Dr. David Amies: Bad legislation, unfair barriers cast pall on assisted dying breakthrough

Physician-assisted dying is finally decriminalized in Canada, but many unfair barriers remain. In his latest blog post, Dr. David Amies writes about the current "legal limbo" surrounding assisted dying in Canada and why so many desperately ill Canadians cannot afford to have Bill C-14 passed into law.

June 7, 2016 has dawned, and Canadian citizens can now receive medical aid in dying (MAID) here in Canada.

The circumstances surrounding MAID are by no means as clear as one would have hoped following the Carter decision of February 2015 and the release of the joint parliamentary committee report earlier this year. This lack of clarity stems directly from the hamfistedness of the current government. While one was encouraged by Carter and the committee report, the opposite has been true by Bill C-14 which is presently going through the legislative process.

Bill C-14 has been drafted and designed by federal Justice Minister Jody Wilson-Raybould and federal Health Minister Jane Philpott. Throughout the parliamentary process thus far, the ministers have resisted almost every change put to them by members of the House of Commons, regarding the draft as somehow sacrosanct. Neither of these ministers has control over proceedings in the Senate, which has indicated that it intends to make several amendments. These will then have to be returned to the lower house for further debate.

Conflicting eligibility criteria

The Carter decision was that assisted dying should be available to consenting adults suffering intolerably with a grievous and irremediable medical condition. The ministers decided that this wording was vague and so suggested that MAID should be allowed only to consenting adults in an advanced stage of irreversible decline from a serious and incurable disease, illness or disability, and for whom a natural death is reasonably foreseeable. Personally, I think the wording of Carter has the merit of brevity and the use of fewer descriptors.

So, we have arrived at a period of legal limbo surrounding the matter of physician-assisted dying. The old law has been struck down and no new law is in place. The Senate does not appear to be in any hurry, considering that it is more important to get new law right rather than quickly. How long this murky interval is likely to last is anyone's guess.

Dying With Dignity Canada maintains that it is the right of all mentally competent adults suffering intolerably with serious illness, for which there is no acceptable treatment, to be relieved of their pain and grief with the help of sympathetic health professionals. It makes no distinction between physical and psychological illness. It does not define adulthood in strict terms of age. It sees no merit in arbitrary waiting periods. It respects the rights of health professionals to refuse to take part in MAID, so long as patients are not abandoned.

Bill C-14 is much more restrictive and can be read to mean that only those with terminal conditions are eligible. Thus, those with advanced cancer, likely to die in a matter of days or weeks would qualify, whereas those with advanced neurological or neuromuscular conditions like ALS or multiple sclerosis would not and might be obliged to endure their misery for several more years. Some have argued that the late Kay Carter would not have qualified under the terms of the proposed bill.

'A patchwork situation'

In the absence of federal legislation, a patchwork situation exists across Canada. Spokesmen for the Canadian Medical Association and the Canadian Medical Protective Association are on record as saying that practitioners who carry out MAID could find themselves in criminal hot water. They recommend seeking permission from a superior court judge in order to protect themselves. The various colleges of physicians and surgeons across the country have issued advisories to their members on how they should proceed and have advised caution.

Various constitutional experts maintain that Bill C-14, as presently written, is unconstitutional and almost certain to provoke lengthy, burdensome and expensive legal challenges, precisely what a person seeking to end his or her life because of intolerable suffering needs — NOT!

It is hard to know why the government has produced such a one-eyed bill having been given the freedom by the Supreme Court to deal with the problem in a generous patient-centred fashion. As well, their own joint parliamentary committee made many worthwhile and empathetic recommendations. Everyone must realize, surely, that no one will be forced to seek medical aid in dying and that no practitioner will be obliged to take part. The fundamental idea was that those, who needed and wanted medical assistance to die, should be able to secure it without having to negotiate all kinds of doctrinaire barriers.

Bill C-14 unfairly enforces those barriers. It must be amended immediately — or abandoned.

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

(Header credit: Joiseyshowaa/Flickr)

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