Sandra Martin is the author of the upcoming book, A Good Death: Making the Most of Our Final Choices.
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The three Ds – dementia, depression and disability – are the thorniest issues in any physician-assisted-dying regimen. Granny can't recognize us any more, but is she suffering grievously in her fog of dementia? She can no longer tell us. A seemingly healthy person with bipolar disorder can complain about intractable psychological pain, but won't a miracle drug or therapy be invented tomorrow or next week? As for disability, can't a patient adjust after a catastrophic injury or illness and eventually find contentment and perhaps joy in physically constrained circumstances? Why should we allow them a medically assisted escape?
These dilemmas are at the heart of the brave, expansive and patient-centred report of the parliamentary committee on physician-assisted dying. I say brave because most members of the joint committee have embraced, and in some instances exceeded, the 2015 Supreme Court decision, known as Carter, that struck down the Criminal Code prohibitions on assisting suicide. In its majority report, the committee has recognized that suffering is a subjective issue. This is not about the healthy and robust, it is about people identified in Carter as suffering grievously and irremediably and for whom life has become intolerable. Imagining the suffering of others is key to understanding a desire for physician-assisted death.
The committee worked hard and fast to produce its 21 recommendations dealing with eligibility, access, informed consent, safeguards and oversight. It has waffled when it comes to so-called mature minors, suggesting that the government should implement a wait-and-see approach by drafting legislation immediately that would apply to competent adults, 18 and older, followed by a second legislative stage, three years later, applying to mature minors.
There would be no suicide tourism because only people eligible for publicly insured health-care services in Canada could apply for medical assistance in dying (the committee's preferred term). Informed consent by a competent adult would be a must, either at the time the patient requests help in dying, or in an advance directive completed after diagnosis with a grievous illness, including dementia, but while the patient is still competent. Two independent doctors would have to determine that the patient is eligible and the request must then be made in writing, and signed by two independent witnesses.
At the committee hearings, several witnesses and organizations argued that patients should seek prior approval from a panel of legal or other experts, but the committee recognized that medically assisted dying is a discussion between doctors and patients (as the Supreme Court ruled about abortion nearly 30 years ago in the Morgentaler decision). Similarly, doctors who have a conscientious objection to assisted death cannot just walk away; the report recommends that they must provide an effective referral. And it has gone beyond Carter to recommend that nurse practitioners and nurses be able to provide assistance under the direction of a physician, especially in remote and rural areas. At the same time, publicly funded institutions, including those with religious affiliations, could not prohibit medical assistance in dying on their premises.
Not everybody is happy with the recommendations in the committee's report. Four Conservative MPs filed a dissenting report, arguing that more safeguards are needed to protect the vulnerable and that more emphasis be given to palliative care; this will no doubt provide the basis for opposition arguments when the government tables the proposed legislation.
No other country has enacted a two-tier physician-assisted-dying regimen, encompassing federal and provincial jurisdictional authorities and professional regulatory bodies – and tried to do it so quickly. The Supreme Court decision was supposed to take effect on Feb. 6, 2016, but that was extended to June 6.
Haste is unavoidable, but that is no reason for negligence or coercion. Some compromises will be inevitable, as happened in Quebec, which passed its assisted-dying legislation in June, 2014. Quebec's law allows access only to patients at the end of life, for example, although the original bill was rooted in suffering. I hope we can avoid such a compromise at the federal level, which, in the wake of Carter, could give rise to a constitutional challenge.
The committee has produced a legislative road map offering patients autonomy over the way they die. With choice comes responsibility to make our wishes known both privately and publicly in a vigorous parliamentary debate followed by a free vote. The issues are too important for a whipped vote, as the Trudeau government has threatened. Death, after all, is democratic.
Sandra Martin