The notion that parliamentarians need more than the 12 months granted them by the Supreme Court of Canada to draft a new law on physician-assisted death beggars belief. Legislators have one job: to make laws. They should get to it without delay.
So far, however, the government's response has been incoherent.
Prime Minister Stephen Harper hinted that he may invoke the notwithstanding clause of the Charter of Rights and Freedoms to override the court ruling and reinstate the ban on assisted death, but then backed away from that position.
Bob Dechert, parliamentary secretary to the Justice Minister, said an extension would be requested since 12 months was not enough time to deal with the issue, but then backtracked.
When the Liberals proposed an all-party committee to draft a proposal for a new law, the Conservatives defeated the motion. But they offered no alternative other than a vague promise to hold public consultations.
Consultation sounds nice and democratic, in this instance, it's merely foot-dragging. The Supreme Court was abundantly clear about what's wrong with existing laws and what's required to make a new law constitutional.
To refresh the memories of our too-busy-to-draft-laws legislators: In the Carter case, the top court struck down two sections of the Criminal Code: Section 14, which says that "no person is entitled to consent to have death inflicted on him," and Section 241(b), which says that anyone who "aids or abets a person to commit suicide" commits a crime.
In short, the Supreme Court said that it is unconstitutional to deny gravely ill patients choice in how they die. But it also placed some fairly strict parameters on who can choose hastened death – only a competent adult with an irremediable condition that causes enduring, intolerable suffering.
The court said competency can be judged easily enough – after all, physicians make those decisions every day. The ruling is clear that assisted death must be voluntary, and it cannot be chosen by children or those who are incompetent. The only unresolved issues are whether the law should apply to mature minors who have the right to make other treatment decisions and whether someone can invoke assisted death at a later time with an advanced directive.
The court dismissed the notion that allowing assisted death will initiate descent down a slippery slope to homicide of the disabled and the elderly. It also said there was no evidence that terminally ill patients would be denied palliative care. On the contrary, palliative care is invariably improved in jurisdictions with assisted death.
The reality, though, is that many of these issues are beyond the purview of federal legislators. Once Ottawa adopts a new law (or not, because doing nothing is indeed an option), regulatory bodies for health professionals like physicians and nurses need to modify their codes of conduct and the provinces, which are responsible for the delivery of health care, need to put procedural safeguards in place.
Quebec, which adopted Bill 52 last year, has provided a perfect blueprint for how this can be done.
Under the province's new law, which takes effect in December, physician-assisted death is allowed only when these four criteria are met: 1) The person making the request is competent and opting to end their life of their own free will; 2) The patient has an incurable condition at an advanced stage and is nearing death; 3) At least two physicians have been consulted, they agree on the diagnosis and are willing to administer a lethal dose of medication, and; 4) There is a "period of reflection" between the request and the final act.
In addition, Quebec's law states that everyone is entitled to end-of-life palliative care, it creates a commission to monitor the law and it creates a register so patients' advance directives are clear and accessible to health-care providers.
Federal Conservative MP Stephen Fletcher, an outspoken proponent of the right to die, has drafted two private member's bills that are quite similar. Bill C-581 proposes amendments to the Criminal Code using language remarkably similar to the Supreme Court's ruling, and Bill C-582 proposes the creation of a Canadian Commission on Physician-Assisted Death, an independent body that would establish the practical guidelines.
As the Supreme Court stated, denying a hastened death to those who are suffering intolerably and permanently is cruel, and denying them the choice is unconstitutional.
Everything is in place for the government to act quickly and responsibly to correct this injustice. There is no excuse for perpetuating cruelty any longer.
André Picard