Udo Schuklenk
Ravaged by cancer, or stricken with pain, you want to die. You have your wits about you, and the facts in front of you. Your doctor should be allowed to help you end your life, an expert panel of researchers in Canada has recommended – and the Criminal Code should not call it murder.
Pointing to the widening gap between public opinion and the law that makes euthanasia illegal in this country, a team of researchers appointed by the Royal Society of Canada to study end-of-life care says that informed Canadians should have the right to choose death within a regulated system, even if they have not been diagnosed with a terminal illness.
The report proposes a system modelled after countries such as the Netherlands, where euthanasia has been legalized since 2002, in which patients may request assisted suicide or euthanasia when a doctor has determined they are competent to make the decision, and have done so voluntarily.
Terminal illness should not be a requirement, explained committee chair Udo Schuklenk, Ontario research chair in bioethics at Queen's University, at a news conference prior to the release of the report. That's because the term is too vague and doctors cannot give a precise prediction on length of life. Some patients, he said, "may well be suffering greatly and permanently but they are not imminently dying. Our conclusion was that there was no principal basis that we can think of for excluding such people."
If the Criminal Code is not amended, the report proposes that provincial prosecutors use discretion to avoid laying charges, or handle cases outside the traditional court system.
This is a significant recommendation to provinces, because the Conservative government has declared the matter closed and has not planned to change the law – a position reiterated Monday by Justice Minister Rob Nicholson on the eve of the report's release. "Euthanasia and assisted suicide raise complex ethical, legal and medical issues, and many of them involve competing interests," a spokesperson with the minister's office said by e-mail. "We have no plans to propose any reforms to this area of the law. Parliament has already voted on this issue; we will respect the will of Parliament."
At the same time, however, cases continue to wind their way through the courts; this week, the Supreme Court of British Columbia is hearing the case of Gloria Taylor, a 63-year-old woman with amyotrophic lateral sclerosis, or Lou Gehrig's disease, who is asking for the right to die on her own terms rather than face a slow and painful death.
In its report, the panel cites public opinion surveys that have shown that the majority of Canadians are in favour of legalizing euthanasia. The report argues that withdrawing or stopping life-sustaining care with a patient's consent (which is allowed by law) is no different ethically than actively acting on patients' wishes to help them die. Even so, the report says that doctors who object on moral or cultural grounds to following those wishes should be allowed to decline, while referring patients to another physician.
Critics of legalizing euthanasia have argued that it would risk the lives of vulnerable people, especially the elderly, who might feel pressured to make the choice. "Do safeguards work?" asked Alex Schadenberg, executive director of the Euthanasia Prevention Association. "Safeguards are only as good as the doctors that facilitate them."
But while it proposes a "national oversight commission" to monitor the issue, the Royal Society of Canada report rejects the notion that legalizing assisted suicide and euthanasia would lead to a "slippery slope" of deaths without consent – observing that in the grey uncertainty of end-of-life care, difficult decisions are already being carried out. "It's going on," said Jocelyn Downie, Canada Research Chair in Health Law and Policy at the University of British Columbia, who wrote the legal chapter of the report. "But very few charges are being laid, and very few convictions in the face of those charges, and even fewer jail terms."
The report, however, highlights the larger issue facing Canadian families in hospitals and nursing homes every day. Good palliative care is in short supply, the report states, especially for terminal diseases other than cancer, and it calls for expanding resources in this area. Doctors lack clinical guidelines on withholding treatment or sedating patients in their final hours, leading to conflict with family members. And worst of all, at a time when medical technology has made the manner and timing of death more complicated than ever, many Canadians are not planning properly to ensure their wishes are met.
"People are not anticipating the kind of issues that arrive at the end of life with the advancement of modern technology," said Ross Upshur, the Canada Research Chair in Primary Care Research at the University of Toronto. Statistics show that 70 per cent of Canadians have not prepared a living will, and more than half have not discussed end-of-life care with their families or designated a substitute decision-maker if they are incapacitated. "Even people who have been married and in stable relationships for a long time are often not aware of what those end-of-life choices may be," Dr. Upshur said.
Among its recommendations, the report proposes better education for physicians and families about end-of-life care decisions and the role of doctors in withdrawing life-sustaining treatment or, alternatively, providing sedation in palliative care that might hasten death.
Dr. Upshur pointed out that even in countries where it's legal, euthanasia is a factor in only about 2 per cent of deaths. "We need to really take note of the other 98 per cent," he said. "What many health-care professionals and families are finding out when the time comes is a certain regret that there was not clarity beforehand that would have reduced a lot of distress. One way or another, the issue needs to be taken up and discussed around dinner tables."
Erin Anderssen