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Monday, 27 February 2017

‘Conscience Votes’ Jeopardise our Human Rights

Meg Wallace

In February 2015, the Supreme Court of Canada made a historic ruling on voluntary euthanasia.[1] 

It held that access to voluntary euthanasia is a basic human right. The Court declared that Canadian legislation prohibiting assisted suicide is invalid, as it is a violation of the right to life, liberty and security of the person, under the Canadian Charter of Rights and Freedoms. The Canadian Charter reproduces the human rights set out in the Universal Declaration of Human Rights (‘UDHR’). Australia is a signatory to the UDHR.

The Court pointed out that everyone has the right to make decisions concerning their bodily integrity and medical care. This principle allows a person with a grievous and irremediable medical condition to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment (they can also legally refuse nutrition and fluids). The Court held that prohibition of voluntary euthanasia interferes with this right to one’s bodily integrity and medical care, and thus ‘trenches on liberty’[2] It held that forcing people to endure intolerable suffering deprives them of their security of person according to the principles of justice, which are founded on a belief in the dignity and worth of every human person.[3] The alternatives, taking one’s own life prematurely when able to (often violently or dangerously), or suffering until death, are ‘cruel’.[4] The right to life, the Court said, is no longer seen to require that all human life be preserved at all costs.[5]

The existing law is inconsistent.

The Court pointed out that as the right to liberty and security of the person allows mentally competent individuals to refuse medical treatment, even where it is life-saving or life-preserving, prohibition of assisted dying constitutes ‘overbreadth’ of the law. This is because (1) it denies some individuals the right to liberty and security of the person, including autonomy in medical decision-making; (2) this denial is otherwise contrary to the general objective of the Canadian Charter, which is to ensure universal enjoyment of that right; and (3) this denial has no relation to the Charter’s objective, which is to establish that right for everyone. Outright prohibition of voluntary euthanasia, the Court found, is concerned instead with protection of specific societal interests, not the rights of the individual.

Societal interests are cited in advocating the prohibition of assisted dying – such as religiously-inspired opposition, the need to protect the vulnerable from exploitation, mistake or duress, or the reluctance of some physicians to be involved. These are consequential issues, that should be considered in determining how the right is to be implemented (that is, safeguards to prevent abuse of the vulnerable) but should play no part in influencing governments to deny the right itself, which is intended to be universal.

Societal interests are properly the consideration of safeguards
The Court accepted there are legitimate concerns to protect the vulnerable. It examined arguments of over 40 submissions from groups that both supported and opposed the prohibition of assisted dying. It also considered the administration of legislation in countries that permit it. As of October 2015, euthanasia is legal only in the Netherlands, Belgium, Colombia and Luxembourg. Medically assisted suicide is legal in Switzerland, Germany, Japan, Albania and in the US states of Washington, Oregon, Vermont, New Mexico, Montana and California).[6] The Court found that none of the jurisdictions that have permitted assisted dying showed that physicians are unable to reliably assess competence, voluntariness, and non-ambivalence in patients, ensure informed consent, and prevent abuse. Indeed, the Court also found that comprehensive consideration of options, outcomes and safeguards involved where assistance in dying is available has meant that palliative care of the terminally ill actually improved in those jurisdictions.

Implications for ‘conscience votes’ against assisted dying
This judgment has important implications for legislators. It indicates that they have no business denying people their right to liberty and security. There is no room for a ‘conscience vote’ based on a politician’s personal religious or other life-stance to deny people their rights. The right to life ‘is no longer seen to require that all human life be preserved at all costs’.
This approach clarifies the appropriate nature of a ‘conscience vote’, at least in relation to voluntary euthanasia. Conscience votes are used as a cop-out when political parties are too timid to take a stand in fear of losing votes: they are sensitive to personal and religious interests. Legislators are there to act in the public interest, including protection of human rights. They should not deny rights established by the UDHR. They can develop, with their fellow party members, appropriate safeguards for preventing abuse, but rights must stand.
The reasoning of the Canadian Court is not irrelevant to the Australian justice system. The right to life, liberty and security of the person is established by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which have both been ratified by Australia. Based on the reasoning of the Canadian Supreme Court, one can argue that there is similarly a safeguarded right to assisted dying in Australia.

What does the UN say on human rights and euthanasia?
The UN Human Rights Committee has suggested that laws allowing for voluntary euthanasia with appropriate safeguards, are not incompatible with States’ obligation to protect the right to life, which does not go so far as to require that life and health be advanced against the express wishes of those affected. It also considered voluntary euthanasia with appropriate safeguards was not inconsistent with the right to privacy, freedom of religion and belief, and freedom from cruel inhuman and degrading treatment.[7]

[1]            Carter v. Canada (Attorney General), 2015 SCC 5
[2]            Ibid, [66].
[3]            Ibid, [81].
[4]            Ibid, [81].
[5]            Ibid, [63].
[7]               Australian Human Rights Commission, May 2016 Ethanasia, Human Rights and the Law, Issues Paper, 26.

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