Tom Blackwell
on the Oregon example, and what’s next for Canadians.
Most of the undergraduates Courtney Campbell teaches at Oregon State University have grown up with a law that lets doctors help the terminally ill kill themselves. And, he says, they don’t really understand the fuss around it.
“They wonder what’s wrong with all the other states in the United States … that don’t have something like this,” said the medical ethics expert. “It’s just become part of the landscape here. “
Sixteen years after Oregon became the first North American jurisdiction to legalize assisted suicide, the law is almost a non-issue in the state, the program’s annual statistical reports now warranting barely a mention by local media, said Prof. Campbell.
He credits the concept’s wide acceptance to detailed rules that address everything from what defines a terminal illness to who can witness a patient’s suicide request — as well as transparency about how “death with dignity” is carried out.
Canadian authorities would be well advised to adopt similarly clear oversight as they implement Friday’s historic Supreme Court of Canada ruling, he suggested.
“You want to avoid a sort of American Wild, Wild West — angels of medical mercy going around without any kind of accountability or responsibility,” said Prof. Campbell, who has studied Oregon’s experience closely.
“So long as this doesn’t look like it’s a process run amok … people are willing to accept it and the levels of approval increase over time.”
The historic and groundbreaking decision from Canada’s top court sweeps away the existing law. It gives Parliament a year to draft new legislation that recognizes the right of clearly consenting adults who are enduring intolerable suffering to seek medical help in ending their lives.
The judgment, which is unsigned to reflect the unanimous institutional weight of the court, says the current ban infringes on all three of the life, liberty and security of person provisions in the Charter of Rights & Freedoms, and it does not limit physician-assisted death to those suffering a terminal illness.
The decision is only the beginning of what is likely to be a complex — and likely contentious — process of putting into effect Canada’s new era of doctor-assisted death, say legal and medical experts.
It will likely start with the federal government forging a new law. It could end with a patchwork of dif- ferent systems across the country, each province implementing its own guidelines.
“If it’s not criminal, it’s health,” argued Juliet Guichon, a bio-ethicist and lawyer at the University of Calgary. “If it’s health, it’s provincial, so then it falls to the provinces and territories to regulate it.”
Prof. Guichon said she would urge medical regulatory bodies from each province to meet and come up with a national set of rules, which provinces could then adopt to avoid significant differences from jurisdiction to jurisdiction.
The federal government could just ignore the judgment, which would lead to the Criminal Code section being “vacated,” with nothing to replace it, said Carissima Mathen, a constitutional law expert at the University of Ottawa.
It is much more likely, though, the government will draft a law that specifically sets out when and for whom it is permissible to help in someone else’s suicide, she said. Prof. Mathen believes the Conservatives will try to avoid key issues stemming from the decision being decided provincially.
And with the Harper government’s strong opposition to doctorassisted death, they could draft the new legislation to abide by the ruling, but limit access to the service as much as possible, she said.
“They might put into place very stringent standards for determining if there is informed consent, there is no coercion,” said Prof. Mathen. “They might require a committee … to get approval. They might set up quite a few procedural hurdles.”
For the nation’s doctors, the details to be worked out — whether in federal or provincial law — are crucial.
The issues that need to be spelled out in laws or regulations include who qualifies for assisted dying, whether eligible patients would have to have a terminal illness and, if so, who would determine that status, said Jeff Blackmer, head of the Canadian Medical Association’s ethics office.
The rules should also delineate what sort of suffering — just physical or psychological as well — would qualify for a doctor’s help to die, he said.
“The more specificity, the better,” said Dr. Blackmer. “How do we evaluate those patients and determine if they qualify or not?”
He said the association’s 80,000 members seem to lean toward the kind of legislative regime implemented in Oregon and Washington state, as opposed to the more permissive systems in Switzerland, Belgium and the Netherlands.
The European laws have sparked controversy by extending the right beyond terminal, consenting adults, allowing, in some cases, doctors to help hasten the death of severely disabled babies or people with grave psychiatric problems.
On the other hand, the pioneering Oregon law specifies someone must be fatally ill, have less than six months to live and have voiced the wish to die in writing and orally before getting suicide help. At that point, the 3,600-word law stipulates, a doctor signs a prescription for a lethal drug, which patients takes themselves.
The legislation requires detailed reporting annually on the number of deaths, the nature of patients who take advantage of the program and other data. The death statistics have climbed slowly but relatively steadily, from 16 when the Death With Dignity Act came into force in 1998 to 71 in 2013. That still only two of every 1,000 deaths in the state, which has a population of about four million people.
Just under 26% of the 122 people given a lethal prescription in 2013 by 63 doctors never used the drug.
The new Quebec assisted-death legislation is both less specific about how the system will work, and broader about who might qualify. It would permit unspecified “medical aid” in dying not only to people who are terminally sick, but also to those suffering from an advanced and irreversible decline in ability, or experiencing constant, unbearable physical or psychological pain.
Prof. Guichon said she worries about a repetition of what happened in 2010 when the Supreme Court overturned most of a federal law governing the fertility-treatment industry, declaring it an incursion on provincial jurisdiction. Only Quebec has ever stepped in to regulate the contentious area.
She expects politicians and regulators will feel compelled to draft guidelines that restrict assisted suicide’s use and avoid the slippery slope critics often warn will result.
“They will be pressured to act quickly because of fear,” said the ethicist. “There is a significant amount of fear, both among physicians as a group and among patients, people generally.”