The Liberals’ Assisted Dying Bill: Reflections on a Cop-Out

When it comes to the issue of assisted dying, there is fresh pain and understandable outrage in the country right now because, as most readers are aware, a bill was recently tabled in parliament that, as it were, pulls the proverbial rug out from under the feet of a huge constituency who have been counting on something better. "It’s mean," states Linda Jarrett. "There’s going to be a lot of unnecessary suffering," objects Rachel Phan (http://www.dyingwithdignity.ca/advocates_speak_out_against_new_legislation). Correspondingly, a huge anti-bill lobbying effort has mobilized.

What in a nutshell has happened? The prelude is—and a highly welcome prelude it was—after years of activist struggle—the Supreme Court declared Canada’s criminalization of assisted suicide unconstitutional and it unequivocally stipulated that legislation must be passed whereby people with severe and irreversible agony, should they competently so choose, could receive assistance from doctors to end their lives (Carter vs. Canada). Enter the Liberal government, who sounded like they would comply. Now to their credit, they indeed did introduce assisted dying legislation. However, what they have tabled -- Bill C-14 -- falls seriously short of the Supreme Court ruling. Ergo, the stunned outrage.

What is wrong with the bill? And what can we do about about it?

The problems largely arise from the restrictive nature of the conditions that have to be satisfied. The most worrisome of these is spelt out in section 241.2  (2d).  Earlier sections specify that the person must be capable, have requested the service, have given informed consent (all unproblematic), be at least 18 (please put a marker here), be eligible for Canadian health services, and have "a grievous and irremediable medical condition". [241. 2 (2c)] Then comes 241.2 (2d), which stipulates that the condition must be so advanced that "their natural death has become reasonably foreseeable."

Note the vagueness in the stipulation above. Just what is meant by "reasonably foreseeable"?  And exactly how advanced and close to "natural death" must a person be? Question: Would an ALS sufferer who is told that she probably has only 6 months to live qualify? Would the stalwart Sue Rodriguez qualify -- the woman, after all, most responsible for helping Canadians begin to seriously grapple with these issues? And if not, should that not worry us? And if no one knows for sure whether or not they would qualify, should not that likewise worry us?

Worse than the lack of clarity, much like American legislation in this area (for an overview of relevant American legislation, see Stefan, 2016), the bill is intrinsically connected to the concept of imminent death. To qualify for assisted suicide, according to this bill, the person must be close to death—this, despite a Supreme Court ruling that made no such stipulation.

Herein we find a blatant contravention of the Supreme Court ruling for the assistance available was not to be restricted to people whose death is imminent or even those whose malady is terminal -- no minor difference. In the very process of veering from the Supreme Court ruling, moreover, the bill disqualifies a huge number of people, leaving them without the assistance which they may desperately need. Note in this regard, not all horrid suffering is connected with imminent death or indeed with terminal conditions at all -- a reality which does not make the suffering in question an iota less severe or the person less in need of relief.  

On top of which, the bill in essence makes the relief unavailable at any time for people with certain conditions, given the double binds created by the combination of restrictions.

Take the person in early stage dementia. At this early juncture, they would not qualify (despite having a serious and grievously deteriorating condition) for they are not yet near death.  And so they must wait. Eventually they will indeed satisfy condition "d"—for death will be "foreseeable". However, by the time they satisfied that criterion, they would no longer be able to satisfy the competence criterion. Which in short means: People suffering from one of the most humiliatingly debilitating conditions with which anyone is ever afflicted -- a condition that may rob them fundamentally of who they are -- are in effect totally excluded from exercising even the highly limited rights which that statute makes available to other Canadians. Which makes the bill inherently discriminatory, and indeed, frighteningly so.

This is not equality. This is not adequate. This is not the compassion and the dignity that we owe Canadians in difficulty. Ergo, the Liberals should seriously amend the bill, which amendments should include but not be limited to removing both the "foreseeable death" and the terminal criteria and allowing for advanced directives.

My invitation to Canadians is to urgently push the Liberals to do just that. Sign petitions; contact your member of parliament; talk to senators; let them know that we expect more from them; and urge them to vote against the bill unless the necessary changes are made. And if all this fails, gear up for a Supreme Court challenge.

That noted, to date, I have focused on problems with this bill that have already received considerable attention. Well and good. However, I cannot in good conscience end this article without drawing attention to various other problematic features -- ones of special significance to people who are likewise being shortchanged by this bill yet who are but seldom mentioned by commentators. The point here is that there is a not-so-hidden dividing line between people that the average Canadian is comfortable seeing included in such legislation and ones that the average Canadian is not -- and unless we actively grapple with the latter, fairness is unlikely to prevail. 

To begin with psychiatric survivors, here we see yet another very clear violation, for the Supreme Court stipulated that mental anguish was to qualify. Moreover, the parliamentary committee established to advise on this bill specifically stated that "mental illness" should qualify. The recognition evident here is that this suffering too can be grievous and it too can prove to be irremediable.

Question: Why has this deviation not been taken up by the public with equal fervor that others have? Quite simply because the average citizen is uncomfortable with psychiatric survivors and their misery qualifying. Understandable, perhaps, but let us look at the issue more carefully.

Now it goes without saying that like everyone else, there are psychiatric survivors leading lives of meaning to them -- and thankfully, this is the vast majority. And like everyone else, there are survivors who do not.  Of the latter, some opt to kill themselves, and as with everyone else, in many of these instances, such a decision seems premature to most, and regardless, the condition in question fails to meets the threshold of irremediable. There are survivors, nonetheless, who have struggled for decades, who have tried one measure after another, and whose agony has only grown worse -- in some cases exponentially so -- survivors, moreover, who have made a clear and measured decision to die. Are they to remain either trapped or forced to die alone? Moreover, in response to readers who are certain that exclusion is in order, whether because they believe that a termination-of-life decision by a member of this population is likely to be a product of their "mental disorder" (a concept and a conviction, note, unsupported by the evidence) or for any other reason, I would ask this: Given that the identical safeguards would apply, given, for instance, that psychiatric survivors seeking physician-assisted dying would also have to be competent to make the decision in question, given they too would have to wait the requisite period of time to ensure that the decision is not in any way impulsive, and given that the condition would have to be seen as advanced and irremediable, is not denying this population what we allow other Canadians tantamount to discrimination? And is that truly what we want this country to stand for? 

Herein, let me suggest, our biases get in our way. Moreover, our sense of compassion and responsibility toward people we see as vulnerable badly skews our judgment. The point is that while vulnerability is a reason for making extra help available, it is not a reason to deprive people of their rights (albeit we habitually act as if it is). And robbing people of their rights is ultimately neither the compassionate nor the responsible thing to do.

Finally, to end with the age restriction, the Supreme Court was clear that "mature minors" should also have access to assisted dying services -- and yet this bill manifestly excludes them. Now I doubt that anyone would disagree that extra safeguards are in order here. For example, there may be reason to look into issues of neglect or of undue influence. That is different, however, than the across-the-board exclusion found in this bill. Once again, irrespective of intention, this smacks of discrimination. And here once again, paradoxically, our desire to protect the vulnerable gets in our way and in effect leads us to shortchange and to violate.

In ending, I invite readers to grapple with these issues. While without question, we need safeguards and criteria -- and most of the ones already stipulated make perfect sense -- and while without question, we must ensure that such measures are never used as an excuse for cutting back on services for people who in any way want help to live, cannot we not be less restrictive? More compassionate? More respectful? And what better time than now when legislation is on the table and the Supreme Court has provided the requisite signal?

References

Stefan, S. (2016). Rational suicide, irrational laws. New York: Oxford University Press.