Oh the Web We’ve Spun When It Comes to Euthanasia

Assisted Death: Legal, Social and Ethical Issues after Carter

General Editor: Derek B.M. Ross, LL.B. LL.M. of the Ontario Bar

Publisher:LexisNexis Group, Toronto, ON, 2018

Oh the Web We’ve Spun When It Comes to Euthanasia 

The Supreme Court of Canada in 2015 made medical assistance in dying (MAiD) or euthanasia or physician assisted suicide (PAS) legal under certain conditions. Canada responded with basically supportive legislation in the form of Bill C-14 in 2016. This publication of Assisted Death: Legal, Social and Ethical Issues after Carterbrings together several prominent legal experts on what that means and how it impacts Canada and Canadians, not to mention the rest of the world with regard to where we go from here.

It is a large volume (541 pages) but one learns a lot. Given the profession of the writers one needs to read it patiently and with a highlighter. The rewards for a layman are significant. I learned about the doctrine of stare decisis-- when courts should, and should not, follow precedent -- and all the implications of the Carter case for and with respect to that doctrine. One learns about the importance of objectives of a law; whether rights limitations (a big deal here as MAiD is only extended to some individuals) are in accordance with the fundamental principles of justice; how freedom of conscience and religion, and the right to religious equality, for health care professionals and institutionsneed to be reconciled with patients’ interests; overbroad laws; the law’s conception of personal autonomy[and the difference between ‘Deliberative Autonomy’ and ‘Social Autonomy’];charter dialogue; the three sources of vulnerabilityand how they impact this issue; and much more.

Of course, there are social and ethical issues that must also be considered as a result of Carter and the consequences (positive and negative) that result from its application. These include:

·      the need “to affirm the inherent and equal value of every person’s life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled”

·      that “suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities”

·      the “‘irrevocable nature of ending a life’ and the need for ‘robust safeguards. . . to prevent errors and abuse in the provision of MAiD’”

·      and “the interests of vulnerable persons in need of protection and those of society.”

There is way too much that one can highlight about this book. It is better in this case to simply state that it is very wisely divided by Derek Ross, the general editor, into four major parts, and to list those parts and their contents, as follows: 

I.        Carter’s Impact on Canadian Legal Doctrine – with chapters on:

a.     Carter: A Stain on Canadian Jurisprudence, by Dr. John Keown

b.     Carterand the Unsettling of Stare Decisis, by Dwight Newman

c.     The “Basic Bedford Rule” and Substantive Review of Criminal Law Prohibitions Under Section 7 of the Charter, by John Sikkema

II.        Charter Implications for Health Care Professionals and Institutions

a.     Conscientious Objections to Medical Aid in Dying: Considering How to Manage Claims of Conscience in a Pluralistic Society, by Mary Anne Waldron, Q.C.

b.     The Call in Carterto Interpret Freedom of Conscience, by Brian Bird

c.     Complicity, Autonomy, and Conscience: Charter Implications of the ‘Duty to Refer’ for Physician-Assisted Suicide, by Derek B.M. Ross

d.     The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, by Barry W. Bussey

III.        The Future of Palliative Care in Canada and Safeguards Moving Forward

a.     Endgame: Philosophical, Clinical and Legal Distinctions between Palliative Care and Termination of Life, by Mary J. Shariff and Mark Gingerich

b.     Establishing the Right to Palliative Care in Canada, by David Baker and Geoff Cross

c.     The Way Forward for Medical Aid in Dying: Protecting Deliberative Autonomy is Not Enough, by Jonas-Sébastian Beaudry

IV.        Charter Dialogue and the Constitutionality of Canada’s MAiD Legislation

a.     Dialogue on Death: Parliament and the Courts on Medically-Assisted Dying, by Thomas M.J. Bateman and Matthew LeBlanc

b.     Constitutional Aspects of Canada’s New Medically-Assisted Dying Law, by Hamish Stewart

c.     Charter Scrutiny of Canada’s Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice, by Trudo Lemmens

What I gleaned from the volume is that the Carterdecision has several flaws that should have been challenged with greater assertiveness.  They still can be when challenges to Canada’s legislation stemming from the Carterdecision arise, and they will – when a broader group of people want access to MAiD or when others want access for them – which is more alarming.

I was surprised by a number of facts including that the “trial judge in Carterdecided that there is no ethical distinction between intentionally and directly causing a person’s death and withdrawing life-sustaining treatment.” I was also surprised by the Court refusing “to confirm that the (Carter) decision would not compel physicians and other health care workers to provide medical aid in dying”, but rather simply stated that “nothing in the declaration. . . would compel physicians” to do so, but that “What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures.”  Ontario, of course, has decided its College of Physicians and Surgeons has the power (which it has used) to compel doctors to as a minimum make a bona fide referral to a doctor who will provide MAiD. In short, a cop-out by the Court. The matter is being appealed.  Also surprising was a Divisional Court’s contention that there “is no constitutionally protected right to practice medicine”, a position which is not in keeping with earlier decisions of the Supreme Court with respect to work.

The sections on religion, its legal definition, and its relationship to conscienceis fascinating both for the believer and the unbeliever. I was also intrigued by the position presented that ‘something being legal’ is not equivalent to ‘something being a right’. I learned about the so-called “Procedural Safeguards” that a professional must consider before a patient is granted MAiD – there are eight of them, many with their shortcomings. Alarming are the predictions of what lies ahead, some based on solid reasoning, and many based on observations of what has, and is, transpiring in Belgium and the Netherlands who have had MAiD for some time.

Some of my favorite quotes from the book include:

·     That the Court found the complete ban (on MAiD)to be overbroad, however, did not transform assisted suicide from a crime in 2015 to a Charter right in 2016. The repeal of crime does not automatically create a correlating constitutional right. To permit an act is not to mandatethat others perform it. (p. 170)

·     There is no right to termination of life, only a right to request it. The health care provider makes the determination regarding whether a request can be legally granted and whether or not to participate. (p. 289)

·     Parliament also declined to establish a right to PC (palliative care)when legalizing MAiD, contrary to both Belgium and Quebec which did establish a corollary right to PC. (p. 323)

·     The proportion of people who receive euthanasia and who are not terminally ill has also greatly increased in Belgium and The Netherlands. (p. 497)

·     Once end-of-life is abandoned as an access criterion, setting limits becomes very difficult if not impossible. . .. [A]significant majority of geriatricians in the Netherlands (62 per cent) felt pressured by family members to make a decision to euthanize. (p. 499)

This is a must read for anyone who has a loved one that is terminally ill or has the desire to ‘call it a day’ or just wants to “go home!” Certainly, doctors should read it, politicians should read it, clergy should read it. Highly recommended. It allows one to catch up on what has happened so far and alerts and prepares one for what is about to happen – both legally and socially. MAiD is one of the human issues that not only changes death, but impacts life.

n Ken B. Godevenos, President, Accord Resolutions Services Inc., Toronto, Ontario, August 11, 2018, www.accordconsulting.com

It would be great if you would share your thoughts or questions on this blog in the comments section below or on social media.