Assisted death: how the work of this philosopher informed the recent Supreme Court decision

In 2011, the B.C. Civil Liberties Association (BCCLA) filed a lawsuit claiming that physician-assisted dying should be legal. That case ended up before the Supreme Court of Canada last fall and on February 6, 2015, the BCCLA won their case.

The landmark decision overturned the Supreme Court’s 1993 ruling that physician-assisted suicide is illegal. The court has suspended its decision for 12 months to give lawmakers a chance to write new laws that reflect the ruling.

Wayne Sumner, University Professor Emeritus in the department of philosophy, offered to help the BCCLA with their case in 2011 and became directly involved in their efforts. He used arguments he developed in his book, Assisted Death: A Study in Ethics and Law (2011), to provide expert testimony that played a significant role in the Supreme Court’s decision. Sumner spoke to the Faculty of Arts & Science News about the decision and his contribution to it.

This has been called a landmark ruling. What is the significance of the Supreme Court’s decision?
It is historic. It changes the landscape in Canada in pretty profound ways. Up to this point there have been a variety of things that can be done for patients experiencing significant suffering in the last stages of their lives, including a number of things that would actually hasten their deaths, such as honouring a patient’s refusal of further life-sustaining treatment, terminal sedation, and the use of painkillers to the extent that it might compromise life. All of these were legal and widely regarded as ethical, but the law had drawn a firm line between them and any form of physician-assisted death, whether it’s physician-assisted suicide or euthanasia. What this judgment does is to cross that line. Competent adults who are able to make a clear request and who experience intolerable suffering from an irremediable disease will now have a right to physician-assisted suicide and physician-administered euthanasia. The judgment makes options available to these patients that they didn’t have before.

It is rare for an academic philosopher to contribute to a case before the Supreme Court. How did you come to be involved?
I’ve been teaching and writing in bioethics for a long time. In the 1990s, I started teaching courses specifically on end-of-life issues and developed my own views on physician-assisted dying. When I retired from teaching in 2008, I decided to put together the views that I wanted to defend on these questions, so I wrote Assisted Death trying to systematically provide a case that physician-assisted death is ethical and should be legal. Those were the two aims of the book. At just about the time the book appeared, in 2011, I learned that the BCCLA was mounting a challenge to the constitutionality of the Canadian laws covering assisted death. I wrote an email to tell them that I had just published a book on this very question and that I would be delighted to help out in any way I could.

Joseph Arvay, the lead council for the BCCLA, asked me to serve as an expert witness in ethics in the case before the B.C. Supreme Court. Expert witnesses are usually expert on facts – it’s usually scientists of various kinds who are recognized by the court. Joe didn’t know of any case in which anyone had ever been recognized by a Canadian court as an expert witness on an ethical issue, so this might have been a first.

Part of my contribution was to write an ethical opinion that condensed material from my book. I argued that there are no significant ethical differences between assisted death and various other end-of-life treatment options that can have the effect of hastening death. The argument established that the legal distinction between physician-assisted death and other end-of-life treatments is not grounded in the ethics of these practices. This is what they used at the B.C. Supreme Court trial. Madam Justice Lynn Smith ended up agreeing with us, concluding that there was no ethical difference here.

So that was my role. I was an expert witness for the plaintiffs on ethics. My testimony, my evidence was incorporated into the B.C. trial judge’s decision and all of her findings, including my arguments, went forward to the Supreme Court of Canada.

What is it like to make a significant contribution to a Supreme Court ruling as an academic philosopher?
I think it’s just super-cool. I have always held the view that philosophers should try to make a difference in matters of public policy, that we have skills that we can bring to the table and that it’s a shame if we don’t do that on whatever issue happens to animate us. I’ve advocated that for a long time, but I never dreamed that I could be part of anything as momentous as this decision. This is a high-watermark of my career as a public intellectual.

What do you make of the public discourse responding to the decision?
I think in one respect the actual reporting of the case has been misleading, by emphasizing physician-assisted suicide. The 1993 Supreme Court case challenged only the prohibition of assisted suicide. This time the challenge was also to the provision in the Criminal Code that prohibits someone from consenting to their own death, so laws that were struck down had to do with both physician-assisted suicide and euthanasia.

The upshot for legal and medical practices seems huge. Where do we go from here?
Obviously this decision is not one that the Harper government is keen to act on. I hope that they take the conditions that the court laid down seriously and write them into the law. But even if they do, there are still going to be many questions about how provincial ministries of health should operationalize these practices. Do you require a second opinion as a matter of law? How do you ensure that the patient is competent and able to make his or her own healthcare decisions? All of these questions are up in the air. There is the initial euphoria that the old laws have been struck down and then you wake up the next day and wonder how we’re going to get it right.