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McGill experts discuss Supreme Court decision on physician-assisted death

The Supreme Court’s ruling on Feb. 6 against the criminal ban of physician-assisted death has sparked questions amongst McGill experts regarding Canada’s future legislation on the issue.  

According to the Supreme Court judgment, the Criminal Code that currently bans individuals from assisting others in suicide is in contradiction with the Constitution. The Court ruled that access to physician-assisted death should be granted to clearly consenting, competent adults who wish to remove intolerable suffering under terminal illness, disease, or disability by undergoing physician-assisted death.

Quebec had previously passed Bill 52 in June 2014, which ensured Quebecers access to medical aid in dying as well as palliative care­—healthcare for terminally-ill patients.

According to Pierre Deschamps, barrister and member of McGill Research Group of Health and Law, the Supreme Court’s framing of persons eligible for physician-assisted death is broader than Quebec’s Bill 52.

“The Supreme Court did not say that this would occur at the end of one’s life,” Deschamps said. “The Quebec legislation says that in order for one to  [avail] himself of the medical aid to die, [the person] must be at the end of his life—kind of a terminal position.”

The ruling of the Supreme Court would also allow for physician-assisted suicide, in addition to the physician-assisted death that Bill 52 addresses. 

“Physician-assisted death [is] where the physician will administer [the patient’s] dose of medication [inducing death],” Deschamps said. “Physician-assisted suicide [is] where the physician will provide the patient […] with the medication, and it’s going to be up to the patient to use or not use [it].”

Deschamps suggested that the Supreme Court’s judgement may result in changes to Bill 52.

“The Quebec legislation will need to adapt itself or [a] change of rule in order to comply with the Supreme Court’s decision based on the charter,” he said.

The Supreme Court refused to issue a constitutional exemption which would be special constitutional permission to the appellant to commit an act which is against a certain law. Instead, the court issued a declaration that the Criminal Code’s current invalidation of physician-assisted death is deferred for 12 months, leaving it to the federal government to make a legislative response. 

“[Issuing] such an exemption would create uncertainty, undermine the rule of law, and usurp Parliament’s role,” the court report reads. “Complex regulatory regimes are better created by Parliament than by the courts [….] We would suspend the declaration of invalidity for 12 months.”

Federal government and provinces will need to address the ruling through legislation within the 12-month period to replace the criminal ban invalidated by the court. In light of Quebec’s experience with Bill 52, however, Deschamps said that he believes 12 months might not be enough for thorough consultation and discourse. 

“Before the Quebec legislation was adopted, there were five years where there were consultations with [Quebecers], with the College of Physicians, with numerous groups,”  Deschamps said. “The Quebec government [then said] they would allow 18 months in order to prepare for the implementation of what is in the law. The Supreme Court gave the provinces and federal government a year to cover both aspects of physician-assisted suicide and physician-assisted death, and we all know that takes more than one year.” 

According to Robert Leckey, associate professor at McGill’s Faculty of Law, if the federal government will not draft a new law on physician-assisted death, provincial legislation would be even more necessary. 

“It’s just possible the federal government would say, ‘We’re not able to deal with this, we don’t want to deal with this, our voters don’t want us to deal with this.’” Leckey said. “If they do nothing […] it becomes even more important for provinces to [draft legislation].”

Margaret Somerville, professor at McGill’s Faculty of Law and founding director of McGill Centre of Ethics, Medicine and Law, raised concerns that the qualification for physician-assisted death in Canada, including Quebec, is set too low.

“The Supreme Court didn’t even mention that you have to be terminally ill,” she said. “The Supreme Court talked about [when] you have an incurable disease and you have suffering­—and the suffering is to be judged by you. If you said your suffering was unbearable, that’s what had to be accepted.”

Carolyn Ells, associate professor at McGill’s Faculty of Medicine, is based in the Biomedical Ethics Unit and suggested that such a choice to remove suffering by withdrawing from life should be available.

“[For some health professionals,] they see there are the rare cases where the end of life is truly unbearable,” she said. “They try and try to make it as best as they can, but it’s awful for some patients [.…] Even if you may not want to go [for physician-assisted death], maybe it is the right thing to do sometimes.”

According to Ells, physician-assisted death should not be a replacement to palliative care. She suggests that legalizing physician-assisted death should come with improving palliative care.

“For [physician-assisted death] in Quebec […] we’re not forcing that it is part of palliative care intervention itself, but it’s among many options people might choose [from],” Ells said. “People would still want palliative care [….] That is a very good motivation to improve the options.”

Somerville also advocated for more safeguards on the implementation of physician-assisted death if it is passed, such as requiring the authorization of a judge to proceed, similar to current procedures in detaining mentally ill patients.

“[It needs be ensured] that it is only used in rare cases,” she said. “Surely killing somebody is more serious than keeping a person in the [Allen Memorial Institute] for an extra day […] so it’s not an unusual thing to require.”

Ells also stressed the importance of respecting democracy in the legislation process, and that death should not be a taboo in public discussion.

“I’m in the waiting game too ,” Ells said. “Situations have changed because of the Supreme Court of Canada. In a democratic country where we value each individual person’s view, […] it’s important for people to talk about value and death [….] It can’t be avoided.”

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