Carmine Marinelli /Vancouver 24hrs/QMI/Macleans   

 

The Supreme Court of Canada handed down its judgment in Carter on 6th February 2015 affirming a right to euthanasia, and gave Parliament twelve months to pass legislation implementing its rulings. The Conservative Government under Prime Minister Stephen Harper set up a committee of three eminent people to consult Canadians and make recommendations to Parliament (it was chaired by Dr. Harvey Max Chochinov a highly respected psychiatrist who specializes in psychiatric care of terminally ill people).

In October 2015 the Conservatives lost the Federal election and the Liberal party under Justin Trudeau’s leadership was elected. Pro-euthanasia advocates had complained that two of the three members of the Chochinov committee had given evidence in the trial court in Carter as witnesses for Canada arguing against legalizing euthanasia, with the implication that they would be biased against euthanasia.

The new Liberal government instructed the Chochinov committee not to make recommendations as mandated in its original instructions, but only to report on what it had found from hearing witnesses and visiting jurisdictions in which euthanasia or physician-assisted suicide are practised. It then established a joint committee of the House of Commons and the Senate of the Parliament of Canada, comprised of sixteen members, with instructions to report by 26th February. It has just been reported that Mr Trudeau will not allow a conscience vote by members of his party,

Below is the submission I made to that committee on 4th February, 2016. 

Submission to the Special Joint Committee on Physician-Assisted Dying of the Parliament of Canada

4TH FEBRUARY, 2016

I was invited to appear before the “Special Joint Committee on Physician-assisted Dying” of Parliament and provided with written instructions setting out the matters the committee wished me to address. These did not include the question of whether or not Canada should legalize euthanasia and physician-assisted suicide. Therefore, I want to put on the record that I believe euthanasia and physician-assisted suicide (what the Supreme Court of Canada calls physician-assisted death/dying) are inherently wrong and should remain criminally prohibited.

It seems, however, to be a foregone conclusion that Parliament will legalize euthanasia (a word I use to refer to both euthanasia and physician-assisted suicide), so the issue is how to limit the harms and risks of that.

So, in order to do the least damage possible to important shared societal values, especially respect for human life, and to vulnerable Canadians of legalizing euthanasia, I am willing to provide some recommendations for limiting its harms and risks.

“Carter as a floor not a ceiling”

I had a strong impression the committee was strongly pro-euthanasia. A telling phrase, used by a co-chair and repeated by others, characterized the Supreme Court of Canada’s decision in Carter as “a floor not a ceiling”. In short, this embodies an approach that Parliament can make euthanasia more available than Carter requires, but not less available. What would that mean?

The committee’s questions show what they might be contemplating.

Should euthanasia be available for children? May an incompetent person (for instance, one with Alzheimer’s disease or other dementia) be euthanized if they have left advance directives consenting to it? May a surrogate decision-maker consent to euthanasia? Should it be available to mentally ill people without physical illness?

People who believe legalizing euthanasia is a terrible mistake often warn of the risks and harms of the slippery slopes it entails: the “practical slippery slope” – abuses of euthanasia, once it is seen as legally acceptable – and the “logical slippery slope” – the people eligible for it and the circumstances in which it may be provided inevitably expand. Powerful examples of both these slopes have evolved in the Netherlands in the last 40 years and Belgium in the last 14 years. But Canada needn’t wait that long if, as I fear, I’m correct about what the committee might recommend and Parliament might accept. We’ll start at the bottom of these slopes.

So what would an approach which is more restrictive  but still complies with the Carter ruling look like?

Autonomy v. respect for life

The Supreme Court recognized that the values of respect for individual autonomy and “sanctity of life”, especially protection of vulnerable people, were competing claims and both had to be taken into consideration.

“On the one hand,” the Court wrote, “stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.” (SCC para. 2)

In the past in many societies, including Canada, religion was the main institution used to uphold the value of respect for life at a societal level. Respect for life is a preferable term to “sanctity of life”, because respect for life is not just a religious value. It is a foundational value in every society in which reasonable people would want to live.

And it must be upheld at two levels: that of every individual person’s life and in society in general.

In 21st century secular Western democracies, such as Canada, medicine and law are the main institutions carrying the value of respect for life for society as a whole. Their capacity to do so will be damaged by euthanasia. It’s in every Canadian’s interests to make that damage as small as possible.

So, to turn to the question the committee asked me to address, what “framework of a federal response on physician-assisted dying … [would] respect the constitution, the Charter of Rights and Freedoms, and the priorities of Canadians?” I would add, “and do the least harm to the value of respect for life and to healthcare professions and institutions, and create the fewest risks for vulnerable people, both in the present and the future.”

The following proposals are made with that extended question in mind.

Physician-assisted death is an exception

As the Court made clear in Carter, access to physician-assisted death (euthanasia) on certain conditions is an exception to the criminal prohibitions of culpable homicide and assisted suicide, and other than that very limited exception, those crimes remain in force.

To avoid the future “normalization” of euthanasia, as has occurred in the Netherlands and Belgium, and which would have very serious consequences for future generations of Canadians, the legislation to govern euthanasia must make it clear that euthanasia is such an exception, should only be used as a last resort, and rarely.

If Canada had the same percentage of deaths by euthanasia as the Netherlands and Belgium currently have (about 4 percent and 4.6 percent, respectively), we would have between 11,000 and 12,000 euthanasia deaths each year.

To help achieve the necessary clarity, I suggest the legislation be entitled An Act to amend the Criminal Code to allow for an exception to conviction for culpable homicide and assisted suicide.

This means those not complying with the law allowing euthanasia could be criminally liable and also that the person seeking euthanasia must show they fulfil the conditions for having access, that is, they have the burden of proof.

That would be consistent with what both the trial court judge and the Supreme Court proposed the law should establish: “a stringently limited, carefully monitored system of exceptions” (BCSC para. 16. Emphasis added) and “a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced” (SCC para. 105. Emphasis added), respectively.

In short, euthanasia must be treated as an exceptional intervention, very carefully safeguarded and rarely used.

In further support of this approach, I note that between 1991 and 2010 Parliament rejected motions or bills promoting assisted suicide or euthanasia on no less that twelve occasions, so legalizing euthanasia is an unprecedented change of mind and direction on Parliament’s part.

Specific considerations

The committee asked me to address three specific categories of considerations:

1)    Eligibility criteria (e.g. age, capacity, condition, addressing vulnerability);

2)    Processes and procedures (e.g. mechanics of a request, oversight, privacy considerations);

3)    Roles and regulation of healthcare practitioners (e.g. who should do what, rights of rights of conscience, discipline and penalties)

I will do so very briefly and far from comprehensively.

1. Eligibility:

The first requirement is that the person requesting euthanasia has been offered high quality palliative care, including fully adequate pain management. Apart from other reasons, this is legally required in order to obtain an informed consent to euthanasia.  (See Reibl v. Hughes [1980] 2 SCR 880; Lepp v. Hopp [1980] 2 SCR 192)

The person must be mentally competent and provide informed consent up to and including the point at which euthanasia is administered. (Informed consent is a process, not an event.) This requirement acts as a protection for vulnerable incompetent people (for example those with dementias, such as Alzheimer’s disease). It also means that advance directives cannot be used for euthanasia and consent to it from surrogate decision-makers is not allowed.

Euthanasia should be restricted to people who are terminally ill (a life expectancy of less than four weeks) from a physical illness, disease or disability and experiencing extreme physical suffering.

Euthanasia should not be allowed for children unable to consent for themselves. Whether it should be available for “mature minors” is a separate question.

2. Processes and procedures:

Two physicians, one of whom is a specialist in the type of disease from which the person suffers, must each confirm in writing that the person fulfils the conditions for access to euthanasia and that they have been offered all reasonable alternative interventions, including high quality palliative care and pain management.

A psychiatric consultation to rule out conditions such as depression, or coercion, undue influence of others, or duress is required, at the least where there is any possibility of these factors affecting the request for euthanasia or consent to it or any doubts about the person’s mental competency.

A Superior Court judge should certify that all legal requirements for access to euthanasia are fulfilled. (Chief Justice McLachlan imposed this safeguard requirement in her dissent in Rodriguez, as did five Judges of the Supreme Court in granting Parliament a four month extension to draft legislation in response to the Carter judgment.)

Euthanasia must not be administered earlier than 15 days after it is requested.

A national research and review body should be established to collect records of all cases of euthanasia, investigate cases where there might have been non-compliance with the law, and report, at least annually, in a way that does not breach individuals’ privacy, but informs Parliament, provincial legislatures, courts, professional licensing and disciplinary bodies, medical institutions, the public, and so on. This body should also be able to make recommendations for changes in law, regulations or practice when these are needed to prevent abuse of euthanasia or to protect vulnerable people.

3. Roles and regulation of healthcare practitioners: 

For nearly 2,500 years, physicians and the profession of medicine have recognized that assisted suicide and euthanasia are not medical treatment and this position should be maintained and these interventions should be kept out of medicine. (See J. Donald Boudreau and Margaret A. Somerville, “Euthanasia is not medical treatment”, British Medical Bulletin 2013; 106: 45–66, DOI:10.1093/bmb/ldt010

http://bmb.oxfordjournals.org/content/early/2013/03/26/bmb.ldt010.full?keytype=ref&ijkey=IKP7zm8pfcR3lNH explaining this stance.)

Consequently, a new profession should be established to carry out euthanasia.  The practitioners should not be healthcare professionals or, if so, only ones who have permanently retired from practice. Practitioners should be specially trained, licensed and have travel money provided to give people across Canada equal access to euthanasia.

If this approach is not adopted, two publicly available lists of physicians and institutions should be established, those who will provide euthanasia and those who will not. This is a reasonable compromise between Canadians who agree with euthanasia and those who oppose or fear it. The Supreme Court emphasized that the Charter right to “security of the person” includes freedom from fear about what could happen to us when we are dying, which often seems to be forgotten or ignored with respect to this right of those fearful of euthanasia.

This approach will also solve most freedom of conscience issues. Healthcare professionals must not be forced to provide or refer for euthanasia when they have ethical or conscience objections to doing so. It must be kept in mind that respect for physicians’ freedom of conscience is not only necessary to respect them, it is also required to protect patients and can be the last such protection against doing them serious harm or other serious wrongdoing.

Members of Parliament must be intensely aware in deciding who will have access to euthanasia and on what conditions that they are not just legislating for presently living Canadians, but also for future ones, their great-great-grandchildren and beyond, with respect to how they will die and the extent to which respect for life will be upheld in future Canadian societies.

Whether or not we agree with physician-assisted death, legalizing physician-assisted suicide and euthanasia is a seismic shift in our most fundamental values as individuals and foundational values as a society.

I believe future generations will look back on the legalization of assisted suicide and euthanasia as the most important social-ethical-legal values decision of the 21st century and the decisions that Parliament will make about the legislation and regulations to govern those interventions are an integral part of that decision.

Respectfully submitted, 

Margaret Somerville,

McGill Centre for Medicine, Ethics and Law,

Montreal

Margaret Somerville AM, DSG, FRSC, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...