David Baker is a constitutional lawyer who represented the national disability groups in Rodriguez and Carter. Trudo Lemmens is Professor and Scholl Chair in Health Law and Policy at the Faculty of Law of the University of Toronto
It's more than a year since the Supreme Court of Canada decided that Canadians have a right under our Charter of Rights and Freedoms to receive physician assistance in dying. Effective June 6, physician-assisted death will be a funded part of medicare. Parliament has until that date to decide precisely who will be eligible, and what safeguards should be in place. The court foresaw it enacting a "complex regulatory regime" of "carefully designed and monitored safeguards." Unfortunately, the federal report released yesterday recommends exactly the opposite, and proposes the world's most open-ended regime with arguably the lowest safeguards.
While the Carter case was moving through the courts, the province of Quebec was engaged in a lengthy legislative process of public consultation and study that resulted in its Act Respecting End-of-Life Care, commonly known as Bill 52. In the end, Bill 52 passed by unanimous vote of the Quebec Legislature. Under Bill 52, adults who suffer from a serious and incurable illness, who are in an advanced state of irreversible decline in capability, who are experiencing constant and unbearable pain, physical or psychological suffering, and who are at the end of life may obtain end-of-life care, which includes a right to palliative care as well as medical aid in dying. After due consideration, Quebec decided against legalizing both medical aid in dying for children and people with advanced directives, or living wills.
Finally, the law provides for a pretty good review process, which unfortunately takes place after the person dies rather than before.
Following the court's decision in Carter, the federal government appointed an impressive advisory panel to consult nationally, research practices in other countries and recommend legislation. Unfortunately, the new government removed its authority to make recommendations, resulting in a report that is full of evidence, but apart from a passionate call for Canada to provide its citizens with palliative care, bereft of recommendations.
A panel initiated by Ontario, with informal involvement from some other provinces, suffered no such fate. Short on research, evidence and consultations, in a period of 15 weeks it made nothing but recommendations. Firstly it made the erroneous finding that no federal legislative action was required in response to Carter, it went on to recommend two physicians operating under guidelines from their regulatory colleges as a key safeguard, without recommending any other prior review, and then recommended the federal government expand the Carter eligibility criteria to include children, persons with mental disorders and persons choosing to die at some future point by advanced directive.
The Trudeau government set to work by taking the unusual course of appointing a joint committee to review the issue composed of senators and Members of Parliament. Yesterday it presented its report. It was noteworthy the senators, who will not have to explain their position to Canadian voters, supported as a block the majority position, while there was a strong dissenting report from the Conservative MPs and a thoughtful "Supplementary Opinion" on behalf of the NDP members.
The majority of the parliamentary committee seeks to expand the criteria for physician-assisted death way beyond what was required by Carter or Bill 52. It includes mental-health conditions and all other disabilities, including developmental disabilities, autism, acquired brain injuries, fetal alcohol syndrome, not to mention blindness and deafness.
Essentially all disabilities can be included in the open-ended criteria for access, extending the law beyond the persons with irreversibly declining capacities at the end-of-life that the Supreme Court ruled upon, and disregarding the court's determination that "psychiatric disorders" were expressly excluded, as well as children, even if children would only have access three years after the new legislation is introduced. The committee further recommends access by advanced directive for people suffering from dementia, which most agree would create a practical and ethical minefield.
The committee disregarded strong evidence (detailed analyses as well as various case reports) from Belgium and the Netherlands, that confirms vulnerable people are put at risk when vague and expanding access criteria are employed. The risk worsens when the regulatory system relies on individual physicians for determining access and for assessing competency of patients.
Physician-assisted death in those countries is increasingly being performed on people who are lonely and are concerned about becoming dependent on others, people who are tired of life, and people suffering from mental-health conditions, including depression, anxiety, schizophrenia, eating disorders, autism, post-traumatic stress, and even complicated grief.
In many analyzed euthanasia cases, treatment options were available but not used. Reports from those countries raise questions about how some physicians assess competency, and about how vulnerable patients have been able to shop around until they find a physician who, having had no prior therapeutic relationship with them, are willing to end their life.
In response to recent controversies, Belgian and Dutch experts, commentators and some political parties have called for a reconsideration of their open-ended, after-the-fact review approach. The committee has received documentation of this evidence and these recommendations, yet it opted to recommend less rather than more safeguards than in these countries.
While both the Conservatives and NDP committee members make strong statements about the need for a right to palliative care comparable to that offered in Quebec, the majority merely repeat platitudes heard many times before about studying the problem, without recommending that Parliament act immediately to ensure palliative care is adequately funded by the Canada Health Act.
Imagine that Canada would become a country where people, including children, receive a physician-assisted death for lack of access to appropriate palliative or other health care.
EDS NOTE: An earlier version of this column incorrectly said the report's recommendation that two physicians operating under guidelines from their regulatory colleges represented all the safeguards required. In fact, one recommendation says governments should develop and implement a pan-Canadian strategy for palliative and end-of-life care, including physician-assisted dying. The report also recommends requirements to ensure a patient declaration form is completed and witnessed by an independent party.