The Gloria Taylor Trial: Final Day in Court, December 16, 2011

After a day off on Thursday December 15th to allow the plaintiff’s counsel to complete their reply to both the Federal & Provincial Crown’s argument; Friday, Dec 16 was the final day of the Gloria Taylor trial.  DWD's Executive Director, Wanda Morris summarizes the testimony given during the final day in court.

No one wants to die

In talking about the wish of grievously and irredeemably ill people to end their suffering, Joe Arvay, the lead counsel for the plaintiffs noted, nobody says:

• I have a perfectly good leg - cut it off.
• I have a perfectly good body - kill it.

He said that everyone, especially Gloria Taylor, wants to live; no one wants to die. It is only when suffering is so great that death is a better alternative that a patient will choose to die.

Not all who are disabled are vulnerable

Arvay addressed the concerns raised by the defendants that there would be no way to protect the weak and vulnerable if medically assisted dying were to be allowed. He noted that the AG for Canada had admitted that "not everyone who is disabled and who has a desire to end their life is vulnerable". He stated that Sue Rodriguez was a scapegoat for the vulnerability of other people and that if AG Canada has its way, Gloria Taylor will be another.

Speaking out about people with disabilities, Arvay strongly challenged the implicit presumption made by AG Canada, that if you are disabled, you don’t have capacity.  He said that it is disrespectful and infantilizing to assume that someone who has a disability cannot make a clear, reasoned and rationale decision about wanting to die.  (His argument was all the more compelling as Mr. Arvay enters and leaves the courtroom in a wheelchair.)

Disabled lose fundamental right

One of the foundations of this case (and Rodriguez before it) is built on Canadians’ right to die.  With the decriminalization of suicide in 1972, Canadians have had the right to end their suffering.  However, certain disabled individuals will be physically unable to bring about their own death, so they are prevented from exercising the same rights as other Canadians because of their disabilities and so are suffering discrimination.

Arvay noted that (quoting from Statistics Canada) the primary means of suicide were hanging, strangulation, self-suffocation, crashing from a car and jumping from high places – all means unavailable to someone who is severely disabled.  Arvay noted AG Canada’s contention that someone who is disabled can still starve themselves to death.  Arvay noted this can be a horrific way to die and that furthermore, if a physician rendered assistance during this period (such as by providing drugs to mitigate the symptoms) the physician is essentially assisting someone to die – so why not render that assistance in a humane manner.

In the 1994 Supreme Court Decision on Rodriguez, Justice Sapinka wrote for the majority and acknowledged that Sue Rodrigues was being discriminated against because of her disability.  But he further stated that principles of fundamental justice required such discrimination.  Essentially, if she was allowed assistance to die, the weak and vulnerable in Canada would all be at risk.

Arvay argued that the current prohibition against all assisted dying requests meant that no one had the right to even present their case.  Everyone who was considered disabled would be presumed unfit to make the decision and they would not even have the opportunity to show otherwise.  Arvay contrasted this to the treatment of mature minors who had the right to go before the court and appeal a treatment they do not want.  Mature minors have the right to petition for an exception to the rule that until an individual is 16 others will make their medical care decisions for them.

Importance of exceptions

Medically assisted dying will essentially allow physicians in certain situations an exemption from the rules around ending life.  Arvay talked about the importance of allowing exceptions to the rules:

• The bystander who commandeers a car and breaks the speed limit to take an accident victim to the hospital
• An innocent victim who uses force in self defense

Arvay argued that such exceptions do not violate social norms but in fact are viewed as rightful not wrongful.

Arvay quoted the recent Insights (safe injection site) decision to note that sometimes exceptions must be made to best protect the interests of individual Canadians.

He further noted that in the medical marijuana decision the courts had ruled that a patient should have the right to choose his own treatment, providing such treatment was reasonable and the other alternatives weren’t acceptable.

Terminally Ill Definition Arbitrary

Arvay took exception with a possible restriction of medically assisted dying to the terminally ill. He said it is a vague and arbitrary distinction. Making such a distinction would only condemn the grievously and irredeemably ill to a longer period of suffering. (DWD note: The definition of terminally ill means an individual is expected to die within the next six months. In Oregon and Washington State, assisted dying is restricted to the terminally ill.)

Palliative Care Not Sufficient

AG Canada had taken the position that palliative Care is sufficient.  In addressing this argument Arvay noted that even if palliative care rendered suffering obsolete, it would not be an answer for everyone.  In spite of outstanding palliative care, there will always be those who prefer to die.  Arvay argued that palliative care is a capability issues, not an availability issue.  He had harsh words to say about Canada’s response to the need for palliative care noting that in comparing the 1995 senate report and the 2011 report of the all-party parliamentary committee, many of the recommendations were similar.

Arvay noted that AG witnesses had themselves admitted that palliative care was not sufficient in all cases and even with the best care some individuals still wished to die.

Arvay noted that millions of Canadians undergo chronic and acute pain.  He stated that to force them to suffer, when they would choose otherwise, because Canada hopes at some point in the future to have universal palliative care, is unbelievably cruel.

Bad Logic

Ms. Tucker provided an analysis of the plaintiffs concerns about some of the evidence heard in the case which indicated that many individuals who expressed a wish to die changed their minds.  She noted that there was an Epidemiological Fallacy, or the use of bad logic, in the studies.

Repeatedly, the studies quoted by AG Canada used as their subjects terminally ill individuals.  Many of these individuals had expressed an interest in having a right to die.  Tucker noted that in other, better controlled studies, subjects were restricted to those actually taking steps to obtain the right to die, and that there was often little overlap between the two.  In one study of 42 people who had expressed an interest in assisted dying, only 1 applied to die (and the other applicant had never expressed an interest).  Therefore, basing a conclusion on a study of people who express an interest in dying is bad logic as such a group does not represent those who will eventually ask for assistance to die.

Safeguards Can be Put in Place

Key to the evidence presented by the plaintiffs is the assertion that safeguards can be put in place.  The plaintiffs note that is will be parliament’s role to determine the specific safeguards to be put in place for Canada, but they note such possibilities as:

• Physician and confirming physician must both be satisfied that patient had serious disease and it is  without remedy and that it causes patient suffering that is intolerable to the patient (Arvay also noted that no physician would ever be required to participate in treatment).

• Capacity assessment (to determine that the individual is not being coerced in any way)
   
• Minimum waiting period (to ensure that the wish to die is an enduring wish)  Counsel noted that this waiting period could be different in different instances.  For example, someone who has recently undergone a traumatic accident that has left them as a quadriplegic, may be required to wait a year or more, to ensure that they truly cannot and do not wish to adapt to their new circumstances.
   
• Mandatory psychiatric evaluation (with an automatic disqualification for a major depressive disorder)
   
• Medical diagnosis corroborated by an independent physician
   
• Provision of meaningful rights of withdrawal (perhaps a patient advocate to ensure that at every step the decision to seek assisted dying is truly the patient’s wish )

Focus on the objectives

Arvay said that it was critical that the case focus on one objective, and that this objective is the protection of the weak and vulnerable.  He said that other objectives that have been raised, such as:

• Preservation of human life (without qualification)
• Promotion of palliative care
• Preserving the doctor/patient relationship

Arvay stated that it is not open to the government to frame objectives in such a broad way and in so doing would render the charter futile.

Zero Tolerance a Fallacy

Speaking out about a proposed zero tolerance to assisted dying, Arvay noted that many witnesses had spoken about the incidence today of assisted dying.  The current laws are not preventing it.  He also noted that individuals use supports of organizations like Dying With Dignity Canada and Dignitas, so that assisted dying is not prevented, it is simply performed in a way that puts people at risk due to a lack of regulation and controls.

Final Words from the Defendants… For Now

Ms. Nygard, Counsel for the Attorney General of Canada, noted that she was simply unable to respond to the depth of content in the plaintiffs response to the testimony and that much of what had been said did not constitute “proper reply” and therefore she wanted time to go through the final days’ submission and challenge it.  She asked for permission to file such final words in writing and due to some planned holidays, asked to be given until January 13^th, 2012. 

Arvay was visibly upset at this suggestion and made strong counter-arguments to the effect that he and his team had lived by the time restrictions and the AG should be required to do so as well.  He further noted that while Ms. Taylor’s health has not recently taken a turn for the worse it could do so at any time, so such a delay could be very detrimental to her. He suggested that if further time was needed, the AG be given until Monday December 19^th, two days, he noted, being twice the time he had had to respond to the AG’s evidence.

Madame Justice Smith limited the scope of the defendant’s final submission, and allowed that Mr. Arvay would have the right to object to it, but she agreed in a two-step process, first AG Canada would be allowed to put forward a table showing which aspects of plaintiffs testimony were not proper reply and then what remedy was sought.