Dr. David Amies: Bill C-14 is an open invitation for legal challenge

In his latest piece for the DWDC blog, Dr. David Amies breaks down the elements of the Liberal government's assisted dying bill that are most likely to be legally challenged. The government can avoid the inevitable headaches by amending Bill C-14, he writes.

It looks very much as if we are going to have a rather restricted and unsatisfactory law passed by the House of Commons to regulate medically-assisted dying. It is hard to know the precise details of the intimate workings of government on any matter but it does look as if the Justice Minister Jody Wilson-Raybould and Health Minister Jane Philpott have been the principal drivers behind Bill C-14.

The bill is written in the usual legalistic and difficult jargon beloved by Parliament and makes for dreary reading. However, a few points do stand out. Paragraph 2C attempts to throw light on what the government considers to be a “grievous and irremediable” medical condition: an “illness, disease or disability or that state of decline that causes […] enduring physical or psychological suffering that is intolerable.” The important word to note here is psychological.

Paragraph 2D suggests that medically-assisted dying should be available when, “natural death is reasonably foreseeable.”

Paragraph 3G maintains that a 15-day waiting period between the time of requesting medically-assisted dying and its commission should be ordinarily be required, but shorter if death seems imminent.

I am no lawyer but I am well able to detect large holes in arguments, through which professional advocates could drive a coach and horses. Paragraph 2C hints that psychological suffering might be a qualification for medically-assisted dying, and yet the bill appears to exclude mental health diseases from conditions that can be considered. It looks as if there is a fundamental contradiction here. This is surely another instance of legislators confusing psychological illness with insanity. As I have said in other places and on more than one occasion, persons with psychoses experience occasional intervals of confusion during which they would have a hard time making important decisions. Outside these periods, they are just as capable of deciding for themselves as anyone else.

Paragraph 2D is farcical. There is perhaps only one thing in life that is inevitable: death. Were I to be in attendance at the birth of a healthy, Canadian, female child I could foresee her death with great accuracy by simply consulting an actuarial chart. I could say the same for a healthy 10-year-old boy, a 50-year-old woman, and so on. So, what, then, does a “reasonably foreseeable” natural death mean? The inclusion of such a daft clause in law looks like an open invitation for lawyers to swarm all over it.

Paragraph 3G, concerning mandatory waiting periods, is another open invitation for legal challenge. In effect it says that a 15-day waiting period is mandatory, but under some circumstances it can be shorter. That is a very big ‘but’—so big that one wonders what on earth the purpose of including this clause in the first place can possibly be.

It has been remarked elsewhere that the government’s lawyers who drafted Bill C-14 are those who were defeated by the Carter decision. It is also very curious that the people who were chosen to sit on former Prime Minister Stephen Harper’s committee of enquiry into medically-assisting dying were those whose views on the matter were rejected by all nine of the Supreme Court judges. There is an eerie similarity in this coincidence.

C-14 will likely pass through the House of Commons to the Senate, where it will undergo further review and is likely to be amended in a number of ways before returning to the lower house. It is possible that the final bill will turn out to be more generous and less restrictive than the draft. However, I fear that that is unlikely and suspect that its principal pilots are going to ensure that medically-assisted dying in Canada is going to be difficult to obtain and surrounded by all kinds of restrictions and hurdles.

Should that turn out to be the case, a great opportunity will have been missed and many grievously suffering people will be left in misery and anguish. Bill C-14, as it stands, will provide lots more work for lots more lawyers for several years to come. 

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

(Header credit: Sergey Ashmarin/Wikimedia)

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