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Assisted suicide -- what next?

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Over the past few weeks, the topic of assisted suicide has been front and centre in Canadian news: from the Province of Quebec debating Bill 52, to discussions between heath ministers, to Dr. Donald Low's poignant and compelling video plea for legalization and now the decision from the B.C. Court of Appeal in Carter v. Attorney General, overturning the trial decision in Carter and maintaining the legal status quo established by the Supreme Court of Canada in the 1993 Sue Rodriguez case.

The Appeal Court decision found the lower court was bound by the Supreme Court's decision in Rodriguez. Accordingly, the Supreme Court alone can judicially revisit the issue of the constitutionality of the prohibition of assisted suicide in Canada.

In all likelihood, the Carter case will be appealed to our highest court for judicial reconsideration of whether assisted suicide is to be "enshrined" as a constitutional right. A spectrum of legal players is now engaged and it finally seems like a conversation can begin in earnest. However, there will still be no easy solutions.

A telephone survey conducted by Forum Research in June 2012 asked 1,165 randomly selected Canadian residents over the age of 18 whether they were "in favour or opposed to making physician-assisted suicide legal in Canada for the terminally ill." Some 68 per cent responded in favour. While this information demonstrates public support for physician-assisted suicide, it provides scarce insight into Canadians' understanding of exactly what is physician-assisted suicide.

Notwithstanding that the B.C. Supreme Court could not depart from the Rodriguez precedent, the trial court nonetheless provided a judicial interpretation that a constitutionally sound Canadian assisted-death model could not be limited to physician-assisted suicide (prescribing lethal medication for self-administration) for the terminally ill patient. The model would also need to legalize euthanasia (administration of a lethal substance by a physician) and be extended to people in a state of advanced weakening capacities and whose serious illness or disability showed no hope of improvement. Proceeding then with a U.S.-type model such as that established in Oregon, Washington or Vermont (physician-assisted suicide for those with six months or less to live) would likely be subject to constitutional challenges in Canada.

The Switzerland assisted-suicide model has also been pre-emptively dismissed in certain Canadian legal circles. In the Swiss scheme, assisted individuals do not require a medical illness and assisters do not need to be physicians.

Because of this, the B.C. Supreme Court paid little attention to the Switzerland model, but Canadians frequently refer to it. The overall point to be taken here is there can exist a very significant disconnect between the analytical machinations of courts and the public's understanding.

The Quebec National Assembly is considering Bill 52, which would allow for "medical aid in dying," and includes euthanasia for patients suffering from an incurable serious illness and in an "advanced state of irreversible decline in capability." Quebec is proceeding on the basis of its provincial authority over health, despite the federal government's jurisdiction over criminal matters. Apart from the certainty of a federal challenge, the severing of euthanasia from criminal law is a departure from the approach of the very small handful of jurisdictions that currently allow euthanasia -- the Netherlands, Belgium and Luxembourg -- all of which leave open the channels for criminal investigation.

In Low's video, we hear how palliative care would not be able to address his concerns about the physical decline he anticipated. His clarity was likely enhanced by his professional knowledge of what palliative care could offer him.

Arguably, not all Canadians would have that same level of knowledge or confidence. Only 15 per cent of Canadians are estimated to have access to palliative care. If euthanasia were to be legally advanced on the basis of autonomy and freedom of choice, then at minimum, national, standardized palliative care must also be made available to all Canadians. Otherwise, how could the law genuinely assert freedom of choice existed in an assisted-death scheme for the dying?

Quebec's Bill 52 would establish palliative-care rights but merges palliative care and euthanasia into "medical aid in dying." When Luxembourg legalized euthanasia, it also passed a law establishing the right to palliative care, maintaining an ideological distinction between the two activities.

It would be dangerous for us to assume the fear of physical dependence is a fear shared by all Canadians. Countless individuals live with dependency that they, their friends and family do not equate with a burden.

This is not to dismiss in any way the fears faced by people in Low's situation, but simply to flag that for many people, whether care and assistance are perceived as a burden depends on the sentiments and attitudes through which care is provided.

Sigmund Freud once wrote, "it is indeed impossible to imagine our own death and whenever we attempt to do so, we can perceive that we are in fact still present as spectators."

Regrettably perhaps, it is as spectators that we must proceed in trying to determine how the law should respond to the needs and pleas of the dying. Neither judicial activism or, to borrow the language of the B.C. Court of Appeal, a "top-down design of a broadly applicable system for assisted suicide" are sufficient for a Canadian democratic solution.

If we are to take anything from the plea of Dr. Low, it would be to respond to the issue of assisted death in a mature, reflective, and compassionate manner. To achieve this, we must be committed to listening deeply to the worries, concerns and fears of all sides.

Mary Shariff is a law professor at the University of Manitoba who teaches bioethics and law.

Republished from the Winnipeg Free Press print edition October 15, 2013 0

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