What's next now that the Supreme Court has ruled in favour of the right to die?

The Supreme Court’s unanimous decision Friday to toss out the criminal law forbidding assisted suicide and euthanasia is hardly the end of the argument.

The high court’s one-year suspension of its ruling will trigger a furious debate by Canadians on an issue that probably eclipses even abortion in terms of divisiveness.

“It’s not an incremental change in our values, as the pro-euthanasia people argue,” said medical ethicist Margaret Somerville, who opposes legal assisted death. “It’s a seismic change in our most fundamental values.

“I think future generations will look back on this and this decision and what comes out of it as the single most important values decision of the 21st century.”

But what exactly comes next is not clear.

“This is a sensitive issue for many Canadians, with deeply held beliefs on both sides,” said a statement by Justice Minister Peter MacKay. “We will study the decision and ensure all perspectives on this difficult issue are heard.”

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The court’s long-awaited decision reversed a 1993 Supreme Court ruling in the Sue Rodriguez case that upheld the law against assisted suicide.

This time the court, the majority of whom were appointed by Prime Minister Stephen Harper, concluded that a mentally competent adult enduring intolerable, irremediable suffering, whether physical or mental, had the right to request a doctor’s assistance in dying. The current law, it found, violated the Charter of Rights’ guarantees to life, liberty and security of the person.

It delayed implementation of the ruling for one year to give federal and provincial governments time to draft new legislation using the court’s decision as guidance.

The Supreme Court gave Ottawa a similar deadline when it tossed out Criminal Code sections covering prostitution. The Conservative government responded with legislation that critics said essentially nullified the court ruling’s intent.

The government could conceivably do something similar here. If it does draft a law, opponents hope the parameters for requesting assistance to die will be defined as narrowly as possible.

Opponents call for notwithstanding clause

But what they would really like is for the Conservatives to invoke the Charter’s notwithstanding clause to override the court’s decision.

The Commons overwhelmingly rejected late Bloc Quebecois MP Francine Lalonde’s private member’s right-to-die bill in 2010, as pointed out by Somerville, the founding director of McGill University’s Centre for Medicine, Ethics and Law.

But that bill was badly written and not even supported by right-to-die advocates, Wanda Morris, chief executive officer of Dying with Dignity, told Yahoo Canada News, so it can hardly be used as a pretext to overturn the Supreme Court’s ruling.

The notwithstanding clause has been used only a handful of times, she said, and only by provinces for somewhat dubious reasons, never by Parliament. Public opinion has also shifted rapidly, she said, with polls suggesting a majority of Canadians support access to physician-assisted dying.

“So I think it’s unlikely that Parliament would go against the will of 20 million Canadians who’ve been supporting assisted dying,” said Morris.

The federal government has a third option: It can do nothing. That’s what then-prime minister Brian Mulroney’s Progressive Conservative government did in 1988 when the Supreme Court ended the criminal prohibition on abortion in the case of Dr. Henry Morgentaler.

In opting not to pass new regulations on abortion, it was left to the provinces to set up their own regimes under their jurisdiction over health-care delivery.

Canada’s doctors hope that won’t be the case with this ruling.

“That’s certainly a possibility that we’ve been discussing; what would that look like if there is no action legislatively within that 12-month period?” Dr. Jeff Blackmer, executive director of the Office of Ethics, Professionalism and International Affairs at the Canadian Medical Association, said in an interview.

The association, which represents more than 80,000 doctors, is prepared to work with the provinces if Ottawa doesn’t move, he said, but he worries that will create a checkerboard of laws and regulations determining which patients are eligible and what the rights and obligations of doctors are.

“We need clarity on that and we’d like to get clarity at the federal level,” said Blackmer. “That would be in everyone’s best interest. If that’s not possible, then we’ll look at other scenarios involving, as I say, potentially provinces.”

The association issued a statement Friday, saying it would work with legislators to draft new laws and reiterating its support for doctors to follow their conscience when it comes to deciding whether to assist patients who want to die – something the court also stressed.

Blackmer said the association has been working behind the scenes for months on a draft policy to present to members in advance of the ruling.

“We’re just about ready to start those conversations,” he said. “We anticipate that we would certainly be ready to bring something forward within the year and we’re certainly looking forward to having those conversations with the government and others.”

Court ruling creates dilemma for doctors

There is a lot that needs to be clarified, not the least of which is doctors’ duties to comply with their patients’ requests when they clash with personal beliefs.

While physicians would not be compelled to provide assistance to patients who want to die, would they be required to refer them to doctors who will do it?

“I’m not sure there’s a clear answer on that yet,” said Blackmer. “That’s something we’re still discussing internally.”

Somerville said abortion services give some indication on how that discussion might go. The colleges of physicians and surgeons in Ontario and Saskatchewan, for example, is requiring doctors to provide abortion referrals if they’re not willing to perform the procedure.

“That’s against doctors’ conscience because that’s complicity in what they believe to be wrong,” she said.

But Blackmer noted his association’s own research suggests between 20 and 27 per cent of its members would be willing to provide assistance to die if it was legal. That should provide a large enough pool of doctors, and it’s likely people interested in that service would be able to find out where to contact them, he said.

“That still doesn’t resolve the fundamental ethical question about whether or not physicians have an obligation to refer,” said Blackmer. “Honestly, I think that is still an open question and it’s one that we’re grappling with and the regulators are grappling with as well.”

Another major grey area is the question of mental competence. Opponents of assisted dying, such as the Council of Canadians With Disabilities, argued Friday that the Supreme Court’s definition of who is eligible to ask for such help is very broad.

It does not require an illness to be terminal; it must merely be a “grievous and irremediable medical condition.”

“How we are going to make that sort of a determination; your suffering is not as good as my suffering?” asked Dr. Margaret Cottle, a vice-president of the Euthanasia Prevention Coalition.

Are those in emotional and mental distress vulnerable?

That suffering includes psychological suffering, which Cottle argues could leave people with mental and emotional disabilities vulnerable.

Just how do you determine that someone suffering from a severe mental illness is mentally competent to ask for assisted suicide?

“I will tell you in other jurisdictions where these things are legal, they have not squared that circle,” said Cottle, noting that in the Netherlands the number of people requesting assisted dying for psychological reasons has risen.

However, psychiatrist Dr. Derryck Smith, a director of Dying with Dignity, said that kind of determination is already made in other areas.

“I assess competence on a daily basis,” he told Yahoo Canada News. “Only competent patients can agree to any medical treatment. I also do legal assessments to determine competence.

“These mechanisms are already in place. Most people who are not psychotic or demented are competent.”

Blackmer is not so sure.

“As it’s written now, you could have someone with depression that would qualify,” he said. “I’m not sure that was the justices’ intent and that’s something we would want to examine in more detail.”

These are just a couple of the issues politicians, doctors and Canadians at large will be dealing with as the debate proceeds, with a new federal government likely to deal with the outcome after October’s scheduled general election.

Just how engaged will ordinary Canadians want to be when the election campaign is likely to be dominated by the economy and the war on terrorism? Somerville thinks it’s vital they should be.

“At the individual level, you’ve got the strongest case for legalizing assisted suicide and euthanasia,” she said. “Where the arguments against it come in is at the institutional level: What does this mean for medicine, what does it mean for law?

“Law carries the respect for human life. Now it’s not going to carry that as an absolute anymore. And what does it mean for society and its values?”