When a three-person committee was appointed in July 2015 to examine the federal response to a Supreme Court of Canada ruling allowing physician assisted death, it was widely dismissed as a cynical move.
It was, after all, the tail end of the Harper regime, a government fiercely opposed to "euthanasia" but unwilling to discuss it during an election campaign. Not to mention that a couple of the committee members (named below) were outspoken opponents of assisted death.
But late Monday, the final report of the committee – formal name: External Panel on Options for a Legislative Response to Carter v. Canada – was released.
Those expecting an ultraconservative tirade against assisted death will be disappointed. If anything, the 461-page report is frustratingly pragmatic.
The Provincial-Territorial Advisory Group on Physician-Assisted Dying, a parallel panel appointed by the provinces, made a series of blunt recommendations, including allowing self-administered lethal drugs and extending the right to assisted death to mature minors.
But the federal panel opted instead for a careful "he said, she said" examination of issues without every taking a clear stand.
Still, the report, while dense and academic, focuses some attention on two little-discussed issues: How to balance competing values in society and how to create an effective system of oversight. The panelists also issue an eloquent plea for better palliative care, an issue where there is unanimity across the political and philosophical spectrum.
On Feb. 6, 2015, the Supreme Court of Canada struck down the Criminal Code prohibitions against assisted dying, saying competent adults with a "grievous and irremediable medical condition" have the legal right to request assisted death. The landmark Carter v Canada ruling was then suspended for 12 months to give governments and regulatory bodies time to draft new laws and regulations.
All the previous Conservative government did in that time was appoint the panel; the newly-elected Liberals then asked for an extension, which was granted last week by the top court.
An all-party committee is now charged with recommending a legislative response within the next four months, and the first document they need to digest is the panel's report.
The federal panel does a detailed dissection of the Carter ruling, raising the important point that some of the key terms, like "grievous and irremediable" are not well-defined. Should that be done in legislation, or left deliberately vague so a reasoned decision is made between a patient and physician? Those are the kind of practicalities federal and provincial legislators and regulators will have to wrestle with.
The panel reminds us, too, that the "complexly intertwined" roles of federal and provincial governments in the health field present a significant challenge, and efforts will need to be made to ensure that access to assisted death (and end-of-life care more generally) is reasonably similar across the country.
The most thoughtful and important parts of the federal panel report tackle the thorny issue of values and oversight. Some people with disabilities fear they will be pushed to end their lives, and want legal protections; others have religious objections.
"There should be mechanisms in place to ensure physician-assisted dying occurs in a transparent, effective and trustworthy manner," the panel writes.
But how? Should there be provincial oversight bodies, such as Quebec's Commission sur les soins de fin de vie, or a federal regulatory body?
Should there be a standard procedure for requesting and reporting on assisted death? Clearly, data is important, to help understand why people want a hastened death, if they carry through on their wishes, and if the procedure is done professionally and humanely.
In short, now that the Supreme Court has clearly established that Canadians have a right to assisted death, the details are important. But the federal panel's report is also a reminder that you can get bogged down in details.
For the most part, governments need to get out of the way, and respect the values and wishes of patients, and allow physicians to practice ethically.
The ultimate challenge of legislators and regulators is to create a legal framework where assisted death is never coerced or imposed, but also never denied to competent, suffering individuals who request it.
But there needs to be a recognition, too, that none of this work can be done in isolation: No one should be choosing an assisted death because of a lack of palliative care.
As the panel rightly notes, the Supreme Court ruling should serve as impetus not only for respecting the right to assisted death for the small minority who will go that route, but for getting end-of-life care right for every Canadian.
The members of the panel are:
- Harvey Max Chochinov, professor of psychiatry and Canada Research Chair in Palliative Care at the University of Manitoba;
- Catherine Frazee, professor emerita at Ryerson University, and former co-director of the Ryerson-RBC Institute for Disability Studies Research and Education;
- Benoît Pelletier, professor of law, University of Ottawa, and former Quebec Liberal MNA and cabinet minister.