Lawyers for Sue Rodriguez attempted to change the focus of this precedent-setting court case when they appeared before three judges of the B.C. Court of Appeal on February 15 and 16. Ms. Rodriguez wants the court to allow a doctor to set up an intravenous drip that would deliver a lethal dose of drugs when she presses the button.

Lawyer Chris Considine shifted from the controversial realm of euthanasia and physician-assisted suicide, which was the base of his earlier suit. He introduced common-law cases, in attempt to portray Ms. Rodriguez’ case as simply that of a patient’s right to consent to treatment.

Considine drew the court’s attention to existing common law under which, he pointed out, “a dying patient has a number of options for managing the terminal stages of his or her life.” The patient can accept or refuse life-sustaining treatment. In addition, he claimed that palliative care for dying patients is a form of passive euthanasia, when pain- relieving drugs are given in such quantity as to hasten death. He asserted that such procedures are common medical practices, approved under common law.

He claimed that Ms Rodriguez is not planning suicide, “She is seeking to do what is essentially a treatment, a medical therapy, for her physical and mental suffering.”

Speaking on behalf of the three Appeal Court judges, Chief Justice Allan McEachern challenged Considine’s common-law arguments. He directed lawyers opposing the Rodriguez appeal to ignore this approach in their arguments based on the Charter, he said.

Last December the B.C. Supreme Court rejected Ms Rodriguez’s claim that the Criminal Code (which prohibits aiding suicide) in fringed on her rights under the Charter of Rights and Freedoms.

At the earlier Supreme Court level, Rodriguez’s case rested on Charter arguments. Since suicide is not illegal under Canadian law, while aiding a suicide is illegal, her particular position, where she needs help to commit suicide, leaves her in a discriminatory position.

Supreme Court Justice Allen Melvin ruled on, December 29, that the Criminal Code section prohibiting assisted suicide does not violate individual rights under the Charter. No person, he said, has a constitutional right to suicide, since, in his opinion, the underlying hypothesis of the Charter is the sanctity of life. Allowing such a right, he added, would put a duty on physicians to assist in a suicide. Sanction against such actions, he added, was a necessary safeguard to protect the vulnerable in our society.

Considine argued before the Court of Appeal that Judge Melvin was wrong in stating that doctors would be forced to participate in suicides. “It is a matter of personal conscience to the physician,” he said. He claimed that Ms Rodriguez will have no choice: “She must either kill herself while she is still enjoying her life, before she is too disabled to do so without help, or she will be forced to participate in an illegal act.” He also painted a grim picture for Ms Rodriguez, who suffers from ALS, or Lou Gehrig’s disease. She would eventually become completely physically disabled, he said, fed through a tube and breathing on a respirator. ALS patients frequently choke to death or contract pneumonia from inhaling food or body secretions, he claimed.

Lawyers for both the federal and provincial government argued that assisting a suicide should remain a criminal offence. Such a law is necessary to protect the vulnerable, said Johannes Van Iperen, appearing on behalf of the federal government.

Ace Henderson, representing the Pro-Life Society of B.C. and the Pacific Physicians for Life, said that suicide was decriminalized to show that it is a social problem requiring treatment, not that it is a right. While the Criminal Code sanction against assisted suicide could not be viewed as discrimination against the disabled because suicide is not seen as a benefit or advantage.

Mr. Henderson referred to the situation in Holland, where euthanasia was illegal for many years, and yet socially tolerated to the extent that doctors killing their patients were not prosecuted. “In almost 6,000 cases per year” he said, “patients were killed without have made request for euthanasia.” He used official Dutch reports to support these figures.

Considine’s arguments that palliative-care is passive euthanasia is strongly refuted by palliative-care specialist Dr. John Scott of Ottawa. In an article recently published by the Human Life Research Institute, Dr. Scott of Ottawa says, “Good palliative care and the use of techniques and drugs to relieve pain do not hasten death.”

ALS sufferers do not need to face the kind of death predicted for Ms Rodriguez by her lawyer. The compassionate Healthcare Network provided the pro-life interveners in this case with information from Dame Cicely Saunders, founder and director of St. Christopher’s Hospice in London, England.

Of 124 ALS patients cared for at the hospice, none had choked to death. In fact, “the term choking is an emotionally charged one and does not accurately describe the cause of death in motor neurone disease (ALS). Its use must be abandoned.” Pain and other symptoms of the disease were all managed successfully through drug therapy. The hospice does not use assisted respiration.

The Appeal Court judges reserved their decision at the end of the two-day hearing, but promised that a ruling would be made as soon as possible.

Whether or not the court approves Ms Rodriguez’s request, she now has a doctor who has said he would consider helping her suicide. Dr. Scott Wallace, the medical consultant for the Right to Die Society, now joins John Hofsess, the Society’s executive director, in agreeing to help Ms Rodriguez kill herself.