Assisted dying legislation a cause for some concerns

While pursuing my master of laws at Oxford, I wrote my thesis on section 7 of our Charter, with specific reference to assisted dying. On May 2, I had the opportunity to rise in the House of Commons, and debate the government’s legislation on the topic.

As I said in the House, “We may have been tasked by the court to address the constitutionality of the current laws, but we are tasked by Canadians to go beyond that.”

As a lawyer, I worry that we have failed the first aspect of that approach. Like the Canadian Bar Association, and like Joseph Arvay – the lead lawyer in the Carter case – I have real concerns that limiting access to those for whom death is “reasonably foreseeable” would have precluded one of the applicants in the very Carter decision from accessing the new regime.

There is no evidence presented by the government that limiting access to terminal illness is necessary to protect the vulnerable, provided other safeguards are put in place, and it is an open question whether this provision is constitutional.

As the federal representative for Beaches-East York, I have additional concerns, based on meetings with many constituents over the last number of weeks and months.

In early April, for example, we hosted a town hall on the topic. The views and opinions of our fellow neighbours have informed my own, all of which revolve around the importance of choice.

First, our riding overwhelmingly favours advance directives. I appreciate that this is a complex area. It is one thing to assess an advance directive regarding a permanent coma and another thing to assess an advance directive regarding differing degrees of dementia. However, simply because a matter is complex or difficult does not mean we should not attempt to address it. I believe we need to look at advance directives more seriously and that many of the worries regarding stale decision-making can be resolved by sunset clause provisions.

As former Chief Justice Lamer has said, the legal system should not deny consent but should seek to ensure that such consent “is as independent and informed as is reasonably possible.” With appropriate safeguards in place – witness requirements, competency assessments – informed consent through advance directives should be respected.

Second, our riding overwhelmingly favours placing assisted dying within the context of end-of-life health care overall. Under our Charter, access to assisted dying cannot depend upon the availability of palliative care, but, as a matter of policy, for there to be a real choice, we should invest significantly in palliative care options. The $3 billion promise for home care investments is a good start, but it is only a start.

Third, a small but vocal group of our neighbours have asked for choice for doctors, the right to conscientiously object. It is important for the government to acknowledge the deeply-held beliefs of some doctors and we must do our best to reconcile those beliefs with the importance of providing access to assisted dying across our country. It is reasonable to respect doctors’ choices, at the outset using a cautious approach, providing patients with a public list of participating health professionals across the country.

Finally, a similarly cautious approach regarding mental health is also warranted. The foundation of the court’s decision was autonomy and dignity, and mental illness, including depression, can impinge upon fully informed and free choice.

The law does not require anyone to choose life or death, but allows Canadians to make that deeply personal choice for themselves. For some, the right to life precludes assisted dying, but for others, including former Justice Cory, the right to life includes the right to death.

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I am a bit confused. does the current legislation deny people who are not about to die but find their situation unbearable and anticipate a lingering and painful death not covered in the current legislation being proposed? I would also make the comment that while the supreme court set a deadline surely parliament can take the time to fully debate and get the bill right for all aspects of the dying for all situations. Can we not ask for an extension from the supreme court?

Anne – the legislation, as it stands, does not allow people who are suffering grievously and irremediably (the SCC’s language) to access medical assistance in dying unless their death is also “reasonably foreseeable”.

An extension from the SCC is unlikely to be granted but, thankfully, it is also unnecessary. The provincial regulatory bodies have rules in place for the medical profession, and we can take the time to get it right.

The provision in law for advanced directives for medical assistance in dying is critical as consent cannot be provided by an individual who is no longer mentally competent due to dementia or other form of brain disease or brain damage.

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