Month: February 2021

Medical Assistance for a Kinder Death

My Presentation on Medical Assistance in Dying (MAiD) Before the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-7, February 3, 2021

My presentation was as an individual, not as a representative of any organization.

Background

The purpose of this Bill is to amend the Criminal Code governing when a person is eligible for medical assistance in dying, and when a physician can provide that assistance without committing a crime.  The main benefit of the amendment is to remove the prohibition against MAiD when the patient’s death is not “reasonably foreseeable”.  The Bill had been passed by the House of Commons and sent to the Senate for review.  If the Senate approves the Bill it will become law.

MAiD isn’t available for everyone who wants to die for whatever reason, with help from a physician.  Nor is this medically assisted suicide or euthanasia.  The Supreme Court of Canada held in the 2015 Carter case (Para 147) that physician assisted death should be available as a constitutional right when “a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” 

Unfortunately, the Bill also prohibits access to MAiD if the sole medical issue is “mental health”, involving no other physical illness or disease, even if the person is competent to make the decision.  It had been hoped that this prohibition would be removed, but when Justice Minister David Lametti addressed the Committee on February 1, he was clear that the government will not change its mind on this issue until there has been further study.

The entire day’s Committee hearing was recorded and can be seen at this link, with my appearance at around the 10:34:50 mark.  This is the transcript.

After introduction by Committee Chair Mobina Jaffer:

Andrew Roman, as an individual:  

Thank you very much. Thank you for inviting me.

I filed an eight-page written brief with my bio and I’d ask you to read it. I’m going to focus on the decision before you, because you are hearing lots of things that you can’t do anything about. I’ve read the speeches of all of the senators in your debates in December, and I also watched Minister Lametti’s presentation. He spoke very eloquently about respecting private autonomy, but the law now, and the law after Bill C-7, is inconsistent with any constitutional idea of autonomy. And you are not here to amend the Constitution.

So let me give you my recommendation right away: If you like Bill C-7, vote for it. If you don’t like it, hold your nose and still vote for it. It’s better than what you’ve got now, and it’s the best you’re going to get for now. So don’t let the perfect be the enemy of the good.

I think it’s clear that there’s going to be a Spring election, and if you put in a bunch of amendments, the bill will die and will not return for many years. Meanwhile, many people whose deaths are not reasonably foreseeable will die in intolerable pain, for which you may be partly responsible. I wouldn’t want that on my conscience.

So where does individual autonomy end and state intervention properly begin? Fully respecting autonomy, as Mr. Lametti spoke, really means you have to accept: It’s my death; it’s my decision. But up to now, Canada has used the wrong law with the wrong onus. Let me explain.

First of all, medical assistance does not belong in the Criminal Code. That was clear in the Carter decision. This should be an issue of health law and medical ethics.

Second, instead of the state bearing the onus of justifying deprivation of private autonomy, the way the law is now it has been reversed. Individuals are forced to go to court for judicial permission to exercise their right to autonomy. What law reform we have seen has been entirely provided by litigants and judges, not legislators.

Just as the state has no business in the bedrooms of the nation, it has no business deciding how long and how much Canadians must suffer before we seek medical assistance for a better death. And despite some disability advocates, people with disabilities don’t want the state to deprive them of their private autonomy any more than people without disabilities.

Let me talk about safeguards now, because some people keep talking about more and more safeguards to protect the vulnerable. I understand their concerns given the barrage of often misleading information to which they have been subjected, but no one has offered any empirical evidence that there is actual widespread abuse of the disabled [through MAiD]. There is an anecdote here and there but nothing substantial. And no one will admit publicly, because it’s not politically correct, that they oppose individual autonomy. Instead, people who ideologically dislike MAID will look for legal obstructions and label them “legal protections.” The court in Truchon found that there was no “slippery slope.” So every legal safeguard is a legal barrier. It’s a deprivation of private autonomy that the state must justify.

I can’t resist mentioning the January 25 United Nations report where its so-called human rights experts expressed alarm at a trend of enacting legislation to enable access to medically assisted dying based “. . . largely on having a disability or disabling conditions . . .”

From my reading of what the UN has been saying, they effectively proclaim as a human right the right to continue intolerable suffering. Not for everyone, just for disabled people. Well, that argument was rejected in Carter six years ago. So if MAID is against your beliefs, don’t use it. But you have no moral right to deprive others of their autonomy to reduce their suffering. To preserve unnecessary so-called safeguards is cruelty masquerading as kindness. For the Senate to preserve the unconstitutional requirement for reasonable foreseeability of death won’t achieve anything. I say it’s time for all senators to stand up for Bill C-7 as it is. Thank you.

Senator Chantal Petitclerc:

I have one question right now for Mr. Roman. I’ve read your eight pages. I’ve also read a lot of things you’ve published and your blog. I wanted you to elaborate on the safeguards of Bill C-7 and the fact that you have mentioned that — there has not been much evolution in MAiD

And it is true, but we are expanding and opening access to medical assistance in dying. So I want your perspective on how it will stay that way.

Keep in mind in your answer, if you can, that we want to see, on the one hand, that the rights of individuals like Sylvain Le May who has testified that the right to choose be respected, and also that individuals with or without disabilities who may be in situations of vulnerability are protected.

What is your opinion on the safeguards in that regard?

Mr. Roman:

What you’re dealing with now is a criminal law — that’s the law in front of you — and that’s the real problem, because criminal law is a very blunt instrument; it’s a sledgehammer. And what you deal with when you deal with MAID is a one-on-one decision between a patient and a physician, in a different setting, where the criminal law doesn’t really operate.

What you need to do is to take into account what the Supreme Court of Canada said at the end of the Carter decision, in paragraph 132:

“In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.”

And here’s the key part:

“What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. . . .”

You heard from Dr. Hilliard about the provincial legislature in British Columbia. Whatever safeguards you wish or you believe you need should be dealt with not in the criminal law, because that doesn’t deal with the interface between the patient and the physician. I think what you need to do is work with the Canadian Medical Association, the palliative care associations — all the people who regulate what physicians do to ensure that you put in a mechanism of ethics, and penalties for violations of those ethics if someone is unduly or improperly pressured to have MAID when it is not in their best interest or it is not their choice.

But ultimately you’re never going to be 100% accurate with interpersonal relationships, just like courts don’t get 100% of their decisions right and, regrettably, neither do doctors.

…………………

Senator Claude Carignan: (translation below)

J’ai un petit commentaire d’introduction à faire pour dire à M. Roman que je suis parfaitement d’accord avec lui. Je pense que, au fédéral, on devrait déterminer ce qui est criminel et ce qui ne l’est pas, et laisser tout le processus qui touche aux mesures de protection ou à l’administration des questions de consentement à la compétence des provinces et des ordres professionnels. Je pense que ce serait la meilleure chose à faire, plutôt que de tenter de faire de la microgestion.

My translation:

I have a small introductory comment to make to say to Mr. Roman that I am perfectly in agreement with him.  I believe that, at the federal level, we ought to distinguish between that which is criminal and that which is not, and leave all processes related to safeguards or the management of questions of consent and [mental] competence [to consent] to the provinces and professional associations.  I think that would be the best thing to do, rather than trying to engage in micromanagement.