Mark Handelman is a health and elder-law lawyer in Toronto. He is also a member of the Law Commission of Ontario End of Life Advisory Committee and a member of the Joint Centre for Bioethics PAD task force
This week's "raucous with the caucus" on the floor of the House of Commons was disrespectful to suffering Canadians waiting in pain and fear and agonizing about the looming deadline on new laws around assisted death.
Canadians knocking on death's door deserve better.
The physicality and verbal sparring we witnessed play out on camera confirms that end-of-life issues stir up strong emotions, even among our political brass. But what we should be more worried about is what happens when politics and bravado trample the dignity and ignore the suffering of our vulnerable loved ones.
The government appears to have an agenda to end debate and swiftly push this bill forward because it knows there are many questions that remain unanswered. The legislation is unsatisfactory and is in clear breach of what the Supreme Court said.
The Alberta Court of Appeal pretty much said that this week when it confirmed a lower court judgment allowing assisted death for a woman suffering with an irremediable psychiatric condition that is not terminal. The Court held that the Supreme Court contemplated that assisted death would be available for persons whose condition was psychiatric, and would be available whether or not the condition was terminal.
The proposed legislation requires that the patient's death be "reasonably foreseeable," something not required by the Supreme Court in its landmark ruling. What does that mean? Everyone's death is "reasonably foreseeable." What isn't foreseeable is the time line, certainly for healthy patients but also for many people with terminal conditions. Medical complications, effective cures and even a person's will to live (or lack thereof) will affect the time line. What if death is "reasonably foreseeable" within five years? Ten years?
The provision requiring the applicant be in "an advanced state of irreversible decline in capability" does not make sense if "capability" is in reference to a mental condition, because at the time death is "administered," the patient must be capable.
The government did not table the regulations setting out when and how reports of medical assisted death must be made, or to whom. If these are not available when the legislation is passed, what assurances of consistent application of the law, of protection of the vulnerable, of access to assisted death for all Canadians equally, do the people of Canada have?
Legislation in Quebec recognizes the need for access to palliative care. The federal legislation does not address this valid concern about a significant shortage of this resource everywhere in Canada. Absent adequate palliative-care resources, it is likely that people who wish dignity in their own death will seek assisted death. This is a stain on the pride we take in our universal health-care system.
Given how subjective all the criteria are, they will be interpreted differently by different physicians and nurse practitioners. There is no method in the legislation for pre-approval, and no method for ensuring consistency.
There is also no guidance for physicians, nurse practitioners or hospitals about what to do if they have objections of conscience to assisting a patient's death.
And one more thing: If the bill does finally get passed in current form, there is no guarantee of swift approval from our recently emboldened Senate. Ironically, as the Alberta Court of Appeal has just shown, suffering Canadians with irremediable medical conditions may be better off without legislation.