Group met over five months and produced 461-page document
OTTAWA (CCN)
The long-awaited report of an independent panel’s consultations on physician-assisted dying released Jan. 18 urges more access to palliative care and ensuring of safeguards.
“There are divergent views on many aspects of physician-assisted dying, but there are also areas of growing consensus, including a recognition of the need for carefully considered safeguards, oversight, and a strengthened palliative care framework to be developed in parallel with one that provides access to physician-assisted dying in accordance with the Carter decision,” it says.
The report of the External Panel on Options for a Legislative Response to Carter v. Canada runs to 461 pages.
The panel met over five months. There was an extensive online consultation completed by 14,949 people, 321 written submissions, and meetings with interveners and stakeholders.
Conservative MP Mark Warawa of Langley-Aldergrove, a member of the panel, asked whether under the Carter decision a person requesting PAD had to be terminally ill. He was told this was “not entirely clear.”
In an interview, Warawa, a prolife MP, said, “The purpose of the criminal code, which applies equally across Canada, is to protect the vulnerable.”
Parliament is “required to introduce legislation” because of the Carter decision, but Warawa said at this point it is premature to guess what the committee will advise. When the report is done, he will then decide “whether or not I can support this report.”
Palliative care is one of his priorities. He said he hopes to remind the government of NDP MP Charlie Angus’s motion to adopt a national palliative care strategy that was passed by the previous parliament.
The Supreme Court of Canada’s Carter decision created a “positive right” to physician-assisted death, said constitutional lawyer Peter Hogg.
Hogg, who argued in the Carter case, on behalf of the previous Conservative government, against euthanasia and assisted suicide, made the comment in a scrum after appearing as an expert witness Jan. 25 before the joint Parliamentary Committee on Physician-Assisted Dying.
Carter created the right to physician-assisted dying “subject to the creation of safeguards,” Hogg said.
Margaret Somerville, a bioethicist and the founding director of McGill University’s Centre of Medicine, Ethics, and Law, said she disagrees with Hogg.
“Hogg is saying that the Supreme Court of Canada has created a primary right to [physician-assisted dying] and abortion that is exercisable as long as you fulfill the necessary conditions.”
“I believe the court has given an exception to the prohibition of physician-assisted death under criminal code provisions if you fulfill the conditions. The difference is major.”
“The former is a basic presumption that yes, you may have physician-assisted death provided you fulfill these conditions; the latter no, you may not have physician-assisted death, but an exception will be granted if you fulfill these conditions,” she said.
“The former is much more damaging to the right to life value, although both damage it, and rejects the long-established legal maxim of a presumption in favour of life,” she said. The first view “creates a right to physician-assisted death on certain conditions.”
“The latter does not create a right to physician-assisted death but allows an exception to criminal liability for murder or assisted suicide on certain conditions,” Somerville said.
“Hogg is a very eminent constitutional lawyer, so this is worrying,” said Somerville.
Appointed last summer by the Harper government, the panel chaired by palliative care expert Dr. Harvey Chochinov included disability studies expert Catherine Frazee, and legal expert Professor Benoit Pelletier. Originally mandated to provide legislative advice, the Trudeau government changed the mandate to providing a summary of its consultations. It extended the deadline from Nov. 15 to Dec. 15. A spokesman from the Attorney General’s office said the delay in its release was due to the need to translate it into French.
Over five months, the panel met with 73 experts Canada and abroad in jurisdictions where PAD exists-including the Netherlands, Belgium, Switzerland and parts of the United States. They conducted an extensive online consultation completed by 14,949 individuals. They also met with 92 representatives of interveners, various medical bodies and stakeholders from 46 Canadian organizations. They examined 321 written submissions.
The report covers the forms of PAD such as assisted suicide and voluntary euthanasia; the definition of key terms; outlines the risks to individuals and society; examines safeguards in assessing PAD requests; and the protection of physicians’ conscience rights.
Among the findings, the panel reported 70 per cent support for a national oversight body to track PAD; 76 per cent support for a national palliative care and end-of-life strategy; 78 per cent support for a “comprehensive national home-care strategy;” and 80 per cent support for a national strategy on supports for those with disabilities.
The panel reported respondents “were more likely to agree that physician-assisted death should be allowed when a person faces significant, life-threatening and/or progressive conditions” but were concerned about the impact on the mentally ill, “especially those with episodic conditions” and for those “who are isolated and lonely.”
The release of the report coincided with the first day of meetings of the Parliamentary joint-committee on physician assisted dying (PDAM) as Members of Parliament and Senators heard witnesses from the Justice Department explain the legal parameters for crafting legislation that would exempt doctors or other medical professionals from Criminal Code provisions of homicide and assisting suicide in line with the Supreme Court of Canada’s (SCC) Carter decision which struck down some provisions as unconstitutional.
Co-Chaired by Senator Kelvin Ogilvie and Liberal MP Robert Oliphant (Don Valley West, ON) the committee must advise the government on crafting legislation that must pass the House of Commons, through the committee process and through the Senate within the four-month deadline extension on the Carter decision granted by the SCC Jan. 15.
Two Justice Canada lawyers appeared as witnesses Jan. 18. They advised the committee they could determine whether the PAD law should only include assisted suicide, where doctors prescribe a lethal dose or whether it would allow euthanasia, where a physician or other medical professional causes the death usually through a lethal injection. She noted some jurisdictions, such as some American states, only allow assisted suicide. Some jurisdictions allow only voluntary euthanasia. Some allow both.
Lawyer Joanne Klineberg told the committee Canada was unique among all the jurisdictions that offer some form of PAD in it is the only one that has two different levels of government involved in the jurisdiction of criminal law and of health care. For Parliament, the essential elements of the law have to do with what exemptions for PAD will be allowed in the Criminal Code, she said.
Matters concerning conscience rights for physicians are provincial matters, she said.
Several committee members had questions concerning jurisdiction, such as what would happen if the federal law differed from the Quebec law. The witnesses advised Parliament to focus on crafting a law rather than on jurisdictional questions.
The committee will also need to determine who will be eligible for PAD and define what the legal term “grievous” means from a medical standpoint, she said.
Klineberg said it is important for the legislation to be clear on what activities will or will not result in a criminal offense so medical professionals will know what they can and cannot do.
