Saturday, February 07, 2015

Assisted Dying coming to Canada

What a week this past week has been. While I was away on a business trip to Europe the Supreme Court of Canada (SCC) let it be known that it would release on Friday this week its decision on the so-called Carter case, that is, it would pronounce on the constitutionality of the bits and pieces in our Criminal Code that criminalise assisted dying.

Unless you have lived under a rock during these last few years you will know that I spent a significant amount of my time arguing in favour of the decriminalisation of assisted dying in the country, no least in a report of an expert panel the Royal Society of Canada asked me to chair, on end-of-life decision-making in Canada. In addition I wrote a large number of newspaper columns on the issue and gave oodles of TV interviews and what-not to advance that cause.

So, there I was holed up in hotel rooms in Brussels and Geneva trying to respond to media inquiries. Fearlessly I predicted that the court would come to a unanimous decision and that it would decriminalise assisted dying. I couldn't see, given what we know from jurisdictions that have decriminalised, that the Justices would fall for the slippery-slope clap-trap rolled out by religious opponents of assisted dying, and, of course, their biggest ally, the current Attorney General of this country. I also couldn't see that the Justices would wilfully ignore consistent opinion polls suggesting that overwhelming (I mean: more than 80%) majorities of Canadians are in favour of a change toward making assisted dying available.

It turns out, I was right. The SCC came down with this unanimous decision, defining thus who would be able to receive assistance in dying: 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.'

This is pretty much what we recommended in our report. What I find particularly important about these criteria is that the Justices rejected a threshold requiring that patients must be in a terminal condition, or near the end of life. The current legislation, on this count, in Quebec, will have to be re-written. At the last minute opponents of Quebec's legislation added this threshold, and, thanks to the SCC decision, it will have to be taken out of Quebec's legislation again as it would unjustly deprive people of access to assisted dying who are not close to the end of their lives.

I think, among the important lessons to be learned from all this, is this one: Opponents of assisted dying should reconsider their campaign strategies. They decided that telling anecdotes from jurisdictions that have decriminalised, making up a lot of stuff about things that allegedly happened in such jurisdictions and telling half-truths about what allegedly happened in jurisdictions that have decriminalized worked in their religious echo chamber of pro-life websites, as well as with allied newspaper columnists like the National Post's Barbara Kay and the Toronto Star's Rosie DiManno, and so it would probably work with Supreme Court Justices, too. Turns out, Supreme Court Justices are a bit smarter than DiManno and Kay, who have shown themselves clueless about the issue at hand throughout their years of campaigning in their newspaper columns against assisted dying. The judges looked at the actual evidence and 'rejected the argument that adoption of a regulatory regime would initiate a descent down a slippery slope into homicide.'

The other vacuous agitprop campaign tool deployed by this camp was their ever-growing concern for 'the vulnerable'. Given that they didn't want assisted dying available to anyone, they were careful never to define 'vulnerable'. Turns out, they and their government ally, the Attorney General, really meant everyone. Vulnerability ceases then to be a useful threshold criterion for anything. The Attorney General eventually said, on the Court record, that 'every person is potentially vulnerable.' The Supreme Court called curtains on this rhetoric, too. It states point blank, 'We do not agree.' - 

Aggressive lying and fudging of the issues apparently takes you only that far when it comes to Canada's Supreme Court Justices.

I wonder whether one analysis in the judgment (paragraphs 64-66) could be interpreted as rejecting the Catholic acts and omissions doctrine. Check that one out yourself. Worth a read.

8 comments:

  1. Excellent. Thank you for this.

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  2. Good on you. Good on us.

    Jim Maughan

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  3. Congratulations, Udo, for your significant role in making this happen, Congratulations, too, to all the others who have worked for years to bring about this sensible reform which a majority of Canadians favor, as do majorities in Australia, the US, UK, and so many other countries. Let's hope the Canadian decision will make it easier for other countries to allow people who are incurably ill to decide when they have had enough.

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  4. Congratulations, Udo, indeed! One question though: does this decision make it legal for physicians to assist suicide, and for them only? I was wondering if perhaps Canada had joined the even-more-exclusive club of those allowing non-physicians to assist suicide, as Switzerland does...

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  5. Dear colleague,
    The abrasive tone of your Blog is appalling. As Belgian citizen and witness of the euthanasia social experiment in my country, I am afraid I have to say that the 'stories' of serious misconduct due to a far too liberal euthanasia law are no lies at all: they are the plain truth. Interesting to read is this:
    http://www.newyorker.com/magazine/2015/06/22/the-death-treatment

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  6. Hello Dr Lemmens, thanks for your thoughts on the alleged abrasive nature of this blog. Matters of style are more often than not in the eyes of the beholder. I am uncertain what to make of your other claims. I'm sure you appreciate that they do not quite constitute evidence in any meaningful way. So, what's left is a philosopher making the following empirical claim: 'the 'stories' of serious misconduct due to a far too liberal euthanasia law are no lies'. I assume that you claim that particular - in your view unacceptable - instances of assisted dying in Belgium are a result of the country's euthanasia laws. If that's correct, surely you need to do more than claim that that is so and link to a partisan write-up in an American literary magazine about one (sic!) case. I do not know whether the assistance rendered here was in line with Belgium law, so cannot comment on that. If it wasn't, it's difficult to see how the law could be blamed for someone breaching it. Assuming it was in line with the existing law, I still wouldn't rush to judgment, as the whole story is written up from the son's perspective. For some reason he seems to think this should have been his decision, he should have been consulted, as opposed to his mother's decision. May be that's correct, but surely this requires some normative underpinning. I don't have the details of the case beyond the write-up from the son's perspective in the New Yorker that you linked to. I withhold judgment. Let me note though that this doesn't quite prove anything, it certainly doesn't prove the claim you make in your comment.

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  7. Dear doctor Schuklenk, thanks for your reaction. To be honest, relegating any form of worry and critic on the pro euthanasia optimism to half lies sounds indeed to me quite abrasive. You seem not very eager to really have a dialogue with people who have profound worries, based on experience and sincere ethical thinking. I have also a slightly different appreciation of the quality of the article in the New Yorker. To me, the piece of Rachel Aviv surpasses in ethical sensibility and intellectual acuity a lot of so called scientific articles in top bio-ethical journals on the issue. Moreover, the NYer is not highlighting one case, but mentions at least three cases where the self-confident offering of euthanasia has created emotional havoc among relatives. In one of the cases, there is even manifest evidence of a conflict of interest, whereby the physician used body material of the deceased for his own research. In fact, I could go on, yes, with other cases of bad medical practice due to the law, even of transgression of the law (see the recent case that was send to the courts by the official euthanasia control commission, case revealed in the Australian documentary of some months ago). This is not the place to give this evidence. I presume you follow with attention the situation in Belgium: further cases might reach the public in due time. And if you happen to be in Belgium on another occasion: do not hesitate to contact me, I am very open to offer you more details on the Belgian euthanasia social experiment and the growing worries it causes among an increasing group of physicians, ethicists, politicians and citizens.

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