This past week the Supreme Court of Canada unanimously decided that the provisions of the Criminal Code that prohibited assisted suicide were unconstitutional and should be struck, giving the federal government and the provinces a year to enact legislation with respect to assisted death. The impact of this decision should not be underestimated - as much of what was articulated has implications for not just how people approach death, but also for the healthcare system, the legal system, and cases that have yet to be decided in the years to come. Make no mistake, the Carter decision is a profound decision that is a landmark of profound changes in the years ahead.
The legislation and regulations that provinces and the federal government develop to govern assisted death will determine who is permitted to assist in a death, the circumstances that must be met, and whether or not it is to be publicly funded as an insured service. The only requirement is that whatever legislation and regulations that are developed conform to the requirements of the constitution, or risk being struck down in the course of time.
It is difficult to predict how accessible or how popular assisted death will be - however, it is not difficult to predict that the removal of the ban on assisted death is a big shift in the landscape, and will likely be a transformative change in and of itself, and might be the start of a set of substantial and transformative changes. The decision was an affirmation of patient autonomy - an affirmation of a competent, adult individual's right to decide what happens with their body and to make medical decisions for themselves, even when the consequence of those decisions is certain death. To endure the suffering associated with many devastating diseases and the end of life will no longer be an obligation thrust upon victims, but rather a choice that is made by the individual after consideration of their own needs and circumstances. It is a shift away from a kind of paternalism towards individual autonomy, towards respect for what is an incredibly personal experience.
It is also a shift towards a more sustainable health system (as of this week all forecasts of demand for health resource use should be considered obsolete). Upwards of 25 percent of all health expenditures are made within the final 12 months of life - the provision of palliative care services, residential care services, and home care services have been widely acknowledged to face considerable challenges in the years ahead. The availability of assisted death will alleviate demand and reduce the amount of resources spent on the final months of life. Those electing assisted death, may enable those electing to endure better access to palliative care and other resources. Further, those electing assisted death might be able to choose between spending their wealth on longterm care or preserving it for their estate. However, given the strong incentives that both the government (as sole provider of health services) and perhaps individual's own family's may have in encouraging assisted death - it will be of tantamount importance to enshrine protections against being coerced into accessing assisted death services. Indeed, assisted death will not only be a new area of medical practice, but also a new area of legal practice.
Further, there are profound implications for future litigation concerning the health system. Specifically, the litigation that is currently underway in the Cambie case in British Columbia. If it is unconstitutional for there to be an outright ban on assisted death, how is it constitutional for there to be an outright ban on privately purchasing access to health services that enhance quality of life? If failing to provide access to death, infringes upon security of person and an individual's right to autonomy - then surely relegating people to waitlists or denying access to health services altogether must also be an infringement on Charter Rights. It would be sadly ironic, if assisted death is determined to be a "medically necessary" health service and insured by the provinces, that those who have fought hard for the right to die with dignity might suffer the indignity and the frustration of that right by finding themselves imprisoned by the shortcomings of the healthcare system.