The material findings in Carter

As discussed in Chapter Four concerning Article 8 of the ECHR, the legitimate aims proffered by the State and accepted by the Divisional High Court in Conway for the blanket ban were:

  • 1 Protecting individuals from undue influence (frequently referred to as ‘protecting vulnerable individuals’);
  • 2 Protecting the doctor/paticnt relationship; and,
  • 3 Protecting/maintaining the sanctity of life.

Justice Smith addressed each of those concerns to varying extents20 and determined that:

[A] permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. While there are risks, to be sure, a carefully designed and managed system is capable of adequately addressing them.

[I]t was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process ... It would be possible for physicians to apply the informed consent standard [applied in other medical decision-making in Canada, including end-of-life decision-making] to patients who seek assistance in dying...

[T]here was no evidence from permissive jurisdictions that people [who may be considered vulnerable to undue pressure, such as people with disabilities] are at heightened risk of accessing physician-assisted dying ... [A]nd in some cases palliative care actually improved post-legalization ... [W]hile the evidence suggested that the law had both negative and positive impacts on physicians, it did support the conclusion that physicians were better able to provide overall end-of-life treatment once assisted death was legalised ... Finally, [there was] no compelling evidence that a permissive regime in Canada would result in a ''practical slippery slope’.21

Each of those aspects of Justice Smith’s reasons will now be considered in greater detail, together with subsequent research from permissive jurisdictions.

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