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.
As expected, Justice Minister Jody Wilson-Raybould has asked the Supreme Court of Canada to extend its February, 2016, deadline striking down Criminal Code prohibitions on "aid in dying." Earlier this week, nobody was surprised that Quebec Superior Court justices required implementation of the province's "Aid in Dying" law to be delayed.
Yes, health is a shared federal-provincial responsibility, but the Criminal Code is federal, not provincial. And the fight focuses on whether physician-assisted or directed termination, as the Dutch call it, is a felony.
A new federal law is required and, in matters of life and death, it's important to get things right.
In a unanimous decision last February, justices defined for the first time the Charter of Rights and Freedoms guarantee of "life, liberty, and security of person in accord with principles of fundamental justice." In this context, it means the right to choose medical termination in the face of an "irremediable medical condition," they said.
That leaves to lawyers – federal and provincial – the task of figuring out what "irremediable" means in medicine and the nature of the "fundamental justice" we are obliged to enforce.
Is the mere fact of a diagnosis of cancer, early dementia or Parkinson's disease sufficient for a physician to accept a still-healthy patient's wish to die? Can new patients terrified by their diagnoses say, "Just give me a shot"? Can a new stroke patient with partial paralysis say, "I can't live like this so please ... do me"?
A strong literature and years of experience insist that with care, rehabilitation and social support, most persons with chronic conditions, including paralysis, report a positive quality of life. It's called the "disability paradox," but it takes time to transition from an old life to this new one.
Current Canadian Medical Association guidelines suggest that requests for physician-assisted termination must be repeated over several weeks. But for a new patient whose pain medications have yet to be adjusted, a new paraplegic adjusting to physical limits, an amputee who can't imagine life with a prosthetic, that's rarely long enough. So if choice is to be real rather than desperate, how much time must be given to patients with new diagnoses and injuries? When does a medical challenge become "irremediable"?
Because Section 7 of the Charter places life as a principal and defining virtue, it would seem that a choice to die must only come after the possibility of a full if different life is first provided, attempted and then perhaps exhausted. "Fundamental justice" requires a greater rather than a restricted context. If patient choice is, as the court suggests, what we must offer, what type of choice are we required to provide in a just society?
Dutch authorities like Dr. Gerrit Kimsma, an expert witness at the Carter trial, insists physician-assisted or directed termination should only be carried out where patients have a full range of care options, including, in a partial list: expert pain control, psychiatric counselling, a range of rehabilitative services, social support and the potential of hospice residence if needed. Termination, he says, is not a substitute for care and treatment, but the last option to be considered once all others have been tried and exhausted.
So before one can choose "death with dignity," justice demands that the opportunity for "life with dignity, despite restrictions" be offered and its potentials experienced. Lawyers call this a "predicate condition," the context in which later acts are to be judged.
Here, however, is a justice problem. Palliative medicine providing expert pain control and social support is not available to all or even most Canadians. Rehabilitative services are similarly limited and, in most provinces, not fully funded. The same is true of hospices. Social services where available are often inadequate to meet the needs of most patients and their often stressed familial caregivers.
That's important because a patient's sense of being a 'burden" to loved ones is, like a fear of pain, a common reason given by those who seek premature death.
If the court's argument for patient choice in this area is to be anything but empty, federal legislators must create a context in which "suffering" unto death from an "irremediable" condition does not result from our failure to provide adequate care and support. This is something Quebec has not done.
It would require the legal availability of physician-assisted or directed termination dependent on the universal availability of all necessary support services in provinces seeking to legalize physician-assisted termination. They can set standards by which newly diagnosed or injured persons are given the time to adjust to new realities.
To encourage real choice, federal legislators can create health-related federal bursaries for the development of the resources required to make choice a reality in this arena of life and death. Think of it as infrastructure spending. We need highways and bridges before we can travel safely. We need services for the fragile before we go down the road of physician-assisted dying.
Everyone wants for all Canadians the greatest possible potential for life, liberty and the sanctity of the person. The challenge the Supreme Court decision presents is how to ensure that the most fragile among us have an option to live with dignity, despite restrictions, rather than simply dying because the necessities of a restricted life are unavailable to them.