The recent Canadian Supreme Court Carter v. Canada decision surprised a lot of Canadian healthcare professionals with the wideness of its breadth and scope. In an anticipated federal and provincial/territorial (other than Quebec) legislative and regulatory vacuum, as of early February 2016, it will no longer be a criminal offence for a physician to assist her/his patient to die through use of either physician-assisted suicide or voluntary active euthanasia as long as certain, key conditions are met. The patient must be experiencing enduring and intolerable suffering of a physical or psychological nature as the result of a grievous and irremediable medical condition, and he/she must be capable of providing informed consent for the assisted dying practice to be used. Like in Belgium and the Netherlands, and unlike in other legalized settings in North America, there is no stipulation that the requestor of an assisted death be at the end-of-life. This is a key difference from the euthanasia-related provisions of Quebec’s Bill 52 (that will be going into effect this December) which, as currently worded, require that the requestor “suffer from an advanced state of irreversible decline in capability.”
It is conceivable that some Canadian provinces could become permissive ‘Wild Wests’ with regard to unregulated assisted death practices. It is difficult to predict how members of the Canadian public will respond if Canadian assisted dying practices take their lead from experiences in Belgium where a number of recent, sensational euthanasia cases have caught the attention of the international media. Such cases include 45 year old twins with congenital deafness who were progressively losing their vision because of glaucoma, a transgendered person, a person with an eating disorder, and the planned euthanization of a convicted murderer-rapist (which was called off at the last minute in January by the Minister of Justice). A close look at these cases reveals that there are significant, socio-relational features to take into consideration and that they do not constitute obvious, actual ‘slips’ in the indications for euthanasia in Belgium. However, the reportage on these cases has helped to open-up an international ‘imaginative public space for doubt and fear’ about assisted dying practices. The unease of some public members has also been influenced by the articulate critiques of disability rights activists, such as Catherine Frazee, who express understandable concerns about possible, related devaluation of the lived experiences of persons with disabilities, given the long history of discrimination directed against disabled persons and members of other historically-marginalized and disadvantaged social groups in the healthcare domain. This particular subject area is under-researched but the limited studies that have been performed to date have not demonstrated over-representation of, or disproportionate impacts on, persons with non-terminal, physical disabilities or chronic illnesses (other than persons with HIV Disease).
There are two distinct sets of circumstances in which assisted dying practices are typically used. In paradigm circumstances, the affected person is experiencing unbearable suffering which is primarily physical in nature, e.g., pain, shortness of breath, delirium, at the very end-of-life (death is anticipated within days to a few weeks), and the individual’s distress has not responded adequately to a variety of palliative treatment modalities. In non-paradigm circumstances, the requestor, whose death is not expected to be ‘near’, makes an informed decision to end her/his life because of the presence of a significant health condition that, from her/his perspective, makes the prospect of further life ‘not worth living’. The distress is primarily psychoexistential in nature and is typically associated with one or more negatively-perceived quality-of-life factors: inability to participate in activities that formerly made life meaningful and/or enjoyable; hopelessness; perception of current or anticipated-future, progressive loss of ‘self’, dignity, independence and/or social significance; a preference for control over one’s destiny; and the desire to not become, or continue to be, a burden to loved ones.
There are some morally-relevant differences between the use of assisted dying practices in near-death paradigm and non-paradigm circumstances in the ethics domains of consequences and proportionality. The foreshortening of life is usually considerably shorter in the former, and it is the use of assisted dying practices in the latter circumstances that has opened-up the previously referenced ‘imaginative public space for doubt and fear’. It is therefore more difficult to support a claim that the ‘good effect’ of elimination of profound suffering clearly outweighs the ‘bad effects’ (and thereby constitutes a proportionate therapeutic benefit) in non-paradigm than in near-death paradigm circumstances. In my view, these distinctions help to justify the development and implementation of stricter legislative and regulatory monitoring and safeguarding mechanisms for the use of assisted dying practices in non-paradigm than in paradigm circumstances.
In the event that neither the Canadian parliament nor our provincial government steps-up to the legislation-development plate before early 2016, one hopes that the College of Physicians & Surgeons of Nova Scotia will work closely with stakeholder-deliberators and relevant resource persons (including a healthcare ethicist) to develop a set of policy and practice guidelines for the province’s physicians to follow in navigating their patients’ requests for an assisted death starting next year. Although it is likely that many physicians will conscientiously object to direct participation in assisted dying, in my view, they will have a moral obligation ‘to refer’ to another willing and able practitioner or at least ‘to inform’ requestors of a designated internet site and person who can provide detailed, practical information about how to access assisted dying practices throughout the province.
Respectively submitted by
Dr. Jeff Kirby, NSHEN/Dalhousie University
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