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Physician-Assisted Death: Disturbing Developments

Editor's Note: Editor's Note: The following article is reprinted, with permission of the Council of Canadians with Disabilities, from Abilities magazine, Spring, 2001. http://www.abilities.ca

Recent reports from the Netherlands about its new legislation permitting the qualified practice of sanctioned, physician-assisted death is causing grave concern for vulnerable people in Canada. It also moves the issue to a new, frightening level of immediacy.

Canadians are lucky in that this development's implications have been exhaustively laid out in an 80-plus-page paper commissioned by the Council of Canadians with Disabilities (CCD) and sponsored by the Canadian Bar Association's Law for the Future Fund. Lawyer Orville Endicott, author of "Legalizing Physician-Assisted Death: Can Safeguards Protect the Interests of Vulnerable Persons?", completed the final draft just days before the story broke internationally on November 29. Endicott is a lawyer with years of experience working on disability rights issues.

The nub of the news for us is that, rather than resource health system items such as pain management research and palliative care, the Dutch appear to have opted for a rationale based on the philosophy that life is for the young, the well and the able-bodied and -minded. Has the slippery slope we keep on harping about arrived at last?

Although Canada --rather than euthanasia "hot spots" like Holland, or the jurisdictions of Oregon or Australia's Northern Territory--comprises Endicott's major focus, the situation he outlines does not encourage complacency, no matter where you live. Since the early '80s, numerous Canadian court actions and legislative activities, too, have had the effect of emphasizing the open-question status of physician assisted suicide/euthanasia.

The 5-4 split decision in Canada's Supreme Court in the famous Sue Rodriguez case of 1993 highlights the volatility of this discussion: how the otherwise admirable intentions of one individual can irreparably lead to devastating effects for an entire class of a nations' citizenry. By that slim margin, Section 241(b) of the Criminal Code of Canada, which prohibits aiding or abetting another person to commit suicide, was saved from being struck down as violating the guarantees of liberty and equality in Sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Ultimately, Section 241(b)'s capacity to withstand mounting pro-euthanasia/assisted-death pressures may or may not stand, but it will surely be tested.

The common thread in the three physician prosecutions that Endicott discusses in detail involves how criminal and justice system administration has been operating vis-a-vis euthanasia/assisted suicide in recent years. The full force of prohibitions against these offenses remains, but their practical status is ambivalent, to say the least. That is partially because of a convenient, lesser charge of administering "a noxious substance or thing." It relates as well to a stretched interpretation of what specific intervention does or does not "cause" death. Their exercise has effectively removed jury involvement from the "de la Rocha", "Genereux" and "Morrison" cases.

And how many more in the future? Such temporizing administrative ploys may buy some time, but if they are allowed to continue indefinitely, much of our ability to hold the line --at least until a consensus favourable to the interests of vulnerable Canadians can be worked out --may be hopelessly snarled in legal interpretation and precedent. For example, in two of these cases, doses of potassium chloride, which has no salutary effect on a dying patient other than to stop the heart, was administered along with morphine in the final hours. In neither instance were murder charges a part of the final outcomes. Also, Robert Latimer's being charged with second- rather than first-degree murder is relevant, because assistance in regard to suicide has always been one of his main defenses and because the Crown, before a particle of evidence was adduced in court, assumed that a jury would not convict on first-degree murder in a case where the spectre of "mercy" could be raised. Thus the statement and intent of the law in respect to physician-assisted suicide may be clear and unequivocal --but our legal-system practitioners' commitment to it is not.

Though Endicott's study reveals nothing from which we could literally take comfort, there is one bright spot in connection with the work of the 1995 Special Senate Committee on Euthanasia and Assisted Suicide. The Senate body established in 1999 to review the committee's report, "Of Life and Death", was a subcommittee of the Standing Senate Committee on Social Affairs, Science and Technology chaired by Sharon Carstairs. Since it was charged to consider only the Special Committee's unanimous recommendations, the title of the subcommittee's June 2000 report, "Quality End-of-Life Care: The Right of Every Canadian", tabled on the fifth anniversary of "Of Life and Death", denotes what appears to be a quite different take on the entire discussion. Unfortunately, it almost certainly does not reflect that order of change in Senate sentiment, especially when we consider that, among the recommendations to Parliament of the 1995 committee report, one called for legislation providing for a third category of homicide sentencing for cases involving so-called "compassion" or "mercy".

CCD will be publishing Mr. Endicott's paper in the near future.

Mel Graham is CCD's Communications Officer. For more information, contact the Council of Canadians with Disabilities: voice/TTY: (204) 947-0303; fax: (204) 942-4625; or email: ccd@ccdonline.ca