Leblanc Case Article

The Leblanc Case:  A Recipe for Elder Abuse and a Threat to the Individual
 
Margaret Dore
January 26, 2012

"Those who believe that legal assisted
suicide/euthanasia will assure their
autonomy and choice are naive."

William Reichel, MD
Montreal Gazette,
May 30, 2010[1]

A.  Introduction

Leblanc vs. Attorney General of Canada brings a constitutional challenge to Canada's law prohibiting aiding or abetting a suicide.  Leblance also seeks to 
legalize assisted suicide and euthanasia as a medical treatment.  In 2010, a bill in the Canadian Parliament seeking a similar result was overwhelmingly defeated. 

Legalization of assisted suicide and/or euthanasia under Leblanc will create new paths of elder abuse.  This is contrary to Canadian public policy.  Legalization will also empower the health care system to the detriment of individual patients. 



B.  Parliament Rejected Assisted Suicide and Euthanasia

On April 21, 2010, the Canadian Parliament defeated Bill C-384, which would have legalized assisted suicide and euthanasia in Canada.[2] The vote was 228 to 59.[3] 


C.  The Notice of Civil Claim

In Leblanc, the Notice of Civil Claim seeks to strike down § 241(b) of the Criminal Code of Canada as contrary to the Canadian Charter of Rights and Freedoms.[4]  § 241(b) states:

"Every one who . . . (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years."[5]

If § 241(b) would be struck down, it appears that any person, without restriction, would be allowed to assist another person's suicide. 

The Notice of Claim also seeks to allow a healthcare professional, not necessarily a doctor, and/or a person acting under the professional's supervision, to "obtain and/or administer medication and/or the necessary treatment to end [the plaintiff's] life."[6]  This request, to allow someone to actively administer a lethal agent to another person, is a request for legal euthanasia.  The Canadian Medical Association states:  "Euthanasia means someone taking active measures to end life."[7] 

In the context of traditional medical treatment, a person acting under the "supervision" of a healthcare professional would include a family member.[8]  An example would be an adult child who administers medication to a parent under the supervision of a doctor who is not present.[9]  This would typically be in a home setting.[10] 

The Notice of Claim does not define any particular eligibility for assisted suicide/euthanasia other than a description of the plaintiff and her circumstances.[11]  She is a disabled woman with ALS.[12] 

D.  A Comparison to the United States

In the United States, there are two states where assisted suicide is legal:  Oregon and Washington.[13]  The laws in these states were enacted via ballot initiatives, which are similar to a referendum in Canada.[14]  No such law has made it through the scrutiny of a legislature despite more than 100 attempts.[15]  

The Oregon and Washington laws apply to patients predicted to have less than six months to live, who are typically age 65 or older.[16]  The statutes have safeguards, for example, two doctors are required to approve a lethal prescription; there are also waiting periods.[17]  These laws nonetheless leave patients unprotected against elder abuse, coercion and even murder.  Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, states:

"With assisted suicide laws in Washington and Oregon, [elder abuse] perpetrators can . . .  take a 'legal' route, by getting an elder to sign a lethal dose request.  Once the prescription is filled, there is no supervision over the administration. . . .  [E]ven if a patient struggled, 'who would know?'" [18]

E.  Elder Abuse

Preventing elder abuse is official Government of Canada policy.[19] Elder abuse includes physical, psychological and financial abuse.[20]   Financial abuse is the most commonly reported type.[21]  Elder abuse is, however, largely unreported and can be very difficult to detect.[22] This is due in part to the reluctance of victims to report.  The Government of Canada website states: "Older adults may feel ashamed or embarrassed to tell anyone that they are being abused by someone they trust."[23] 
Will Johnson, MD, echoes these themes as follows:

"I see elder abuse in my practice, often perpetrated by family members and caregivers.  A desire for money or an inheritance is typical.  To make it worse, the victims protect the perpetrators.  In one case, an older woman knew that her son was robbing her blind and lied to protect him.  Why? Family loyalty, shame, and fear that confronting the abuser will cost love and care. . . .

Under current law, abusers take their victims to the bank and to the lawyer for a new will.  With legal assisted suicide, the next stop would be the doctor’s office for a lethal prescription.  How exactly are we going to detect the victimization when we can’t do it now?"[24]

If assisted suicide and/or euthanasia are legalized via Leblanc, new paths of abuse will be created against the elderly, which is contrary to Government of Canada public policy. 

F.  Empowering the Healthcare System

In Oregon, where assisted suicide has been legal since 1997, patients desiring treatment under the Oregon Health Plan have been offered assisted suicide instead.[25]  The most well known cases involve Barbara Wagner and Randy Stroup.[26]  Each wanted treatment.[27]  The Plan offered them suicide instead.[28]

Neither Wagner nor Stroup saw this scenario as a celebration of their "choice."   Wagner said: “I'm not ready to die.”[29]  Stroup said: “This is my life they’re playing with.”[30]

Wagner and Stroup were steered to suicide.  Moreover, it was the Oregon Health Plan, a government entity, doing the steering.


If assisted suicide and/or euthanasia are legalized in Canada, the Canadian health care system will be similarly empowered.  Indeed, even the plaintiff could find herself pushed to her death before she is ready.  She could be a Canadian "Barbara Wagner."  Her "choice" would be compromised and/or denied.

F.  Suicide Contagion.

Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[31]  Just three years prior, Oregon legalized assisted suicide.[32]  This increased suicide rate is consistent with a suicide contagion.[33]  In other words, legalizing one type of suicide encouraged other suicides.  In Canada, preventing suicide is a significant public health issue.[34]

G.  Conclusion

Legalizing assisted suicide and/or euthanasia will open new paths of abuse against the elderly in Canada, which is contrary to the public policy of Canada.  Legalization will also empower the healthcare system so that even the plaintiff will not necessarily be in control.  In Oregon, legalization is correlated with an increase in other suicides.  For all these reasons, Canadian public policy supports that the relief requested in Leblanc should be denied.


* * *

Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia with a focus on the US and Canada.  In November 2010, she appeared as an expert witness before the Select Committee on Dying with Dignity of the National Assembly of Quebec, Canada.  She was an amicus curie in Baxter v. Montana, which is similar to the Leblanc case.

Ms. Dore has been licensed to practice law in Washington State since 1986.  She is a former Law Clerk to the Supreme Court of the State of Washington.  She worked for the United States Department of Justice for one year.  She has published multiple articles on elder abuse topics and against assisted suicide and euthanasia. 

For more information, see http://www.choiceillusion.org/ and http://www.margaretdore.com/.
* * *

[1]  William Reichel, MD, Letter to the Editor, "Euthanasia doesn't assure choice," The Montreal Gazette, May 30, 2010.
[2]  See "How'd They Vote?: A Resource for Political Accountability, Bill C-384, available at http://howdtheyvote.ca/bill.php?id=2053  (Last visited October 24, 2011).
[3]  Id.
[4]  Leblanc v Attorney General of Canada, Province of Quebec, District of Three-Rivers, No. 400-17-002642-110, Notice of Civil Claim, October 31, 2011, page 3. 
[5]  R.S.C. 1985, c. C-46, s. 241, Counselling or aiding suicide
[6]  Notice of Civil Claim at note 4, ¶ 11.
[7]  Canadian Medical Association, "Euthanasia and Assisted Suicide," available at http://www.cma.ca/index.php?ci_id=53580&la_id=1
[8]  Per Will Johnston, MD 
[9]  Id.
[10]  Id.
[11]  Notice of Civil Claim at note 4
[12]  Id. 
[13]  The Oregon assisted suicide law is codified as Oregon Revised Statute 124.800 to 127.897, available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx (Last visited October 24, 2011).  The Washington assisted suicide law is codified as Revised Code of Washington, Chapter 70.245, available at http://apps.leg.wa.gov/RCW/default.aspx?cite=70.245 (Last visited October 24, 2011).  In a third state, Montana, there is a court decision that gives doctors a potential defense to criminal prosecution, but which does not legalize assisted suicide by giving doctors or anyone else immunity from civil and criminal liability.  See e.g. Greg Jackson, Esq. & Matt Bowman, Esq., "Analysis of Implications of the Baxter Case on Potential Criminal Liability," April 2010.
[14]   Oregon's assisted suicide law was enacted via Ballot Measure 16.  Washington's law was enacted via Initiative 1000.  Both an initiative and a referendum are a process of referring a political question to the general electorate. Voters are asked to answer yes or no to a written question.  See e.g., http://canadaonline.about.com/od/elections/g/referendum.htm
[15]  Patients Rights Council, "Attempts to Legalize Euthanasia/Assisted Suicide in the United States," 2011 ("Between January 1994 and March 2011, there were 122 legislative proposals in 25 states.  All bills that are not currently pending were either defeated, tabled for the session, withdrawn by sponsors, or languished with no action taken").[16]  See ORS 127.805 §2.01, ORS 127.800 §1.01(12) and Oregon Annual Report, Table 1, as of January 7, 2011.  
[17]  See ORS 127.815 §3.01, ORS 127.820 §3.02, RCW 70.245.040 & RCW 70.245.040.  
[18]  Alex Schadenberg, Letter to the Editor, "Elder abuse a growing problem," The Advocate, the official publication of the Idaho State Bar, October 2010.
[19]  Government of Canada, "Elder Abuse, It's Time to Face the Reality,"  scroll down to:  "What is Elder Abuse?") available at http://www.seniors.gc.ca/c.4nt.2nt@.jsp?lang=eng&geo=110&cid=154#a 
[20] Id. See also CBC News, "Abusers of elderly are often family: police," November 19, 2008 ("About 75 to 80 per cent of elder abuse involve a financial crime . . .").
[21] Id. See also CBC News, "Abusers of elderly are often family: police," November 19, 2008 ("About 75 to 80 per cent of elder abuse involve a financial crime . . .").
[22] See CBC News at note 21 ("The fact that the suspect in the abuse is often a family member makes it hard for victims to come forward and may lead them to tolerate quite a lot of abuse.  'They really don't want to talk about, or really acknowledge out loud that their son or daughter, grand-daughter, grandson, might actually do this to them, might treat them this way'. . .").  [23]  Government of Canada at note 19.
[24]  Will Johnston, MD, "How exactly are we going to detect the victimization when we can't do it now," Euthanaisa Prevention Coalition BC blog, October 16, 2011.  
[25]  See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008; and Ken Stevens, MD, Letter to Editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho State Bar, September 2011, to view, scroll down to bottom of second page here: http://www.margaretdore.com/info/September_Letters.pdf 
[26]  Id.
[27]  Id.
[28]  Id.
[29]  KATU TV at note 25.
[30]  ABC News at note 33.

[31]  See "Suicides in Oregon:  Trends and Risk Factors," Oregon Department of Human Services, Public Health Division, September 2010, page 6, ("Deaths relating to the death with Dignity Act (physician-assisted suicides) are not classified as suicides by Oregon law and therefore excluded from this report"), available at http://epcdocuments.files.wordpress.com/2011/10/or_suicide_report_001.pdf  See also Oregon Health Authority, News Release, "Rising suicide rate in Oregon reaches higher than national average," September 9, 2010, ("suicide rates have been increasing significantly since 2000") available at http://www.oregon.gov/DHS/news/2010news/2010-0909a.pdf
[32]  See 2010 Annual Report, Oregon's Death with Dignity Act,  (stating that Oregon's assisted suicide law was "enacted in late 1997").
[33]  Compare Dr. Madelyn Gould, "Suicide Contagion," Suicide Prevention and Intervention:  Summary of a Workshop, 2001, available at http://www.nap.edu/openbook.php?record_id=10226&page=8   See also Kelly Egan, "The contagion effect in suicide," The Ottawa Citizen, October 20, 2011, available at http://www.canada.com/news/Kelly+Egan+contagion+effect+suicide/5583321/story.html
[34]  See e.g., Report to the Parliamentary Committee on Palliative and Compassionate Care, Submission from the Canadian Association for Suicide Prevention, available at http://www.suicideprevention.ca/lobbying-for-a-national-strategy/suicide-a-national-tragedy/