Report No. 196
It was further observed:
"The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own. She fears that she will be required to live until the deterioration from her disease is such that she will die as a result of choking, suffocation or pneumonia caused by aspiration of food or secretions. She will be totally dependent upon machines to perform her bodily functions and completely dependent upon others.
Throughout this time, she will remain mentally competent and able to appreciate all that is happening to her. Although palliative-care may be available to ease the pain and other physical discomfort which she will experience, the appellant fears the sedating effect of such drugs and argues in any event, that they will not prevent the psychological and emotional distress which will result from being in a situation of utter dependence and loss of dignity.
That there is a right to choose how one's body will be dealt with, even in the context of beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses it constitutes battering and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn. In my view, these considerations lead to the conclusion that the prohibition in section 241(b), no doubt, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which infringes on the security of her person."
But does this lead to any deprivation thereof that is not in accordance with the principles of fundamental justice?
In approaching this step, the caveat of Prof L Tribe, in his American Constitutional Law (2 nd Ed, 1988, p 1370-71) is relevant:
"The right of a patient to accelerate death as suc.- rather than merely to have medical procedures held in abeyance so that disease processes can work their natural cause-depends on a broader conception of individual rights than any contained in common law principles. A right to determine when and how to die would have to rest on constitutional principles of privacy and personhood or on broad, perhaps, paradoxical conceptions of self-determination."