Last year the Supreme Court of Canada, in Carter v Canada, struck down legal prohibitions of physician-assisted suicide and euthanasia, alleging to have discerned a right to such procedures lurking somewhere in the background, unnoticed until now, of the Canadian Charter of Rights and Freedoms. The Court ordered Parliament to draft legislation to regulate these procedures, and gave it a deadline. Today the Special Joint Committee on Physician-Assisted Dying tabled its recommendations to Parliament, and, my friends, the situation is about as bad as it could be.
Two weeks ago, before the recommendations were public, our Prime Minister announced that all members of the ruling Liberal Party would be required to vote in favour of the legislation, whatever it turned out to be. This was the first indication that it was going to be very bad indeed.
As for me and my house, we have been fighting this every step of the way — writing editorials, writing letters, making phone calls, drafting submissions, attending meetings — and I must say that the Committee’s report is profoundly disappointing.
First a word about language. As usual with issues of this sort, euphemisms abound. The Committee adopts the phrase “medical aid in dying” to cover both assisted suicide and euthanasia, preferring it to “physician assisted dying”, which had been used by the Supreme Court. Both are highly objectionable, and for the same reason: they blur the distinction between palliative care, assisted suicide, and euthanasia. In this post I shall use the acronym ASE for assisted suicide and euthanasia.
The report makes 21 recommendations to legislators. Among them are:
- ASE for minors. “Mature minors,” to be sure. The meaning of this phrase is unclear. It is worth noting that this recommendation is in direct conflict with the Supreme Court ruling, which restricted access to ASE to adults.
- ASE for non-terminal conditions. Adopting the vagaries of the Supreme Court nearly word for word, the Committee recommends only that patients have a “grievous and irremediable condition”. The Committee actually recommends against Parliament clarifying what that phrase might mean.
- ASE for psychiatric patients. There has been great concern over how patients suffering from psychiatric disorders might be treated under the incoming law. The Committee recommends both that psychiatric patients have access to ASE, and that psychological suffering be a legitimate criterion for accessing ASE.
- No required waiting period. The Committee recommends that “guidelines” for “a period of reflection” be “flexible”. This puts at risk patients suffering acutely or terrified by a recent diagnosis.
- No advance oversight. The Committee recommends against a review process where eligibility under the law could be assessed. This recommendation, if adopted, will make it very difficult to know if the law is being abused.
- Public funding? This one is unclear. The Committee recommends that only individuals who are insured under Canada’s health care system have access to ASE — in other words, no euthanasia tourism — but it does not directly say that the procedures themselves should be insured.
- Coercion of conscientious objectors. This is an issue that has been fiercely contested in the past couple of years in Canada, as many physicians have been fighting to carve out a space for themselves to practice medicine without being undermined by this assault on the principles of their profession. There are two targets here: individual physicians, nurses, and pharmacists on one hand, and Catholic hospitals on the other. Last year the College of Physicians and Surgeons of Ontario, which regulates the practice of medicine in Ontario (where I live), changed their policies on conscientious objection, henceforth requiring physicians to either provide the objectionable procedure or provide an “effective referral” to someone who would. But those who provide an “effective referral” — meaning a referral to someone who will do the procedure, and a referral for that express purpose — are complicit. Again, many physicians fought that policy change at the time, partly on the very grounds that the Supreme Court was about to rule on ASE, to which the new policy would apply. Those physicians were told they were alarmist and that everything would be fine. Now the Joint Committee has adopted exactly the same language as the Colleges did: “effective referrals” are to be required “at a minimum”. I’ve not seen that last phrase used in this context before, and I really wonder why it was included. It is very troubling. Also troubling is that institutions will not be permitted to abstain from performing ASE. If a patient is worried about being subjected to pressure to consent to ASE, there will be no safe hospital in Canada.
The report is also notable for what it does not recommend. It does not recommend a mandatory psychiatric assessment for those requesting ASE. It does not recommend that the cause of death (ASE) be put on the death certificate — though it does recommend that statistics on ASE be collected, so perhaps the legislation itself will mandate the former in order to facilitate the latter. It does not recommend that the next of kin of a patient who requests ASE be notified. It does not recommend that patients have access to palliative care before becoming eligible for ASE. All of these safeguards were advanced during the consultation process, but were apparently rejected by the Committee.
One safeguard which the Committee does recommend is that ASE can only be provided if two physicians sign off on it. But it could be any two physicians, not necessarily ones who know the patient well, and not necessarily the first two physicians consulted. In other words, patients can shop for physicians who will sign off.
All in all, an appalling set of recommendations that bodes exceeding ill. If these recommendations are adopted by Parliament — and they almost certainly will be — Canada will have the most radical ASE policies in the world. In particular, the requirement that conscientiously-objecting physicians provide an “effective referral” is not in force in any other jurisdiction, much less “at a minimum”.
We’ve got a bona fide fight on our hands.
The sole bright light is that a small group of four Committee members (including a vice chair) issued a dissenting opinion which is stapled to the back of the Committee’s official report. It is sensible and humane and I recommend that you read it.
If anyone is interested in learning about how Canada got into this mess, I recommend reading “A Right to Voluntary Euthanasia? Confusion in Canada in Carter,” John Keown’s scholarly overview of the court cases, and the principle arguments deployed therein, that eventually led to the Supreme Court’s decision last year. Or, if you prefer, here is a lecture in which he covers much of the same ground.