Posted on March 2, 2016 at 9:54 AM
Canada is on track to enact one of the most permissive assisted dying legislation in the world, with the exceptions of the Netherlands and Belgium.
On February 25, the Special Joint Committee on Physician-Assisted Dying, a federal parliamentary committee created especially to address the issue, released a report that marks a turning point. If implemented in legislation, the report would make medically-assisted euthanasia and suicide available to a broad range of suffering people in Canada: those with serious and irremediable illness, including psychological illness; those who expressed a wish for such assistance prior to losing competence; and possibly competent minors. The committee also recommended that all publicly funded health care institutions—including those with religious affiliation—be required to participate.
This latest Canadian move toward legalized medical aid in dying originated in June 2011, when a small group of people filed a Statement of Claim in the British Columbia Supreme Court in Vancouver. They argued that the Canadian Criminal Code sections, which make it illegal for physicians to help consenting grievously and irremediably ill adults to die, violated their constitutional rights under the Canadian Charter of Rights and Freedoms to “life, liberty and security of the person” and to “equality.” Gloria Taylor, a 64-year-old plaintiff with amyotrophic lateral sclerosis, testified that she did not want to suffer a death that is “slow, difficult, unpleasant, painful, undignified, and inconsistent with the values and principles I have tried to live by”.
At trial, the plaintiffs won. The trial judge’s carefully reasoned 400-page decision, released in 2012, rejected the government arguments that there was a “bright line distinction” between letting die and assisting in suicide or actually killing, and that judicial disregard of the alleged distinction would create a slippery slope leading inevitably to wrongful homicide. The trial judge accepted the evidence of several ethicists who testified that there is no ethical distinction between physician-assisted death and other end-of-life practices such as withholding or withdrawing life-sustaining treatment when death is likely to result. The trial judge concluded, based on extensive evidence that “the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully designed system imposing stringent limits that are scrupulously monitored and enforced.”
The governments appealed to the British Columbia Court of Appeal, where the plaintiffs lost in 2013 because the Supreme Court of Canada had decided 20 years earlier that a sufferer of ALS, Sue Rodriguez, had no legal right to physician-assistance in dying.
In January 2014, the Supreme Court of Canada agreed to hear a further appeal. Later that year, an opinion poll revealed that 84 percent of 2,500 Canadians surveyed said they agreed that “a doctor should be able to help someone end their life if the person is a competent adult who is terminally ill, suffering unbearably and repeatedly asks for assistance to die.”
Nevertheless, it was with some surprise that Canadians received the news on February 6, 2015 that the Supreme Court of Canada had ruled unanimously in favor of the plaintiffs. The court decided that a carefully designed and monitored system of safeguards could both protect the vulnerable and honor the rights of a small class of people to “life, liberty and security of the person.” The court held that the class consists of competent adults who clearly consent to the termination of life and have a grievous and irremediable illness, disease, or disability that causes enduring suffering that is intolerable to the individual.
Because it is the role of the elected branch of government to design a system of safeguards and access, the Supreme Court gave federal and provincial/territorial lawmakers 12 months “to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.”
Creating law about medical assistance in dying is, perhaps, more complicated in Canada than many other jurisdictions because the subject matter affects two levels of government. The federal government exercises criminal law-making power while the provinces and territories oversee health services and the governance of health professions.
Many hoped that the federal government would lead by amending the Criminal Code to clarify issues related to eligibility, access, and safeguards, but last October the Conservative government was defeated in a general election without having proposed changes to it. The new Liberal government took office on November 5, 2015 and soon asked the Supreme Court of Canada for a six-month extension. The Court granted a four-month extension, to June 6, 2016. In the interim, the Court permitted eligible Canadians to apply to a superior court for physician assistance in dying. Quebec, which had initiated the process of making assistance in dying legal in 2009, legalized it in December for terminally-ill competent adults.
The new report by the Special Joint Committee on Physician-Assisted Dying has been hailed as “brave, expansive and patient-centered” and denounced as “a near-worst case scenario.” Four opposition Conservative Members of the Commons wrote a dissenting report that decried the expansive nature of the majority report and argued for a greater focus on vulnerability.
The report is consistent with the Supreme Court’s decision in stating that those eligible are competent adults with grievous and irremediable illness who are experiencing intolerable suffering (from a physical or psychological condition), not just those who are terminally ill. The report expanded upon the court’s decision by proposing that people diagnosed with a condition likely to affect their competence may request assistance in dying in an advance directive. The report described a difference of opinion on whether mature minors should have access to assisted dying and, therefore, recommended deferring the decision for up to three years. During that period, the report recommended that the Canadian government facilitate a study of the moral, medical, and legal issues involved to help inform the policy on mature minors. To avoid making Canada a destination for people seeking assistance in dying, the report recommended that the service be available only to insured persons eligible for publicly funded health care services in Canada.
The report also recommended cooperation among governments to ensure that there are few barriers to access. It proposed that physicians who object to providing assistance in dying make a referral to other physicians; all publicly-funded health care institutions offer the procedure; the length of the period of reflection be sensitive to the patient’s condition and disease progression; and that the patient not be required to seek approval from any board or agency. Acknowledging the role that health care providers other than physicians play in assisted dying and that medical care by physicians can be scarce in rural and remote Canadian communities, the report recommended that freedom from criminal sanction be granted to these officials: physicians, nurse practitioners, registered nurses acting under a physician’s direction, and pharmacists and other health care professionals who provide ancillary services. Because of this recommendation, the report uses the terminology medical assistance in dying (MAID).
To provide safeguards, the report recommended that, wherever possible, the request for MAID be in writing and witnessed by two people, and that two physicians ensure that the requesting patient meets the eligibility criteria. It also recommended that physicians who assess capacity should pay particular attention to patient vulnerability in end-of-life circumstances. For example vulnerability might arise from socio-economic circumstances such as the expense to an individual or family for care or, especially in the elderly, from social isolation.
To oversee the practice of MAID, the report recommended cooperation among governments in creating and analyzing MAID cases, and that Parliament review the applicable federal legislation every four years. It also made recommendations to ensure appropriate end- of-life practices for indigenous peoples, a national palliative care plan, mental health supports and services, and better care for people with dementia and their families.
The minority report denounced the majority report for failing to strike the correct balance between respecting individual autonomy and protecting “vulnerable Canadians” and for expanding upon the Carter decision. The minority would have required psychiatric assessment of mentally ill patients, prevented access to people who do not have capacity and to minors, and offered greater protection for physicians’ conscience rights as well as for church-affiliated public health care institutions.
Neither the majority nor the minority reports used the words, “coroner” or “medical examiners.” These government officers are death experts. Daily, in provinces and territories, they accurately report and monitor all non-natural, including suspected death by drug toxicity (which would include MAID), and many natural deaths. Explicit reference to coroners and medical examiners would have relieved concern that these government officers might not be consulted. This is a significant flaw in a report that, on balance, focuses on assisting the most vulnerable in Canada.
Politics will determine what parts of the Parliamentary committee report become law. Although the party that brought the Canadian Charter of Rights and Freedoms into the Constitution now has a majority of members in the House of Commons, the Prime Minister might not require Liberal Party members to vote along party lines on this Charter issue.
The issue of assisted dying will continue to be a keen focus of Canadian public, media, and political attention as the huge demographic born between 1946 and 1964 marches toward the inevitable. Canada’s Supreme Court ruling means that eligible Canadians may soon legally choose the time and circumstances of their death.
If Canadian governments collaborate to implement the report’s majority recommendations and seek advice and direction from coroners and medical examiners, then Canada will have law concerning medical assistance in dying that aims bravely to address intolerable suffering of eligible individuals.
Juliet Guichon, Christopher Doig and Ian Mitchell are faculty members in the Cumming School of Medicine, University of Calgary; Pauline Alakija is a forensic pathologist and clinical professor at the University of Alberta medical school; Pascal Thibeault is a University of Toronto law graduate student and graduate of the Yale Sherwin B. Nuland Summer Institute in Bioethics.