Dr. David Amies: Patients, not judges, should have the final word in assisted dying cases

In his latest piece for the DWDC blog, Dr. David Amies responds to a Globe and Mail opinion piece and argues that the author's proposed measures for assisted dying are misguided and do not respect patient rights.

Noted ethicist Margaret Somerville of McGill University was given the privilege of writing an opinion piece for the Globe and Mail last week. I must own at the outset that I read her piece with a sense of mounting fury and indignation. (These emotions were solidified when I discovered that she is a staff member of the Newman Institute of Catholic Studies.)

Four quotes from Somerville's article nicely encapsulate her views. Firstly, she said, “Recognizing medically assisted dying as an exception also helps to establish that access to it is not a right but rather, under certain conditions, an immunity from prosecution for a criminal offence.” The judges who delivered the Carter decision clearly maintained that not allowing Kay Carter to obtain a physician’s help in dying violated her human rights.

Secondly, Somerville said, “This characterization of legal immunity for providing a hastened death, not a right to access it, will assist in protecting the Charter rights of health-care professionals, who refuse involvement for reasons of conscience or religion.” No one is expecting healthcare professionals to act in any way contrary to their consciences.

Thirdly, she said, “The conditions legislated for qualification for hastened death will be critical. They must be very limited and strictly controlled; they underline that it is an exceptional intervention, limited to adults competent at the time of death, terminally ill from a physical disease or disability, in unbearable suffering and giving their informed consent.” When I read this remark, I asked myself if Somerville singlehandedly drafted Bill C-14!

Fourthly, Somerville added, “For practical and symbolic reasons, I propose an additional essential condition not yet in Bill C-14: that a Superior Court judge should be required to review and approve each request that has been granted for medically assisted death.” Does this mean that the patient, along with his or her family and medical advisors, can’t be trusted and that “symbols” add something?

In short, Somerville wishes to ensure that medically-assisted dying (MAD) be limited to adults in the very end stages of their illnesses, and only after several hurdles have been jumped and a Superior Court judge has pondered the matter.

Keeping patients at the centre

Under her suggestions, those who are slowly wasting away from neuromuscular degenerative disease would not qualify since their deaths cannot be accurately foreseeable. Those plagued with refractory mental health issues would likewise not qualify. An intelligent and insightful teenager who has not yet reached the arbitrary age of 18, but is suffering from end-stage bone cancer and is in intolerable and uncontrollable pain, would be obliged to await his 18th birthday for relief. The person who has jumped through all of the hoops and whose death is planned for the next day, but falls into a coma a few hours beforehand, would no longer be eligible.

Somerville also plays a rather futile numbers game in her article. She maintains that MAD has become the norm rather than the exception in the Netherlands and Belgium. She says that 3.5 per cent of total deaths in those countries come about by euthanasia. By extrapolation, Canada would have 9,000 such deaths annually. Are we entitled to ask her what number would be acceptable? Surely, such numbers tell us nothing.

What matters, in my view, is that persons who are in great distress from medical adversity (which cannot be assuaged by the very best palliative care), and who decide that they wish to end their lives at a time of their choosing, should be allowed to do so. Willing healthcare professionals would be necessary to further their aims. A second opinion seems to be advisable, as does a professional assessment of their mental competence at the time of their request. I do not see how the imposition of arbitrary waiting periods or judicial reviews adds anything to the process.

The needs of the suffering individual must always be front and centre. It must also be emphasized that no one is obliged to avail themselves of medically-assisted dying and that no healthcare professional can be forced to take part over their conscientious objections.

In an ideal world, the need for medically-assisted dying would not arise. Effective palliative care capable of solving all problems faced by the dying would exist and be universally available. But we all know this does not exist. Moreover, palliative care services are shamefully scarce in Canada. One hopes that the recent discussions provoked by the Carter case might stimulate the politicians to do something to overcome this scarcity. Meanwhile, there are numerous persons, whose suffering is great and, in many cases, intolerable. Are they then expected to hang on until palliative care becomes totally effective for all—a most unlikely hope—or are we, as a country, going to devise sensible and merciful legislation free of all dogmatic biases?

Ultimately, we need to introduce the kind of law envisaged by the Joint Committee on Physician-Assisted Dying—one that is measured and humane, and keeps the interests of patients at its centre.

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

(Header credit: Joe Gratz/Flickr)

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