As­sisted dy­ing law leaves some peo­ple to suf­fer

Kingston Whig-Standard - - OPINION - ROBIN BARANYAI

Med­i­cal as­sis­tance in dy­ing (MAID) is a con­sti­tu­tion­ally pro­tected right. But 21/2 years af­ter leg­is­la­tion was en­acted to sup­port and pro­tect Cana­di­ans fac­ing ir­re­me­di­a­ble suf­fer­ing and fore­see­able death — as well as their care­givers — it’s clear some peo­ple’s suf­fer­ing is more equal than oth­ers.

Up­dat­ing the law to re­flect chang­ing so­cial mores takes time and care. When the Supreme Court over­turned the ban on physi­cian-as­sisted sui­cide, it im­posed a rea­son­able dead­line for new fed­eral leg­is­la­tion. The Harper Con­ser­va­tives dodged its ad­vance like a boxer in a ring, pug­na­ciously dar­ing it to ex­pire.

By the time the in­com­ing Lib­er­als crafted a leg­isla­tive frame­work in Bill C-14, there was sig­nif­i­cant pres­sure on the Se­nate to get it passed quickly. The cham­ber of sober sec­ond thought pro­posed a hand­ful of amend­ments, the most im­por­tant of which — re­mov­ing the re­quire­ment of a rea­son­ably fore­see­able death — was re­jected by the House of Com­mons.

Se­na­tors wanted MAID to be more broadly avail­able to those suf­fer­ing with no end in sight. But they were urged to de­fer to their elected peers in the House, who wanted more time to study MAID in three vul­ner­a­ble cir­cum­stances: ma­ture mi­nors, men­tal ill­ness as the sole con­di­tion, and ad­vance di­rec­tives for those who might lose their abil­ity to con­sent.

The hum­bled Se­nate did get in a few well-placed jabs. One of these was to im­pose time­lines on fur­ther study. The fruits of these labours are due this month.

A panel of ex­perts from the in­de­pen­dent, fed­er­ally funded Coun­cil of Cana­dian Academies will sub­mit three re­ports to Par­lia­ment in De­cem­ber. They will not make rec­om­men­da­tions; rather, they will sum­ma­rize ev­i­dence and iden­tify gaps in knowl­edge re­lat­ing to MAID for the three vul­ner­a­ble groups.

Their ob­ser­va­tions won’t come in time for Au­drey Parker, the Hal­i­fax woman who bravely put a spot­light on her fi­nal days — seek­ing MAID be­fore she was ready — to high­light the hu­man cost of deny­ing ad­vance di­rec­tives.

Pa­tients must be con­scious and men­tally sound im­me­di­ately be­fore death to af­firm their fi­nal wishes. Parker had been as­sessed and ap­proved for MAID, but feared the re­quire­ments of late-stage con­sent would rob her of re­lief when she was ready to die. “I can’t pre­dict when the can­cer will move into my brain,” she wrote in a fi­nal Face­book post. “Dy­ing is a messy busi­ness.”

Cana­di­ans with de­men­tia face the same co­nun­drum. They can de­cide at what point the progress of their disease amounts to in­tol­er­a­ble suf­fer­ing, but their re­quest for MAID must be de­nied if they are not lu­cid in their last mo­ments.

Peo­ple fac­ing death should have a chance to change their mind. But what if they lose the ca­pac­ity to speak for them­selves? Er­ring on the side of pre­serv­ing life amounts to pro­tect­ing the vul­ner­a­ble by pro­long­ing their suf­fer­ing.

Cana­di­ans can write a power of at­tor­ney for per­sonal care, spec­i­fy­ing in ad­vance when they would refuse heroic mea­sures, such as be­ing placed on a ven­ti­la­tor. Ig­nor­ing these clearly ar­tic­u­lated fi­nal wishes would be con­sid­ered ob­scene.

Ad­vance di­rec­tives are a log­i­cal ex­ten­sion of the same prin­ci­ple. As­sisted death is not the same as with­hold­ing treat­ment, but MAID is nev­er­the­less a con­sti­tu­tion­ally pro­tected el­e­ment of com­pas­sion­ate care. The right to life is not a duty to live.

Fol­low­ing Parker’s un­timely death, Jus­tice Min­is­ter Jody Wilson Ray­bould re­it­er­ated the ex­ist­ing law strikes the right bal­ance be­tween pa­tient au­ton­omy and pro­tect­ing vul­ner­a­ble Cana­di­ans. The com­ing re­ports, she said, will spark con­tin­ued con­ver­sa­tions, but: “We’re not con­sid­er­ing chang­ing ... the leg­is­la­tion.”

They needed more time for study; they got it. Con­sid­er­ing changes is the min­i­mum vul­ner­a­ble Cana­di­ans de­serve. Real suf­fer­ing is at stake.

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