Health Law

The deluge of op-eds, blogs, commentaries, media interviews and news reports about Bill C-14 on Medical Assistance in Dying has created a level of over-saturation. More careful, reflective statements are increasingly hard to find. What now dominates the debate are bold statements about the constitutionality of the Bill—University of Ottawa’s Amir Attaran apparently even inventing a new constitutional qualifier of ‘unconstitutional by the bucketfull’--and reports of difficult and emotional end-of-life situations, which Bill C-14 may indeed not necessarily solve. It is therefore perhaps no surprise that the eloquent, respectful and wise intervention in the Senate by the Honourable Murray Sinclair, former judge and former Chair of the Residential Schools Truth and Reconciliation Commission, did not receive much attention in the media.

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’.

This blog post follows my earlier posting about Balancing Access to Physician Assisted Dying and Protecting the Vulnerable

The following op-ed with David Baker was first published on the Globe and Mail website on February 27, 2016. We also added a short note in relation to attempts by some colleagues to impose changes to our text after publication.

Assisted Dying Report Goes Beyond Scope, Ignores Evidence

David Baker and Trudo Lemmens

Published Globe and Mail Saturday, Feb. 27, 2016

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

The federal government is currently working on legislation that responds to the Supreme Court’s Carter v. Canada (AG) decision, in which the Court invalidated an absolute prohibition on physician assisted dying and invited the legislator to develop a “carefully designed and monitored system of safeguards.” The Carter decision declared the criminal prohibition void insofar it prohibits physician assisted dying 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.” The Court provided no further detail about how to implement these ‘parameters’, and stated explicitly: “the scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.” The case involved people who were terminally ill and/or, in the words of the trial judge in the case, people with “advanced weakening capacities with no chance of improvement.” In fact, at the trial level the claim made by the British Columbia Civil Liberties Association was also narrowly framed as a claim to recognize the right to physician assisted dying of those “who are suffering unbearably at the end of life.”