end of life. In both cases, their hands are tied. Though many have carried through with the request,
they did so at great personal risk. These are consequences that send a strong message to other
would-be helpers as well as those who would seek their service.
Health care and medicine are areas where the basic values that guide and support decisions
on patient care are the self-determination and autonomy of the individual. Courts have long

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recognized that the physician-patient relationship is built on trust; and from this relationship stems
the idea of fiduciary duty. That is the understanding that the physician must act with good faith
and loyalty toward the people they support, never placing their own personal interests ahead of the
patient's (Canadian Medical Protective Association, 2010). There are already measures in place
for end-of-life care that grant some choice to the patient. An example of this would be the Do Not
Resuscitate orders that one can request to have placed in an advanced directive. This allows for
the withholding of life saving intervention in case of medical emergency for those terminally or
critically ill.
Also, the practice of palliative sedation is used in the administration of pain relieving
medicine. At a certain degree, this can hasten death, as one’s body may be too weak and the dose
proves too strong. The argument that physician assisted death goes against the Hippocratic Oath
of do no harm, neglects the practices already in place. The difference being that palliative sedations
first objective is to manage and lessen pain, whereas active euthanasia, often carried out by the
same means is meant to terminate life. It seems arbitrary that the fashion of assistance is what is
under scrutiny, as the palliative sedation so often practiced could be likened to a Type 1 error, and
following a DNR could be seen as a type 2 error, if we were to be fair. Following a DNR is, in
practice, is passive euthanasia administered with consent. Consent should be key in any legislation
allowing for PAD and a strong factor in its regulation and enactment. Indeed, the risks to the
vulnerable are increased as long as these practices are banned and remain underground.
Those opposed to legalizing PAD have been very vocal about the dreaded slippery slope.
The abuses of such legislation that will no doubt impact the poor, elderly, disabled. The fear that
the option will be pushed by doctors everywhere and unwilling patients subject to treatment
without consent is a great scare tactic but ignores the ethics, values and legal guidelines already in

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place when it comes to patient care, namely, the concepts of beneficence, non-maleficence,
fiduciary duty and included in that, informed consent (Cohen-Almagor, 2013). Also, In many
countries where this legislation has been debated a similar sentiment of cost savings of terminating
a life versus accessing long term institutionalization has been used to oppose the implementation.
This falls short when the countries which have successfully implemented PAD are reviewed. All
are highly ranked in their economic health care commitments as well as other social service
provisions (Titterington, Rivolta & Schraufnagel, 2013). Allowing for an expansion of health care
options to include PAD does not mean that it will be a consideration for everyone, but the option
being available will make a difficult situation easier for those faced with the choice.
In Terms of Law
“Peace order and good government are the legitimate objects of legislative powers conferred by
statute” – The Canadian Constitution, preamble
Social work is not mentioned in law, but is a mandated resource in palliative care. As such
we all cross paths when the discussion of physician assisted death is re-ignited. There remain
severe repercussions for the physician who aids in the death of a patient. Currently under section
241(b) of the Canadian Criminal Code, helping an individual commit suicide carries a maximum
penalty of fourteen years’ incarceration, (CBC News, 2014). The professional penalty added to
that for physicians involved is loss of their license. As citizens of a developed nation where we
live longer but endure more diseases of senescence, we must change these consequences on those
who sincerely are trying to follow their ethics of do no harm. Otherwise, the abuse of the
vulnerable, which is often used as a defense against assisted suicide, has already been imposed.
In the cases of Gloria Taylor, as well as that of Sue Rodriguez, specific concerns were
included. As one suffering from a degenerative disease, Taylor, as did Rodriguez, was seeking

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exemption from the governing legislation to have a physician assist her in ending her life when it
had reached a point she felt to be no longer tolerable. Two issues raised by this situation is the
dignity of the human being, and the seemingly arbitrary nature of the existing laws. As Taylor put
it, simply taking a shower, which she could no longer do for herself, “(was) experienced as an
assault on her privacy, dignity and self-esteem”, (Dyer, 2012). The larger issue raised earlier and
unsuccessfully by Rodriguez, is the unintentional restriction put on her due simply because of her
disability. Under Canadian law, advising or assisting one towards suicide is illegal; the act when
executed by the individual herself is not. Rodriguez argued that the assisted suicide ban created an
inequality because persons capable of ending their lives could do so without contravening
Canadian law while those whose disabilities prevented them from committing suicide would be
putting themselves and any person at their aid in opposition to the law, (Avila, 1994).
American Examples
“When your conscience says law is immoral, don’t follow it” - Dr. Jack Kevorkian
It has been almost 25years since Dr. Kevorkian’s first publicized assisted suicide. In the
time between, several states have enacted legislation allowing physician assisted dying. Oregon’s
victory in passing the Death with Dignity Act came after similar legislation failed in California
and the first attempt at the same in Washington State. One of the biggest challenges was the
position stated by opponents that prescribing the required medication violated the Controlled
Substances Act, and therefore both physician and pharmacist would be in breach of the law. This
point was dismissed, the Rx given special status within the DWDA and the legislation enacted.
Three years after its passing, loss of autonomy was given as a reason to access the DWDA; the
number of patients who received the medication still outnumbers the patients who ultimately take
it (Kondro, 2009). This is in opposition to the fear that legalizing PAD will affect the psyches of

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patients and they will be more liable to give up. Though illness can impact our mental health, each
region has included an assessment piece to guard against misuse. In Oregon, the passing of PAD
legislation revealed a paradox: when allowed access to the medication to end their life sooner, led
to a surge in wellbeing and peace of mind. This in turn renewed many patients desire to live longer.
The theory behind this reaction relates back to the concept of dignity and self-determination, the
individual shifts their self-perception from “helpless victim” to “willing survivor” (Lee, 2010).
Upon a second attempt and shortly after Oregon’s victory, Washington State passed Initiative
1000, allowing similar practice.
Both the ODWDA and WDWDA carry very strict limitations as to what practices this term
covers. Under Oregon’s individuals may acquire life ending medication by prescription from their
doctor, but must administer the medication themselves (Bollman, 2009). This poses an obstacle to
those suffering from degenerative diseases such as ALS, MS and other illnesses that cause
deterioration of mobility. Though a step in the right direction, these can be seen as half measures
made without the consultation of all people affected. If the quality of life is the concern and reason
for the need for PAD, with the existing terms of the act legislated, what options are left for those
who are able to follow through with the practice at a time in their lives they feel is still optimal
and worth living?
Vermont’s Patient Choice at End of Life Act has allowed for a compromise between the
needed legislation and regulation of Physician Assisted Death and the autonomy and freedom of
the patient by still requiring a terminal diagnosis, but not enforcing the same 6month prognosis as
the first two states (Tucker, 2014). However, they still have to self-administer, a problem when
seeking equality under the law for those afflicted with physically limiting illnesses.

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Montana challenged Right-To-Die legislation in 2007. The idea that the individual
protection of one’s personal freedoms as stated in the Constitution includes their end of life
decisions, and therefore also offer protection to those whose help is requested and assist in PAD.
This decision was brought up again in 2009, where the question of constitutional protection was
not addressed. Instead, the state has allowed for a “consent defence” in which the physician will
not be prosecuted if the process of due care was followed and informed, free and enduring consent
was given by a competent, chronically ill patient. In its ruling, the court stated that “nothing in the
Supreme Court or state statutes indicate that allowing PAD would go against public policy”
(Mason, 2010). According to Bollman (2014), bioethicists agree with the right to the idea of
individual autonomy in the end of life. The decision in Montana stated the same sentiments: one
has the right to determine one’s own fate as long as it does not impede on the rights of another.
International Successes
Establishing access to aid in dying via statute or court decision is possible. But is it necessary?
Most medical care is not governed by statute or court decision, but is instead governed by
professional practice standards, also referred to as best practices, or "standard of care."
–Tucker, 2014
Colombia has successfully defended PAD, in all forms, from legal prosecution permitting
that certain conditions are met. The patient must be terminally ill yet competent to give consent
(Butler, Tiedmann, Nicol & Valiquet, 2010). The issue is still largely divisive in a country that is
moving forward but whose population is still largely, devoutly catholic. This has also been a barrier
to legislating similar acts in Spain for the same reasons. This religious homogeneity has been
linked to some failures to implement PAD around the world. With the passing of PAD in several
European countries, many are now in support of the change (CBC News, 2014). In the shrinking
global community we live in, many people of various spiritual and religious backgrounds still see
the importance of self-determinism as a reason to support such law.

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Belgium legalized Euthanasia in 2002, there remain no regulations on Physician Assisted
Death as described in the US models (Butler, Tiedmann, Nicol & Valiquet, 2010). In these cases,
grounds for prosecution are considered on a case by case basis, and have to prove that due care
was not shown to the individual. This has led to an underreporting depending on the methods of
PAD used and reflects the difference between European countries and the importance of careful
codification as this specifies what is legal, and what is recorded due to the practice’s status (Cohen,
Wesemael, Smets, Bilsen & Deliens, 2012). In Belgium, within the eligibility criteria there is a
distinction between those patients whose death is expected in the near future or not. If not expected
soon, there are additional criteria to be met such as two additional medical doctors’ professional
consult and opinion and at least one month between the request and its fulfillment (Lewis & Black,
2013).
Voluntary, active euthanasia has been practiced in the Netherlands, and in all practicality
legal, since 1980. It was officially legalized in 2002 and carries with it many conditions to be met
(Rurup, Smets, Cohen, Bilsen, Onwuteaka-Philipsen & Deliens, 2011). The Netherlands model is
the most comprehensive. The term PAD includes the practice used on Oregon, as well as active
euthanasia. These practices are available, after due care guidelines are met, to both the terminally,
critically ill and those who are otherwise facing unbearable, hopeless suffering. As such, the
procedures can be carried out as stated by the patients verbal request, or, in case of advanced
disease leading to inability to speak or comatose condition, an advanced directive may be followed.
The at-risk groups named by opponents of legalizing such practices, namely, women, elderly,
uninsured, poor, racial/ethnic minorities, physically, chronically disabled, and minors were shown
to be at no increased risk once the law was passed (Battin, Van der Heide, Ganzini, Van der Wal,
& Onwuteaka-Philipsen, 2007). This is in part due to the social acceptance of the practice before

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legislation came into place, but also due to the carefully considered means by which it could be
used and the intent behind its enactment. The common knowledge of the PAD procedures available
to the people of the Netherlands proves that the access to information and options is key in
successfully implementing these practices to expand the ability of palliative and heath care in
general.
Policy Recommendations
Many clinicians have trouble on a moral level distinguishing between medication that might
hasten death – an act that is required if the dying are to receive appropriate care - and giving
drugs in order to hasten death, which is euthanasia. – LaDuke, 2004
In the debate over legalizing PAD, both sides are ultimately conveying the same values,
those for human life and autonomy (Boudreau & Somerville, 2013). The difference is in what they
see the outcome to be. Those who advocate for the expansion of health care to include these end
of life options see them as bringing greater control to the individual, whereas, opponents fear the
choice being taken away and instead motivated by greed and social factors. In light of the
catastrophizing that has been done around the topic, there has been proof that although there may
be deontological arguments against PAD, there are also ways to view the same points in a more
moderate way. For example, the idea of the physician’s intent to be towards healing or curing the
patient, never to kill, takes away the idea that for many there is no cure. In relieving suffering they
can fulfill their duty and still respect the autonomy of the individual (Dieterle, 2007). In putting
forward the inherent wrongness of killing, again we have to ask in whose eyes? Death is not a
harm to those who seek PAD, as there comes a time when the weight and struggle to continue on
with the quantity of life exhausts the individual and detracts from the quality of their life. Even
Arch Bishop Tutu has reversed his stand on PAD. He stands by the belief in “the sanctity of life –
but not at any cost” (Crowley, 2014). Also, killing is a term that assumes malevolent intention

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against another. If one wishes to die, and can acquire a physician’s aid in doing so, no such act has
been committed.
In fearing the end of advances in palliative care, there is an assumption that all patients
who are eligible for PAD will opt-in. In fact, the availability of the services has not meant an
increase in accessing them, (Bollman, 2014). The continuation of research will not be stopped by
including them into the choices one has in that situation. Indeed, Dieterle (2007) states the care of
the terminally ill has improved in both European and American jurisdictions where PAD is
practiced; the enhancement of life is another focus of palliative practice. The availability of PAD
would only help to create a fully integrated health care model. Every social policy has the potential
for abuse. It is up to us to draft legislation that allows for PAD, with the safeguards in place to
defend against such misuse.
Luckily we are not the first at the drawing board and can use many of the lessons learned from
the other jurisdictions to formulate a complete Act that covers both concerns. In the interest of
space, I have combed through the Netherlands’ model for some items to consider when passing
PAD into law. They are as follows:
1. First, there would need to be clear definitions of the terms Physician Assisted Death,
Passive Euthanasia, and Active Euthanasia. There would then have to be the acts
considered under each of those terms. For passive euthanasia we have already used
many of these practices for decades. It is for the areas in which PAD will be expanded
into active euthanasia that we will need to be clear on what we will allow, (prescribing
and aiding in the administration of the medication.)

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2. There would need to be, as always, full disclosure to the patient of their condition,
prognosis, and all of their options so as to ensure informed consent. The idea of a living
will to state the individual’s wishes for decision related to PAD upon incapacitation
would have to be written into legislation as well. With this piece, a time period during
which such a document is valid so as to be purposeful but not indefinite, would have to
be decided on.
3. There would need to be competency requirements in place, both for the physician and
patient. For the health care professionals involved, there would be a need for some
length of relationship, or consultation with the individual’s primary care provider. This
would ensure a fuller understanding of the patient’s background and current situation.
Also, as the provision of such services would be an option to the patient, so too would
there be the choice for the doctor to provide it, or not.
The use of a required number of requests and the timing in between the requests
and the administration of PAD would also have to be taken into consideration.
Competency requirements would include the forms of PAD available to the individual
based on their prognosis. We want to legalize this to honour the autonomy of the
person, in doing so we would want to intervene only as is needed. A second medical
opinion, as well as psychiatric assessment where major depression is a suspected factor
in PAD requests would be necessary to ensure due care is followed.
4. Pending the passing of this new legislation, education must be a part of implementation.
Both for professionals in all the disciplines discussed earlier as well as for the general
public. We would need to educate people about what it means, (their medical choices),
who would have access to it and how that would look. Part of the public education

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piece would be to assuage the fears of the opponents by explaining the benefits, and
more importantly the voluntary nature of these medical procedures.
Conclusion
The evidence shows that risks exist, she added, “but they can be identified and very substantially
minimised through a carefully designed system imposing stringent limits that are scrupulously
monitored and enforced.” – Judge Lynn Smith (in Dyer, 2012)
The latest polls seem favorable, and the knowledge and results shown by other jurisdictions
can be used to push for and support legislative change here in Canada. In medical situations,
including palliative care, one can request a Do Not Resuscitate, (DNR) Order, as well an end to
life saving treatment, even if lack of that intervention results in death, (Death With Dignity Canada,
2014). Many Canadians feel that the request and act of Physician Assisted Death in serving the
same purpose should be granted similar status. If we truly see it as such, we need to start treating
death as a part of life and start acknowledging the impact of choice in our lives, throughout our
life. We need to legalize Physician Assisted Death in all its forms to help the individuals who work
in the health care profession the freedom to follow their oath and serve their patients’ wishes. We
need comprehensive, varied options for people facing the end of life so they can leave with a sense
of control, peace and dignity. We need to act carefully, taking into consideration the protocols used
in other jurisdictions. We need to act now and reflect the will of the Canadian population.

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Legalizing Physician-Assisted Death for a Dignified End of Life

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