Dr. David Amies: Understanding the letdown that is the Liberals' assisted dying bill

In his latest piece for the DWDC blog, Dr. David Amies questions why a government elected on the promise of protecting Canadians' Charter rights would produce an assisted dying bill that is baldly discriminatory.

So, where do we go from here? We have had the Carter decision, eight months of inactivity from the Harper government, a new Liberal government under Justin Trudeau promising great things, a joint Parliamentary committee that tried to do great things, a four months’ extension from the Supreme Court to give time for new law to be written and now a draft bill laid before the House. This new bill is cautious, overly restrictive and runs counter to the unanimous decision delivered by the Supreme Court on that sunny day in February 2015.

Essentially, the draft bill proposes that patients who have terminal illnesses for which there is no treatment and whose death is “reasonably foreseeable” may apply for physician-aided dying but then only after a 15-day period for reflection. No advance directives. No permission for minors. No consideration of the suffering of those with mental health conditions. No consideration of the suffering of those with advanced neuro-degenerative diseases. Very, very restrictive, in my view. Very, very disappointing, as well.

The government's proposed legislation is known as Bill C-14. Some consider that it has been drafted by the very same lawyers working in the Ministry of Justice, who fought the Carter decision all the way to the Supreme Court. The current Justice Minister, Jody Wilson-Raybould, has expressed complete confidence in them. At the same time, she admits that the new legislation could violate Charter rights thereby provoking new and prolonged legal challenges. However, she claims that C-14, “Strikes an appropriate balance that respects autonomy during the passage to death while otherwise prioritising respect for life”. A non-legally qualified individual, such as me, can surely ask what the hell that means? It appears to be a bunch of obfuscating jargon.

Bill brings more confusion than clarity

Dalhousie University law professor Jocelyn Downie and Josh Paterson, executive director of the British Columbia Civil Liberties Association, have commented upon Bill C-14 as follows: “Justice officials have maintained that the proposed law would have allowed Kay Carter, a central figure in the court case, to seek medical help to die. Paterson and Carter's own children have said that she wouldn't have been eligible because, while she was suffering intolerably from spinal stenosis, she was not near death. With great respect, government lawyers have been wrong on assisted dying for the last six years and they're wrong today when they say that." So here we have the unedifying spectacle of justice officials saying, “Oh, yes she would!” And Kay Carter's children saying, “Oh no she wouldn’t!" Perhaps it might have been better if those same justice officials had cast aside their attitude of omnipotence and omniscience and adopted a more humble mien.

Jesse Pewarchuk, clinical assistant professor of medicine at the University of British Columbia, wrote a personal and telling essay for the May 2 issue of The Globe and Mail. He claims that Bill C-14 is a flawed document that fails both patients and doctors, because it denies the right of an individual to establish an advance directive laying out how they wish to be dealt with as they approach death. He goes on to say that a person suffering from early Alzheimer's disease and still fully competent to make decisions would have his hand forced and obliged to seek an early death while still competent. Any doctor who complied with such a request would be placed in grave legal peril because the death would not be immediately foreseeable as laid down in Bill C-14.

Sunny ways?

It is hard to work out why our shiny bright new government has taken this very restrictive stand on assisted dying. It came into power promising that sunny days were here again and that government as usual, or in other words government as provided by the outgoing Harper administration, was at an end. The new lot seem to get off on the right foot by appointing the joint Parliamentary committee to look into the matter. The committee came up with a series of measured, well thought out and reasonable proposals. They might just as well not have bothered and spent their time fishing. At least, they could have ended up with lunch. Their report was trashed and the forces of conservatism lurking in the Ministry of Justice came up with Bill C 14, something that would have made Stephen Harper and the Catholic Church proud of them, faced as they were with the Carter decision. An opening was provided which has been slammed shut as nearly as possible.

What possible reasons can there be behind the spirit of Bill C-14? The Justice Minister herself acknowledges that more legal challenges could be in the cards. Have we not had enough of fighting our way through lengthy and costly court battles? The Supreme Court has already said that to deny someone a merciful end to a life that has become intolerable is a breach of that person's human rights. How many times does this have to be said?

Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWD Canada's Physicians Advisory Council.

(Header photo credit: Government of Canada/YouTube)


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