Assisted death: What happens if there’s no new law?

April 21, 2016 – Anna Mehler Paperny, Global News

The people who’ve fought for years to legalize assisted death in Canada are now hoping a law governing its use doesn’t pass.

The extra time the Supreme Court gave the feds to craft new legislation runs out June 6: That means on June 7 the Criminal Code’s prohibitions on physician-assisted death are null and void no matter what the feds do.

Carter v. Canada: Read the Supreme Court’s ruling

READ MORE: Feds could end up in court again over assisted dying

And advocates of Canadians’ right to get medical help dying say the federal government’s Bill C-14 is so narrow in its scope, they’d rather have no law at all.

“Having no legislation on June 7 worries me less than having the present bill passed as law,” Maureen Taylor said in an interview.

“I’m hoping  that the government will make changes before June 6 to this bill. … But if that doesn’t happen, yeah, I hope the bill gets defeated and we have nothing on June 6, and they go back to consulting and come back with a better piece of legislation.”

READ MORE: What you need to know about Canada’s assisted-dying bill

READ MORE: Key questions on assisted death

Taylor co-chaired a provincial-territorial task force that laid out detailed recommendations on how to implement assisted death late last year.

But her connection is deeply personal: Taylor’s husband Donald Low, a key figure in getting Toronto through the SARS crisis, issued an impassioned plea for physician-assisted death in the final days of his life, cut short by a brain tumour.

The Liberals’ bill, introduced last week, excludes children and people in the early stages of dementia issuing advance directives.

But the way the bill defines an eligible medical condition has people saying the law is so flawed as to be unconstitutional.

The law says the patient’s “natural death” as a result of the medical condition must be “reasonably foreseeable” — effectively saying the patient must be suffering from a terminal illness, not a chronic condition, without laying out a specific time frame.

“I still think doctors have no idea what they mean,” Taylor said.

“There are lots of conditions that people can live with for many years but not live well with.”

Canadian Medical Association President Cindy Forbes agrees the definition’s fuzzy, but thinks doctors can work it out.

“They’re all terms that are not very specific but this is obviously a conversation going on between the patient and the physician and coming to a decision together.”

Will the bill pass?

It isn’t just activists raising issues: Liberal Senators and Members of Parliament, including the chair of the federal committee making recommendations on assisted death, have expressed disquiet about the bill’s scope.

“I think there’s a bunch of MPs, and probably some Senators, who are wanting to make sure the bill quite clearly understands that this is not about terminal illness,” said Rob Oliphant, whose committee’s recommendations earlier this year were much broader than the government’s bill.

“I think that whole concept of ‘foreseeable death’ could be struck and the bill would be a little stronger.”

Oliphant doesn’t plan to introduce amendments: He doesn’t think that’s his role. But he wants to make clear he stands by his report.”I would stand by every word of the report. I’m very proud of it.”

READ MORE: Recommendations would make Canada’s assisted death among the world’s broadest

“It’s a good enough bill. I have said that. But sometimes ‘good enough’ is not good enough. And I think that we could make it a better bill,” he said.

“If it were changed in some minor ways, I think it would have a guaranteed chance of passing.”

A majority government is supposed to mean parties in power can dominate votes in the House of Commons by virtue of their seat count. But the Liberals have promised a free vote on assisted death for everyone but Cabinet members, so C-14’s passage is far from a sure thing.

And then there’s the Senate, whose unelected members have suggested they’ll use their sober second thought to alter or delay the bill.

What happens if it doesn’t pass?

Starting June 7, physician-assisted death will be legal; if there’s no law governing it, the Supreme Court’s Carter decision applies.

It will mean people who want help dying won’t have to ask courts for permission, as at least a half-dozen Canadians in Ontario, Alberta, British Columbia and Manitoba have done in the past four months.

Who will be eligible for assisted death?

Some things are pretty clearly laid out in the Supreme Court’s ruling: Only adults would be eligible. Advance directives wouldn’t be allowed.

But any “grievous and irremediable” medical condition causing “intolerable” suffering that can’t be ameliorated through any treatment acceptable to the patient would make that person eligible for assisted death, no matter how imminent or distant their death appears to be.

Quebec’s law, which says people need to have a terminal illness in order to be eligible for assisted death, would probably not be considered compliant with the Carter decision — but someone would have to challenge it in court in order to change it.

 

How do you make sure someone is mentally capable of making these decisions?

Canada has ways of assessing consent and capacity that physicians use all the time to determine whether someone has the mental competence to make decisions about their own wellbeing.

It’s likely this same framework would be used to ensure a patient who says he wants help dying has the insight and understanding to appreciate what that means and to make that request in an informed way.

You can be mentally capable of making some decisions but not others: Someone who is competent in other regards could still be found to lack the capacity to consent to assistance in dying.

(If existing psychiatric assessments are found to be inadequate for assessing mental competence in requesting death, it could lead to their being improved across the board.)

What do doctors think of all this?

The Canadian Medical Association would rather have clear legislation. But they’ll deal with whatever regulatory landscape they’re facing come June 7.

“The principles from the Carter decision would apply unless a province or territory enacted more specific legislation,” said Jeff Blackmer, the Canadian Medical Association’s vice-president of medical professionalism.

A lack of clear laws could make some doctors reluctant to touch the issue at all, he said.

“The average physician, they would really have very little idea. And so those people, I think, would say, ‘We’re going to wait for legislation.’”

In the absence of laws passed by governments, physicians will be bound by regulations their provincial colleges set.

Colleges of Physicians and Surgeons in every province but Quebec have released interim guidelines for their members.

The Canadian Medical Protective Association, which gives doctors medical-legal advice, is telling its members, has a brief assisted death explainer on its websitetelling doctors to follow their College’s guidelines or call the association if they’re confused.

What about nurses and pharmacists?

The Liberals’ Bill C-14 would let nurse practitioners administer assistance in dying as well as physicians. The Supreme Court’s Carter ruling only mentioned “physician-assisted” death, so nurses probably wouldn’t be allowed.

The guidelines Ontario’s College of Nurses is giving members tells them to only participate in assisted death if they have an Ontario superior court judge’s order allowing them to.

Pharmacists, however, aren’t mentioned in the Carter ruling. But someone would have to dispense the drugs used to end people’s lives.

“I cannot see anybody charging a pharmacist with assisting a suicide,” Taylor said.

Canada’s pharmacists’ association would rather not take that chance.

“We are pleased that Bill C-14 acknowledges pharmacists’ role in this regard and extends such protections,” a spokesperson wrote in an emailed statement.

“We strongly urge all parliamentarians to work together to ensure that appropriate legislation is passed by June 7. Until it is certain that the government will not meet the deadline, it would not be appropriate to comment on speculation.”

What about conscientious objection?

This will be left to the provinces and provincial Colleges of Physicians and Surgeons regardless whether C-14 passes.

As Health Minister Jane Philpott emphasized last week, no one is going to be forced to help someone die if that goes against a deeply held belief.

But there’s still some disagreement as to what should happen when a doctor is faced with a request for death they can’t provide: Do they need to go through all the steps of making a referral? Is it enough to refer the patient to a hotline that will connect them with a willing physician?

“Physicians are not being compelled to provide medical assistance in dying, and … there are some physicians who don’t feel comfortable making a direct referral,” Forbes said.

She’d like to see an information line set up that patients can call.

But the medical association expects its members to talk to their patients about all their end-of-life options, including assisted death, no matter what the doctor thinks of those options.

But assisted death advocates will be watching closely to ensure objecting clinicians don’t shirk their duty to patients, Taylor said.

“Nobody wants to force anyone to participate in the physical administration of the drugs. At the same time, you cannot abandon patients. This is a personal decision they’re making for themselves,” Taylor said.

“If you can’t even refer the patient on to another practitioner who’s willing, I think you have to seriously rethink the choice of career that you’ve made.”

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