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tom koch

The next court challenge: the right to better care Add to ...

Tom Koch is a Toronto-based gerontologist and ethicist engaged in chronic and palliative consultations. He was a consultant for Justice Canada in the Carter case.

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Supreme Court of Canada decisions do not end litigation or stop debate. More typically, they spawn new challenges. Carter et al., the 2015 decision on physician-assisted termination, is no exception.

Last week, the government introduced legislation promising a new standard permitting qualified medical personnel to end a patient’s life in certain well-defined circumstances. The proposed legislation – reviled by both the left and right – is a cautious first step reflecting the Supreme Court’s judgment.

The next court challenge will focus on the often unmet needs of Canadians with chronic conditions who need but are not receiving adequate palliative care, rehabilitative support and social services. Those are the things needed to live with dignity despite restrictions, and in too many communities in Canada they are unavailable. If there is to be choice under the court’s guidelines, it must be full rather than restricted.

In Carter v. Canada, the Supreme Court interpreted Section 7 of the Charter of Rights and Freedoms’ promise of “life liberty and security of person” to mean we must be permitted autonomous choices about our own lives; how they are to be lived, and in some cases, ended. In this context, that means the right to choose medicalized death when faced with a “grievous and irremediable medical condition” resulting “in an advanced state of irreversible decline in capability” where death is an almost certain but future likelihood.

Because this is about informed individual choice, the new legislation does not enable those lacking capacity – for example, people with mental disorders – to elect an early death. And because, as the literature shows, many who think they would choose termination rather than restricted life change their minds over time, “advance directives” – permitting one to choose today for the uncertain future – are disallowed.

What’s not considered in the new legislation is the degree to which palliative, social, rehabilitative and psychiatric support can change an “irremediable medical condition” into one that can be treated if not reversed. If the Supreme Court decision enshrines choice as a principle of Canadian justice, then what choice are we to be offered?

If it is between constant pain and an early death, most of us would prefer the latter. Expert palliative care can mitigate physical suffering in, according to experts, perhaps 95 per cent of all cases. But at present that level of pain control is unavailable to many Canadians. Without its surety, the choice is limited, if not empty, and justice therefore denied because a real, full choice is withheld.

Similarly, all agree that end-stage home care and hospice care can make the last stage of an illness more than bearable. But many Canadians who would choose this cannot. It’s not available. And without its assurance, the choices they are offered for care to the end are limited.

Similarly, there is the threat that patients with chronic, progressive diseases will be denied treatments that might improve and extend their lives. We saw this in Oregon when cancer patient Barbara Wagner’s publicly funded health insurer refused to pay for potentially life-prolonging chemotherapy but said it would gladly pay for physician-directed termination. When questioned by reporters, Oregon Health Plan officials admitted that this was standard policy.

In the same vein, patients with limiting conditions – paralysis or stroke – might choose death over life if they lack access to the technological aides that can transform a limited life. These include computer-assisted communication devices, motorized wheelchairs, adapted vans and, of course, home support services. All the literature insists that with such devices and care, even a restricted life can be successfully lived irrespective of restrictions.

In these conditions and without mandated support, life-or-death choices will be based not on a set of full alternatives but on one where the deck is stacked for early death. That violates the liberty ideals the Supreme Court pronounced in its 2015 decision. It is that which will be challenged in future cases where patients seek the right to a full life despite restrictions rather than a quick death.

And while the administration of health care is provincial, the mandate here is a federal statute. That means it will be to the Supreme Court that those seeking life with dignity despite restrictions will have to turn.

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