Sister Nuala Kenny and the Right to Assistance in Dying

Guest post by Eric MacDonald

It was announced on 14th August 2015 that an inter-Provincial-Territorial advisory group on physician assisted dying was being formed. This seems almost to be a “tu quoque” to the Harper government’s risible appointment of an expert panel on assisted dying that included three members, two of which had given evidence on behalf of the government before the Supreme Court in the case of Carter v Canada (Attorney General) which led to the unanimous Supreme Court decision to strike down the assisted suicide provisions of Canada’s Criminal Code.

A number of members of the Provincial-Territorial advisory group are well-known supporters of assisted dying; something which should occasion no surprise, since the decision of the Supreme Court so strongly expressed its concern that the assisted suicide provisions of the Criminal Code abridged the freedoms and rights of Canadians. It is notable, also, that the Supreme Court expressed itself not only in terms of the rights of dying Canadians, but also of those who were suffering irremediably, regardless of their calculated expected time of death.

There is one member of the Provincial-Territorial advisory group, however, who is not only an opponent of assisted dying in any form, but in fact, has defended the Roman Catholic position on assisted dying, and opposed Quebec Bill 52, which provides for what the bill calls “physician aid in dying.” No doubt Sister Nuala Kenny’s position on the advisory group was a foregone conclusion, fulfilling, as it does, the Canadian Conference of Catholic Bishops’ demand that it be kept up to date with decisions or actions that might be undertaken by government in response to the Supreme Court decision. However, since health care is a provincial jurisdiction, it is appropriate that such decisions or actions should be taken by the provincial and territorial governments acting in unison to provide a consistent, unified set of guidelines and protocols to govern the practice of assisted dying across the country.

That being said, it is perhaps to the point—since she does oppose the Supreme Court decision—to review Sister Nuala Kenny’s position on assisted dying as she expressed it (in relation to Quebec’s Bill 52) in 2013 in her Catholic Register article, “Quebec’s Bill 52 Is Not About Care, It’s About Death.”

It is worth noting, at the start, that the Quebec bill is entitled An act respecting end-of-life care, and therefore falls short of the Supreme Court decision which does not confine itself to those in the very last stages of life, but explicitly includes the following:

We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person 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. We therefore allow the appeal.

This much is clear, so all the language in Sister Kenny’s article which includes any or all of the following language is really irrelevant to the Supreme Court’s decision. As Kenny writes regarding Quebec Bill 52:

This Bill demonstrates a seductive corruption of language in moving forward a specific agenda, a strategy to circumvent the law through manipulation of language and a frightening distortion of palliative care.

None of this is relevant in the present case, though it is important to remind ourselves of this, since it is relatively instinctive, even amongst those who support assisted dying, to speak in end-of-life terms. In one sense, this is apt, since for those who do seek assisted dying, meaningful life as they understand it has already or is threatening imminently to come to an end. However, it is vital to keep in mind that there are those in states of severe and debilitating suffering who may be kept alive for many years, given the great strides that have been made in medical science in the last half century or more.

Quite aside from this, however, there is no reason, despite all the assurances that may be given by experts in palliative care, why someone who is dying should be unable to make a choice between undergoing such care (which is much less rosy a prospect in many cases than palliative care boosters may suggest) and bringing their lives to an end before their lives have entered the final phase of their lives to which palliative care is a relevant or even a possible option. And to suggest, as Sister Kenny does, that assisted dying should only become an option when the full range of palliative care services are available to all Canadians, is simply unacceptable. Not only does this condemn a large number of people to die without palliative care assistance (and without assistance in dying too), but it presupposes that, if palliative care were available to everyone, there should be no individual choice at the end of life as to how people should die. Neither of these options should commend itself to compassionate persons who believe that personal choice, either at the end of life, or in cases of irremediable and intolerable suffering in the midst of life, should be recognised as rights upheld by the Canadian Charter of Rights and Freedoms.

However, the lack of palliative care for some Canadians is really not vitally important in Sister Kenny’s condemnation of assisted dying. Before quoting what seems to be Sister Kenny’s central concern, it is worth remarking on the fact that Sister Kenny is not above engaging in a seductive corruption of language of her own. It is contained in the title of her article, where she states that the Quebec Bill 52 “is not about care, it’s about death.” This is a mistake often made by English jurists (as was the case in the decision of the Law Lords of the House of Lords regarding Diane Pretty’s argument that the right to life should be interpreted as upholding a citizen’s right to assistance in dying). In response, the House of Lords ruled

Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an article framed to protect the sanctity of life.

The emphasis placed by the House of Lords was on the outcome of exercising the right Diane Pretty was claiming, namely, death. No law, guaranteeing the right to life can be interpreted as providing a right to be dead, was the interpretation placed on Diane Pretty’s appeal. But that is not what Diane Pretty was demanding. She was demanding the right to do something that is perfectly consistent with her right to life, namely, her right to make a decision, as a living person, that would allow her, as she argued, “to have a quick death without suffering, at home surrounded by my family.” The Quebec law, in other words, could not be about death, since it would apply only to living persons. In exasperation Diane Pretty stated that she felt that she had no rights, an exact reflection of Montaigne’s view that those who have no right to die are in effect kept in slavery for the duration of the time this right is denied them. The right to die when suffering irremediably is not about death, it is about one of the most important life-decisions a person could possibly make.

However, Sister Kenny is of the opinion that:

We live in a secular, death-denying, death-defying culture, dominated by the discourse of individual rights and autonomy, the medicalization of life and consumerism. This context provides the elements for a perfect storm that is eroding fundamental commitments and situating death as a medical act and a right to be controlled by individuals.

This is an astonishing statement! Remember that she is speaking of those who would choose to die in circumstances that may justly be seen by individuals (but need not be so seen by other individuals) as circumstances of intolerable suffering. In what way is the choice to die in such circumstances death-denying? And in her insistence that people be given the forced option of palliative care, in what way is this not part of what she calls “the medicalization of life” (and perhaps even of consumerism)? Moreover, while her church may retain a fundamental commitment to life regardless of the suffering involved, and are prepared to call a death in great suffering a “good death,” there is no reason not to think of her expression of this position as a serious misuse and even a seductive corruption of language.

The one thing that Sister Kenny does get right is that “[s]uffering can occur at any time in life, not just at its end,” which is why the Supreme Court decision makes such eminent sense. And, remember, we are speaking here of suffering which cannot be remediated, and which, in the opinion of the individuals concerned, is such as to make life an intolerable burden. Sister Kenny is, of course, as a member of a religious organisation, entitled to endure as much suffering as she chooses, if this is an integral part of what she calls a “good death” (of which, she says, there is a tradition), but she should have no right to impose this entitlement on all. Of course, she raises the spectre of a slippery slope at this point, as all religious opponents of assisted dying do, but the key question to put to them is this: At what point, should there be no slippery slope involved, would such a person grant that intolerable and irremediable suffering (whether at the end or in the midst of life) would activate a right to assistance in dying? If they argue that at no point would suffering activate a right to assistance in dying, then we know that the slippery slope argument is not being used as an argument but as a scare tactic, to enforce articles of faith which require people to continue to suffer, no matter what the prognosis of such suffering may be. It is, in fact, to valorise suffering in terms of religious beliefs which should have no part to play in determining rights for individuals in a secular society where such beliefs are not shared by all.