Opinion – High Court opens Pandora’s Box for most vulnerable by decriminalizing physician-assisted dying

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By Rob Millman

Carter vs. Canada, February 6, 2015, was a Supreme Court decision which represented a significant departure from prior High Courts with respect to the subject of physician-assisted dying. This ruling unanimously reversed Rodriguez vs. The Province of British Columbia decision by decriminalizing physician-assisted dying. Furthermore, the government was given until February 6, 2016 to amend federal law to reflect their determination. The previous government consulted with the public and key stakeholders before assigning their response to a panel of three. Unfortunately, the implications of Carter vs. Canada were not clearly explained; and public consultations were not well advertised or well attended.

Consequently, the new Prime Minister has petitioned the Court for a six-month extension of their deadline to allow time for a fulsome, national consultation and reflection about the implications of this impending law. I am certain that the irony of the situation is not lost on him, as it was his father’s Canadian Charter of Rights and Freedoms which has replaced Parliament with Judges in key, lawmaking roles. Just recently the High Court granted a four-month extension, however, during that time physician-assisted death will be decriminalized in the most serious instances of suffering. They have prejudiced the eventual outcome by decriminalizing physician-assisted death in the interim.

To perhaps oversimplify: this landmark decision stipulated that “adult Canadian citizens who are mentally competent and suffering intolerably and enduringly” may legally seek assistance from a physician to plan their death. The rationale was that without this legislation, only two options were available: suicide and natural death. The concept of “mental competence” is continually evolving toward personal autonomy for private choices, and with respect to “suffering”, the Court has allowed an inherent conflict-of-interest situation whereby physicians are both the gatekeepers and the instruments of therapeutic death. Both determinants, mental competence and intolerable suffering, are subjective and, therefore, open to personal interpretation and bias.

This ruling has been protested since its inception by groups representing various vulnerable sectors of the population, most vigorously by those representing persons with disabilities. Carter has replaced the Rodriguez ideal of “suicide prevention” with the insidious concept of “death with dignity”. Consider for a moment the physician faced with scarce healthcare resources, including life-sustaining or pain-mitigating treatments such as palliative care. Is he or she truly impartial in deciding the fate of persons with disabilities (or other patients) who are experiencing irremediable pain or end-of-life issues? Also, the pressure on the individual to capitulate and no longer be a “burden on society” is intense and cruel.

A few examples may assist in illustrating potential problems. An elderly gentleman, of whom I am aware, is mentally competent and is not suffering in a nursing home. But then he began to think of all his financial resources being expended to keep him there, and he thought of his grandchildren in university. He was seriously considering the option of trading some mysterious “suffering” for his grandchildren’s education by approaching a physician.

This writer has had a lengthy history of bipolar mood disorder, formerly manic depression. When I was clinically depressed, there were several times when physician-assisted death would have seemed to be an attractive option. Was I mentally competent? Completely. Was I suffering irremediable pain? Absolutely. Whereas I will always be bipolar, those times are behind me now. But enabling vulnerable people, when they are at their most vulnerable, in such an act is untenable in a caring society.

Why should we in Huntsville care about Carter? I think the fact that 20 per cent of the Canadians will personally experience a mental illness in their lifetime is reason enough. Moreover, consider all the patients who are in irremediable pain with terminal illnesses and those who have given away their right-to-life decision through powers of attorney for health.

Essentially, it is a “quality of life” issue. Either a universal test for mental competence must be developed, or perhaps the concept of “substitute decision-making” (which has enjoyed success in British Columbia) could be employed in some cases. In Ontario, we have a Consent and Capacity Board, which is charged with deciding if the substitute decision-maker is appropriately carrying out the individual’s wishes or, if none are known, acting in the person’s best interests. A pan-Canadian CCB would eliminate the problem of people “shopping” for jurisdictions where the mental competence standard is perceived as being more readily attained. Then, and only then, would it be possible to weigh “quality of life” against “intolerable and enduring pain” and allow physician-assisted death for persons suffering intolerably with terminal illnesses. Disability, in and of itself, i.e. without the presence of irremediable pain, must never be considered as a gateway to physician-assisted dying.

Personally, in most cases, I feel that extent of pain will always remain elusive. Different individuals have different pain thresholds: some unconsciously exacerbate pain, while some mitigate it. Given the same level of pain, therefore, one person may consider his/her “quality of life” acceptable, whereas the other would opt for physician-assisted death. If the level of pain is indeterminate, we must err on the side of caution, and disallow physician-assisted dying (at least initially) in the case of terminal illness.

On balance, the pre-existing Rodriguez decision was fair: How does the Supreme Court balance the physicians’ Hippocratic promise to “Do no harm” with their new role as instruments of death? Additionally, the provinces have rights in both the areas of law and health. These have been totally usurped by the High Court in Carter vs. Canada. Perhaps an historic invocation of the notwithstanding clause is justified in this instance. It would reassert the supremacy of Parliament in making and amending our national laws, at least for a period of five years, when it could either be subsequently re-invoked or returned to abeyance.

It is to be hoped that a truncated national public consultation will be held, and that it will better inform the eventual legislation.

Upon graduation from Queen’s University, Doug “Rob” Millman essayed careers in social work and actuarial science before discovering his aptitude for transportation engineering. He pursued the latter until 1995 when his mental health disability intervened.

His general knowledge of all disabilities was derived from a three-year term on the Ontario Built Environment Committee, one of the committees which produced the Accessibility for Ontarians with Disabilities Act (AODA, 2005).

Having been a seasonal resident his entire life, he now resides permanently in Hillside.

3 Comments

  1. Dawn Huddlestone on

    A valid point, Rob. I’ve long thought that we can do better for all people in our society who are suffering, and part of that includes a belief that physician-assisted death is a missing piece. I hadn’t considered that the suffering inherent in mental illness might ‘qualify’ someone for a physician-assisted death. As you said, “enabling vulnerable people, when they are at their most vulnerable, in such an act is untenable in a caring society.” Also, I would hope that physicians would be able to critically assess each case without bias; the reality, however, is that some are as unequipped to deal with death as the rest of us are.

  2. I read this opinion piece with interest and while I respect the writer’s position I disagree with his suggestion that doctor-assisted death is a ‘slippery slope’ or that we need more time. Mr. Millman suggests, “reasserting the supremacy of Parliament in making and amending our national laws, at least for a period of five years, when it could either be subsequently re-invoked or returned to abeyance.” I disagree. It’s been far too long already.

    In the twenty years since the Supreme Court denied Sue Rodriguez the right to a doctor-as­sisted death, public opinion has shifted radically. Baby boom­ers and their parents are closer to the end of life and it is driving the mounting support – including my own – for assisted suicide. Since 1994, the Netherlands, Belgium, Luxembourg, five American states and the province of Quebec have passed laws allowing physician assisted suicide. I see it as progress.

    Suicide is not a crime in Canada but as­sisted suicide is and the fear of many – again including me – is that the current law would force some people who might otherwise choose to die at a later time to advance the date in fear that if they wait ‘too long’ they may be forced to endure something they are unwilling to face simply because they no longer have the ability to deliver themselves from a life they find untenable. Even worse is the possibility that one might have to resort to ‘back alley’ style deliverance that could leave them worse off than before.

    Mr. Millman seems to think that fear of pain is the main motivator in supporting physician assisted suicide; if that is the case then we need to ensure that no one dies in agony. We are so fortunate to have a first rate hospice in Huntsville that does a magnificent job of easing the transition from life to death but not every place is so fortunate. Far too many people have suffered right along with a loved one who is suffering intolerably….for him or her. Pain may be “elusive” but so what? You feel what you feel and if it is unbearable to you…then it’s unbearable. In my opinion it is less than the fear of pain and more the fear of having no control to what happens to you – your body and dignity – at the end that is terrifying. It’s about getting to choose what is right for you.

    Disabled activist Arvay argued before the court that “the law making it a crime for people to seek doctor-assisted suicide contra­venes the equality rights under the Charter of Rights and Freedoms because it denies physi­cally disabled people who are unable to end their lives without assistance the ability to do what able-bodied people can do.” He further asks if it is right for “some disabled groups to impose their beliefs about how much suffering is acceptable on others because suffer­ing is very personal and subjective.”

    Risks of a “slippery slope” to euthanasia can – and should be strongly mitigated to address any fear that some people would choose death due to tem­porary depression or have the decision for an assisted dying made for them by others. All jurisdictions that have such legislation administer rigorous tests to determine that no coercion is involved and that people are competent to make such a choice. And organizations like Dignitas are especially vigilant to ensure that the decision to die is not a case of choosing a permanent solution to a temporary problem.

    Perhaps it’s genetically hard-wired but in the main, people want to live and doctors want to help them. In the countries and states where legislation supports assisted suicide, between 1% and 3% choose that option. And no one so going to force a doctor who has religious convictions that it is wrong to help end even one person’s life. The fear is just not supported by the existing data. For many people, the legality of assisted suicide is akin to a comfort blanket that will never be utilized but assuages fear of losing control over the more basic human premise of having control over one’s own life.

    Doctors may already legal­ly administer medications that they know will hasten death as a palliative aid to ease a patient’s pain and suffering.

    According to an Ipsos-Reid poll commis­sioned in 2014 by Dying With Dignity Canada, 84% of Canadians support medically assisted dying. Even more noteworthy is that it is sup­ported by 80% of Christians, 89% of the dis­abled and 89% of health professionals. I would say that the people have spoken.

    Respectfully….

  3. While I appreciated Ms. Peacock’s well-written rebuttal of my article, she gave me no credit for stipulating conditions under which I would accept physician-assisted death. On the other hand, she chose not to address any points which interfered with her position.

    She did not include any information of which I was previously unaware. I was writing as a representative of my constituency, persons with disabilities. Her views are seemingly more political. Feeling as strongly as she does, one can only wonder why she did not write the original item.

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