Expression of the many practical challenges involved in implementing a system of assisted dying that protects the vulnerable while allowing patient autonomy marked the Canadian Medical Association’s verbal submission to the Supreme Court of Canada earlier this week.
The Supreme Court met on Oct. 15 to hear the Carter case about whether the existing prohibition on assisted death in the Criminal Code of Canada is unconstitutional under the Canadian Charter of Rights and Freedoms.
“The CMA is intervening in this appeal to assist the court by providing a window into the diverse views expressed by its membership, and to highlight practical considerations that must be assessed if the law were to change,” said CMA President Chris Simpson in a release.
The Carter case began in 2011, when the BC Civil Liberties Association (BCCLA) joined Dr. William Shoichet, Gloria Taylor – who had an incurable, progressive disease – and the family of Kay Carter, who also had an incurable disease, to challenge the law against assisted dying.
In 2012, the B.C. Supreme Court ruled the Criminal Code of Canada provisions against assisted dying violated the rights of the gravely ill. The federal government appealed that decision, and the provincial Court of Appeal overturned the lower court ruling in October 2013 and upheld the ban, citing the 1993 case of Sue Rodriguez. The Supreme Court granted the BCCLA, the Carter family and others permission to appeal the case.
The CMA was one of many organizations to address the court during the day-long hearing; the Supreme Court is not expected to render a decision for several months.
Harry Underwood, CMA’s external counsel who made the oral submissions on behalf of the association, referenced the resolution adopted by the CMA in August supporting the right of all physicians, within the bounds of existing legislation, to follow their conscience when deciding whether or not to provide medical aid in dying. He noted that CMA was not appearing before the court to speak for or against a change in the law.
Underwood said the recent CMA policy resolution from General Council reflected an acknowledgment that the profession is divided on the question on professional and ethical grounds. Simpson said the revised CMA policy would “continue to reflect the ethical principles for physicians to consider in choosing whether or not to participate in medical aid in dying…
“Since euthanasia and assisted dying are illegal, we continue to advise our members not to participate in these activities (assisted dying),” said Simpson. But he stated the CMA recognizes assisted dying “is a societal issue and that it is society that will ultimately decide what will take place.”
In his oral presentation, Underwood discussed the practical challenges for physicians in assessing the competence of individuals to choose assisted death and to ensure they’re making an informed decision.
He said there is a “looming concern” such decisions may be made in the emergency room or other area of a hospital, when the patient is in crisis, rather than as the result of a full discussion between patient and family physician. Adding to this challenge, he said, some people do not have a family physician. Among those that do, many don’t have a long-term relationship with this physician, and in the present health care system many family doctors are not able to provide continuity of care when the patient is hospitalized.
Underwood noted the primary care environment in Canada is markedly different from those in Belgium and the Netherlands, where assisted dying is legal, because these countries are compact and homogeneous and many people have better access to family physicians .
Both Simpson and Underwood referred to the “patchwork” of palliative care services across this country, and the impact the lack of these services could have on a patient’s decision to avoid pain and suffering by choosing assisted death.
Underwood said that if the law is changed to permit assisted death, physicians who choose to participate and offer this service need legal protection. Those who choose not to participate also need their choice respected and protected. He also said institutional safeguards would be required to protect vulnerable individuals, and said Canada would not be able to simply adopt a system from another jurisdiction where assisted dying is legal.
Simpson noted that going forward, the CMA will continue to advocate and press for a pan-Canadian strategy on palliative care to ensure that Canadians have improved access to such services. The discussion around end-of-life care has cast into sharp relief the serious lack of palliative care in many areas, and Simpson said it is past time the shortage be addressed.