Who is responsible for this MAD (medical assistance in dying) mess?

Canada is on the verge of having no criminal restraint on the assistance in or administration of death by a physician, nurse or other medical professional.

Parliament Hill before breakfast

I can think of little worse than failure by Parliament to pass a law on the matter of medical assistance in dying (MAD) by the June 6, 2016 deadline established by the Supreme Court of Canada. Failure will force upon Canadians a province by province and courtroom by courtroom attempt to interpret the Supreme Court’s intent in the awkwardly reasoned Carter case.

In February 2015, the Court undid the legal prohibition on assisted suicide with a confusing, but unanimous, decision in Carter v. Canada. The decision in Carter contradicted the Court’s comprehensively reasoned decision on the same point of law in the 1993 split decision in Rodriguez v. British Columbia, which held fast to the Court’s recognition of “sanctity of life” as an underlying value of the Canadian Charter of Rights and Freedoms.

The Carter decision gave Parliament 12 months to come up with a new law.

The justices had to know their timeline was unrealistic. Parliament was headed for summer break in June and an election in October. It was no surprise that an application for extension was made by the new government. But the extension granted was a mere 4 months, not the 6 months requested. In granting the extension, the Court also decided to offer up a host of exceptions to the existing prohibition – province by province legislative regulation and courtroom by courtroom evaluation of requests for MAD.

One year after Carter, a joint parliamentary committee of MPs and Senators issued a report that suggested legalizing the medically assisted or administered death of just about anyone for physical, psychological, social (quality of life) or other “compassionate” reasons.

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), was introduced in Parliament on April 14. Unparliamentary behaviour by our Prime Minister – for which he has apologized – has delayed passage by the House of Commons.

The Senate Committee on Legal and Constitutional Affairs reports that the Senate is unlikely to pass C-14, as is or with amendments, prior to the Court’s June 6 deadline. The Senate position is driven primarily by a desire to broaden the availability of MAD. They have already held full hearings on the bill.

Bill C-14 may be the most legally conservative interpretation of the Carter decision that this government, or any Canadian government, will attempt to legislate. Those who oppose it make room for fewer constraints on who will face medically assisted or administered death. In other jurisdictions this has proven to move from patient request to physician determined execution for those assessed as having a lesser standard of life, whether children or the elderly.

Who is responsible for the impending MAD situation?

If the Court had given the 6 month extension requested, would legislation be in place by August 6?

The politically aware Court would best have initially provided an 18 month period for new legislation. Having granted only 12, it should have allowed the government’s request for 6 more. The Senate often sits until mid-July, following adjournment of the House in late June.

If the Prime Minister had not behaved poorly in the House, might the bill be progressing in a timely fashion in the Senate?

Although passage of C-14 has been delayed in the House that should have little impact on Senate deliberations. Senators participated on the joint parliamentary committee and the Senate’s own committee review has been completed.

Should the Senate impede progress of a bill approved by the House of Commons?

Senators need to consider their role in providing “sober second thought” on a matter of national importance; and, urgency.

First, the Senate assesses whether legislation is properly within the federal constitutional jurisdiction of Parliament. This does not include weighing whether the draft legislation is a precise depiction of a Supreme Court decision.

Second, senators balance the constitutional role of the Senate with that of the House of Commons. Both houses are a form of proportional representation – elected nationwide by riding in the House of Commons and appointed to represent on a provincial basis in the Senate. While the Senate does study matters and propose legislation, it rarely offers more than minor amendments to legislation passed by the House.

Third, the Senate, since 1960, evaluates whether the legislation aligns with the Canadian Bill of Rights, and, since 1982, the Charter.

Senators’ concerns with proposed legislation may be addressed through committee hearings (which have already been held for C-14) or reference to the House (which has been done through the reports of the joint parliamentary committee and the Senate committee).

Senate defeat of a House approved bill is rare. Senate delay is not.

The government has stated it intends more extensive review of the dilemma of MAD during this session of Parliament; after passage of C-14 takes place, driving to accomplish the initial legislative task within the timeline allotted by the Court.

Will the Senate fiddle while time burns? Will the government seek further extension from the Court? Would the Court grant it?

It is heartrending to watch a nation transition from cherishing human life, at one time treasured from conception until natural death – the life cycle, to assessing whose life is worth living; and, the corollary, whose is not.

The predicament in which our nation finds itself is not the concoction of its citizens. It is the responsibility of judicial and legislative decision makers.

Medical Assistance in Dying: Venturing into the Shallow End

This blog was originally published on May 2, 2016 at Do Justice, a conversations space for justice in the Christian Reformed Church.

When I was a tyke, my older sisters had one key responsibility on summer vacation. Make sure the boy did not drown in the hotel pool.

On one occasion, a sister followed me over the edge and into the shallow end, despite being dressed for dinner. On another, a lifeguard (who wasn’t fond of me) pushed me into the deep end. I found out I could tread water. He lost his job. We expect lifeguards to pull us out, not push us in.

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In February of last year, the Supreme Court of Canada undid the legal prohibition on assisted suicide with a somewhat muddled, but unanimous, decision in Carter v. Canada that contradicted its comprehensively reasoned 1993 split decision in Rodriguez v. British Columbia. The Court set a drop dead date of 12 months later for new legislation. The justices had to know their timeline was unrealistic. Parliament was headed for summer break in June and an election in October. It was surely not a surprise that an application for extension was made by the new government. The surprise was that the extension granted was a mere 4 months, with a host of exceptions provided to the existing prohibition.

One year after Carter, a joint parliamentary committee issued a report that was equivalent to recommending lifeguards be authorized to push non-swimming six year olds into the deep end of the pool. The Government of Canada responded with Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), something more akin to following someone into the shallow end. It’s dangerous. It’s just as wet. But at least we can stand. The lifeguard, however, is authorized to hold a consenting adult under the water until death.

The conditions drafted for medical assistance in dying (MAD) require the patient be over the age of 18 years, capable of making a decision in regard to their health, and have a grievous and irremediable medical condition with a prognosis of natural death being reasonably foreseeable. Most often, the patient must make the request, in writing, on their own initiative. The medical or nurse practitioner receiving the written request must get an independent, written, second opinion confirming the conditions for MAD have been met and ensure a (waivable) 15 day waiting period has expired without the patient changing their mind.

Complaints concerning C-14 have and will come from both sides of this shallow end position.

Like the majority of the joint parliamentary committee, there are those who desire MAD be accessible for psychological suffering, patients lacking capacity who have advance directives, children with poor medical prognoses and more – the deep end.

There are also those who hold fast to the principle of the “sanctity of life” – staying out of the pool altogether – that was recognized in the 1993 Rodriguez decision, which had considered similar circumstances and the same provisions of both the Criminal Code and the Canadian Charter of Rights and Freedoms at issue in Carter. This principle was the ground on which one person was not permitted to kill another, and no person could consent to being killed.

This side has already challenged Parliament to uphold the existing law, regardless of the Court’s decision. This could be done using the Constitution Act, 1982 ’s recognition in section 33 that Canada remains a democracy in which Parliament holds constitutional supremacy above decisions of the Supreme Court. Section 33 is known as the notwithstanding clause. Essentially, Parliament would note that the Court had no business authorizing the pushing of people into the pool, shallow or deep end.

In deciding to depart from the “sanctity of life” principle, the Supreme Court of Canada has set up a situation where the state – not just government, but all Canadians as a society – necessarily becomes complicit in endorsing the killing of one human being by another. In legislating agreement, Parliament will express concurrence. Failure to act will leave the confusing Carter decision guidelines as the nation’s position – a checkerboard of provincial/territorial legislation and scattered court decisions on individual cases. If nothing else has been learned from nearly three decades without federal restrictions on abortion, it’s that even minimal legal constraints offer protection for a range of liveable lives.

Absent from C-14 is vital recognition of other Charter rights. Every Canadian, including medical practitioners, nurse practitioners, and pharmacists, is guaranteed freedom of conscience and freedom of religion. There are members of these professions who will legitimately refuse, for reasons of conscience or religion, to participate in MAD. These lifeguards only want to pull us out when we’re in distress. Recognition of these rights would involve adding a provision acknowledging them, as has been done in other legislation.

Bill C-14 provisions for ending life should not become an alternative to providing caring care for those who value living until natural death. Proper palliative care and the hope offered by life affirming physicians, family, friends and institutional settings must not be ignored in this debate. Whether or not government chooses to offer swimming lessons and life preserver vests should not prevent the Church – and others – from doing so.

Although our government proposes taking the nation legislatively into the shallow end of medical assistance in dying, these waters are uncharted in Canada. Even in the shallow end, the consequences of a misstep may be irremediable. Similar waters have proven demonstrably unsafe, hitting the steep slope and sliding rapidly from the shallow end to the deep, in the few jurisdictions that have sought to navigate them.

 

Without true north, the Supreme Court’s compass is pointless

We have a compass on the dashboard of our Jeep. It’s a good old-fashioned oil filled ball compass. I stuck it there shortly after we moved from Toronto to Ottawa because my “personal positioning system” occasionally got confused with the transition from decades in a water-to-the-south city to driving in a water-to-the-north city.

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We have since acquired a GPS unit; but the compass stays. Why? It’s my experience that when the compass and the GPS are in disagreement, the compass is right. GPS units are notorious for being more disoriented than even I can be. But a compass is continuously reliable once it is fixed to true north. Without true north, the compass is pointless.

Last week’s decision of the Supreme Court of Canada in the Carter assisted suicide case gives every indication that the Court is practising orienteering based on a “personal autonomy positioning system.” Abandoning constitutional true north, the role of its decision as a legal compass is unpredictable. The guidance provided in this case resembles dire true stories of GPS units gone awry.

The Court mapped out where it was headed in the opening paragraph, stating the current law is “cruel.” This was the precursor to abandoning what was described in the Court’s 1993 decision in Rodriguez, a case dealing with the same issue, as an underlying and animating “Charter value.” The 1993 Court defined the “sanctity of life” in the secular sense “to mean that human life is seen to have a deep intrinsic value of its own.” This definition was essential to understanding the Charter and the application of Charter rights, particularly the section 7 rights to “life, liberty and security of the person.” As the 1993 Court noted, Charter rights apply to all “members of a society based upon respect for the intrinsic value of human life and inherent dignity of every human being.”

The 1993 Court identified “sanctity of life” as constitutional true north for interpreting the Canadian Charter of Rights and Freedoms.

This foundational principle was the ground on which one person was not permitted to kill another person, and no person could consent to being killed. Even before the Charter, it was foundational to eliminating the death penalty in Canada. To depart from that principle would be to set up a regime where the state – not just government, but all Canadians as a society – would necessarily become complicit in endorsing the killing of one human being by another.

In Carter, this constitutional principle – previously applied in countless Charter cases – was reduced by the Court to the secondary level of an interpretive Charter value, more like a legal concept than a foundational principle. The Court had been repeatedly counselled over several cases that the use of the word “value,” with its multiple legal meanings, could one day lead to this type of conflation, or at least be confusing to those not familiar with the jurisprudence. Now, redefined as a legal concept, the former principle of “sanctity of life” was simply balanced against another legal concept, personal autonomy. Casting aside the broader societal and state interest in protecting human life, there remained nothing but the interest of the individual in how and when she wants her life to end.

True north, abandoned in favour of personal choice. In its absence, the Court’s course navigates toward an uncertain destination; unconstrained by the principle recognizing Canadian society’s interest in the intrinsic worth and inherent dignity of every human being.

It’s true, the Rodriguez decision did not end the societal debate about assisted suicide. Canada’s elected Parliament itself debated the issue six times between 1993 and 2010, each time deciding that the law would remain exactly as it had been affirmed in 1993.

The Carter Court, however, cited the legislative decisions of foreign jurisdictions along with the trial judge’s conclusion “that there is a strong societal consensus that these practices are ethically acceptable” and “there are qualified Canadian physicians who would find it ethical to assist a patient in dying if that act were not prohibited by law” as determinative. The justification for the Supreme Court substituting its opinion for that of the people’s elected Parliament was not found in altered constitutional principles, or a defect in parliamentary procedure, but a presumption of variation in fleeting, unmeasurable and shifting societal values.

The Charter’s section 7 right to life was found to be engaged when an individual reached the point where she felt the need to decide whether to commit suicide, if physician assisted death was not available, or continue living. In other words, the right to life is engaged at the point of the threat of death by one’s own hand. From this position, for the first time in Canadian jurisprudence, the Court introduced the notion that Canadians can “‘waive’ their right to life” and request physician assistance in ending that life.

Physicians, the people we trust with our health, were singled out by the Court to become the new executioners; saddled with both the responsibility to determine a patient’s capacity to give informed consent to death and to be an active participant in that death. Physician assisted death could be by prescription or by administering the terminal medication, transitioning Carter from a case about assisted suicide to include a Supreme decree that includes euthanasia. In doing so, the Court crossed the Rubicon from the legal concept of personal autonomy in making medical decisions, to accept or refuse treatment, and applied the concept to the patient request for physician assistance in dying. The patient-physician relationship is the only thing the two activities of medical treatment and consensual homicide now share in common.

Historically and jurisprudentially well-grounded direction is given by the Court in its declaration of the Charter protection of a physician’s right not to participate in killing her patient for conscience or religious reasons. But what of pharmacists asked to prescribe the lethal “remedy” for life’s ails? Or others who might not be asked to inject a needle but instead to place a physician prescribed potion in the soon-to-be-deceased’s mouth? Or to fetch another glass of water to help with swallowing?

In its final piece of orienteering guidance to Parliament, the Court stated that in 12 months’ time the current laws will be “void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” This short phrase, unlike clues given to orienteers, lacks certainty of both direction and finish. It encompasses: assisted suicide and euthanasia; terminal illness and psychological suffering; the otherwise able-bodied and the disabled – all contending with their own, or a physician’s, interpretation of “enduring suffering that is intolerable.”

Without fixed principles, we are at the mercy of fluctuating values. Without true north, there is no point of reference from which to find certain direction. And, if the Court is determined to overrule the people’s democratically elected Parliament on matters of “competing moral claims and broad societal benefits” in order to impose an “every man for himself” understanding of human rights, the “True North Strong and Free” will be left wandering aimlessly.