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.

DonParlForum

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.