On April 14, Canada’s justice minister presented to the House of Commons a bill to govern medical assistance in dying. The bill did not follow the direction of the Supreme Court of Canada, which stated that competent, mentally ill people and people who do not have a terminal illness are eligible. Had the bill included such patients and had it followed the advice of a Special Joint Committee of the House and Commons and Senate also to include mature minors, then Canada would have been on track to enact one of the most permissive aid-in-dying laws in the world. But if this bill becomes law, constitutional challenge is likely.
Under the bill, patients are eligible for medical aid in dying if they are at least 18 years old, have a grievous and irremediable medical condition, and have made an informed and voluntary request. To prevent Canada from becoming a destination for medical tourism, patients must also qualify for government funded health care.
The bill states that patients have a “grievous and irremediable” illness if they have a serious and incurable illness, disease, or disability and they are in an advanced state of irreversible decline. The serious and incurable ailment or state of decline causes enduring physical or intolerable psychological suffering that cannot be relieved by means that are acceptable to the patients. Further, their natural death is “reasonably foreseeable,” but without an estimate of the time remaining.
The bill proposes safeguards, which include having two practitioners, who can be physicians or nurse practitioners, serve as gatekeepers. They would assure, for example, that a patient is eligible for medical assistance in dying; that the patient is competent and informed and has voluntarily made a request in writing; that the request was witnessed by two people; and that the patient has been informed that he or she has may withdraw consent at any time.
Despite these safeguards, the bill has many critics. Some religious leaders have denounced it for legalizing assisted dying. I believe that the bill is unconstitutional because it narrows the class of people whom the Supreme Court held are eligible for medical aid in dying.
The Supreme Court in the Carter decision unanimously decided in February 2015 that, to be eligible for aid in dying, persons must be competent, consenting adults who are experiencing enduring and intolerable suffering caused by a grievous and irremediable illness, disease or disability, the treatment for which (if any) is unacceptable to them. The Canadian justice department conceded that “The Court’s declaration did not indicate that the person must be at the end of life, have a terminal diagnosis or be at an advanced stage of decline.” And yet the Government’s bill appears to prevent people from accessing medical aid in dying based on these criteria.
This situation is ironic. The Carter case was named for the first plaintiff in the constitutional litigation launched in 2011: the family of Kay Carter. Mrs. Carter travelled to the Dignitas Clinic in Switzerland to end her life because she was experiencing enduring and intolerable suffering from spinal stenosis, which was unlikely to be the cause of her death. Even though Kay Carter’s family won in court, she might not to have qualified for medical aid in dying under the government’s bill because the spinal stenosis was not life-threatening. The justice minister responded that indeed Kay Carter would have been eligible because her medical condition was advanced and she was suffering.
The debate about the late Kay Carter’s eligibility highlights the ambiguity of the bill’s provisions. The requirement that a natural death is “reasonably foreseeable” is unclear; as one lawyer remarked, “Everyone’s death is reasonably foreseeable.” Likewise, the requirement that the patient be in “an advanced state of irreversible decline in capability” might be interpreted to mean that the illness causing the suffering must be a terminal illness.
The justice minister is quoted as saying that “the legislation allows medical practitioners a degree of flexibility in deciding whether an individual patient qualifies,” affirming that the bill places discretion in the hands of practitioners as opposed to patients.
Critics have expressed concerns that the bill does not provide exemption from criminal liability to social workers and nurses with whom patients might wish to discuss medical aid in dying before they formally consent. It also excludes people whose enduring suffering is caused only by mental illness, those who would like to state their wishes in an advance directive to be acted upon when they lose capacity, and mature minors. Moreover, in Canadian rural and remote communities, patients can be “very lucky to have one practitioner,” making the two-practitioner requirement unrealistic, especially when a practitioner may object to performing medical assistance in dying.
The Carter decision and the proposed legislation fundamentally differ in their focus. The judicial decision decried the fact that the criminal law put a small class of people in Canada to the “cruel choice” of “a life of severe and intolerable suffering” until they die of natural causes or of ending their lives “prematurely, often by violent or dangerous means.” By contrast, the bill seems focused on the political and bureaucratic challenges of passing a contentious bill in both houses of Parliament by June 6, 2016. On that date, the criminal law preventing assistance in dying expires. Physicians then may lawfully provide such assistance to the broader group of patients specified by the Supreme Court. However, many physicians might choose not to provide it at all, fearing criminal sanctions in the absence of Parliamentary rules.
Juliet Guichon is an assistant professor in the Cumming School of Medicine, University of Calgary; @JulietGuichon.