The assisted dying debate: Understanding the Supreme Court ruling

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sb10069454g-001For the first time in his life, Dr. Donald Low was wrong.  The renowned Toronto Microbiologist who passed away from a brain tumour in 2013, thought physician assisted dying would take years to become legal in Canada.  He shared that opinion in a video that was recorded eight days before he died.

“It will be a long time before we mature to a level where we accept dying with dignity,” proclaimed Low in September, 2013. “There’s a lot of opposition to it; a lot of clinician opposition to dying with dignity.  I wish they could live in my body for 24 hours and I think they would change that opinion.  I’m just frustrated, not being able to have control of my own life; not being able to make the decision for myself when enough is enough.”

For many Canadians, Low became the face of assisted suicide in Canada when his video plea went viral on YouTube.  Low, who had previously been hailed a hero for his leadership in easing public concern during the 2003 SARS crisis, was now asking for the public’s help as he fought the battle of his life.

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“Don was an advocate for death with dignity and I hope his courage to tell people that changed the conversation in this country,” says Maureen Taylor, Low’s widow, a former National Health Reporter with the Canadian Broadcasting Corporation and now a Toronto-based Physician Assistant.  ”He would be happy about the Supreme Court’s decision in February [to legalize assisted death in Canada] because he believed Canadians were ready for this.  But I also think the ruling would’ve surprised him because it came a lot faster than he expected,” she adds.  “Don was always right, but if he was here now, I would wave my finger at him and say Don, you were wrong.”

While there’s no specific evidence to suggest Low’s video influenced the decisions of Canadian law makers, his passionate address elevated the topic of assisted suicide in Canada – once again – to the forefront of discussions across the country.

Assisted suicide in Canada has a long and controversial history. In 1972, the federal government permitted attempted suicide and the legal right to refuse medical treatment originated at the same time, as technology in medicine granted physicians the ability to keep patients alive longer. In the 1970s, a string of court cases won a mentally capable person the right to refuse medical intervention.

Today, the argument over patient freedom centres around issues of active euthanasia and assisted suicide, as patients who live in constant, unbearable pain or with a deteriorating or terminal illness such as Alzheimer’s and Multiple Sclerosis battle for the right to choose to die.

These arguments are reinforced by the influence of other jurisdictions – U.S. states that have legalized assisted suicide, including Oregon (and the media attention surrounding the Brittany Maynard case); and European countries including, The Netherlands, Luxembourg and Switzerland, where assisted dying is an accepted legal practice. Assisted dying advocates like Steven Fletcher, Winnipeg Conservative Member of Parliament, also play a role in bringing cases of assisted suicide in Canada to the forefront. In March 2014, Fletcher introduced two private member bills – one permitting physicians to assist people in ending their lives under specific conditions and the other proposing a commission to monitor the system.

Also – let’s not forget what happened last June, when The National Assembly in Quebec passed Bill 52 – the ‘death with dignity’ law – allowing terminally ill patients to receive medical aid in dying in that province. The bill replicates the European model of assisted dying by including those individuals experiencing unbearable suffering, but who may not be within months of dying.

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Interestingly, in a 2014 poll facilitated by Dying with Dignity – a Canadian charity – 84 per cent of Canadians surveyed agreed that “a doctor should be able to help someone end their life if the person is a competent adult who is terminally ill, suffering unbearably and repeatedly asks for assistance to die.” The assisted suicide poll surveyed more than 2,500 Canadians and was conducted online by Ipsos, a market research company, last August.

So what does public opinion about assisted suicide in Canada imply about Canadians now, since the Supreme Court ruling; and, what is the impact on Canadian physicians?

“The profession as a whole acknowledges that society is in favour of [assisted dying].  It’s pretty clear in all the opinion polls and there is a social expectation that we develop some way to do this,” says Dr. Chris Simpson, President of the Canadian Medical Association (CMA); Professor of Medicine and Chief of Cardiology at Queen’s University; and Medical Director of the Cardiac Program at Kingston General Hospital and Hotel Dieu Hospital.

While Simpson admits he expected what the ruling delivered, he noted that it being ‘unanimous’ came as a surprise to him and many other physicians in the CMA membership.

“[Also surprising was] the fact that they didn’t refer to terminal illness, it was very much how the patient defined intolerable suffering.  It was a definitive judgment when I was expecting a little bit more,” adds Simpson.  “It [the ruling] leaves a lot of unanswered questions around the details.  If the federal government declines to replace the legislation, then it’s going to be up to a group like ours to determine clinical guidelines and how it’s going to be regulated. It’s part of our civic professionalism.  On issues like this we need to show leadership and we intend to do that.”

According to Simpson, assisted dying among Canadian physicians as a whole is a “really emotional” subject.

“While half to two thirds of physicians would not want to assist suicide, the majority of the profession understands there is a role even if most of us personally feel we don’t want to be involved in that,” says Simpson.  “[Above all], we think there should be a way to provide service to all Canadians who need it.”

Although polls and other tools that gauge public opinion appear to be in favour of assisted death in Canada, there remains a strong opposition, comprised of many individuals and organizations that make up that opposition – all of whom are fighting to have their voices heard.

Dr. Will Johnston, Chair of the Euthanasia Prevention Coalition in British Columbia is one of those voices.  He says the Supreme Court’s ruling on assisted suicide was “reckless and had the hallmarks of a predetermined outcome.”

“The Supreme Court has left itself   in a position where it is hard to understand who they would say no to, to a request for assisted suicide,” Johnston explains.  “They pointed out that you don’t have to be terminally ill or physically suffering.  You have to be an adult, but the Charter forbids age discrimination.  You are supposed to be competent, but the door has been left open for the next court to endorse killing of those now incompetent based on wishes expressed in the past. Basically, there is nothing in the ruling to prevent the abuses we have seen in Europe.”

Johnston adds that the kind of irresponsibly wide open ruling that the Supreme Court has created “is like tossing a hand grenade to parliament which has been told to make a rigorous and stringent law.  With the lack of checks and balances, it remains to be seen how effectively the government can do this.”

Dr. Catherine Ferrier, President of the Physicians’ Alliance against Euthanasia and a Montreal physician who works in the division of Geriatric Medicine at the McGill University Health Centre, is also opposed to physician assisted death in Canada.  Ferrier, who has focused her career on caring for patients with dementia, says Canada needs to pay attention to the “slippery slope” and protect those people who are vulnerable to abuse.

“Killing is not healthcare.  To say people suffering from dementia are better off dead is an insult to my patients and other people who have dementia,” she says.  “The goal of medicine is to preserve life, to support people who are facing death, not to cause the death of patients.  In the Quebec law, they define euthanasia as a medical act.  But it’s not a medical act. It’s an act contrary to the goals of medicine.”

Ferrier says people are answering polls based on a misunderstanding of what words mean.  In other words, the notion that to be “dignified,” a person has to be fully autonomous, Ferrier says, is basically taking words and “redefining them.”

Instead of focusing on assisted death, Ferrier strongly urges Canada to look at the problems and fix these problems. She says that someone who expresses the need to die is someone who is “asking to receive better care.” That they don’t mean it when they say they want to die; “they mean help me; help me to feel better so that my life has value.”

“What we really need is to improve palliative care and ensure that people have access to expert end of life care,” she explains.  “There is a lack of access to palliative care services and to doctors who are trained to administer palliative care.  Because of this lack of resources and training, people don’t always get good care at the end-of-life.”  Also, palliative care, as it has developed, is focused mostly on patients dying from cancer. With other diseases we don’t know when people are going to die, and their needs may not be the same.  They also need to receive high quality end-of-life care. Ferrier feels strongly that everybody who is looking after patients who are dying “should have the skills to care for patients in end of life.  That means having a team, with a diversity of medical and psychosocial skills, which can address all the needs of the patient.”

Palliative care and protecting the vulnerable population are at the forefront of Simpson’s mission and message as CMA President.

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Simpson points out that many people assume if there is a focus on medical aid and dying it will distract from a focus on palliative care.  However, he adds that what he’s seen in other jurisdictions, in Europe and the U.S., the opposite actually occurs, where there is more emphasis placed on palliative care and it “raises the bar for the entire end –of-life experience.”

“We’re still going to be very heavily based on palliative care,” Simpson says about the CMA’s position.  “We have a white paper coming out shortly and we’re going to be really promoting palliative care.  There are pockets in Canada of real excellence in palliative care.  Across the country it’s been estimated that between 16 and 30 per cent of Canadians who would benefit from palliative care receive it.  There’s not enough palliative care available and we need to work on that.”

“We also need to address the vulnerable population,” with regards to assisted death, Simpson adds.  He says that having legislation will make the system better and will be a very clear “rulebook” for everyone to follow, ensuring the appropriate safeguards are in place for people who may face abuse in the case of assisted death.

With two sides to a very controversial and complex issue, what does the future hold while the Canadian law makers are deciding how to proceed?

“It’s a two prong strategy,” says Simpson.  “We’re [the CMA is} working to generate a detailed guideline of what assisted dying will look like.  As we develop this we will be reaching out to provincial regulatory bodies and the federal government directly, ensuring that we have some mechanism to stay in touch, to make sure the end results are harmonized.

At its foundation, assisted dying is like any other health care issue in this country – it’s about patient care, so how does Simpson think patients benefit from access to assisted dying?

“We’ve seen that the majority of people in other jurisdictions derive so much comfort from having the drugs.  It’s the notion that they have the control – knowing that it’s [assisted death] an option re-establishes control even though few people will actually use it.”

Almost two years after Low’s death, Taylor says having control is paramount.

“If we lived in Oregon and Don had the prescription [for the lethal medication], he would’ve been calmer,” Taylor says.  “He would’ve put it in his bedside table and the anxiety may have dissipated a little if he just knew it was going to be available.”

As she plans the days ahead, with hopes of greater healing and remembering her husband’s “better” days – before a terminal diagnosis – Taylor is passionate about helping Low’s grandchildren to remember him – “what a great man he was and what he did for infectious disease in Canada.”  She will also remain an advocate for assisted dying, fighting for what she knows her husband wanted.

“There is no slippery slope,” she says.  “Assisted dying will come to Canada and we are ready for it.  Canada will do this in a compassionate way, allowing access to those who need it and putting the proper safeguards in place for those who shouldn’t be using the program.”

Understanding the Supreme Court of Canada’s ruling on Assisted Dying in Canada

  • February 6, 2015 – Supreme Court votes unanimously in favour of doctor-assisted death in specific cases
  • The ruling states that competent adults with grievous and irremediable medical conditions have the right to ask a doctor to help them die
  • The court has given federal and provincial governments 12 months to craft legislation to respond to the ruling. Until such time, the ban on doctor-assisted suicide remains in place. If the government doesn’t write a new law, the court’s exemption for physicians will stand
  • The case was brought forward by the B.C. Civil Liberties Association on behalf of two women, Kay Carter and Gloria Taylor, both of whom have since died. A lawyer on behalf of Carter and Taylor argued that the two women were being discriminated against because their physical disabilities didn’t allow them to kill themselves the way able-bodied people could
  • The decision comes 22 years after the Supreme Court rejected a claim by Sue Rodriguez, a British Columbia woman with amyotrophic lateral sclerosis (ALS), to have a doctor help her to commit suicide
  • With this ruling, the rest of Canada joins Quebec which passed Bill 52 – the ‘death with dignity’ law – allowing terminally ill patients to receive medical aid in dying in that province as of June 2014

 

What does the Supreme Court’s ruling on Assisted Dying mean for Palliative Care in Canada?

  • 70 per cent of Canadians don’t have access to Palliative Care
  • The Canadian Medical Association (CMA) estimates that between 16 and 30 per cent of Canadians who would benefit from good palliative care receive it, out of the 250,000 people who die every year
  • The CMA affirms their commitment to increasing awareness and improving palliative care across Canada
  • Statistics show that in jurisdictions where assisted death is legal, high quality palliative care is defined as “excellent”
  • According to Statistics Canada, approximately 70 per cent of Canadians will die in a hospital and of those who do, 10 to 15 per cent will be admitted to an Intensive Care Unit

 

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