The Assisted Dying Debate: Where are we Now?

by Carolyn Abel

The assisted dying debate is far from over. Let’s start with the terms. What do you think of when you hear “grievous,” “irremediable,” or “reasonably foreseeable?” Hint: it’s different for everyone. This is especially true among the physicians, lawyers, journalists, and other healthcare professionals involved in the debate. Defining the language that is used is probably one of the most controversial areas of this topic (and there really is no one correct answer).

Bill C-14 is the legislation on medically-assisted dying in Canada. It is designed to provide mentally competent adults who are suffering with a choice to end their life with the help of a physician or nurse practitioner. Other eligibility criteria under the legislation include the patient making a voluntary request without external pressure, giving informed consent, and qualifying for government-funded health services.

Here’s a summary of the major events surrounding Bill C-14:

September 1993 - Rodriguez case

• Who: Sue Rodriguez, a 42 year old suffering from ALS
• The Claim: Section 7 Charter violation
• The Outcome: upheld provision in Criminal Code (5 to 4)

In the early 90s, Sue Rodriguez fought to have a legal right to assisted suicide, which at the time carried a maximum 14 year prison sentence. She ultimately lost the case to the Supreme Court of Canada on September 30, 1993.

February 2015 - Carter case

• Who: Kay Carter, a woman suffering from spinal stenosis; Gloria Taylor, a woman suffering from ALS, and others
• The Claim: whether the prohibition on physician assisted dying violates section 7 and 15 Charter rights
• The Outcome: unanimously struck down the provision in the Criminal Code, with some restrictions on who can ask for a medically assisted death

In Carter v Canada, the assisted dying prohibition was challenged again, this time with multiple plaintiffs. The case resulted in the Criminal Code provision being overturned, specifically giving mentally competent adults who are suffering intolerably the right to a doctor-assisted death. The decision only took effect in 2016, after the government had some time to amend the laws; in the meantime provincial courts could start approving applications for euthanasia.

June 2016 - Bill C-14 received royal assent

In other words, this means that the bill was approved, although there are still many ambiguities that need to be addressed.

June 2016 - First challenge to Bill C-14

Julia Lamb, a 25 year old from BC with spinal muscular atrophy, wants to defend her right to an assisted death under Bill C-14. Even though a sudden deterioration could remove the use of her limbs and make her dependent on a ventilator, she is still not eligible because of the requirement that patients be in an “advance state of irreversible decline” and that natural death is “reasonably foreseeable.” This clause denies rights to large groups of patients with chronic diseases. A fundamental Canadian value is autonomy, which is defined as the freedom from external control or influence, and is exactly what Lamb is asking for.

What does it mean now that we have a law?

It is important to note that as it is, this law is far from complete. Still, one of the more important results is that it means we will be able to collect data on assisted deaths. This kind of data would start answering the questions of how, when and why. As this legislation is so new, there is no quantitative information available (yet) so this would allow for improvements to be made in these areas. Another piece of data that would be useful is the number of patients denied a medically assisted death, and more specifically who is asking for one.

Further considerations

First, there is doctor-patient confidentiality. It can be a good thing in many situations, but in terms of assisted dying, I would argue more communication is always better. There are so many perspectives that need to be considered; the patient, family members, friends, just to name a few. Keeping critical information confidential might leadcan only lead to a more complicated and/or delayed process.

Another important consideration is that many patients already have a laundry list of advance directives, such as not wanting defibrillation or specific treatments. Some of these requests may seem practical at first, but when it comes to putting them into practice, it usually makes the situation more complex. These are very high stakes scenarios, and to further complicate things, patients may or may not be fully mentally competent at the time.

Conscientious objectors are another group that complicate this debate. How should, for example, a physician’s religious beliefs interact with their job? Here’s an analogy - would it be right for someone with a nervous tremor to become a dental surgeon? Probably not. In any case, what role should the medical institution play in dealing with individual physicians’ beliefs? Even if that physician was to refer the patient to someone else, that process both cuts down on the patient’s autonomy and takes up valuable time.

The conclusion (for now)

This debate is far from over, and there are likely to be even more challenges to Bill C-14. These are complex issues with various factors, possibilities, and ethical dilemmas that need to be taken into account. Then again, maybe no law IS better than a bad law.