Don’t regulate physicians, some urge
Others want federal guidelines
As pressure mounts on the Harper government to enact new doctor-assisted death legislation, a provocative school of thought is emerging: Why not leave the field unregulated?
“We don’t legislate to regulate how doctors withdraw life-saving treatment. Why must we legislate to regulate how they administer suicide?” said Amir Attaran, a University of Ottawa law professor who holds the Canada Research Chair in law, population health and global development policy.
It is illogical, he said, to believe “we must legislate or else” in the wake of the Supreme Court of Canada ruling legalizing assisted suicide.
“If no regulations were passed, would that be a tragedy? No,” agreed Arthur Schafer, director of the University of Manitoba’s Centre for Professional and Applied Ethics.
Doctors and family members have long made decisions about life support — “tens of thousands of times every year in Canada” — in the absence of laws or regulations. In palliative care wards, a patient can contract pneumonia and not be given an antibiotic “because the patient believes that it’s time to go,” Schafer said.
“It used to be called passive euthanasia, and I’m not aware of any cases of abuse, and no one from the evangelical Christian community or the disability rights community is raising alarms about this situation,” he said.
“If it also happens that a physician can assist a patient to die, I don’t think that that would lead to any very grave problems.”
Leaders of the Canadian Medical Association are calling for federal legislation — with their input — to clarify what the process would be for determining eligibility, what the Supreme Court meant by permitting doctorassisted death for those with “grievous” medical conditions and other practical matters.
“A lot of doctors are very nervous about this. They’re not very keen on participating in an environment where a lot of the details aren’t clear,” said Dr. Chris Simpson, the CMA president.
In its ruling, the Supreme Court of Canada gave Parliament one year to craft a legislative response, should it choose to do so. The Conservatives said this week they planned to make that deadline, but a federal election scheduled for this fall could bring a change in government.
Attaran said Canada “muddled through” without an abortion law after the Supreme Court decriminalized it, “and I think we’ll do the same on assisted suicide.”
“For everyone who is hyperventilating that the (assisted suicide) void must be filled by legislation — and, at that, federal legislation — I would say you’re ignorant of history,” Attaran said.
Attaran said the Supreme Court decision favoured “a carefully designed and monitored system of safeguards,” but did not say they needed to be legislated safeguards.
In the absence of federal legislation, though, it would be up to provincial governments and physicians’ colleges to fill in the gaps, Schafer said. That could create a hodgepodge of medical aid in dying regimes, where “some dying patients may receive assistance in relieving their suffering through a hastened death in some provinces, and not in others,” he said.
Doctors who specialize in care for the dying say some guidance is needed, whether it comes from the federal government, the provinces or their own medical licensing bodies. “We would want some guidelines at a minimum around what this should look like,” said Dr. Russell Goldman, director of the Temmy Latner Centre for Palliative Care at Toronto’s Mount Sinai Hospital.
“From a public safety perspective, you would want some mechanism where there is monitoring: Is there a doctor who is a real outlier in his practice? Is there someone who’s pushing through 60 of these (patients) a year but he’s not a palliative care doctor?” Goldman said.
“You want some kind of a system where you could at least pick that up sooner rather than later.”
But Attaran argues that when the federal government has tried to regulate ethically sensitive matters in the past, “they’ve done an appallingly bad job of it,” he said, pointing to the nowshuttered federal agency that was struck to oversee Canada’s fertility industry. Attaran said the “dysfunctional” agency, Assisted Human Reproduction Canada, “performed next to nothing for several years before it was abolished.”
“If this is the high water mark of what the federal government can achieve in regulating health interventions as opposed to prohibiting them, I really would prefer the federal government to stay out of it.”