Thank you for your invitation to appear before this committee. I'd like to put on the record, as you might already know, that I believe that euthanasia and physician-assisted suicide—what the Supreme Court calls physician-assisted death or dying—are inherently wrong and should remain criminally prohibited. That said, I'm willing to provide some recommendations for limiting the harms and risks of legalized euthanasia. Please note that in using the word “euthanasia”, I intend to refer to both euthanasia and physician-assisted suicide.
The Supreme Court recognized that the values of respect for individual autonomy and sanctity of life, especially protection of vulnerable people, were competing claims and that both had to be taken into consideration. “On the one hand”, the court wrote, “stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable”.
In the past, in many societies, including that in Canada, religion was the main institution used to uphold the value of respect for life at a societal level. Respect for life is a preferable term to sanctity of life, because respect for life is not just a religious value; it's a foundational value in every society in which reasonable people would want to live. It must be upheld at two levels, that of the individual person and that of the society in general.
In a 21st century secular western democracy such as Canada, medicine and law are the main institutions carrying the value of respect for life for society as a whole. Both are implicated in physician-assisted death, which would damage their capacity to carry this value. It is in every Canadian's interest to make that damage as small as possible. So, to the question you asked me to address of what “framework of a federal response on physician-assisted dying...[would] respect the constitution, the charter of rights and freedoms, and the priorities of Canadians?”, I would add, “and do the least harm to the value of respect for life and to health care professions and institutions, and present the fewest risks for vulnerable people both in the present and in the future.”
I have that extended question in mind in making the proposals that are now outlined. As the court made clear in Carter, access to physician-assisted death—euthanasia—on certain conditions is an exception to the criminal prohibitions of culpable homicide and assisted suicide. Other than that very limited exception, those crimes remain in force. To avoid the future normalization of euthanasia, as has occurred in the Netherlands and Belgium, and which would have very serious consequences for future generations of Canadians, the legislation you pass must make it clear that euthanasia is such an exception, that it should be used only as a last resort, and then rarely.
If Canada had the same percentage of deaths by euthanasia as is presently the case in the Netherlands and Belgium—about 4% in the Netherlands and 4.6% in Belgium—we would have between 11,000 and 12,000 euthanasia deaths each year. I could almost not believe it when I worked out those figures, and I actually went back and tried to make sure they were correct, but I think they are correct.
To help achieve the necessary clarity of the rarity with which this should be used, I suggest that the legislation be entitled “an act to amend the Criminal Code to allow for an exception to conviction for culpable homicide and assisted suicide”. This means those not complying with the law allowing euthanasia could be criminally liable and also that the person seeking euthanasia must show they fulfill the conditions for having access; that is, that they have the burden of proof. That would be consistent with what both the trial court judge and the Supreme Court proposed that the law should establish, “a stringently limited, carefully monitored system of exceptions” and a “carefully-designed system that imposes stringent limits that are scrupulously monitored and enforced.” The first is the trial court, and the second is the Supreme Court respectively.
The committee should not be fearful of recommending exactly what the trial judge in the Supreme Court thought necessary. In short, euthanasia must be treated as an exceptional intervention, very carefully safeguarded, and rarely used. In support of this approach, I would remind you that between 1991 and 2010 Parliament rejected motions or bills promoting assisted suicide or euthanasia on no less than 12 occasions. Legalizing euthanasia is an unprecedented change of mind on Parliament's part.
You asked me to address three specific categories of considerations: eligibility criteria, processes and procedures, and roles and regulation of health care professionals.
Regarding eligibility, the first requirement is that the person requesting euthanasia has been offered high-quality palliative care, including fully adequate pain management. Apart from other reasons, this is legally required in order to obtain informed consent for euthanasia. The person must be mentally competent and must provide informed consent up to and including the point at which euthanasia is administered. This requirement acts as a protection for vulnerable, incompetent people, such as those with Alzheimer's, and means that consent from surrogate decision-makers is not allowed. Euthanasia should be restricted to people who are terminally ill—I would suggest, with a life expectancy of not more than four weeks—from physical illness, disease, or disability, and who are experiencing extreme physical suffering. Euthanasia should not be allowed for children unable to consent for themselves. Whether it should be available to mature minors is a separate question.
Regarding processes and procedures, two physicians, one of whom is a specialist in the type of disease from which the person suffers must each confirm in writing that the person fulfills the conditions for access to euthanasia and that they have been offered all reasonable alternative interventions, including palliative care and pain management. A psychiatric consultation to rule out conditions such as depression, coercion, undue influence of others, or duress is required, at least where there is any possibility of these factors affecting the request for euthanasia or consent, or where there are any doubts about the person's competency. A superior court judge shall certify that all legal requirements for access to euthanasia are fulfilled. Indeed, Chief Justice McLachlin suggested exactly that in her dissent in the Rodriguez case, and of course, the five judges of the Supreme Court required it, just about 10 days ago, when they gave the extension.
Euthanasia must not be administered earlier than 15 days after it is requested. A national research and review body should be established to collect records of all cases, investigate cases where there might have been non-compliance with the law, and issue reports at least once a year. I have a whole lot of other conditions but I'll leave those out for the moment.
Regarding roles and regulations of health care practitioners, for nearly 2,500 years physicians in the profession of medicine have recognized that assisted suicide and euthanasia are not medical treatment. This position should be maintained and these interventions kept out of medicine. My colleague Dr. Donald Boudreau and I have written a peer-reviewed published paper on that subject, for which I can provide the reference.
Consequently, a new profession should be established to carry out euthanasia. The practitioners should not be health care professionals, or if so, only ones who have permanently retired from practice. Practitioners should be specially trained and licenced, and have travel money provided to give people across Canada equal access to euthanasia. If this approach is not adopted, two publicly available lists of physicians and institutions should be established: those who will provide euthanasia and those who will not.
This is a reasonable compromise between Canadians who agree with euthanasia and those who oppose or fear it. The Supreme Court emphasized that the charter right to security of the person includes freedom from fear about what could happen to us when we're dying. This often seems to be forgotten with respect to those fearful of euthanasia.
This approach will also solve most freedom of conscience issues. Health care professionals must not be forced to provide or refer for euthanasia when they have ethical or conscience objections to doing so.
In conclusion, you are not just legislating for the present. You're legislating for future generations of Canadians with respect to how they will die. Whether or not we agree with physician-assisted death, legalizing physician-assisted suicide and euthanasia is a seismic shift in our most fundamental values as individuals and foundational values as the Canadian society.
I believe future generations will look back on the legalization of assisted suicide and euthanasia as the most important social-ethical-legal values decision of the 21st century; and the decisions that Parliament will make about the legislation and regulations to govern those interventions are an integral part of that decision.
Thank you.