Unresolved quandaries of medically assisted death.
Legislation on assisted death, a service that has been legalized in this country for adults near the end of life since 2016, is about to be changed drastically.
Parliament is poised to pass Bill C-7, which would expand eligibility for assisted death to adults whose death is not near. While the proposed amendments do not make adults suffering solely from mental illness eligible for an assisted death (at least for now), calls for these people to be eligible are growing steadily louder. For this reason, and others, this bill should not become law.
These impending changes to the law on assisted death will likely coincide with the forced closure of the Irene Thomas Hospice centre by British Columbia’s Fraser Health Authority. The closure stems from the hospice’s refusal to offer assisted death since it betrays the principles of palliative care at the end of life.
On the surface, expanding access to assisted death may seem to go hand-in-hand with closing a hospice that refuses to provide it. Since euthanasia was legislated into Canada’s health-care system, the prevailing notion is that Canadians must be able to access it wherever they choose and that health-care professionals are required to provide it. Or are they?
In Carter v. Canada, the 2015 ruling of the Supreme Court that opened the door to assisted death, the court did not determine that medically assisted death is a freestanding charter right. It invalidated, on charter grounds, the absolute Criminal Code prohibition on assisted suicide, to the extent that it criminalized medically assisted death in certain medical circumstances.
The court did not mandate that the procedure become part of our health-care system. Indeed, the court has no jurisdiction to mandate such a policy decision. Instead, it predicted that government would intervene to manage assisted death rather than leave it unregulated, and called on governments to include provisions for those who conscientiously object to the practice. These important but often overlooked features of the Supreme Court decision inescapably bear on what the process ought to look like.
While governments and regulators have worked to introduce, normalize and expand assisted death in Canada over the past five years, some have woefully neglected the call to reconcile the legalization of assisted death with the moral or ethical freedom to object to it.
Such objections are based on the fundamental freedoms and principles of justice espoused in the Canadian Charter of Rights and Freedoms, national codes of ethics for Canadian healthcare professionals and federal law, nothing in which, to quote the existing legislation, “compels an individual to provide or assist in providing medical assistance in dying.” These constitutional, legislative and policy considerations beckon for meaningful reconciliation of assisted death and the conscientious objection to being involved in it.
Reconciliation, as we know from contexts such as the relationship between Indigenous and non-indigenous Canadians, is a high calling. Reconciliation requires meaningful efforts by the parties that are responsible for achieving it. It suggests that people on both sides of the issue have fundamental interests at stake. This objective should be top of mind when crafting legislation and subsequent policies on the matter.
We invoke reconciliation intentionally. In Carter, the court called on governments and regulators to reconcile access to assisted death with conscientious refusals to participate in it. The “charter rights of patients and physicians,” the court declared, “will need to be reconciled.”
What we have witnessed since that decision falls well short of reconciliation. So much so that one might wonder if health-care workers and institutions even have the right not to participate in assisted death.
On assisted death, the rights of the patient have been the primary focus of lawmakers, regulators, courts, academics and the media to a degree that has obscured and eroded other fundamental interests at stake — specifically, the freedom not to participate in killing.
Until now, freedom of conscience has been maintained through the ethical practice of hospice and palliative care. Death and dying are experiences that everyone will go through, and many will experience them in the context of health care. They may need palliative care at the end of life, which may include medical interventions to ease their suffering from pain. For centuries, the ethos of health care has, with good reason, been to meet patients with compassion, respect for their human dignity and provide them with excellence in care. This is an ethos that can be fulfilled with high-quality palliative care.
Other forms of suffering — such as existential suffering — require far more than pain control. They require holistic (psychological, social and spiritual care) that contributes to one’s overall health and well-being at the end of life. Palliative and hospice care can also serve this objective, without enlisting the option of intentionally killing someone.
Yet in Canada, health-care professionals with expertise in these areas remain in short supply. To refocus our efforts to do a better job of helping suffering Canadians, we need to advance formative education in palliative and hospice care and promote research in these areas to treat and cure individuals suffering from diseases that will otherwise cause them to experience a painful death. We also need further supports to ensure palliative and hospice care are available to all Canadians. This endeavour requires the state to not disturb the places in which such care is available.
The reconciliation called for in Carter requires the state to make every effort to accommodate health-care professionals and institutions that, for moral and ethical reasons, do not want to be involved in assisted death. The prevailing approach to date has been hostile to conscientious health-care professionals and organizations that legitimately object to being part of an act that, in their view, has nothing to do with health care. The forced closure of the Irene Thomas Hospice for refusing to perform assisted death within its walls shows that the powers that be have gone too far. This decision must be reversed immediately.
Canadian health-care professionals must be free to fulfil their calling to care for, and not to kill, those who are sick and dying. Human rights, justice, dignity, solidarity and liberal democracy all demand that the neglect of freedom of conscience in Canada’s health-care system be reconciled before it is too late. It would, most importantly, be the ethical thing to do.
THIS BILL SHOULD NOT BECOME LAW.