Fighting for the Right to Die: Canada’s Battle for Physician-Assisted Dying (a student perspective)
As of June 2016, Canada became the first common law system to legalize physician-assisted dying. Canada’s Parliament had deliberated on this issue multiple times, never passing a law permitting assisted suicide, until this was necessitated by the events of early 2015 and the Supreme Court of Canada’s decision in Carter v. Canada, discussed below. Nearly three years later, it is a prudent time to examine the new law’s legitimacy and to consider the application, implementation and functionality of this policy within Canadian society.
The Beginning to the End of Life
The case of Carter v. Canada was the latest SCC decision to challenge the Criminal Code’s prohibitions against assisted suicide. Ms. Carter was a neuro-degenerative disease patient, who possessed a poor prognosis - a reasonable foreseeability of future pain and suffering. At trial, the judge determined that the Code provisions violated her s.7 Charter rights; she was suffering intolerably as a result of a grievous or irremediable medical condition. The government could not justify the violation under s.1 of the Charter. The Supreme Court agreed and also declared the prohibition unconstitutional and suspended invalidity for a period of twelve months in order to allow sufficient time for government to draft new laws. Ms. Carter had passed away prior to the SCC remedial decision.
The determination of the aforementioned infringement was based on the three fundamental rights that are guaranteed under the Constitution: life, liberty and security of the person. The prohibition was meant to protect vulnerable persons from being coerced into a life ending decision while in a state of weakness, but deprived even more people of an effective choice to end their suffering and was thus overly broad in nature. The suffering inflicted on these certain persons would be grossly disproportionate to the harms the provisions sought to remediate.
The government proposed Bill C-14 in light of Carter, and it sought to protect a number of stakeholders, particularly medical staff and pharmacists. While it appears to be specific and to cover a wide range of potential issues, threshold terms like “reasonably foreseeable death” remain opaque. The issue of a patient requiring a sound mind becomes problematic when the patient suffers from Alzheimer’s or Dementia. These cases would require the government to allow advanced requests, currently an impossibility under the law, so that decisions can be made in full competency. Of cold comfort is that this problem will continue to get worse as the rates of dementia in Canada keep rising. According to the Alzheimer’s Society of Canada 564,000 Canadians currently suffer from dementia and every year an additional 25,000 cases are documented.1 The Council of Canadian Academies promised to provide more data on this potential problem by December of 2018.2 Can Canadian values be represented in the absence of crucial social science information?
The Opinions and Impacts on Our Physicians
Some medical practitioners are hesitant to administer life ending treatment due to fear of prosecution. Some doctors may also, for either moral or religious reasons, refuse to provide this procedure. As a result, the mandatory requirement of the law for a referral to a willing doctor has been a source of tension for religious societies of doctors. In Quebec however, physicians have no requirement to comply or refer patients. This was codified in Quebec’s end-of-life legislation.3 All members of the medical team have the potential to be impacted. Feelings of isolation, pressure and intimidation from the patient, shock and powerlessness have all been recorded by doctors.4 The amount of uncertainty and negative impacts, make it reasonable to assume that the needs of our medical practitioners are not being met, making the current iteration of the law less than effective.
Accessibility to Treatment
Accessibility to physician-assisted dying is a fundamental flaw under the current legal regime. Finding a doctor that will perform these requests can prove to be challenging. Some hospitals have taken a clear stance on the issue like St. Joseph’s General Hospital, who will only provide treatments that are “compatible with their values and ethics”.5 The requirements for eligibility are also somewhat subjective, and left to the opinion of the doctor. In Canada access to palliative care seems to be based on where you live. People who live in geographically privileged locations can access high quality palliative care facilities while those who reside in rural communities can travel over 100-miles to receive better care. A study published by the Quality End-Of-Life Coalition of Canada in May 2008 showed that despite the fact that the majority of Canadians wish to die at home, an overwhelming 60% of them do so in hospitals.6 This indicates a serious flaw in end of life policies and laws in general.
The current state of end of life legislation, and in particular physician assisted death remains too unclear. Without clearer definitions and regulatory direction, doctors are less able to make confident decisions and may become hesitant because of their fear of criminal charges or litigation. Issues of accessibility further exacerbate the efficacy of the current state of the law. Choice at the end of one’s life remains a luxury, not a right. When analyzing all of these factors, the legal regime is unfortunately in need of improvements. Hopefully with time there will be revisions made so that it may operate more effectively and fairly.
1 Alzheimer’s Society Canada, “Dementia numbers in Canada”, Retrieved from: <http://alzheimer.ca/en/Home/About-dementia/What-is-dementia/Dementia-numbers>
2 Council of Canadian Academies. (December 2016). The Expert Panel on Medical Assistance in Dying. Retrieved from http://www.scienceadvice.ca/en/assessments/in-progress/medical-assistance-dying.aspx
3 An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001, arts 31, 50
4 Stevens K.R. Jr. (2006 Spring). Emotional and Psychological Effects of Physician-Assisted Suicide and Euthanasia on Participating Physicians. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/16676767
5 Murphy, J. (June 16, 2017). Media Statement to CBC News.
6 Roger Collier. (2011, February 8). Access to Palliative Care Varies Widely Across Canada. Retrieved from http://www.cmaj.ca/content/183/2/E87.short