Harvey Schipper is a professor of medicine at the University of Toronto. Trudo Lemmens is a professor and Scholl Chair in Health Law and Policy, Faculty of Law, Faculty of Public Health, and Joint Centre for Bioethics at the University of Toronto.
The Supreme Court of Canada's decision last February, which opened a legal avenue to physician-assisted dying, is a bellwether judgment. It mandates that Parliament determine how doctor-assisted dying will be implemented. Contrary to what some appear to suggest, particularly in the recent report from the Provincial-Territorial Expert Advisory Group, nothing in the Carter decision prevents legislatures from moving cautiously, defining when and how physician-assisted dying should be allowed. Parliament should seek an almost Solomonic wisdom in implementing the judgment. Here is why.
The Carter decision explicitly dealt with a narrow end-of-life situation, namely a person with a rare neurological disease that left an active and agile mind trapped within a increasingly impaired body. We must carefully consider how we are to implement doctor-assisted dying beyond that narrow indication. For example, how should this apply to patients with mental-health conditions or severe physical disabilities? This must involve a prudent weighing of whether and how physician-assisted dying should be offered in different contexts, and what it will mean for society at large. It might affect the incentives for cash-strapped governments to invest in other end-of-life care, for example. It might require a reallocation of resources. It will affect the relationship between patients and health-care providers. And it will increase concerns about difficulties in determining mental competency and ensuring informed consent in the context of life-ending procedures.
The ruling set out stable criteria for law and policy making, focusing on individual rights. Judgment at the bedside of patients, in the often messy circumstances at the end of life, is different. The situation there is fluid, ambiguous and constantly changing. Ailing patients have multiple medical conditions, social and familial interactions, economic restrictions and emotional and spiritual needs, all of which matter. Translation between legal rules and medical practice requires careful discussion among those involved and affected.
The court emphasized that this is a societal decision, to be deliberated by legislatures. They must hear from various experiences. One can't help but be moved by personal stories that point to the limits of medicine to relieve suffering. But that needs to to be balanced by other narratives: The observations of those involved in end-of-life care that, when patients receive the best available care, the request for some form of assisted dying is highly exceptional; the concerns of those who feel vulnerable and worry about the impact of expanded euthanasia practice; and the reports of troubling practices in jurisdictions that have legalized doctor-assisted dying and are struggling to contain it.
The Carter decision focuses on the medical situation the patient perceives, not the broader circumstances that may underlie that perception. For example, do patients have full access to the range of treatments and supports that might relieve their condition? Unless we fully understand the source of the suffering, we are at risk of ending lives unnecessarily, not because of the illness but because of the inadequacy of care. We require processes and oversight that do not diminish the impetus both to better deliver what we know and to improve medicine.
Some argue, as the Provincial-Territorial Expert Advisory Group did, that it is best to have a very permissive system. Others, especially those who say they speak for vulnerable and disadvantaged people, are worried about how physician-assisted death would affect them and their families, and how it opens the door to abuse. Several commentators suggested that any delay means that some people will either suffer unnecessarily or feel the pressure to die by suicide too early. That view ignores the risk that many others could die too quickly because the process followed is rushed, ill-considered and poorly administered. Whatever criteria and process Canadians settle on, the oversight both before and afterward must be rigorous and based on lived experiences.
The debate about physician-assisted death is intense because actively ending a life crosses a boundary. Canadians abolished the death penalty not only on moral grounds, but also because of the irretrievable consequences of a mistake. That wisdom has been amply demonstrated. The Supreme Court has offered a legal avenue, fully subject to the expression of our societal responsibility expressed through our legislatures. We have no moral alternative but to proceed deliberately, cautiously, gradually and with scrupulous oversight.