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Rodriguez V Ag Of British Columbia Notes

Updated Rodriguez V Ag Of British Columbia Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Rodriguez v AG of British Columbia [1993] 3 SCR 519

Supreme Court of Canada

Facts

D was a 42yo woman who had a progressively degenerative illness. She had a life expectancy of around a year, and eventually would only be able to breathe via respirator, and wouldn’t be able to talk, move or eat normally. She wished a physician to set up a device which allowed her to, by her own hand, end her life when she considered life no longer with living.

Lamer CJ (dis)

  • In my view, persons with disabilities who are or will become unable to end their lives without assistance are discriminated against by [the provision which does not permit assisted suicide]

    • since, unlike persons capable of causing their own deaths, they are deprived of the option of choosing suicide.

    • This inequality is moreover imposed on persons unable to end their lives unassisted solely because of a physical disability,

      • 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

      • Although at first sight persons who cannot commit suicide and those who can are given identical treatment under [the provision]

        • they are nevertheless treated unequally since by the effect of that provision persons unable to commit suicide without assistance are deprived of any ability to commit suicide in a way which is not unlawful,

        • whereas it does not have that effect on those able to end their lives without assistance

  • It should be pointed out that the advantage which the appellant claims to be deprived of is not the option of committing suicide as such

    • But that she will be deprived of the right to choose suicide, of her ability to decide on the conduct of her life herself.

    • Can the right to choose at issue here, that is the right to choose suicide, be described as an advantage of which the appellant is being deprived?

      • The Court should answer this question without reference to the philosophical and theological considerations fuelling the debate on the morality of suicide or euthanasia.

        • It should consider the question before it from a legal perspective

        • You can say it is unequal and discriminatory from a secular legal perspective without saying it is morally justified to do it.

  • Is it justified?

    • Clearly, the aim of the legislation is to protect vulnerable people from the influence of others in deciding when, whether and how to terminate their lives

      • The repeal of the offence of attempted suicide suggests that Parliament was giving consideration to the fact that medical help rather than criminal sanctions were more appropriate

    • An individual's right to control his or her own body does not cease to obtain merely because that individual has become dependent on others for the physical maintenance of that body;

      • indeed, in such circumstances, this type of autonomy is often most critical to an individual's feeling of self-worth and dignity

      • However, this self determination is never absolute

        • P can always refuse treatment if competent, but can never demand doctors give him it.

    • Is the infringement of the right proportionate?

      • The government has argued that an absolute prohibition on assisted suicide is necessary as there is no practicable way for the government to divine what the motives of those assisting in a suicide might be.

        • The compassionately motivated, in other words, cannot be distinguished from the corrupt

        • The limitation of this prohibition to those who require assistance to terminate their own life is, to a certain extent, irrational,

          • since it is based on the untenable assumption that those who require assistance will necessarily be more vulnerable to coercion or other undue influence

      • As a result, there is no way, under the present legislation, to distinguish between those people whose freely chosen will it is to terminate their life, and those people who are potentially being pressured or coerced by others.

        • Vulnerability, in a sense, is simply imposed on all people who happen to be physically unable to commit suicide independently and the right to choose suicide is therefore removed from this entire class of persons.

        • The measure is therefore overbroard

  • The principal fear is that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others.

    • While I share a deep concern over the subtle and overt pressures that may be brought to bear on such persons if assisted suicide is decriminalized, even in limited circumstances,

      • I do not think legislation that deprives a disadvantaged group of the right to equality can be justified solely on such speculative grounds, no matter how well intentioned.

      • We don’t know the effect that the decriminilisation could lead to

        • What we do know and cannot ignore is the anguish of those in the position R

        • Respecting the consent of those in her position may necessarily imply running the risk that the consent will have been obtained improperly.

          • The proper role of the legal system in these circumstances is to provide safeguards to ensure that the consent in question is as independent and informed as is reasonably possible

  • I fail to see how preventing against abuse in one context must result in denying self-determination in another

    • And remain unpersuaded by the government's apparent contention that it is not possible to design legislation

      • that is somewhere in between complete decriminalization and absolute prohibition

Sopinka J (maj opinion)

  • The appellant seeks a remedy which would assure her some control over the time and manner of her death

    • This engages questions of security and liberty

    • A consideration of these...

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