Dr. David Amies: The problem with 'reasonably foreseeable'

The "reasonably foreseeable" requirement of Bill C-14 forces Canadians seeking medical assistance in dying to defer to "them who know best." In his latest blog post, Dr. David Amies writes about the background of that phrase within the Liberal government, comparing Canada's to U.S. and European laws.

Most Canadians were pleased by the unanimous decision of the Supreme Court in the Carter case in February 2015. The court ruled that the provisions of the criminal code against assisted suicide were unconstitutional. Canadians were even happier when a joint parliamentary committee, set up by the Liberal government, proposed a series of recommendations that would make medically assisted dying available. This elation turned to gloom when the government tabled Bill C-14, piloted it through Parliament and into law in June 2016. 

The source of the gloom lay in the phrase “reasonably foreseeable,” which the new law demanded of all those seeking a way out from grievous and intolerable suffering. Firstly, no one knew quite what it meant. Secondly, it implied that the decision about ending one’s life with the aid of a health professional was taken away from the sufferer and put into the hands of the professional. So, the physician or nurse practitioner had to be satisfied that the person applying for help to escape from an unacceptable medical plight had to be terminally ill with death likely to occur within a few weeks or months.

Such a restriction would work for those with widespread cancer but would be of little use to someone in the grip of a neurological degenerative disease such as amyotrophic lateral degeneration (ALS) or multiple sclerosis (MS). Such people can be helpless and unable to move, face difficulty breathing, reliant on others to help with feeding and caring for intimate personal bodily functions, racked with anguish and frustration, and yet, liable to face years of existence before obtaining relief through death.

It turns out that there is a memo buried deep in the Ministry of Justice website that seeks to explain the reasoning behind the disappointing inclusion of the “reasonably foreseeable” clause. It does not make encouraging reading. In coming to its landmark decision, the Supreme Court held that a total criminal prohibition on assisted dying infringed the Charter right to life, liberty and security of the person. The Department of Justice's lawyers — with a rare flash of humour — maintained that the question posed is not “whether Bill C-14 complies with Carter but whether it complies with the Charter.” The bill was framed to recognize the public health aspects of suicide and its effects on individuals, families and communities. It also sought to guard against death being seen as the solution for all forms of suffering and to counter negative perceptions about the quality of life of the elderly, the disabled and the sick.

Two contrasting approaches to legal assisted dying

The government, when deciding how best to respond to Carter, looked at the other jurisdictions elsewhere that permit physician-aided dying. It concluded that these other regimes fell into two categories: those that restrict MAID to those persons whose natural death is approaching (most cite six months or less) and those that wished to provide relief from unbearable suffering regardless of the predicted time left to live. In short, the Benelux (meaning Belgium, the Netherlands and Luxembourg) countries fell into the second group and all others into the first. Consequently, it concluded that the Benelux model could normalize suicide and put vulnerable people at risk. Dutch doctors, who have several years’ worth of statistics to fall back on, claim that they have found no evidence of the “slippery slope”. 

The government considers that Bill C-14 respects the autonomy of persons seeking MAID without undermining the objectives relating to protecting the vulnerable, also affirming the equal value and dignity of every life regardless of age, state of health or disability. It also claims that the “reasonably foreseeable” clause does not impose strict time limits and so is more liberal that the Oregon and Washington States regulations but more restrictive than those in place in the Benelux group. Lastly, the government hopes that the acquisition of Canadian data in the Canadian context will allow a re-examination of its laws in due course. 

My personal view of this rationale is that in seeking to be freer than the regimes in the U.S.A. but less so than the Netherlands, Belgium and Luxembourg, the Liberal government has merely muddied the waters. One could argue that the Benelux nations have introduced laws suitable for grown-ups, while here in Canada, we must defer to them who know best.

On a personal note, December has rolled around once more and I shall be pre-occupied doing justice to the marvellous mince pies, sausage rolls and Christmas pudding that my wife produces each year at this time. If I survive the festivities, expect more from me in 2017. Merry Christmas and Happy Holidays to all.

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

*Photo of Keukenhof in Lisse, Netherlands by Lin Mei

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