Trudo Lemmens
Sunday, April 10, 2016

Just when the federal government is about to table its bill on medically-hastened-death (or medical-aid-in-dying, physician-assisted dying, euthanasia, or physician-assisted-suicide), a new extensive poll of what Canadians want to see in new legislation suggests that Canadians support a more prudent approach than the open-ended access approach put forward by the Joint Parliamentary Committee (JPC) report and, prior to that, a Provincial-Territorial Expert Advisory Group (PTEAG) report. Canadians continue to support access to ‘physician assisted suicide’ (PAS), the term used in the poll, but a majority (51.8%) opposes the idea of providing access to PAS when the request is based on psychiatric conditions and purely psychological suffering. A majority also appears opposed to PAS for mature minors (in the poll: 16 to 17 year olds).  The 1,000 people polled were also asked about what they preferred as review mechanism. 59% of those polled support the recommendation by the committee of a review by two physicians, while 41 % supports a review by a ‘panel of independent experts’. A majority also supports the idea of an obligatory 2-week wait period, which was not explicitly addressed in the JPC report, while the PTAG remarkably recommended against an obligatory period even in a situation of non-terminal illness, and left it to physicians to decide this how much time was appropriate, in consultation with patients. 

Overall, the Poll suggests growing support for a more cautious and balanced approach to physician assisted dying, which would be more in line with Canadian values than what has been suggested by the JPC and the PTEAG. Such a balanced approach is reflected in the Vulnerable Person Standard. The Standard, endorsed by a large and continuously growing coalition of patient advocacy groups, health care institutions, professional organizations, and individuals and groups with a variety of ideological and religious perspectives, recommends clear and more narrowly defined criteria for access to PAS, an explicit and careful assessment of vulnerability, and a combination of health care providers evaluation and review by an arms—length authority. This review has to be flexible and proportionate to the situation of the patient. It finds precedent in other review systems such as the Ontario Consent and Capacity Board review system. A detailed legislative proposal that builds on an already existing federal review structure in the context of mental health has been developed by David Baker and Gilbert Sharpe, who presented their model to the JPC. Unfortunately, the JPC paid little to no attention to the need for safeguards. Robert Oliphant, co-chair of the Joint Parliamentary Committee, is quoted in the Globe and Mail in response to the Poll stating that the JPC proposed “huge safeguards”, but other than competency assessment no real safeguard can be found in the JPC’s recommendations. 

It is interesting to note that 41% of those polled also support arms-length review, even though it has has been so explicitly opposed by the JPC—the JPC even recommends that federal parliament should prevent Provinces from introducing it--and rejected by the PTAG. In a recent open town hall at the Beach United Church organized by Nathaniel Erskine-Smith, liberal MP for the area, Mr. Oliphant even went so far as to claim, in response to my argument in favour of an arms-length prior review system, that ‘only lawyers’ support prior review because they will make money out of it; a claim he knows or should know to be false. This aggressive and misleading campaigning against prior review notwithstanding, many Canadians already support the idea. I am convinced that with appropriate and honest information sharing, Canadians would support the wisdom of such a prudent approach, which appropriately balances access to medically hastened death with protection of the vulnerable and thus protects competing Charter rights. Two recently released analyses by constitutional law scholars Dianne Pothier (The Parameters of a Charter Compliant Response to Carter v. Canada)  and Jacques Fremont (Some Thoughts Concerning Parliament's Legislative Leeway in a Post-Carter Era) discuss the legislative options federal parliament has for a Carter and Charter-compliant legislative scheme. They both suggest that the Vulnerable Person Standard approach would be Charter comopliant. 

In a recent blog that was posted on Dalhousie’s ‘Ethics Impact’ website, I briefly discussed some of the serious problems of an open-ended medical-aid-in-dying system, which could largely be avoided by the combination of vulnerability assessment, prior arms-length review and stringent and clear criteria for access.  The original “Impact Ethics” blog post can be found here (see also other links there for other opinions on the issues) and is reproduced here for those interested in reading more. I recommend reading some of the links provided in the text, which provide further documentation and a more detailed discussion of the problems identified in the short blog:

The Dangers of a Lax Assisted Death Regime

(Published originally on the Impact Ethics Website on March 3, 2016 · by impact ethics · in Canadian Bioethics, Death & Assisted Dying, Law & Policy, Mental Health)

Trudo Lemmens lists a number of concerns with the recent Report of the Special Joint Committee on Physician-Assisted Dying.

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In 2011, the BC Civil Liberties Association, acting on behalf of two women, asked the court to recognize the right to physician-assisted death for those “who are suffering unbearably at the end of life.” Justice Smith granted such a right to those patients in “a state of advanced weakening capacities.”

In 2015, in Carter v. Canada (attorney general), the Supreme Court of Canada confirmed that the absolute prohibition on physician-assisted death could not be justified, but also reaffirmed the role of criminal law in protecting the vulnerable. It invited the Federal Parliament to develop “a carefully-designed” “complex regulatory regime” “imposing stringent limits that are scrupulously monitored and enforced.”

Then, in February 2016, the Special Joint Committee on Physician-Assisted Dying issued a Report that recommends the opposite. It proposes transforming the Supreme Court’s vague parameters into legal criteria for access. Specifically, the Committee recommends expanding assisted dying to any medical condition (terminal or non-terminal, physical or psychological) that a patient experiences as causing enduring and intolerable suffering. It also recommends eventually expanding access from competent adults to mature minors.

The Committee rejects the need for any prior vulnerability assessment, such as the one recently recommended by a coalition of health and disability advocacy groups. It specifies that only two physicians are needed to determine that the eligibility criteria (including patient competence) are met. It doesn’t require that a psychiatrist be involved at any stage of the process, not even when requests are based on mental health conditions.

The Committee ignores the Court’s emphasis on the narrow basis of its ruling and the exclusion of “euthanasia for minors or persons with psychiatric disorders” of its reasons. It supports assisted death for demented patients on the basis of advanced directives. And, while it recommends access to quality palliative and other health care, it does not set this as a pre-condition for access to assisted death. The Committee recommends against a prior review and approval process; it suggests that after the fact reporting and review is sufficient.

Basically, the Committee recommends a system that is at least as open-ended as the Belgian and Dutch euthanasia regimes, despite evidence of growing problems in these countries. This evidence confirms that vulnerable patients are increasingly put at risk because the option of doctor shopping, combined with open-ended access criteria, make access to euthanasia all too easy. In these countries, euthanasia is increasingly performed outside the paradigm situations for which legalization of euthanasia is usually argued to be important. It is now performed on couples who want to die together, and on individuals who are concerned about becoming demented and dependent on others, who are blind and deaf, who have mental health conditions (including mood, personality, and anxiety disorders, anorexia, schizophrenia, addiction, autism and even complicated grief), or who are simply tired of life.

A just published analysis of psychiatric euthanasia cases from the Netherlands reveals questionable competency assessments, unresolved disagreements among physicians, social isolation of patients, lack of confirmation by independent psychiatrists, and euthanasia when there were treatment options. Remarkably, this is the first study to look in detail at the content of these case reports. This study suggests that after the fact reporting can generate statistical data, but these data may provide false assurances that lead to complacency. Indeed, complacency and overly lax criteria likely explain why prosecution in Belgium and the Netherlands is quasi non-existent. Moral concerns tend to be brushed aside because ‘legal criteria for euthanasia were respected.’

In Belgium, there have been calls for removing mental health as grounds for access to euthanasia, particularly after a 38-year old woman, suddenly diagnosed with autism, was euthanized. In the Netherlands, a documentary that followed three patients at an end-of-life clinic that serves those whose own physicians refuse their euthanasia request recently provoked outrage. One middle-aged patient, Hannie Goudriaen, suffered from speech dementia. She had signed a living will many years ago. In the documentary she is shown driving her car and enjoying outings with her husband. Her verbal expression is very limited. Her husband insists she wants to die. The clinic doctor finds in her expression ‘Huppakee gone’ confirmation of unbearable suffering and a desire to die. She receives a fatal injection, seated in her living room, in front of the camera, and sighs ‘it is horrible’ just before she dies. One Dutch commentator compared this to "an execution” that “may change the thinking about euthanasia.” Another commentator lamented how it reflects the growing pressure on Dutch elderly to accept euthanasia as a timely and beautiful way to go.

Canadians working in the trenches of health care appreciate the dangers associated with a lax regime of assisted death. They worry that open-ended access to assisted death (with only after the fact review of reported cases) risks pushing vulnerable people towards premature death. They point out the limits and challenges of competency assessment by physicians. Further, they suggest that easy access to assisted death may compromise therapeutic options and effective support, and create undue pressure on patients. Often it takes time, continuous effort, high quality health care, and a societal commitment to support and encourage those with mental health issues, catastrophic injuries, disabilities, and debilitating illness to find renewed courage to live.

These concerns and insights, shared with the Special Joint Committee, appear to have fallen on deaf ears. The Committee has joined those who champion easy access to assisted death on the basis of hollow versions of autonomy and equality. Hopefully, the full Parliament will take available evidence and concerns more seriously.