An issue too important to rush
The r eport of an e xpert panel on physician- assisted dying, released M onday, is meant to provide a guiding path for Canada’s provinces and territories as they plan legislation enabling people to end their own lives. It also highlights again the many troubling aspects of euthanasia t hat l ay along t hat path.
The report was commissioned in the wake of the Supreme Court of Canada ruling in February that mentally competent adults suffering from “grievous and irremediable” illness had a right to doctor- assisted death, and gave Ottawa a year to produce legislation. The provinces will need additional legislation to comply with the federal law, and appointed the nine- member panel to offer advice. Among its 43 recommendations are several that carry the potential for intense disagreement.
The panel suggests “substitute decision- makers” should have no authority to provide consent in cases where patients lack competence to decide themselves. It leaves it up to doctors to decide com- petency in many cases, using “existing processes.” It advises against an appeal process in cases where a doctor considers a patient ineligible, but suggests patients should be free to try another doctor. It recommends against a “reflection period” once a patient chooses to die; it feels there should be no need for a doctor on hand for a self- administered death; and it says faith- based institutions can refuse to assist a patient, but must make timely arrangements to transfer the patient to a non-objecting alternative.
Perhaps most unnerving is the panel’s belief that age should not be an issue in deciding eligibility. If a child has the “capacity” and “competence,” the panel sees no reason to reject his or her judgment. “I could definitely see 12- year- olds having that capacity, and I could see 16- yearolds not having that capacity,” said co-chair Maureen Taylor. She couldn’t see a five- or seven- year- old having the same capability, however.
Fine, but why accept Taylor’s standard? The Supreme Court specified adults should have t he ri ght to choose death, but did not include a definition of an adult. Many Canadians would consider a 12- year- old far too young to make a decision on his or her own death, just as Taylor views it as inconceivable f or a seven- year- old. Taylor objects to the notion of an “arbitrary” age at which adulthood begins, but Canada does just that in many other areas of the law, setting dates at which individuals are deemed capable of driving, buying alcohol or consenting to sexual activity. The proscriptions may be “arbitrary” — some children under 16 could certainly learn to drive — but they are essential to maintaining a uniform approach t hat allows f or practical application in the vast majority of cases. Can we reasonably accept that a child deemed too young t o make decisions about sex would have the capacity to duly weigh the implications of a decision to end his or her own life? Most parents would balk at a 12- year- old’s demand for a tattoo; but they are to accept that the same child might be ruled able to request to die?
As the panel notes, each case is different. That is part of the concern. Should doctors be expected to rule when a child is unusually suited to reaching conclusions that would defy many adults? Given the panel’s opposition to an appeals process, are we to accept that the child — blocked by one doctor — should be free to go shopping for a more compliant one? And given its rejection of a reflection period, should the death go ahead as soon as the child can find a willing physician?
The provinces are already divided on t heir view of adulthood. The report notes that laws on competence and consent vary across the country. A person ruled incapable of consent in one jurisdiction might be perfectly acceptable in another. Without a uniform standard, the provinces could find themselves competing for the dubious distinction of being “euthanasia- friendly” or “euthanasia- unfriendly,” just as they are now on abortion access.
These are troubling questions, and may appear to raise unlikely scenarios. But if we know anything about the l aw and medicine, we know that the most unexpected of situations have a way of occurring. Once in place, the law will have to be applied, no matter how flawed.
It’s a situation that calls for the utmost in caution before proceeding. The Supreme Court has given Ottawa until February to craft a law, but the new Liberal government has requested a six-month extension. That still may not be enough time, if Tuesday’s report and the questions it raises are any indication. Not only is it essential that the court grant the extension requested, but it should ensure the government has all the time needed to get the issue right. We’ve seen too many examples of the damage done when governments rush to decisions, or hurry to meet deadlines. The question of assisted dying is too serious to let it become one of them.
Ottawa must be allowed to take the time to get Canada’s assisted dying law right