Trudo Lemmens lists a number of concerns with the recent Report of the Special Joint Committee on Physician-Assisted Dying.
In 2011, the BC Civil Liberties Association, acting on behalf of two women, asked the court to recognize the right to physician-assisted death for those “who are suffering unbearably at the end of life.” Justice Smith granted such a right to those patients in “a state of advanced weakening capacities.”
In 2015, in Carter v. Canada (attorney general), the Supreme Court of Canada confirmed that the absolute prohibition on physician-assisted death could not be justified, but also reaffirmed the role of criminal law in protecting the vulnerable. It invited the Federal Parliament to develop “a carefully-designed” “complex regulatory regime” “imposing stringent limits that are scrupulously monitored and enforced.”
Then, in February 2016, the Special Joint Committee on Physician-Assisted Dying issued a Report that recommends the opposite. It proposes transforming the Supreme Court’s vague parameters into legal criteria for access. Specifically, the Committee recommends expanding assisted dying to any medical condition (terminal or non-terminal, physical or psychological) that a patient experiences as causing enduring and intolerable suffering. It also recommends eventually expanding access from competent adults to mature minors.
The Committee rejects the need for any prior vulnerability assessment, such as the one recently recommended by a coalition of health and disability advocacy groups. It specifies that only two physicians are needed to determine that the eligibility criteria (including patient competence) are met. It doesn’t require that a psychiatrist be involved at any stage of the process, not even when requests are based on mental health conditions.
The Committee ignores the Court’s emphasis on the narrow basis of its ruling and the exclusion of “euthanasia for minors or persons with psychiatric disorders”. It supports assisted death for demented patients on the basis of advanced directives. And, while it recommends access to quality palliative and other health care, it does not set this as a pre-condition for access to assisted death. The Committee recommends against a prior review and approval process; it suggests that after the fact reporting and review is sufficient.
Basically, the Committee recommends a system that is at least as open-ended as the Belgian and Dutch euthanasia regimes, despite evidence of growing problems in these countries. This evidence confirms that vulnerable patients are increasingly put at risk because the option of doctor shopping, combined with open-ended access criteria, make access to euthanasia all too easy. In these countries, euthanasia is increasingly performed outside the paradigm situations for which legalization of euthanasia is usually argued to be important. It is now performed on couples who want to die together, and on individuals who are concerned about becoming demented and dependent on others, who are blind and deaf, who have mental health conditions (including mood, personality, and anxiety disorders, anorexia, schizophrenia, addiction, autism and even complicated grief), or who are simply tired of life.
A just published analysis of psychiatric euthanasia cases from the Netherlands reveals questionable competency assessments, unresolved disagreements among physicians, social isolation of patients, lack of confirmation by independent psychiatrists, and euthanasia when there were treatment options. Remarkably, this is the first study to look in detail at the content of these case reports. This study suggests that after the fact reporting can generate statistical data, but these data may provide false assurances that lead to complacency. Indeed, complacency and overly lax criteria likely explain why prosecution in Belgium and the Netherlands is quasi non-existent. Moral concerns tend to be brushed aside because ‘legal criteria for euthanasia were respected.’
In Belgium, there have been calls for removing mental health as grounds for access to euthanasia, particularly after a 38-year old woman, suddenly diagnosed with autism, was euthanized. In the Netherlands, a documentary that followed three patients at an end-of-life clinic that serves those whose own physicians refuse their euthanasia request recently provoked outrage. One middle-aged patient, Hannie Goudriaen, suffered from speech dementia. She had signed a living will many years ago. In the documentary she is shown driving her car and enjoying outings with her husband. Her verbal expression is very limited. Her husband insists she wants to die. The clinic doctor finds in her expression ‘Huppakee gone’ confirmation of unbearable suffering and a desire to die. She receives a fatal injection, seated in her living room, in front of the camera, and sighs ‘it is horrible’ just before she dies. One Dutch commentator compared this to an “execution” that “may change the thinking about euthanasia.” Another commentator lamented how it reflects the pressure on Dutch elderly to accept euthanasia as a timely and beautiful way to go.
Canadians working in the trenches of health care appreciate the dangers associated with a lax regime of assisted death. They worry that open-ended access to assisted death (with only after the fact review of reported cases) risks pushing vulnerable people towards premature death. They point out the limits and challenges of competency assessment by physicians. Further, they suggest that easy access to assisted death may compromise therapeutic options and effective support, and create undue pressure on patients. Often it takes time, continuous effort, high quality health care, and a societal commitment to support and encourage those with mental health issues, catastrophic injuries, disabilities, and debilitating illness to find renewed courage to live.
These concerns and insights, shared with the Special Joint Committee, appear to have fallen on deaf ears. The Committee has joined those who champion easy access to assisted death on the basis of hollow versions of autonomy and equality. Hopefully, the full Parliament will take available evidence and concerns more seriously.