Ongoing Concerns with the B.C. Court of Appeal Decision on Assisted Dying

Nuala Kenny argues against the medicalization of suffering and death and enjoins us to reflect on the issues at stake in providing care for the dying.

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In a long-awaited decision, the British Columbia Court of Appeal has reversed a lower court ruling that struck down the Criminal Code statute on assisted suicide. Some of us were relieved to think that the decision might stem, at least for a while, the seemingly inexorable movements in the developed world to normalize euthanasia and assisted suicide, and perhaps provide Canadians with an opportunity for deeper reflection.

Meanwhile, the sophisticated and highly organized proponents of assisted death are confidently proclaiming that this split (2-1) decision, based on narrow technical grounds regarding authority and not on fundamental moral arguments, is simply a small obstacle on the path to legalization. Virtually all major media headlines focused on assurances that, with persistence, assisted death will be legalized.

The original arguments in the B.C. case were based on a Charter of Rights and Freedoms challenge that paradoxically argued that prohibitions on assisted suicide and euthanasia violate the “right not to be deprived of life, liberty and security of the person”; these right can be limited only if the limits are “demonstrably justified in a free and democratic society”.  On a quick, lay-person read of the decision, it does not appear that these Charter challenges are called into question in the B.C. Court of Appeal decision. So, any relief at stemming the tide is short-lived.

Bierstadt_Albert_Yosemite_Valley_CaliforniaJust as we have received this decision, Quebec has also concluded hearings on its Bill 52: An Act respecting end of life care. This Bill develops a different strategy by creating its own definition of palliative care to include “medical aid in dying”. Then, in an attempt to avoid the language of physician-assisted suicide and to circumvent the federal criminal code, the Bill identifies “medical aid in dying” as a medical act under provincial jurisdiction. Only in Quebec!

The proposed Quebec legislation is justified on grounds of compassion for those with “incurable serious illness”; “an advanced state of irreversible decline in capability”; and “…suffering from constant and unbearable physical or psychological pain.” These are profoundly important issues. However, this Bill perpetuates erroneous beliefs about palliative care, the effectiveness of pain and symptom control and the reasons for requests for assisted death. Such requests are rarely about pain. They are almost always about issues of emotional and spiritual suffering: loss of control, a loss of identity and dignity, dependence, being a burden to others, and uncertainty about future care. Assisted death is the medicalization of this suffering. But, suffering can occur at any time in life; not just at its end.

Public opinion polls over the last two years demonstrate this confusion. For example, an an Ipsos Marketing survey conducted in September 2013 for a group of palliative care physicians found that only one-third (33%) of Quebeckers understood that “medical help to die” meant active euthanasia; another third (29%) confused this help with palliative care, 22% conflated this idea with the withdrawal of aggressive technologies; and 16% thought this was about the patient self-administering a lethal medication. Clearly there is widespread misunderstanding among Quebeckers (and Canadians more generally) regarding the effectiveness of pain and other physical symptom control measures. When linked with statements that physicians are routinely performing euthanasia, the idea of regulating this practice seems prudent.

The apparent media validation for advocates of assisted suicide, and the failure to respect and learn from the fidelity and care that is so evident in hospice and palliative care, is deeply troubling.  The conflation of assisted suicide with dignity, as if dignity depended entirely on the choice of controlling the circumstance of one’s death, reflects a consumer and commercialized notion of life and relationships of care. We live in a secular, death-denying, death-defying culture, dominated by the discourse of individual rights and autonomy, the medicalization of all aspects of life and a consumer culture. This context provides the elements for a “perfect storm” of forces eroding fundamental commitments and situating death as a medical act and a right to be controlled by individuals.

The B.C. Court of Appeal decision undoubtedly will be appealed to the Supreme Court of Canada. In the interim, we have a unique opportunity to clarify much of this confusion and to present a more balanced view of the issues at stake in providing care for the dying.  The medicalization of suffering and death is both inappropriate and replete with risk for society. Death is not a treatment!

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Sister Nuala Kenny is Emeritus Professor, Dalhousie University and Ethics and Health Policy Advisor to the Catholic Health Alliance of Canada

To read more about this case, see
Arthur Schafer, Physician Assisted Suicide Will Eventually be Legal in Canada,
and Jocelyn Downie, Assisted Dying at 301 Wellington Street, Ottawa K1A 0J1

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