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April 19, 2016

Help in Dying

Reuel S. Amdur

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This article was written before the Liberal government introduced Bill C-14, on assisted dying. On April 14, 2016 the Liberal government introduced the assisted dying bill. It is more restrictive than what the parliamentary committee that studied the matter proposed and may conceivably fail to meet the criteria outlined by the Supreme Court.

The bill would not provide the option of the procedure to "mature minors".  It would not permit advance directives, for example in the case of dementia, so a person could not say that at a specific stage of the dementia the option could be taken.  And there will be a 15 day waiting period from the time of a request.  The bill's restrictions may or may not withstand court challenges.

One is reminded of Colorado's abortion law in 1967, the first in the United States to permit the procedure.  It was highly restrictive.  Advocates would call it a bad bill.  Yet, it opened the door.  In many ways that might be the same that could be said of the Liberal government bill.

*  *  *

Jocelyn Downie, Dalhousie University professor of law and medicine, told an audience on Parliament Hill on February 23 that they picked an auspicious time for her lecture on “The Future of Assisted Death in Canada.” 

After all, it was only three days later that Parliament’s Special Joint Committee on Physician-Assisted Dying was to issue its report.  Her lecture was under the auspices of the Federation for the Humanities and Social Sciences.  Interestingly, the committee report cites her views in several places.

Her remarks on the Tuesday found many echoes in the report released on that Thursday.  For example, she said that there needs to be an expansion of palliative care, so that people have the choice of a meaningful alternative.  She noted that Belgium increased palliative care at the same time that it was making assisted dying available.

Who should have access to medically assisted death?  She listed some possibilities: Only the terminally ill?  Minors?  The mentally ill?  What about the criterion of competence?  In the Carter case, the Supreme Court spoke only of adults, but what of competent minors? 

The committee addressed all of these issues.  No, the person need not be terminally ill.  Carter, which established a right to assisted dying, said that the person requesting the aid would be one who “has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”  That is broader than terminally ill and the committee’s report is in accord. 

Downie emphasized the criterion of mental capacity rather than chronological age, and the committee proposed that such a criterion should come into place three years down the road.  The committee came to that position in spite of the fact that the Supreme Court spoke only of adults.  She also said that mental illness should not automatically be excluded as a condition, and again the committee agreed.  In the case of mental illness, she said, “Capacity can be difficult to establish, but that can be true of physical illness as well.” 

The issue of advance directives was discussed by Downie and addressed as well by the committee.  The committee agreed that a person might, while competent, opt for aid in dying when his condition deteriorated to a given point.  That position might create an undesirable situation.  Let’s take a hypothetical case.  John Doe prepares an advance directive indicating that if he is incontinent and no longer knows his or his wife’s name, it is time for death.  However, at the time for the injection to be given, he resists.  He may not be competent but may still want to live.  There is no doubt that a competent person has the right to change his mind about assisted dying, but what of the person who while competent decides on something about which when now incompetent he no longer can? 

When we read Carter, it appeared to us that the Court was opening the door to a Kevorkian position: you want it, you get it.  After all, the suffering “is intolerable to the individual.”  Downie corrected us, parsing the decision more carefully, as did the committee.  First of all, the “condition must be grievous and irremediable.”  Only then does the individual’s choice come into the picture.  Irremediable is pretty clear, but grievous leaves a lot to individual judgment, and apparently not the judgment of the person involved.  In any case, as Downie explained, “It will not be a free-for-all.”  

While the committee favors an opt-out for physicians who have a conscientious objection, the committee nevertheless insists that at a minimum the doctor must make an effective referral for the service to be provided. 

The oversight body would verify proper compliance, do research, and provide public education.

Not mentioned either by Downie or by the committee is the Oregon model, wherein the person is given a prescription for a fatal dose.  The person takes the dose when he is ready.  Oregon figures for 2015 found 218 prescriptions issued, but only 132 of these were used.  While the Oregon model would not serve in all cases in Canada, as some cases would involve people incapable of self-administering the drug, the option for those who are capable might serve as an alternative for those choosing it.

In any case, the Canadian Supreme Court no longer leaves open the question of whether or not there should be assisted dying.  As Downie said, “The question is not if, but how.”

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