Sandra Martin is the author of the award-winning book, A Good Death: Making the Most of Our Final Choices, which is now available in an updated paperback version.
When crowds chanted "lock her up" about Hillary Clinton during the 2016 U.S. election campaign, the implication was "and throw away the key." That vile sneer is threatening to become the reality north of the border for long-time inmates in federal institutions. As with the rest of Canadian society, the prison population is aging rapidly. Many will die behind bars, given the difficulty of getting parole, even on compassionate grounds.
According to the Office of The Correctional Investigator, which serves as an ombudsman for inmates, nearly 25 per cent of people (3,500 prisoners) incarcerated in federal penitentiaries are 50 or older, a number that has doubled in the past decade. More than one-third of them are serving long sentences – usually a minimum of 25 years – and rarely get parole. Most of them die of cancer, heart disease or liver failure, accounting for 366 of 542 prison deaths in the 10-year period between 2007 and 2017.
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There is a compassionate parole provision for terminally ill inmates, Section 121 of the Corrections and Conditional Release Act, but very few are granted – about four or five a year, according to the ombudsman's office, with most prisoners dying before the parole board reaches a decision.
I had never considered the way prisoners die until I attended a scholarly conference in September on End of Life Law, Ethics, Policy and Practice at Dalhousie University in Halifax. Lawyers, sociologists, philosophers and doctors had gathered from several parts of the world to debate protocols, safeguards, legal conundrums and access to medical assistance in dying (MAID) for mature minors, people suffering from refractory mental illness and dementia patients with advance directives.
The suffering of dying prisoners added a new dilemma to the intricacies of these conversations. Why should we care if an inmate old enough to be somebody's grandparent dies in a cell without adequate medical treatment, access to appropriate palliative care or medical assistance in dying? I think there are three reasons: compassion, equality and autonomy.
In a panel discussion, Crystal Dieleman of Dalhousie's School of Occupational Therapy pointed out that although prisoners are deprived of liberty while they are incarcerated, the rest of their human rights remain intact. Forget vengeance, they are entitled to the same access to health care as the rest of us, especially because our universal system is based on medical need, not social status. In fact, the most frequent complaints prisoners lodge with the ombudsman are about health care.
We have heard a lot lately about the dire consequences of solitary confinement, but little has been reported about how long prisoners wait to see doctors or nurses, or what access they get to medicines and other treatments. Adelina Iftene, who teaches law at Dalhousie's Schulich School, and has worked extensively on the legal implications of the aging prison population, described prisoners waiting three days to see a nurse and nearly two years to be examined by a specialist, all while suffering from a lack of palliative care or adequate pain management.
She said that 50 per cent of prisoners in chronic or acute pain are given nothing stronger than Tylenol 3s and relayed an anecdote in which some inmates donated money to buy another prisoner a bottle of Advil. "That's all the pain relief he had for one month," she reported.
Given prison demographics, this situation will almost certainly deteriorate. What will happen, Ms. Iftene asked rhetorically, if large numbers of prisoners start requesting MAID because they are suffering intolerably?
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All Canadians, including those who are incarcerated, are entitled to patient autonomy in requesting MAID, if they meet the narrow eligibility criteria. More than 1,000 Canadians have had assisted deaths since Quebec and Canada implemented their legislation. Not one of them was an inmate in a federal institution. The prison process for requesting MAID is hazy because the Correctional Service Canada has not yet published its guidelines for the procedure. Consequently, it is impossible to know if CSC is willing to provide MAID in prisons or whether a qualifying inmate would first have to secure compassionate parole, and then wait for a transfer to a community hospital.
So far, according to a spokesperson for CSC, there have been six requests, but "only one inmate, who was already in a community hospital, met the criteria" for MAID. Unfortunately, the prisoner "died before the medical assistance in dying procedure could be provided by the hospital." Why am I not surprised?
As Nelson Mandela famously said, "… no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." Surely, prisoners, especially those who are in chronic pain, terminally ill or locked in the fog of dementia fit that vulnerable category.