Cross-border shopping for a good death

Few debates divide opposing camps as deeply as doctor-assisted suicide. Advocates say denying it needlessly prolongs suffering. Opponents say allowing it devalues human life. Still, by the time the Supreme Court of Canada handed down its ruling on the issue last week, most of those who had closely watched the case, from both sides of the divide, expected a judgment that opened the door to doctors helping some patients die. Yet the response from the federal government, which must also have anticipated a ruling overturning the prohibition on physician-aided dying, could not have been more terse. “We will study the decision and ensure all perspectives on this difficult issue are heard,” said Justice Minister Peter MacKay.

Time for studying the issue and listening to those clashing perspectives, though, is limited. The court gave the government a year to respond to its unanimous ruling. The timing is awkward, since a federal election is slated for next Oct. 19, assuming Prime Minister Stephen Harper sticks to his own fixed-election date law. That means work on drafting legislation to change the Criminal Code section on suicide, and also to craft guidelines or regulations for doctors, will have to be carried out in the charged atmosphere leading up to a fall campaign. “I think they should map out a process that is explicitly non-partisan,” said Dalhousie University law professor Jocelyn Downie, who teaches health care ethics and law, and supports doctor-assisted dying.

So far, however, the Conservative government is offering no hints about how it might implement the landmark ruling. For its part, the court suggested that the response should involve Ottawa, provincial governments and doctors’ groups. “What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures,” the decision said. Dr. Chris Simpson, president of the Canadian Medical Association, urged the federal government to take the lead in “getting everybody to the table,” and added that the CMA has already done some preliminary work on the guidelines doctors might follow when facing requests from patients for help in dying.

The court set out conditions for when doctor-assisted suicide should be considered. The patient asking for help must be “a competent adult person . . . who clearly consents to the termination of life,” and must be facing “a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable.” At least two aspects of that key part of the ruling sparked immediate argument over ethically fraught implications. First, the court did not stipulate that doctor-assisted suicide should be contemplated only in the final stage of a terminal illness. Second, it listed disability—not just illness and disease—as a medical condition that might cause suffering so enduring and intolerable that suicide is justified.

By not restricting doctor-assisted suicide to those near the end of a painful battle with incurable disease, the court went further than Quebec did in the right-to-die legislation it passed last summer. Under Quebec’s law, the first of its kind in Canada, the patient must be in an “advanced state of irreversible decline in capacities.” Downie said the Quebec model, which is slated to take effect before the end of this year, might now be broadened in light of the Supreme Court ruling. She said the court clearly did not mean physician-assisted dying to be available only to those nearing death. That opens the possibility that patients suffering from mental illnesses might be eligible, as they are already in the Netherlands. Downie said Canadians who recoil at that prospect fail to “understand depression of the type that would meet the test of ‘grievous and irremediable.’ ”

Just as controversial as the mentally ill asking for help ending their lives is the notion that, in extreme cases, the disabled might be able to seek medical aid in dying. Laurie Beachell, national coordinator of the Winnipeg-based Council of Canadians with Disabilities, which intervened to oppose physician-assisted dying before the Supreme Court, said some in the disabled community are reluctant to even discuss the subject. “Clearly, disability is equated in the decision with grievous and irremediable medical condition,” Beachell said. “Are we talking about physical pain and anguish? What about psychological distress?” By not spelling out more clearly what conditions might make a disabled individual eligible for doctor-aided suicide, he said, “the court has really created one of the most potentially permissive, unrestricted mechanisms.”

The CMA’s Simpson said Ottawa should take the lead in making sure the provinces, physicians’ groups and others, including representatives of patients and the disabled, come together soon to start work on legislation and regulation. The federal government would have to amend the criminal law, while provinces would adopt health regulations that fall under their jurisdiction, likely relying on provincial colleges of physicians to oversee new processes. It seems like a lot to hammer out in 12 months, but Downie contends it’s doable. “There’s no need to reinvent the wheel,” she said, pointing to the consultations Quebec conducted in drafting its law and the research she helped spearhead as member of a Royal Society of Canada panel that studied end-of-life issues.

It remains to be seen, though, if the Conservatives are even interested in launching the wide-ranging process some are recommending. Harper has always avoided plunging into large-scale federal-provincial policy discussions, whose outcomes he can’t really control or predict. Simpson said the possibility that the provinces might be left to respond to the court ruling without federal leadership, leading to a patchwork of assisted-suicide standards, worries the CMA. “The last thing we want is people in Manitoba saying, ‘Oh, maybe I should go to Alberta, because maybe I’ll qualify there,’ ” he said.

If there’s no federal direction, Simpson said, that might leave the medical professions to try to provide some national consistency. “If the federal government’s decision is, ‘We’re not going to do anything, and we’re just going to let the Supreme Court decision stand,’ then I think our role will be even more important as national societies, to make sure we get the clinical guidelines, at least, uniform across the country.” Beachell said his group is unsure exactly what safeguards should be put in place to protect the disabled, but is certain they must be national in application to prevent “shopping around” by those seeking a jurisdiction in which to end their lives.

He noted that Kay Carter travelled to die. Carter was the British Columbia woman whose case challenging the law against assisted suicide was one of two appealed all the way to the Supreme Court, resulting in last week’s decision. Carter was diagnosed in 2008 with spinal stenosis, a degenerative spinal cord condition. By the following year her mobility was very limited and she was suffering chronic pain. In early 2010, she took sodium pentobarbital at a clinic in Switzerland and died, according to the court’s summary of her story, in 20 minutes.

Even those who remain fundamentally opposed to doctor-assisted dying don’t deny Carter’s story has resonance. “We recognize that public opinion on this issue has shifted,” Beachell said. “Almost all Canadians have a family member, a friend, someone they know, who did not have an easy death, and who may have actually wanted assistance to die.”

But that raises another question politicians might be pressed to address as they grapple with doctor-assisted dying. To what degree is this issue exacerbated by uneven, often inadequate care for the dying across Canada? Simpson says the CMA estimates that only 16 per cent of Canadians who would benefit from good palliative care receive it. It will be a dark irony if it takes a court ruling on suicide to force serious attention from politicians to what must be done to improve care for Canadians at the end of life.