Statement on Physician-Assisted Dying in Canada

STATEMENT ON PHYSICIAN-ASSISTED DYING IN CANADA

ROMAN CATHOLIC RELIGIOUS LEADERS OF NEWFOUNDLAND AND LABRADOR

The Dignity Of Each Human Person And The Pursuit Of The Common Good

The Roman Catholic Religious Leaders of Newfoundland and Labrador include the Archbishop of the Archdiocese of St. John’s, the Bishop of the Diocese of Grand Falls, the Bishop of the Diocese of Corner Brook and Labrador, the Congregational Leadership Team of the Sisters of Mercy, the Local Leader of the Christian Brothers in St. John’s, the Local Leader of the Jesuits of Eastern Canada in St. John’s, the Local Leader of the Redemptorists in St. John’s, and the Provincial Leadership Team of the Presentation Sisters.

INTRODUCTION

Peace, order and good government ("paix, ordre et bon gouvernement") are the principles on which Canada’s Confederation is founded. This introductory phrase of section 91 of theConstitution Act (1867) sets the parameters for all public policy in the country and gives the impetus to strive for policy which protects the dignity of each human person and ensures the pursuit of the common good. With the Supreme Court decision to allow Sections 241(b) and 14 of the Criminal Code to remain in effect only until February 6, 2016 to give Parliament time to respond and determine the conditions and circumstances under which physician-assisted dying should be allowed in Canada, public policy on the matter of physician-assisted dying is in jeopardy of being decided by default. With the matter left to the Parliament to decide and with a federal election in October preceded by an extraordinarily long pre-election period, there has been no time or attention paid to shaping balanced, ethically-based policy on this matter. As a result, the most vulnerable citizens in Canada are placed at risk.

The Roman Catholic religious tradition shares many of the fundamental values of Canadians, including the dignity of each human person and the pursuit of the common good. The care for the common good has been noted over and over again as the “central and unifying principle of social ethics.”[i] A formative document from the Second Vatican Council, Gaudium et Spes, says, "According to its primary and broadly accepted sense, the common good indicates 'the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily.'"[ii] This presentation assumes a commitment to these two values, the dignity of each human person and the pursuit of the common good, and it assumes that these two values are shared by the majority of Canadians.

KEY CONCERNS

There are a number of ethical concerns which must be addressed by the Panel as it reflects on the mandate “to engage Canadians and key stakeholders on issues the federal government will need to consider in its response to the Carter ruling.” These concerns flow directly from the Supreme Court ruling that Sections 241(b) and 14 of the Criminal Code were unconstitutional to the extent that they prohibit physician-assisted dying for competent adults who consent to the termination of their life because of a “grievous and irremediable” medical condition that causes enduring suffering that is intolerable to the person.

Competent adults – there are presently no protocols to determine who decides who is a competent adult and how many physicians should be involved for each person in this special situation. How are such protocols to be standardized across the country? How is competency to be decided in cases such as that of the mental illness of untreatable depression? How is competency mitigated when persons are experiencing a profound sense of despair, fear, loneliness, isolation or depression as they are told that they have a perceived intolerable condition or terminal illness? Will physicians be allowed to proactively offer the possibility of physician-assisted death to their patients?

Consent – those who speak on behalf of persons with disability have a special concern in this area. How can persons with disabilities know their choices if they are not communicated in ways the person can understand – a person who needs sign language interpretation, someone with autism or aphasia or cognitive disability or persons who are deafblind? If persons cannot understand the information they need, they cannot participate in decisions about their own care.There have always been concerns about informed consent in the health care system, so this concern is not specific to consent in this matter. But in a matter so grievous, such a concern has even greater significance.

Termination of life – two approaches have been identified in the termination process: (i) assisted suicide, when a physician prescribes a lethal dose of medication that the patient takes himself/herself, and (ii) voluntary euthanasia, when a physician injects a lethal dose of medication into a patient to terminate their life on their consent. In either instance, the physician is either taking a life or supporting the person in taking a life. Causing death will now become a medical matter. There is a fundamental concern that this shift in direction will change forever the meaning of medicine and the profession of medicine in this country. Canadians hold physicians in high regard, giving them the sacred trust of caring for life and health. Once physicians have legal power over and practice in causing death, there may be a gradual but steady undermining of the people’s trust in the profession.

“Grievous and irremediable” medical condition – the two qualities, “grievous and irremediable,” are vague, ill-defined, non-specific and open to broad interpretation. Who determines the criteria for a condition which is “grievous and irremediable,” and how do the two qualities relate to each other? Will the criteria be based on the determination of an individual physician in a specific situation, or will the criteria be based on standards set by the medical disciplines? Given the modern understanding of the centrality of the health care team, how will the team members be part of the determination? Given the modern understanding of the role of family members or loved ones in the care of the person, how will they have a say in this determination? How will the criteria be standardized across the country?

Enduring suffering that is intolerable to the person – again this phrase is vague, ill-defined, non-specific and open to broad interpretation. Pain and suffering are related but separate experiences. Will suffering be defined to include pain as well as other dimensions: loss of control and independence, extreme loneliness, inability to do things one could do previously, loss of bodily functions, fears of being a burden on loved ones, loss of dignity, etc.? Who will decide what suffering is for any individual person? Will the understanding of suffering differ from person to person? How can the physician truly understand a person’s experience of suffering given the differences from person to person?

Accountability – how will physicians be held accountable as they determine competency, consent, grievous and irremediable medical conditions, and enduring suffering? What standards will health care institutions be able to establish to hold physicians and medical care teams accountable? What safeguards will be in place to prevent abuse of the system while balancing access to the service and institutional refusal? How will the accountability mechanisms, which will be provincial/territorially based, be standardized across the country?

Place of decision-making and implementation – what part will the place of care hold in these decisions – the tertiary care hospital, the community hospital, the long term care facility, the community clinic or the person’s home? Will the physician be the person who determines where the decision is made and where the decision is implemented? How will the physician be held accountable if the place of decision is not a regulated workplace?

Autonomy of the person – it appears that autonomy, a basic ethical principle, is given primacy in this situation over the three other principles foundational to ethical decision-making: beneficence, non-maleficence, and justice. The other three principles are more inclusive of the common good balanced with the individual good. It is worth noting that the Panel’s Online Issue Book also gives primacy to the individual perspective in answering the questionnaire. The two short sections at the end of the questionnaire broaden the scope somewhat, but there is no doubt to a person completing the questionnaire that the only real value is in the perspective of the individual alone not in the consideration of the common good.

The words of a person with a disability make the point well: “The hazard of intense individualism is that it only focuses on the physical risks to one person and not the moral risks to society. You de-contextualize the individual at the centre by pulling that choice out of the larger dynamics at play. The question, ‘Do end-of-life decisions belong to the individual?’ needs challenging because it assumes all Canadians have the same choices in the first place. If you view this through the experiences of people with disabilities, you will see that our autonomy is sometimes whittled away long before that happens to able-bodied Canadians. . . Calling for legalized assisted suicide in order to allow personal preferences concerning death is an example of the kind of individualism that de-contextualizes the person at the centre, and takes onus off the larger community to examine its own attitudes about disability.We are not hypotheticals. This is disability reality. And the risks to the many have to outweigh the potential benefit to a few.”[iii]

Rights of the physician and health care institution – because the Canadian Charter of Rights and Freedoms guarantees freedom of conscience and religion, it is assumed that physicians and members of the health care team will not be required to take part in physician-assisted dying or to refer to a physician who would provide physician-assisted death. Is this assumption correct? Will hospitals or long term care facilities whose foundational principles do not permit physician-assisted suicide or euthanasia be required to provide this service? Will their rights and the practice of their principles be protected?

Palliative care –palliative care for persons with terminal illnesses has been an under-resourced element of Canada’s health care system. Most palliative care services have been introduced and initially funded by organizations external to government. While palliative care physicians and other health professionals are exemplary in their practice of palliative care, other physicians have not been so attentive to learning about this field of medicine or so committed to referring patients to the programs. There is an irony and a sadness that now it appears provision of physician-assisted suicide will become mandatory while palliative care remains an under-resourced service. It is not reasonable to provide publicly funded physician-assisted dying while not providing publicly funded palliative care. It is not reasonable to provide mandatory training for physicians to provide physician-assisted suicide and euthanasia but not provide mandatory training for physicians to provide palliative care or to understand when to refer patients to palliative care providers.

It is worth noting that Canadian society is working hard to reduce the stigma attached to mental illness and cognitive impairment and to reduce the incidence of suicide among young persons and aboriginal persons. Yet the Supreme Court ruling would seem to promote the suicide of persons who are most vulnerable while giving no attention to promoting more life-supporting options for them.

The slippery slope – again the words of a person with a disability are a reminder of the slippery slope that is encountered as a society entrusts its physicians with not only support for life but decision for death, “If assisted suicide is legalized, this viable option will stick in the minds of policy makers who determine budgets for Independent Living options and disability supports for children; it will hover in the background of family members who stand to gain from the death of a disabled person, and most insidiously, it will wheedle its way into the psyche of people with disabilities.”[iv]

Time for implementation – it is completely unreasonable, unacceptable and reprehensible that the Supreme Court of Canada would give such a limited timeframe of one year for the development of public policy on a matter of such importance, knowing the complexities of the federal and provincial/territorial jurisdictions on this matter and knowing the timing of the federal election. It would be completely impossible, in such a short timeframe, to develop public policy at both the federal and provincial/territorial levels, engage medical associations in developing guidance and protocols for physicians, engage other health professional associations in developing guidance and protocols for their members, engage health facilities and community-based programs in developing organization-specific policies and accountability mechanisms, and educate citizens about their rights and responsibilities.

The Supreme Court has created a situation which will allow physician-assisted death to be decriminalized, available and unstandardized by default. This is truly a matter of life and death. This is truly a matter of changing the fundamental ways of approaching death and dying within Canada’s health care system. On this matter, the Supreme Court of Canada has not been accountable to the people of Canada, has not respected the rights of Canadians, and has not accepted its responsibility for ensuring the common good.

CONCLUSION

The External Panel on Options for a Legislative Response to Carter v. Canada is limited in its mandate concerning physician-assisted suicide. However, in fulfilling its mandate to engage Canadians and key stakeholders on issues the federal government will need to consider, the Panel must ensure that the rights of Canadians and the common good of Canadian society are respected as the development of public policy which concerns the deaths of vulnerable persons is being considered.

The Panel must advise the Government of Canada that federal and provincial/territorial relationships must be strengthened, medical and other health care professionals and health care organizations must be engaged, and time and thought must be given to a matter which affects every Canadian today and in the generations to come. Whether or not there is agreement with the provision of physician-assisted suicide and euthanasia, Canadian citizens at least deserve the appropriate time and opportunity to ensure that the common good is protected in the implementation of public policy which will change the very basis of quality of life in this country. The Panel has the responsibility to advise and indeed challenge the Government of Canada to give Canadians that time and that opportunity on a matter that concerns the life and death of their most vulnerable citizens.

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Endnotes:

[i] Pope Francis, Laudato Si’, #156, 24 May 2015.

[ii] Second Vatican Council, Gaudium et Spes, #26, 1965.

[iii] Rhonda Wiebe (Representative of the Council of Canadians with Disabilities), “Comments in the Debate on End-of-Life Decisions,” Summit on Sustainable Health and Health Care in Toronto, Ontario, Conference Board of Canada, 20 October 2012.

[iv] Ibid.