Terry Pratchett’s proposal in his Dimbleby lecture tonight (Shaking Hands with Death) appears to be for Parliament to put in place a system of prospective approval of assisted suicides. The key for such a regime would be to avoid excessively burdening those who might choose assisted suicide, while screening out in advance those who do not meet the regulatory criteria, for example in relation to the request for assistance, or the nature of the person’s condition and experience.
What could we learn from other jurisdictions about prospective approval? Thus far, full prospective approval has only been a cautionary approach adopted by judges setting out interim measures to operate provisionally (ie, only until the legislature responds to a judicial decision that individuals have a right to assistance in dying). All of the current regulatory approaches to assisted dying in permissive jurisdictions (including the Netherlands, Belgium, Switzerland and the US states of Oregon and Washington) involve retrospective assessment rather than prospective approval, although the Dutch due care criteria or requirements of careful practice do provide significant prospective guidance to doctors, particularly the requirement of consultation. Moreover, a form of informal prospective approval is provided in the Netherlands by the use of a network of euthanasia consultants (the ‘Support and Consultation on Euthanasia in the Netherlands’ (SCEN) initiative). (See Bregde Onwuteaka-Philipsen & Gerrit van der Wal, ‘Support and Consultation for General Practitioners Concerning Euthanasia: The SCEA Project’ (2001) 56 Health Policy 33 (discussing the predecessor project in Amsterdam); M.C. Jansen-van der Weide et al., ‘Implementation of the project ‘Support and Consultation on Euthanasia in the Netherlands’ (SCEN)’ (2004) 69 Health Policy 365; M.C. Jansen-van der Weide et al., ‘Quality of consultation and the project ‘Support and Consultation on Euthanasia in the Netherlands’ (SCEN)’ (2007) 80 Health Policy 97-106)
Although prospective approval prior to the act of assistance in dying has not been a feature of any of the existing permissive regimes, it was proposed in the Canadian case of Rodriguez. In that case, one of the judges of the British Columbia Court of Appeal found in favour of the appellant, who was suffering from amyotrophic lateral sclerosis, or motor neurone disease (Rodriguez v. British Columbia (Attorney-General) (1993) 76 B.C.L.R. (2d) 145). McEachern C.J.B.C. held that the criminal prohibition against assisted suicide violated Ms Rodriguez’s constitutional ‘right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’ which is found in section 7 of the Canadian Charter of Rights and Freedoms, and set out six conditions with which the appellant and her physician would have to comply in order to avoid criminal liability:
First, the Appellant must be mentally competent to make a decision to end her own life, such competence to be certified in writing by a treating physician and by an independent psychiatrist who has examined her not more than 24 hours before arrangements are put in place which will permit the Appellant to actually terminate her life and such arrangements must only be operative while one of such physicians is actually present with the Appellant.
Such certificate must include the professional opinion of the physicians not just that she is competent, but also that, in the opinion of such physicians, she truly desires to end her life and that, in their opinion, she has reached such decision of her own free will without pressure or influence from any source other than her circumstances.
The fact that the Appellant has made her intentions known by bringing these proceedings, and in many other ways, may be taken into consideration by the physicians in reaching their opinions, but they will of course be careful to ensure that the Appellant has not changed her mind since making her earlier declarations.
Secondly, in addition to being mentally competent, the physicians must certify that, in their opinion, (1) the Appellant is terminally ill and near death, and that there is no hope of her recovering; (2) that she is, or but for medication would be, suffering unbearable physical pain or severe psychological distress; (3) that they have informed her, and that she understands, that she has a continuing right to change her mind about terminating her life; and, (4) when, in their opinion, the Appellant would likely die (a) if palliative care is being or would be administered to her, and (b) if palliative care should not be administered to her.
Thirdly, not less than three clear days before any psychiatrist examines the Appellant for the purposes of preparing a certificate for the purposes aforesaid, notice must be given to the Regional Coroner for the area or district where the Appellant is to be examined, and the Regional Coroner or his nominee, who must be a physician, may be present at the examination of the Appellant by a psychiatrist in order to be satisfied that the Appellant does indeed have mental competence to decide, and does in fact decide, to terminate her life.
Fourthly, one of the physicians giving any certificate as aforesaid must re-examine the Appellant each day after the above-mentioned arrangements are put in place to ensure she does not evidence any change in her intention to end her life. If she commits suicide, such physician must furnish a further certificate to the Coroner confirming that, in his or her opinion, the Appellant did not change her mind.
Fifthly, no one may assist the Appellant to attempt to commit suicide or to commit suicide after the expiration of thirty-one days from the date of the first mentioned certificate, and, upon the expiration of that period, any arrangements made to assist the Appellant to end her life must immediately be made inoperative and discontinued. I include this condition to ensure, to the extent it can be ensured, that the Appellant has not changed her mind since the time she was examined by a psychiatrist.
This limitation troubles me greatly as I would prefer that the Appellant be permitted a free choice about the time when she wishes to end her life. I am, however, unwilling to leave it open for a longer period because of the concern I have that the Appellant might change her mind. She is able to proceed at her preferred pace by delaying the time for her psychiatric examination until the time she thinks she is close to the time when she wishes to end her ordeal. If she delays causing her death for more than thirty-one days after such examination then there is a risk either that she had not finally made up her mind, or that, as is everyone’s right, she has changed it, or possibly that she is no longer competent to make such a decision.
Lastly, the act actually causing the death of the Appellant must be the unassisted act of the Appellant herself, and not of anyone else. (-)
The substantive criteria articulated by McEachern C.J.B.C. were those of terminal illness, a competent, voluntary and enduring request, and ‘unbearable physical pain or severe psychological distress’.
On appeal to the Supreme Court of Canada, one of the dissenting judges also fashioned a similar remedy for Ms Rodriguez. The Chief Justice found that her right to equality under section 15(1) of the Charter was infringed by the criminal prohibition on assisted suicide which
creates an inequality since it prevents persons physically unable to end their lives unassisted from choosing suicide when that option is in principle available to other members of the public. This inequality is moreover imposed on persons unable to end their lives unassisted solely because of a physical disability, a personal characteristic which is among the grounds of discrimination listed in s. 15(1) of the Charter. Furthermore, in my opinion the inequality may be characterized as a burden or disadvantage, since it limits the ability of those who are subject to this inequality to take and act upon fundamental decisions regarding their lives and persons. For them, the principle of self-determination has been limited. (Rodriguez v. British Columbia (Attorney-General)  3 S.C.R. 519, )
Unable to justify the infringement under the saving provision in section 1 of the Charter, the Chief Justice fashioned a remedy similar to the constitutional exemption created by McEachern C.J.B.C.:
(1) the constitutional exemption may only be sought by way of application to a superior court;
(2) the applicant must be certified by a treating physician and independent psychiatrist, in the manner and at the time suggested by McEachern C.J.B.C., to be competent to make the decision to end her own life, and the physicians must certify that the applicant’s decision has been made freely and voluntarily, and at least one of the physicians must be present with the applicant at the time the applicant commits assisted suicide;
(3) the physicians must also certify:
(i) that the applicant is or will become physically incapable of committing suicide unassisted, and
(ii) that they have informed him or her, and that he or she understands, that he or she has a continuing right to change his or her mind about terminating his or her life;
(4) notice and access must be given to the Regional Coroner at the time and in the manner described by McEachern C.J.B.C.;
(5) the applicant must be examined daily by one of the certifying physicians at the time and in the manner outlined by McEachern C.J.B.C.;
(6) the constitutional exemption will expire according to the time limits set by McEachern C.J.B.C.; and
(7) the act causing the death of the applicant must be that of the applicant him or herself, and not of anyone else. (-)
The substantive criteria articulated by Lamer C.J.C. were those of physical incapacity to commit suicide unaided and a competent, voluntary and enduring request. McEachern C.J.B.C.’s requirements of terminal illness and ‘unbearable physical pain or severe psychological distress’ were dropped. The criterion of terminal illness was no longer relevant given that Lamer C.J.C. had found a violation of the right to equality for all those incapable of committing suicide unaided (). To restrict the exemption to the terminally ill, therefore, might violate the rights of those who are unable to commit suicide unaided but are not terminally ill.