The Carter decision has been heralded as legalizing “physician-assisted death,” more commonly known as physician-assisted suicide and euthanasia. A closer reading of the decision reveals, however, that these practices are not “legalized” in the sense that they are safe for doctors to perform. This will be the case until the expiration of a 12 month suspension AND the imposition of regulations by parliament to create safe harbors for practice.
Carter merely provides that the Criminal Code provisions prohibiting physician-assisted death are of no force or effect when three factors are satisfied: patient competency; clear consent; and a “grievous and irremediable medical condition.” (Decision, paragraph 147). The problem is that physicians are not always right regarding these factors.
Consider, the Victorio Noval case, in California, where a hospital performed a “terminal extubation,” causing his death. After the fact, the hospital learned that Noval’s daughters had lied about his condition for the purpose of a quick inheritance, and that consent from his son had been required, but not obtained. Id. The hospital and other parties have now been sued. Id. Hospital staff are reportedly refusing to testify in order to avoid incriminating themselves on criminal charges.Id.
Without the imposition of a similar regulatory scheme by Parliament, no doctor who assists a suicide, or who performs a euthanasia, can be assured of his or her safety to do so. Even after the 12 month suspension period, doctors will be at risk of homicide charges because, like the hospital in Mr. Noval’s case, they learn after the fact that they were wrong on the facts of the case. Doctors go forward under Carter at their peril.