It's flawed, it's unconstitutional, and now, it's the law of the land. In his latest blog post, Dr. David Amies reflects on Bill C-14 becoming law and why, after such a long, torturous journey toward assisted dying, Canadians deserve better than what was passed.
On June 17, 2016, Bill C-14 was passed through Parliament and received royal assent. Canada has now joined the small handful of countries and states permitting doctor-assisted dying, or medical aid in dying (MAID) as it is now better known, and its new law marks a significant step forward. But the bill's critics, which include Dying With Dignity Canada and this writer, consider the law to be badly flawed, unconstitutional and likely to be challenged in the months or years ahead.
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Canada's journey toward MAID has been long and tortuous, and resembles in some ways the three volume Victorian novels so beloved by housewives in the late-nineteenth century. The first volume could be said to encompass the story of Sue Rodriguez from British Columbia, a woman who suffered from amyotrophic lateral sclerosis and challenged the then existing laws on assisted suicide. She lost her battle in the Supreme Court of Canada when it voted against her by a margin of five to four on September 30, 1993. A few months later, she died when she was given a fatal dose of medication by an anonymous physician in the presence of Svend Robinson, a New Democratic Party Member of Parliament.
The Kay Carter story fills the second volume. Carter, who suffered from spinal stenosis and wished to end her life because of her intolerable suffering, submitted herself to the long legal process, which resulted in the now celebrated Carter v. Canada decision. Canada's Supreme Court ruled that the existing proscription against physician-assisted dying was unconstitutional and an infringement on human rights. They ruled nine to zero in her favour and gave the government at the time one year to write new law. As we now know, Stephen Harper kicked the matter into the long grass and did nothing for several months. The general election late last year brought Justin Trudeau’s Liberals to power. They tackled the problem by appointing a joint parliamentary committee to examine the issue. The committee's report was very positive and hopeful, and activists supporting MAID were optimistic that an acceptable law would result.
Bill the C-14, under the stewardship of the ministers of health and justice, proved to be a disappointment. It suggested that only those whose death was “reasonably foreseeable” would qualify. Moreover, it demanded a statutory waiting period between the time of asking for MAID and its commission. It excluded mental health disease as a criterion. It also excluded emancipated minors and persons who have written advanced directives. The bill passed the lower house fairly easily and was sent to the Senate, where several amendments were made. Especially significant was the Senate’s amendment to delete the “reasonably foreseeable” clause. When the bill returned to the house, this clause was reintroduced while several minor amendments were accepted.
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The ministers of health and justice were especially stubborn about the contentious clause and argued that to open MAID to those who were not terminally ill would imperil elderly and disabled persons, who could be persuaded to end their lives unnecessarily. By implication, it looks as if the ministers feared that some rapacious relatives would seek material gain through the deaths of senior family members. If that is the case, the ministers take a very poor view of their fellow citizens! The tenacity with which this clause was defended leads me to suspect that dogma or cultural considerations rather than reason were at the heart of this defense.
The government maintained that the language of the Carter decision was vague and imprecise. They sought to improve it and so came up with “reasonably foreseeable”! This phrase ranks for clarity with such old chestnuts as “how long is a piece of string,” or “how many angels can dance on the head of a pin.” Everyone's death is reasonably foreseeable. Ten minutes of questioning and consulting actuarial charts enables an experienced practitioner to work out anyone's expectation of life to within quite precise limits. Who is going to decide what “reasonably foreseeable” actually means? Healthcare practitioners willing to undertake MAID could face regulatory inquiry and censure if they were deemed to have acted too hastily. The physicians on a team might be willing to go ahead whereas the pharmacist, who has to supply the necessary drugs, could decide that a given patient’s death is not reasonably foreseeable. Most importantly, to limit the provision of MAID to those who are obviously in the very last stages of a fatal illness would exclude the likes of Sue Rodriguez and Kay Carter, both of whom were suffering intolerably but were not yet terminal.
The third and final volume of our story is yet to be written. Its hero or heroine will be someone like Sue or Kay, who considers that the new law is unconstitutional and an infringement of their rights. Sounds familiar? There is no question in my mind that we can expect further legal challenges in the future, which will involve a seriously ill person having to undertake the long, tedious and expensive business of going to court. This is all a very great pity because the Carter decision opened the way for reasonable, sensible and kindly legislation. History will show that Trudeau's government was not up to the challenge.
Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWD Canada's Physicians Advisory Council.