Mr. Speaker, I am pleased to have an opportunity to participate in today's debate on the way forward in responding to the recent decision by the Supreme Court of Canada on the issue of physician-assisted dying.
The issue of physician-assisted dying is very complex and evokes a range of deeply held feelings and responses that depend in large part on the experiences of each individual. Perspectives cut across demographic, political, and religious lines. This is a personal issue, above all else.
The member for Papineau, the Liberal leader, mentioned earlier that his views were informed by the last days he spent with his father. I think we have all had those personal experiences. I certainly went through that with my parents, with other family members, and with good friends. I think every Canadian has lived through a situation with a loved one where they saw a difficult end-of-life situation. We all have a view on this, and I think Canadians broadly need to be consulted in the process, because it is such a personal thing to every Canadian.
This issue will require us to confront the reality that every one of us will face death and the possibility that each of us will experience suffering at some point in our lives that may make it necessary to seek the assistance and support of others. These are fundamental aspects of what it means to be human.
I would like to assure all members that our government fully appreciates the serious nature of the challenges that lie ahead. We will be opposing the motion, because we intend to launch meaningful consultations soon with Canadians and key stakeholders so that we can hear all perspectives on this difficult issue.
It will be imperative for Canadians to also appreciate the complex and difficult nature of these issues. There are no easy answers here. We will ensure that during the months to come Canadians understand the subtleties of the issues before us and also understand the existing landscape of health care options at the end of life. For instance, every person can refuse treatment or stop treatment that has already been started, even where the result is that they will die. Many Canadians may be unaware of this existing right. Many seem to believe that physician-assisted dying means that they would now have the right to refuse life-prolonging treatment at the end of life. We must ensure that everyone understands what is already legal so that they are not confusing these measures with physician-assisted dying.
More specifically, we are here today because on February 6, 2015, the Supreme Court of Canada concluded that the Criminal Code provisions on physician-assisted dying are contrary to the Charter of Rights and Freedoms. In so doing, the court reversed its own previous decision in the Rodriguez case, decided in 1993, just over 20 years ago. This time, the Supreme Court found that the prohibition deprived some people of the right to liberty and security of the person, which encompasses protection for choice and autonomy in fundamental life decisions about one's own body. It also found that the provisions deprived some people of the right to life, because they have the effect of forcing them to end their lives prematurely for fear that they will be unable to do so when the suffering becomes intolerable. These deprivations were held not to be in accordance with the principles of fundamental justice. The court also held that the charter recognizes the value of life and honours the role autonomy and dignity play at the end of that life.
The court came to its conclusion after having considered the situations of the particular claimants in this case, in particular Gloria Taylor. In 2009, Ms. Taylor was diagnosed with amyotrophic lateral sclerosis, also known as ALS, a fatal neurodegenerative disease that causes progressive muscle weakness. ALS patients first lose the ability to use their hands and feet, then the ability to walk, chew, and swallow, and eventually to breathe. For Ms. Taylor and people like her, the court found that the prohibition on physician-assisted dying left her with what she described as a cruel choice between killing herself while she was still physically capable of doing so or giving up the ability to exercise any control over the manner and timing of her death.
The court concluded that the charter protects the right to physician-assisted death for competent adults who clearly consent and who have a grevious and irremediable medical condition, including an illness, disease, or disability, that causes enduring and intolerable suffering. As a result, it found two sections of the Criminal Code to be unconstitutional: the criminal prohibition against assisted suicide and the rule that a person cannot legally consent to death being inflicted upon oneself. The court found that the purpose of these laws was to protect vulnerable individuals from having their lives ended in times of weakness or through the coercion or abuse of others.
Since these laws apply to everyone, the court found that they violated the rights of individuals who are not vulnerable and who want to have physician-assisted death when they are grievously or irremediably ill.
The court also confirmed that Parliament's criminal jurisdiction includes the power to prohibit or regulate medical treatments, because they are dangerous. At the same time, it also affirmed that both the federal government and the provincial and territorial governments can legislate with respect to health, depending on the aspect being legislated.
The court suspended the legal effect of its ruling for 12 months in order to give Parliament time to develop an appropriate legislative response. During this time period, physician-assisted dying remains illegal.
While the Supreme Court framed its judgment around the concept of physician-assisted dying, I believe it is important at this early stage of the debate to distinguish between physician-assisted suicide and voluntary euthanasia. Physician-assisted suicide is when a physician provides a patient with the means to end their own life, such as by prescribing a lethal dose of medication that the patient then self administers. Voluntary euthanasia occurs when a physician actively causes a person's death at their request, typically through a lethal injection.
From the perspective of a person who is suffering intolerably and wishes to die with a physician's assistance, these two practices may appear indistinguishable. However, from the current criminal law perspective, they are different crimes with different penalties.
Under the current law, voluntary euthanasia meets the definition of murder, even when it is motivated by compassion or mercy, and even when the person requests or consents to dying. Murder is the most serious offence in our criminal law and is punishable by a mandatory life sentence. In contrast, a physician who aids a person in taking their own life falls within the offence of assisting suicide. This offence is punishable by a maximum of 14 years in prison.
Of the few jurisdictions that now regulate physician-assisted dying, some permit only euthanasia, some permit only assisted suicide, and some permit both. There is evidence suggesting that the risks and implications of the two practices are distinct. These are important distinctions to bear in mind.
The Supreme Court was clear in stating that it was confining itself to assessing the rights of those who would seek assistance in dying, rather than of those who might be tasked with providing such assistance, namely physicians. However, the reality is that the legal effect of the ruling is to require that the criminal law free physicians from criminal responsibility for their participation in helping some people die, or in actively causing death.
The fact that the law must now permit a zone of lawful participation in bringing about the death of others, however, raises some concerns. Many such concerns were raised before the courts in the Carter litigation as reasons justifying the absolute prohibition of these practices. Although the court has now rejected those arguments with respect to an absolute prohibition, this does not mean that those concerns and risks are not important and legitimate considerations moving forward. Indeed, the trial judge and the Supreme Court were clear that those risks and concerns are real. I would like to quote from the trial judge, who said:
...the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.
I consider this to be a key passage in the trial judgement, and it is one that is referred to several times by the Supreme Court. There are several things to note in this passage. First, the trial judge found that there are risks inherent in permitting physician-assisted dying. These risks will be borne by vulnerable individuals. Second, the risks can be identified and substantially minimized through a carefully designed regime with stringent limits and safeguards, although they cannot be eliminated entirely. Third, the limits and safeguards must be carefully implemented, monitored, and enforced.
This passage helps us see the path that lies ahead. We will need to identify the various risks to vulnerable individuals so that we can design a regime with limits and safeguards aimed at minimizing their occurrence. We will also need to consider mechanisms to ensure that physicians are clear about the law and how to apply it, and that the relevant authorities will be equally vigilant in monitoring and enforcing any violations.
The courts agree that there is no room for complacency, either in designing a legislative response or in its implementation. In my view, we must be very careful in designing these procedures. There is a lot that we already know about the nature of these risks. A great deal of evidence was presented to the courts in the Carter litigation about those risks.
Some risks that have already been identified relate to the difficulties that physicians may have in detecting whether a person's request to die is affected by depression or by the influence of third parties, such as family members. This last concern is especially acute in relation to the elderly. As we all know, elder abuse is a growing concern. All too often, people take advantage of a trust that an elderly person places in them. It is far from inconceivable that an adult child of an elderly person could suddenly suggest to him or her that he or she has lived a full life and no longer needs to suffer in a weakened or ill state. Adult children who may be eager to get at their parents' estate could conceivably try to influence their parent to choose assisted dying.
As a lawyer, I am very concerned about undue pressure on and manipulation of sick and elderly persons by unscrupulous beneficiaries. Anyone who has practised law in this country, and especially in the area of wills and estates law, would know about this. These lawyers have seen situations where elderly people have been subjected to a lot of pressure to enter into a certain will arrangement, in particular testamentary trust arrangements, which takes it to a different level. We need to be very cautious about how we proceed in this area. We would hope that such things would never happen, but in this process we will only hurt vulnerable individuals if we naively assume that such behaviour is outside the realm of possibility. The real question is how to guard against its resulting in an unwanted death.
Other risks relate to concerns that individuals could choose to seek death because of a faulty diagnosis or prognosis. While medicine is a science, diagnosing illness and disease and prognosticating over how long a person with an illness has to live are difficult medical determinations. My own father was a medical practitioner. He is retired now, currently in a hospital in Hamilton, Ontario. He told me many times about diagnoses that changed over time and test results that were inconclusive. As a child, I remember his telling me of a patient he had in Toronto about 40 years ago. A young man was injured in a high-school football accident and was in a coma for 21 years. After 21 years, he woke up and walked out of hospital one day. His mother sat by his side every single day for 21 years. Science is expanding all the time, but every day we learn more about the human body and its ability to heal itself.
My father graduated from medical school in 1953, and his entire career was about prolonging life and saving life. I worry about future generations of medical students and how they will deal now with the added responsibility to consider how to end a life.
There was also evidence presented to the court that persons with disabilities would face special risks under a regime that is overly permissive. The trial judge accepted evidence that people with disabilities face prejudice in the health care context because some physicians have subconscious biases that cause them to presume that the quality of life of disabled individuals is lower than those disabled individuals subjectively experience it to be. One concern is that a request to die from a person with a disability would too easily be accepted by his or her physician and that not enough time and energy would be spent looking behind the words to understand the reasons for the request. At a more general level, the concern of disability rights groups is that physician-assisted death would suddenly reinforce the more generalized social prejudice and stereotypes that disabled lives have less value and quality than those of other Canadians. Many disabled individuals find the assumption that life with a disability is less meaningful or somehow of lesser quality to be devaluing. We must take these concerns seriously.
Again, my experience is informed by my own personal experience with my late mother who passed away three years ago, suffering from the effects of Alzheimer's. Her last five years were not good. She was confined to an over-sized wheelchair. She had to be lifted in and out of that chair and in and out of bed. Many times she did not know where she was or who she was or to whom she was speaking. However, even in the final year, some days, out of the blue she would say something that was extremely appropriate, that was pithy, that was apropos to the moment, that was insightful, and we never knew when that would happen.
My brother and sister and I struggled to bring her out of the care home she was in to attend family events. There had to be special logistical arrangements and special caregivers, but every moment we spent with her was worthwhile, and we all wish that she was still with us today.
At a more general level, to be sure, there are differing views within the disability community, but these are the concerns that have been voiced by large national organizations in Canada and abroad. Hearing all voices over the coming months will be of critical importance, so that we can develop adequate responses and safeguards that affirm the equal and inherent dignity and value of all Canadians, including those with disabilities.
Many are likely to view the question of physician-assisted dying as a private matter between patients and their doctors when viewed through the lens of the single individual who genuinely and desperately wants to die because he or she has a medical condition that is causing intolerable suffering. The question of legalizing physician-assisted dying does appear to be a private one.
From the perspective of a person who truly wants to die, the issue may seem like a relatively simple one. However, as I have described, there are many issues that must be considered from the broader public perspective.
Some people may choose assisted dying after having lived a vibrant and full life, with the support of family and friends, after having been able to accomplish all of their dreams. However, not everyone is so fortunate. Some people may choose death as the most reasonable option because they are not supported by their families, they are lonely, or they are lacking the resources necessary to make life manageable. If these individuals request assistance to die from their physicians, how should they be treated?
There are likely several different options for a possible way forward on this issue. It would be critical to review the existing regimes internationally, as was done by the courts in the Carter decision. At present, they seem to fall into two groups. In the United States, there are three states—Oregon, Washington, and Vermont—that have legalized physician-assisted suicide only through a prescription of a lethal substance for those who are terminally ill. By contrast, three countries in Europe—Belgium, the Netherlands, and Luxembourg—have legalized and regulated euthanasia for persons suffering intolerably from any kind of medical condition.
Under these regimes, most people who obtain euthanasia are cancer patients at the end of life, but there are a growing number of people with psychiatric disorders and other types of conditions that are not life threatening. Difficult choices will need to be made. Do we as a society see the suffering of those who are dying differently from the suffering of those who still have a lot of life left to live? Are we doing all that we can to alleviate suffering in various forms?
I would like to mention palliative care at this point and pay special tribute to those very special people, the caregivers, nurses, and doctors, who work in the palliative care field. They are truly special angels and deserve our supports and thanks. I have seen family members go into palliative care and have a much better situation at the end of life than without it. That needs to be part of our debate. Any time that I think I have a difficult day at the office, I think of those who work in palliative care. God bless them.
How will we ensure that suicide prevention initiatives continue to improve while we offer assistance in death to some people? How can we help Canadians be less afraid to talk to their doctors and families about death and dying and consider preparing advance directives setting out their wishes if they should become unable to express their wishes?
Physician-assisted dying raises many difficult issues of great importance to all Canadians. It involves matters of life and death, questions of human dignity and suffering, and the inherent value and equality of all Canadians no matter what their medical conditions, age, or physical limitations and challenges. These are very profound questions. Our government opposes this motion because we have committed to consulting widely with Canadians in a meaningful and effective way. This will take some time and it behooves us to take the appropriate time now to carefully consider all perspectives and options.
We must all come together to work out solutions in a respectful and compassionate way. How we resolve these often conflicting values will speak to who we are as a society for many years to come. In my view, the special committee structure and the timeframe suggested in the Liberal motion would not allow for the proper consideration of all aspects of this very serious matter.
