Carter, Assisted Death, and Mature Minors

McGill Journal of Law and Health, 10:1, 2016, Forthcoming

25 Pages Posted: 3 Apr 2016

See all articles by Constance MacIntosh

Constance MacIntosh

Dalhousie University - Schulich School of Law

Date Written: March 29, 2016

Abstract

The Supreme Court of Canada’s decision in Carter v Canada (Attorney General) 2015 SCC 5 decriminalized physician assisted death in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult”. This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical decisional-capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the jurisprudence on mature minors and when they are deemed to have the right to require the withdraw of, or refuse to receive, life-sustaining treatment, and compares the reasoning in these cases with that in Carter. A particular focus is how the jurisprudence approaches decisional capacity when the individual in question may be particularly vulnerable. It finds that a blanket exclusion of mature minors from a physician-assisted dying regime likely violates the Canadian Charter of Rights and Freedoms, and calls out for considered debate on these issues instead of forcing a minor and their family to bring the issues forward through litigation.

JEL Classification: health law

Suggested Citation

MacIntosh, Constance, Carter, Assisted Death, and Mature Minors (March 29, 2016). McGill Journal of Law and Health, 10:1, 2016, Forthcoming , Available at SSRN: https://ssrn.com/abstract=2756105

Constance MacIntosh (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

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