Physician assisted dying legislation flawed

Bill C-14 could be ruled unconstitutional, prof says

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Legislation on physician assisted dying passed by the House of Commons today poses many issues, according to Queen’s Bioethics professor Udo Schüklenk.

In February 2015, the Supreme Court ruled unanimously in the case of Lee Carter v. Canada that any competent Canadian adult who suffers intolerably from a serious and incurable condition might choose to have their life painlessly ended through the assistance of a physician.

The Conservative government at the time was given one year to pass new legislation. Following a request from the newly elected Liberal government, the Supreme Court extended the deadline to create legislation on the matter of physician assisted dying to June 6 of this year. 

New legislation tabled by the federal government will limit which Canadians will be granted access to physician assisted dying. Bill C-14 proposes that to gain access, a patient’s death must be deemed “reasonably foreseeable.”

According to Dr. Schüklenk, one of the issues with the legislation is the very ambiguity of the term “reasonably foreseeable.” 

“Somebody could have ALS and they know its going to kill them but it could be two, three, four years down the track; is that reasonably foreseeable? Typically this is not what they’re having in mind. What they’re having in mind when they talk about terminal illness is usually six months,” Schüklenk said.

Bill C-14 is in direct violation of the Supreme Court’s ruling, and would even have restricted one of the plaintiffs in the landmark case, Carter v. Canada, from being eligible for end of life decision-making, according to Schüklenk.

“The reason why it’s a big problem is because the Supreme Court actually listened to extensive expert witnesses that were looking explicitly at the question of whether terminal illness is a sensible threshold criteria,” Dr. Schüklenk said.

After taking the advice of a panel of experts into consideration, the Supreme Court determined that someone need not necessarily be terminally ill in order to gain access to a physician assisted death.

“It is clear from the judgment they were persuaded by the experts saying ‘no’ because there can be people that suffer from intractable illnesses that are not terminal, that render your life not worth living.” Dr. Schüklenk said.

According to Dr. Schüklenk, if the new legislation were to pass, it would be open to a charter challenge from any victim wishing to end their life whose death had not been deemed “reasonably foreseeable.”

 “Here is the disastrous part,” Dr. Schüklenk said, “this legislation would pass, then all the provinces and territories would have to fall in line with policies and regulations only to have this all thrown out by the Supreme Court and then everything has to be revised again.”

Meanwhile, those patients would be forced to suffer through intolerable conditions throughout those legal proceedings.

Dr. Schuklenk believes that this legislation is setting a precedent for how the Liberal party addresses Supreme Court decisions.

“I think probably it is a sign of more to come,” Dr. Schüklenk said. “It’s really unfortunate because it is now the second government in a row, a completely different party, but the same approach to these sorts of Supreme Court decisions. It’s surprising.”

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