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.