Within the next few weeks, the federal government is expected to unveil legislation permitting Canadians to seek medical help to die.
Earlier this year, a special Parliamentary committee, made up of ten Members of Parliament and five Senators, produced a list of 21 recommendations for the government to consider as the basis for that new legislation.
“This was unusual,” explains Liberal M.P. Rob Oliphant, co-chair of the committee. “Normally, a government would hand this task to a cabinet minister who would ask bureaucrats to come up with draft legislation.”
The committee was appointed in order to “speed up the process” because the federal government has until June 6th to enact a new law that complies with a Supreme Court of Canada ruling made in 2015, striking down the country’s ban on doctor-assisted death.
“We essentially did about four to five months of work in a little over a month,” says Mr. Oliphant. “Between January 18 and February 25, we met with 61 witnesses, we received over 130 written submissions and came up with our report.”
In a recent interview, Mr. Oliphant spoke to me about the committee’s recommendations.
Here are some of the highlights from that interview:
Q: The Supreme Court has ruled that competent adults with a “grievous and irremediable medical condition” have the legal right to request assisted death. Who should be responsible for deciding if a patient is competent to make such a decision?
A: We had a choice to say this is either largely a legal decision or this is a largely a medical decision. And, in our report, we suggested it is largely a medical decision. So, we have taken the courts out of the process.
When a patient makes a request for an assisted death, the patient would normally ask his or her (primary-care or family) physician. A second physician would have to agree on the patient’s eligibility and competence.
Q: What happens if the patient’s doctor has an objection to the very principle of assisted death?
A: We have said that physicians should be allowed to have conscientious objections. However, we have suggested that there be an effective referral. That means the physician doesn’t have to do it, but needs to refer the patient to another doctor who does not have a conscientious objection.
Physicians’ rights are respected, but only up to the point where they would then have to refer the patient to someone else. What we are saying is that the patient’s rights are at the centre of this whole process.
Q: The Supreme Court said the patient has to be an adult in order to be eligible for an assisted death. How do you define adult in this context?
A: We think it’s arbitrary to simply say that 18 years is the age. The issue is not chronological age, but capacity. We trust the medical community, the physicians, to determine whether a 17-and-1/2-year old has capacity. Or, whether an 18-and-1/2-year has capacity. We think you have to prove capacity no matter what age you are. And we think that requirement will obviously limit very young people from having an assisted death because they will not have capacity to make that kind of a decision.
I recognize we are putting a lot of burden in the hands of physicians. But we trust our physicians with important questions every day, and we then trust their regulatory bodies to appropriately supervise them. And we think this situation will be no different.
Q: Should there be any safeguards or oversight over the physicians who are making decisions about capacity and assisted dying?
A: We will have oversight in that every one of these deaths will be reported as an assisted death, and if patterns are developing around certain physicians, they will be held accountable just as they are held accountable for their complete practice of medicine.
Q: Should anyone else – such as a family member – be able to choose an assisted death on behalf of the patient?
A: We have emphasized that there are no substitute decision makers for assisted dying. No one can make this decision for someone else, even if they have been the substitute decision maker on every other decision in that person’s life. We have said this is not a decision others can make – in order to protect the vulnerable.
It is with a degree of difficulty that we reached this decision because we know it means some people will have intolerable suffering because they don’t have the capacity to make the decision for assisted death on their own. However, on the basic issue of existence – whether one lives or dies – that decision can only be made by the person who is directly affected.
Q: What do you think should happen to people in the early stages of illnesses like Alzheimer’s disease, which will eventually rob them of their mental faculties? Should they be able to opt for an assisted death in advance?
A: We have suggested that after people have such a diagnosis, but while they still have capacity, they should be able to make the decision based on certain conditions. And once those conditions are met, they would have assisted dying at that point. We believe this will prevent premature assisted dying. We don’t want people to say, “I better do it now because I am still competent today.”
This approach puts the decision of the actual timing of the assisted dying in some else’s hands. But we think it is an appropriate safeguard to say that patients, while they still have capacity, can outline when certain events have transpired that they would like to have their life ended.
Q: Do you expect that many people will choose an assisted death?
A: I think it’s actually going to be relatively rare. And that is just from my 25 years as a United Church minister and my experience of being with many, many dying people.
I think many people think about it theoretically. The thought of the pain is what is very, very worrisome to them. They want to have the option of assisted dying. But, in the end, it is the option they want – not the doing of it.
I really think that most people will end up saying, I am glad I have the possibility of assisted dying if my suffering becomes intolerable. However, the reality of the journey is usually better than they imagined.
(This interview has been condensed and edited.)
