It is still illegal in Canada to assist a person to die by suicide. But since last week – fully 16 months after a landmark Supreme Court of Canada ruling – the Criminal Code's prohibitions no longer apply "to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition."
Has any grievously ill patient taken advantage of this legal void to choose a hastened death? We don't know, nor is it any of our business. Like any other medical intervention, that decision is between a patient and physician.
What is obvious is that the dire warnings that an absence of federal legislation could lead to chaos were ridiculous. What is increasingly clear, too, is that having no law – as has been the case with abortion for 28 years – is a legitimate option, and certainly much better than having flawed legislation.
And make no mistake, Bill C-14 is a terrible law. Because it is far more restrictive than the criteria set out by the Supreme Court, the legislation is likely unconstitutional. At the very least, it will result in many more years of costly and unnecessary court challenges.
The most controversial aspect of the federal law is criteria asserting a person's death must be "reasonably foreseeable" for them to be eligible for assisted death. The legislation also makes it near impossible for patients with dementia to be granted assisted death because it does not allow advance consent, and it limits requests to those over the age of 18, although mature minors can make decisions on all other medical treatments.
The Senate has been much praised (and vilified) for attacking the problematic "reasonably foreseeable" language of the bill, but it is highly unlikely the ruling Liberals will accept that clause being struck down when the bill returns for a vote in the House of Commons. Both Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott have defended that central tenet of the law. While that showdown between the two chambers is fascinating for political wonks and constitutional scholars, it does nothing for grievously ill patients.
Senators – like MPs before them – have introduced all manner of amendments and will continue to do so when debate resumes on Tuesday. Some of the more intrusive suggestions, such as a mandatory judicial review, have been rejected. But senators have proposed that physicians must conduct mandatory palliative-care consults. They also adopted an amendment that says a person cannot help self-administer a medication if they would benefit materially from the death – which would rule out many a spouse or adult child assisting a loved one.
None of this is necessary or acceptable. The last thing we need is politicians legislating the day-to-day interactions between patients and their health-care providers, never mind the actions of loved ones at end of life.
Hastening death with a lethal dose of medicine is a medical intervention. When the court's criteria are respected, it's not that different from discontinuing life support or allowing someone to refuse food and starve themselves to death – both of which are common.
We place tremendous trust in health-care providers to act responsibly and ethically whether they are performing surgery or withdrawing treatment, and we should expect no less with assisted death.
The regulators, such as the College of Physicians and Surgeons, have provided tremendous guidance on this issue – guidelines far more clear and useful than the proposed federal legislation.
There is a welcome trend in medicine these days recognizing that doing little or nothing is as legitimate an intervention as doing everything possible even if ultimately futile. To deliver good medicine – to, above all, do no harm – the most effective action is sometimes inaction.
That philosophy should guide public policy and law-making, too: Legislators have a tendency to want to get their sticky fingers into every little aspect of people's lives and deaths rather than recognize that less is more.
When it comes to assisted death, no law is better than too much law.
To paraphrase and modernize an infamous quote from an earlier prime minister: There's no place for the state in the deathbeds of the nation.