Maureen Taylor, Jocelyn Downie, and Jennifer Gibson suggest that recent commentaries on official Reports on assisted death in Canada misstate the recommendations made in the Reports and their relationship to the Supreme Court of Canada’s decision in Carter.
Given some recent commentaries on the Reports of the 2015 Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying and the 2016 Federal Special Joint Committee on Physician-Assisted Dying, it is important to carefully examine what these Reports and the Supreme Court of Canada in Carter v. Canada (Attorney General) actually said.
First, the Provincial-Territorial Group and the Special Joint Committee recommended that access to assisted death not be limited to individuals with a terminal illness. Some commentators have said that it should be limited in this way to be consistent with the decision made by Justice Smith (the trial judge) that limited access to individuals “in a state of advanced weakening capacities.” However, the Supreme Court did not include Justice Smith’s limit in its decision. As noted by the Federal Expert Panel on Options for a Legislative Response to Carter v. Canada, “[t]he Court’s declaration did not indicate that the person must be at the end of life, have a terminal diagnosis or be at an advanced stage of disease.”
Further, it has been suggested that the Supreme Court limited access to assisted death to those who are “at the end-of-life” and that the Reports, inappropriately, went beyond the Court’s limit. However, there is no such limit in the Supreme Court’s decision. The individuals before the courts were not all “at the end-of-life.” Gloria Taylor lived almost a year after the trial, Elayne Shapray is still alive, and Kay Carter didn’t have a terminal condition. It was therefore not open to the Provincial-Territorial Group or the Special Joint Committee to limit access to assisted death to individuals with a terminal illness.
Second, the Provincial-Territorial Group and Special Joint Committee recommended against excluding individuals with psychiatric conditions from access to assisted death. Some who object to this recommendation point to the following text from the Supreme Court’s decision as evidence that the Court excluded psychiatric conditions as a criterion for access: “Professor Montero’s affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as … persons with psychiatric disorders.” However, the term “parameters” in this text refers to the facts before the trial court and the Supreme Court. The fact is that no individuals before the courts had psychiatric disorders. As noted by the Federal Expert Panel “The Court nonetheless did contemplate psychological suffering in its decision, and did not require that the medical condition leading to the individual’s request necessarily have a purely physical origin.” The Provincial-Territorial Group and the Special Joint Committee recommendations are therefore consistent with the Supreme Court’s decision.
Third, both the Provincial-Territorial Group and the Special Joint Committee recognized the importance of vulnerability assessments. The Provincial-Territorial Group recognized the significance of such assessments and situated them within the doctor-patient relationship. The Special Joint Committee recommended “that the capacity of a person requesting medical assistance in dying to provide informed consent should be assessed using existing medical practices, emphasizing the need to pay particular attention to vulnerabilities in end-of-life circumstances.” While the Special Joint Committee didn’t recommend the specific prior judicial or tribunal review system endorsed by some (based on the Criminal Code regime that deals with individuals who are “Not Criminally Responsible”), it did embrace vulnerability assessments.
Fourth, both the Provincial-Territorial Group and Special Joint Committee recommended the establishment of carefully designed and monitored safeguards for assisted death. Some appear not to recognize this. Yet the Provincial-Territorial Group spelled these out in detail. And the Special Joint Committee spelled out the safeguards that fall within federal jurisdiction and then recommended that the federal and provincial/territorial governments collaborate to establish the rest of the safeguards. This way, the Special Joint Committee avoided giving the federal government advice that would invite a constitutional battle with the provinces and territories on issues that fall within the shared federal-provincial-territorial jurisdiction over health.
Fifth, the Provincial-Territorial Group and the Special Joint Committee both recommended increased access to palliative care and recommended that healthcare providers be required to inform patients about all of their options including palliative care. Neither Report made access to palliative care a precondition for access to assisted death. For this, the Reports have been criticized. However, this position is entirely consistent with the Supreme Court’s decision which did not include access to palliative care as a precondition for access to assisted death.
While reasonable people can disagree about how best to regulate assisted death in Canada and debate is essential on the recommendations made in the Provincial-Territorial Group and the Special Joint Committee Reports, it is critical that such public discussion and debate be grounded in accurate representations of the relevant facts.
Maureen Taylor is a Physician Assistant in Infectious Diseases and former Medical Journalist. @maureentaylor31
Jocelyn Downie is a Professor in the Faculties of Law and Medicine at Dalhousie University. She was a member of the Royal Society of Canada Expert Panel on End of Life Decision-making and a member of the legal team for the plaintiffs in Carter v. Canada (Attorney General). @jgdownie
Jennifer Gibson is an Associate Professor, Institute of Health Policy, Management and Evaluation and Director, Joint Centre for Bioethics (JCB), Dalla Lana School of Public Health, and University of Toronto. @GibsonJennifer
Conflict of Interest: Maureen Taylor and Jennifer Gibson co-chaired the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying and Jocelyn Downie was a member of this Advisory Group.