Waitlist purgatory
The Supreme Court of Canada has ruled that the ban on physician assisted suicide is unconstitutional. In its unanimous decision in Carter v. Canada, the high court has declared: “The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice.” That’s a big deal.
It’s a big deal for patients and family members concerned with end-of-life decision making, which is most of us at one point or another, and it’s a big deal for doctors who have in a sense been handed the weightiest of powers over human life. It’s a big deal for Parliament, too, since the court has suspended its judgment for 12 months, giving politicians a year to come up with a law that meets the newly established constitutional standards. This focus on a hot-potato issue that bitterly divides voters in unpredictable ways is about the last thing elected officials could have wished for during an election year.
But the Carter decision is a big deal for another group of people, too. In a little less than a month, Walid Khalfallah, Chris Chiavatti, Krystiana Corrado and Mandy Martens will be in court in British Columbia arguing for their constitutional right to access the health care they choose, including health care outside the government system.
They are all patients who experienced real suffering or harm while stuck on a healthcare waitlist. Walid, who is now 18, ended up paralyzed after waiting over two years for spinal surgery to correct a progressive deformity.
My organization, the Canadian Constitution Foundation, is supporting their case, which we’ve always felt was an extremely strong one. After all, the Supreme Court of Canada already ruled many years ago in its decision in the Chaoulli v. Quebec case that “access to a waiting list is not access to health care.”
But happily the Court’s decision last week in Carter has added even more power to our patient plaintiffs’ position that the Canadian Charter of Rights and Freedom protects their right to make their own choices about their bodies and health without government interference.
“The law has long protected patient autonomy in medical decision-making,” the Court said in Carter. It then highlighted its own previous decisions in which it has emphasized that the “right to ‘decide one’s own fate’ entitles adults to direct the course of their own medical care … [I]t is this principle that … is protected by s. 7’s guarantee of liberty and security of the person.”
In other words, the Court ruled that because the ban on assisted suicide caused a patient to “suffer physical or psychological pain and imposed stress,” it was a violation of the patient’s security of the person. Sadly, too many Canadians know firsthand the physical and psychological pain, not to mention stress, caused when a patient is forced to languish on a health-care waiting list and is barred from seeking the diagnostic test or surgery he requires outside the government system.
I didn’t know Walid or his mom Debbie during the 27 months that they waited for Walid’s back surgery, but when I talk to Debbie about it now, I can still hear in her voice the agony of watching her child suffer and being helpless to do anything about it. She told me privately last year that she still sometimes wonders if she could have got Walid his operation sooner if she had only made more of a fuss (stood screaming in the hospital) or known the right person. That speaks volumes, I think, about both the flimsy fiction that we currently have a one-tier system (most of us realize that those with connections and volume get different treatment) and the soul-crushing nature of waitlists, even beyond the physical damage they cause.
Opponents of our case claim that it’s necessary for our four patient plaintiffs to simply accept and deal with the pain and suffering caused by the ban on accessing private care because there is a greater so-
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cietal interest in maintaining the government’s health-care monopoly.
Not only is that justification morally questionable, it’s simply not legally true when the individual right to life, liberty and security of the person is at stake. In Carter, the Supreme Court reminded us of its previous holding that “[i]t is not appropriate for the state to thwart the exercise of the accused’s right by attempting to bring societal interests into the principles of fundamental justice and to thereby limit the accused’s s. 7 rights.”
In other words, the government can’t win this one simply by claiming we’re better off as a whole with a healthcare monopoly that sacrifices individuals’ fundamental autonomy.
As historic and groundbreaking as the Court’s Carter decision seemed last week, it may very well prove to be even more revolutionary in the months and years to come. For the health of our country, I hope so.