There is much to admire in the Bill, but in some areas the government has not lived up to the Supreme Court’s guidance.

On April 14, 2016, Canada moved one step closer to establishing its system for legally permissible assisted dying. The federal government introduced Bill C-14, An Act to Amend the Criminal Code and to Make Amendments to Other Acts (Medical Assistance in Dying), and made a series of commitments with respect to implementation of the assisted dying system and other end-of-life care.

There is much to admire in the federal government’s approach to assisted dying, but also some serious flaws.

The government committed to improve palliative and end-of-life care. By way of concrete steps, $3 billion over five years has been allocated for home care (including palliative care), and the government will include palliative and end-of-life care in its federal-provincial-territorial discussions on the new Health Accord. The government also addressed the need to ensure access for individuals in rural and remote communities (which often lack physicians) by explicitly allowing provision of assistance by nurse practitioners as well as physicians.

The government committed to work with the provinces and territories to develop a pan-Canadian care coordination system to facilitate the transfer of care from conscientiously objecting providers to willing health care providers. This will ensure access to care, respect the conscience of those who object to assisted dying and protect the privacy of willing providers. The government has clearly learned from the history of conscientious objection to abortion in Canada that simply leaving delivery of a service to health care providers and their regulators will result in uneven and inadequate access.

Finally, the government committed to develop a system to gather, analyze and report the data on medical assistance in death. This is critical for oversight of the practice of medical assistance in dying. The practice must be, and be seen to be, in compliance with the law.

Unfortunately, there is also much to criticize. Take the most egregious example: the criteria for access established in section 241.2 of the Bill through the definition of “grievous and irremediable medical condition”:

(2) A person has a grievous and irremediable medical condition if

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

These criteria for access are not consistent with the Supreme Court of Canada’s 2015 decision in Carter v. Canada (Attorney General). The Supreme Court said that to deny access to assisted death to any individuals within a particular set would violate the Charter. Bill C-14 allows access to only a subset of those individuals.

The Supreme Court did not require that the illness, disease or disability be “incurable,” and when it used the somewhat related term “irremediable,” it was quick to note that ‘“irremediable’ … does not require the patient to undertake treatments that are not acceptable to the patient.” By adding a requirement that the person’s condition be “incurable” and by not making it clear that “incurable” does not require treatments that are not acceptable to the patient, the Bill, contrary to Carter, compels patients to exhaust even treatment options they find unacceptable in order to be eligible for access to assistance in dying.

The Bill compels patients to exhaust even treatment options they find unacceptable in order to be eligible for access to assistance in dying.

Two of the other criteria listed above are also not found in the Supreme Court’s decision: “(b) they are in an advanced state of irreversible decline in capability”; and “(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.” Access through the Bill therefore falls below the bare minimum established by Carter. Kay Carter herself (of Carter v. Canada) would not have qualified under (d).

Furthermore, this section is vague: what does “reasonably foreseeable” mean? One interpretation relates to predictability. Yet everyone’s death is reasonably foreseeable (indeed, it is certain) from the moment of birth. Another interpretation relates to proximity. But how close is close enough? A glossary on the government’s website suggests “a period of time that is not too remote,” “on an irreversible path toward death,” “on a trajectory toward death” and “foreseeable in the not too distant future.” So, on the one hand, the text of the Bill itself is incredibly vague. On the other hand, the more precise the government tries to get via the glossary, the closer the criterion comes to “imminently dying,” and so the farther it gets from the Supreme Court’s decision in Carter (which was not limited to those who are close to death or terminally ill).

This section of the Bill also sets up a horrifying situation: someone experiencing enduring and intolerable suffering, but not close enough to death for his physician to deem his death “reasonably foreseeable,” refusing food or water until he is close enough to death to qualify. For some, because of the way the Bill has been drafted, starvation will become the price of access to assistance in dying.

In sum, with the introduction of Bill C-14, we are one step closer to establishing a robust regulatory framework for medical assistance in dying. However, the Bill must be amended to become Carter and Charter compliant. For very obvious reasons, it is better to fix the problems with the Bill now through Parliament than to force sick and suffering people to relitigate Carter. And, by amending the Bill, the government can, in the end, live up to its commitment to respect the Supreme Court’s decision in Carter and its claim of being “the party of the Charter.”

 


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