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.

Quebec Liberals Sabotage Assisted Dying Legislation

This week's column in the Kingston Whig-Standard.

KINGSTON - What a week this has been.

With cross-party support in Quebec’s National Assembly, the legislature was scheduled to pass Canada’s first legislation aimed at permitting assisted dying. The bill as it stood would have permitted assisted dying in very carefully circumscribed circumstances. To be eligible, patients must suffer from an incurable illness and be in an advanced stage of irreversible decline, there must be no prospect of an improvement of their condition, they must also suffer from constant and unbearable physical or psychological pain, and they must be legally competent when they ask for assistance. Oh, and, given that a large majority of Canadians support such legislation, they also added the proviso that you would have to be insured in Quebec, presumably to prevent us folks living in provinces run by church-controlled parliamentarians from driving over to Quebec when we have decided that our time has come.

No doubt, Mr. Harper’s attorney general stood at the ready; he would have taken this legislation to the Supreme Court of Canada. After all, while health care is a provincial matter, there’s also the federal Code criminalizing assisted dying. Quebec’s legislators in Bill 52 asserted loud and clear their authority over matters health care. Quebec’s attorney general would have been ordered to cease prosecuting health-care professionals who assist Quebecers in their dying, provided they adhered to the criteria laid out in the legislation. Mr. Harper’s government, having so far thrown not too much meat in the direction of the Conservatives’ evangelical voter base, would not have let this opportunity pass to represent the religious right’s interests in this matter.

Would have been, could have?

It didn’t happen, courtesy of Quebec’s Liberal party. Before I get to that, though, let’s take a step back and look briefly at the history of Quebec’s cross-party effort aimed at passing legislation that permits assisted dying in the province. Support for such legislation among Quebecers runs these days above 80%, so this particular legislative effort did not take a lot of political guts to put into motion. It all began with the province’s former Liberal premier Jean Charest installing a Committee on Dying with Dignity. After his defeat at the hands of the PQ, this cross-party supported initiative continued under the leadership of the PQ. Eventually Bill 52 was produced, again with support of all factions in the National Assembly. It took no less than four years of public hearings, expert testimony and parliamentary debate. In the end, the document produced was very much in sync with what you can describe as best European practice on this matter. That said, if you’re opposed for religious reasons to assisted dying, you won’t like it, no matter what. If you belong to the majority of Canadians who want such legislation to come about, the safeguards put in place to prevent abuse of the vulnerable would likely have swayed you to support this bill.

The last reading of this bill in the National Assembly this week was expected by most observers to be a mere formality. After all, the Liberals in the province started it all, the PQ continued the process. How often do these two parties, in Quebec of all places, agree on anything of substance?

Much to the horror of the Liberals in the National Assembly, the PQ currently enjoys an all-time high in opinion poll after opinion poll. They are well on course to form a majority government if an election were held today. The Liberals? Well, not so much.

There must have been some hope among Liberal party strategists that the budget the PQ planned to introduce would have permitted the Liberals to inflict some damage on the province’s governing party. They wanted to ensure the document could be properly debated after the two-week recess the National Assembly began at the close of business on Thursday. So they tried hard to drag out the debate on Bill 52 to prevent the PQ from introducing the budget this week.

The PQ, on the other hand, seems determined to call an election during the recess. Of course, the Liberals aren’t terribly keen on an election campaign in Quebec at this point in time. Their current leader, Philippe Couillard, is proving to be a vote destroyer not dissimilar to what Michael Ignatieff and Stephane Dion were for the federal Liberals. And now Couillard added another nail in the coffin of Quebec’s Liberal party. By means of procedural shenanigans, he prevented a vote on Bill 52. He claims, disingenuously, that there just wasn’t enough time to debate this bill properly. Unlike the PQ and the two other smaller parties in the National Assembly, the Coalition Avenir Quebec and Quebec Solidaire, the Liberals were not willing to stay long enough to permit a vote on Bill 52. As a result, Bill 52 died on the order table.

Remarkably, Couillard was quick to declare that if the Liberals form the next Quebec government, they would reintroduce Bill 52 unchanged. Now, you got to ask yourself three questions here: First, as the PQ’s Stephane Bedard pointed out, what exactly do the Liberals think hasn’t been discussed during the last four years of hearings and deliberations? Second, why would the Liberals, in the unlikely event that they form the next provincial government, introduce exactly the same bill that they could not support this last week? Surely they must have issues with the bill that worry them. Finally, if they don’t have serious problems with Bill 52, why didn’t they permit a vote on it?

It is pretty clear that the Liberals in Quebec sacrificed Bill 52 for purely election strategic reasons. Given the popularity of the bill in Quebec, let me predict that the PQ will hammer them in their election campaign also on this issue. It’s going to be a vote winner for them.

Udo Schuklenk holds the Ontario Research Chair in Bioethics and Public Policy at Queen’s University, between 2009 an 2011 he chaired an international expert panel drafting a report on end-of-life issues in Canada on behalf of the Royal Society of Canada. He tweets @schuklenk.

Against taxpayer funded access to IVF services

This weekend's column in the Kingston Whig-Standard, on IVF funding and adoption.

More than a few of my friends, colleagues and even family members think I am wrong on the issue of in vitro fertilization (IVF) funding for infertile couples.

For the life of me I cannot see what interest the state should have in paying significant amounts of money to satisfy some people’s interest in having their own genetically-linked children. I do understand that some people want to have a child that is biologically linked to them. I think the desire is irrational, but evolutionary pressures probably explain this drive to get hold of their ‘own’ child as opposed to opting for an adoptive kid.

My objection to IVF is not religiously motivated. Regular readers of this column will know that I am as secular in approaching ethical issues as they come. So I don’t care strongly about how babies are made, whether it’s by sexual intercourse, IVF, or any number of other means, including reproductive human cloning when that comes eventually about. My argument is not about prohibiting access to IVF. I am concerned about ongoing discussions – even court cases – aimed at getting taxpayers to pay for this sort of thing through our public health care system. In Canada, health care being a provincial matter, we see very different approaches. Wealthier provinces such as Quebec – just kidding – pay for IVF treatment cycles while poorer provinces such as Ontario have chosen not to. Well, who is right?

Given that the question is whether the public health care system ought to provide free-to-user IVF treatment cycles, it’s worth asking: is infertility a disease? I guess it depends on how you define disease. Some infertile people campaigning for taxpayer-funded access to IVF compare their infertility to cancer and other serious illnesses. You might want to ask someone struggling with life-threatening cancer what they make of that kind of comparison. Clearly, infertile people can live perfectly healthy lives very much like other people who choose not to reproduce. The latter choose not to reproduce, the former cannot, but both are able to live healthy lives. If you think that not being able to reproduce biologically is a sign of illness justifiably demanding tax monies to be thrown at it you will obviously disagree. At a minimum though it isn’t self-evident that infertility is an illness. It is also unclear whether we could find a sensible cut-off-point for IVF treatments that ought not to be funded. The oldest woman carrying an IVF caused pregnancy to term was a 74 years old. The sky is the limit and profit maximization is the name of the game for the fertility industry. Unsurprisingly the fertility industry is keen to see IVF treatment cycles paid for by taxpayers as that would increase its income.

Even if infertility was uncontroversially an illness it still wouldn’t follow that tax monies ought to be expended on it. We make resource allocation decisions in health care systems (public and private) all the time. More needs to be said to justify public expense than merely ‘I want my own genetically-linked child, so you pay for my IVF treatment cycles.’ Some cash-strapped parents-to-be argued that it truly is unfair of society to expect of them to pay the $15,000-$20,000 for IVF treatment cycles. I do think to describe this as unfortunate would be correct, that it is unfair is far from self-evident. Indeed, some went so far as to say that they would not have been able to have children if it hadn’t been for someone else paying the bill for the IVF treatment. Here’s my problem with this line of reasoning: The cost of raising a child to the age of 18 currently is in the average about $250,000 in Canada. You can’t tell me that a down payment of $15,000-$20,000 is beyond anyone considering that kind of overall expenditure. If it were, perhaps that would be a good reason to reconsider your spending priorities in life, or better even, your life-plan.

An expert panel working on behalf the last Liberal government in Ontario recommended that IVF treatment cycles be provided free of charge through the public health care system. It noted that some people who rely on their own funds to pay for the treatment, implant too many embryos to ensure a pregnancy. This leads to costly complications in some cases. My response to this argument would be that folks engaging in such risk-taking ought to be required to take out insurance to cover any health care cost their irresponsible behavior requires.

Be that as it may, my broader objection to IVF goes beyond merely bickering about scarce health care resources being wasted on people’s preferences for biologically linked children over – say – adoptive children. I think it’s actually a morally problematic choice to produce more children by costly artificial means while children in need of adoptive parents exist in the country. Yes, I’m not talking Madonna-style purchases of babies in the developing world, but needy children in our own backyard.

At the moment tens of thousands of children in Canada are in need of adoptive parents. They are still looking for a family to call their own. Most of these kids were biologically conceived by people unable to look after them. It remains true that it is for most of us a tad bit easier to make children than to look after them. To my mind it would be decadent of any public health care system to subsidize IVF procedures while in its jurisdiction large numbers of children are in need of permanent homes. It just does not make sense to me. I readily acknowledge that the non-commercial adoption system in this country is far from perfect, but I doubt – given what’s at stake – that there can be a perfect system.

Udo Schuklenk holds the Ontario Research Chair in Bioethics and Public Policy at Queen’s, he tweets @schuklenk

On religious accommodation

Here's this week's OpEd from the Kingston Whig-Standard.

Quebec has done it again. Right after introducing legislation that effectively would permit assisted dying in the province, Quebec’s government is proposing a Charter of Quebec values. True to French form, these values are secular values.

The most controversial policy proposed is that public servants would be prohibited from wearing religious symbols conspicuously while on the job. I will get back to that “conspicuous” in a moment. Opinion polls suggest that this policy – just as the assisted dying legislation - has majority support both among the Quebecers but also among the wider Canadian public.

My liberal-minded fellow academics across Canada have issued condemnatory declarations, the loudest opposition coming from academics writing in French from Quebec. It seems it is all about accommodating the expression of religious views in the workplace. Being an atheist, I thought about staying clear of this debate lest I lose valuable friends in the academy. My gut feeling was, “They had it coming for a long time, these religious fanatics,” and “Why should they be permitted to confront me with their religious beliefs while I am trying to get professional services out of them?”

After all, most of those affected by the proposed policies would be followers of monotheistic ideologies. It is not unfair to suggest that the ideologies they are adhering to have oppressed most of humanity for much of our history. They have dictated to us what we can and cannot do in the privacy of our homes and they have used their political influence to dictate to governments what they can and cannot do. This is why it took such a long time to achieve reproductive rights for women, marriage equality, and that is why we are still bothering about assisted dying, among other policy issues

But other than me liking the feeling of finally being able to finally stick it to these ideologies, I cannot help but wonder whether the proposed policy is actually defensible in a liberal democracy. Are we any better today in our treatment of them, than they were in their treatment of us? My honest impression is that there are good arguments on both sides of the political divide.

The issue, of course, should not be about religious symbols. It is a non-starter. Why should my red “A” badge, as in “A” for Atheist, not be covered by this prohibition? Or the local devil worshippers’ symbol? What about folks wearing trade union paraphernalia? A cross possibly tattooed on an employee’s arm would have to be covered, no matter how hot it is in the office? Surely the issue should be exclusively about a public-sector employee doing his or her job professionally, not about the cloth on his or her head, right? If I receive professional services from religious employees, why should it matter what religious symbols they wear?

Well, a possible answer to this could be that we often end up talking to these employees as the weaker participant in the conversation. More often than not the public-sector employee is in a position of relative power compared to us. Is it really necessary for that person to be also permitted to wear religious accoutrements that tells me that they likely think I’m going to rot in hell anyway, because I am an atheist, or because I belong to a competing religion with its own invisible friend in the sky?

Looking at it from the standpoint of an impartial observer, I come to see these employees in their professional capacity. I don’t even have much of a choice, because unlike with private businesses, I cannot avoid public-sector employees due to the role they occupy. It is not clear why they should be permitted to drag their private ideas about the universe into our professional interaction.

Typically they hold ideas that may have been reasonable around the 14th century, but that does not hold quite true any longer in the 21st century. So, while they clearly are entitled to hold these views in their private lives, it is unclear indeed what powerful reasons there are for permitting them to drag those views into our professional interactions.

Powerful reasons: How about this one? Religion forms, for many people, part of their identity. Incidentally, the same holds true for other ideological commitments for other people. These ideological commitments could require of them to wear particular outfits. Is it not unreasonable to expect them not to wear that dress simply because they have to interact with folks not sharing their ideological commitments?

As a society enforcing such strictures, would we be any better than the totalitarian monotheistic religions that we successfully fought over time? I think not. At the end of the day, as a society we should not force citizens working for the state to check their convictions at the entrance to their office, provided they do their jobs impartially and professionally.

If they refuse to do the job they were hired to do because of their ideological commitments, we should fire them. No ifs, no buts. However, if they do their job as they promised to do when they were hired, surely their preference for particular cloth covering their hair, or a cross around their neck, should not disqualify them from becoming public servants.

Now, of course, the Parti Quebecois is what it is: is a divisive party with a separatist agenda. Both the end-of-life legislation as well as the Quebec charter proposal are driven, to some extent, by their need to separate Quebec culturally from the rest of Canada.

It is worth noting that both policies seem to have majority support. Assisted dying is overwhelmingly supported by Quebecers, the Quebec values charter commands barely majority support, but it does command majority support.

The PQ is, not unexpectedly, hypocritical in its proposed execution of the secular policies. It turns out inconspicuous religious symbols may be worn. So, if you’re a Christian wearing a smaller cross around your neck and you would be fine. This option is not available to Muslim women or to Sikhs, for instance. For lack of a better word, their headgear cannot be replaced by some miniature version.

Funny coincidence, is it not? That this proposed legislation is driven by rank hypocrisy is best shown by the exclusions the PQ has in mind. The crosses hanging in the National Assembly and elsewhere are there to stay, supposedly for historical reasons. This is complete nonsense, obviously. Why should history provide any stronger ethical reason for keeping massive religious symbols in the public domain than the fundamental needs of Quebecers whose religious identity commands them to wear particular religious garb, even to work?

The only reason to prevent a public-sector – or other – employee from wearing religious garb in the workplace would be that it would prevent them from discharging their work obligations professionally. If that is not the case, I can see no good reason for the prohibition. Any government seriously concerned about the separation of state and church should take a serious look at public funding for religious schools and hospitals, as well as the myriad tax exemptions heaped upon religious organisations as opposed to targeting citizens wearing religious paraphernalia at work.

Udo Schuklenk works at Queen’s. His new book, 50 Great Myths About Atheism (Wiley 2013), is out this month. He tweets @schuklenk

Quebec at the forefront of assisted dying effort in Canada

Exciting developments in Quebec. There is a cross-party consensus in the provincial parliament that assisted dying ought to be available to certain patients, namely those who are on palliative care, who suffer from a terminal illness and who consider their lives not worth living any longer. There is currently contradictory information in the media-reporting about whether assisted dying extends all the way to voluntary euthanasia or just assisted suicide. What seems clear is that the legislators avoid - likely for legal reasons - from calling what they proposing what it is. 

I have not been able to get my hands on an English version of what is reportedly a 400pp legal document indicating that Quebec is on firm legal grounds, constitutionally, if it decided to go ahead with this plan.

Here is how the Huffington Post has reported the gist of it: 

'Under the recommendations, patients themselves would have to make the request to a doctor on the basis of unbearable physical or psychological suffering. Two physicians would have to approve the request, which would have to be made in writing.

Doctors would not face criminal charges in these circumstances, the report said. Any law should state that the refusal, interruption, abstention from care or the application of a terminal sedative in those circumstances could not be considered a suicide.

The Quebec panel, which was headed by lawyer Jean-Pierre Menard, said people suffering from an incurable or degenerative illness should be allowed to ask for medical assistance to help them die.'

Canadian doctors move on Right-to-Die issue

Interesting stuff. Doctors in the French speaking Canadian province of Quebec are bound to issue a discussion document this coming fall proposing that voluntary euthanasia be legalised under certain circumstances, namely in case of terminally ill patients suffering severe pain.

The Montreal Gazette points out that the Quebecoise electorate has been more progressive than voters in other Canadian provinces, with about 80% favouring the legalisation of voluntary euthanasia. Conservative religious people are naturally not bemused, and their lobbyists dragged out flawed stuff like the doctrine of the double-effect and the intention-foresight distinction.

Simply put: these people believe that if someone dies as a foreseeable side-effect of having received large quantities of pain killers that is not euthanasia provided the doctor's decision was to relief pain and not to kill the patient. Of course, the effect is the same: the patient dies as a foreseeable consequence of her doctor's intervention. To say that I don't mean to do X when I know that X is the inevitable result of my actions is probably intelligible (after all, I might accept X as an unwanted but inevitable thing, in order to achieve something else, say the alleviation of pain). And yet, it seems deeply dishonest to go on about this distinction when it is clear that I will kill a given patient if I intervene in a particular way (even if my intention is otherwise). Seems like camomile for the tortured guilty conscience. Perhaps it is time to consider whether it would be better to permit people legal access to this option to avoid endless probes into doctors' intentions. It would appear to be more sensible to focus on the outcomes of actions and decide whether or not they are desirable. The double-effect doctrine and the intention-foresight distinction are not particularly helpful, when looked at from this perspective.

Canada at this point in time outlaws voluntary euthanasia, as well as physician assisted suicide (in this case the doctor would not administer the drug to terminate your life, she would only make them available to you so that you can commit suicide yourself if you so wish).