Guest post by Eric MacDonald
Faced with this submission, the first question is: What is its purpose? Although it states clearly that the Supreme Court has already spoken on the issue of assisted dying for Canadians, it is clear that the questions asked — and the whole submission consists in a series of questions (sometimes with accompanying enigmatic text) — are mainly intended to raise objections to the legalisation of assisted dying. There is no other way to understand it, as we will see. Many of the questions, and much of the text, is entirely irrelevant to the question before Parliament, which is to draft legislation to replace that which was struck down, taking care to include within such legislation matters which the Supreme Court held up as a matter of the rights of Canadians, that is, to provide both means and safeguards for providing Canadians with the right of ask for and to receive assisted dying when they are suffering from intolerable and irremediable suffering. The questions raised in fact trend in a quite different direction.
We cannot discuss all the questions here, since this would require a great amount of space, so I will try to give you a sampler of the questions and their implications. It is worthwhile pointing out, at the start, that the questions are asked with the Anglican Church of Canada’s study paper on assisted dying in mind. Now over a decade old, entitled Care in Dying, this study paper is still available on the Anglican Church of Canada’s homepage.
There is first a lot of preliminary matter concerned mainly to record the Church’s vast experience of those who are dying. The questions are shaped, we are told, by the Church’s commitment to love, compassion and care, as well as to social, economic and racial justice, and to the dignity of the human person. Amongst this preliminary matter is also a claim that the committee which drafted the submission is composed of a number of highly-placed professionals in law, medicine, palliative care, ethics, and other relevant disciplines, including those committed to pastoral or spiritual care. Often repeated throughout the document is the knowledge that the Church possesses through its privileged position in accompanying people on their last journey towards death. It is worthwhile pointing out in response to this claim that the Church has no experience whatever of guiding people through the thicket of moral choice surrounding assisted dying, and that it has, so far, been adamantly opposed to the practice of assisted dying, and that the questions asked indicate that this opposition is still firmly in place.
The relevant passage is worth quoting in full:
Spiritual care providers are often intimately involved within the wider framework of the health care team and the family of the patient. Though spiritual care involves prayer and sacrament, it is even more about sharing a journey, both with the patient and with the family, in which deep listening fosters reflective openness – emotionally, morally, spiritually and intellectually. Spiritual care is always about inviting and attending to the patient’s own narrative and reflections, and always carries with it an element of conversational moral and ethical discernment. In all of this, we are called to walk together, listening and talking, without being prescriptive, but enabling patients and families to make the best decisions they can within the context in which they are living, and within the best possible support systems.
This is, however, already to judge the Supreme Court’s decision, since, without the provision of assisted dying, we did not have “the best possible support systems.” Not being free to make a decision to die rather than to continue to suffer intolerably, patients were not in fact given the best support possible. Indeed, in the absence of control over their dying their freedom was so curtailed as to make a mockery of the idea of support. Dying is something that we do, not simply something that happens to us. Patients who hold out and refuse to die at Christmas time know this. And those who put off death by means of medications and surgery know this too. Why they have not been free to choose the time and means of their dying remains a mystery, except for the myth that we die only when God calls us. The obverse of this, as John Donne pointed out in his Biathanatos, is that we may often cure ourselves of diseases by means of which God intended that we should die.
So, now, let’s get to the questions. Note that, almost without exception, the questions call the acceptance of a request for assisted dying into doubt in one way or another.
Take the first one:
How might the legislative framework pay attention to key relationships around the patient, when looking at the causative elements in the patient’s decision making in order to determine the freedom of a decision? [questions are all bolded in the original, a formatting which I have removed]
Notice the use of the key word ‘causative’. Usually, when people are making decisions, we ask about their reasons, not about causes. The fundamental assumption being made here, however, is that causation is more important than reason in seeking answers to why people choose to die. In other words, people are less than people when they choose to die. So much for respect for the dignity of the human person.
We’ll skip the reference to indigenous peoples and their commitment to community, which is strictly irrelevant. What is perhaps more important is what an indigenous person (in a context in which a cultural value might militate against the personal decision to receive help to die) is to do if he or she should decide, on the basis of sound reasoning, that they would like to take control of their own dying? Does indigenous culture have a right to deny such a right on the basis of their cultural valuation of community?
However, the next question is vital:
When referring to dignity of the person or of the choice, what are the factors that determine dignity? Does someone without the capacity to opt for a choice not to ask for physician assisted death not have sufficient dignity? How will you treat the notion of dignity within the legislative framework without narrowing to a definition that excludes large segments of the population from being considered to possess dignity?
First of all, if there are professional ethicists on the drafting committee, they already know that the question of whether the word ‘dignity’ is an appropriate or helpful way of specifying the moral quality of an action is hotly debated, but to apply the word ‘dignity’ to a choice is unusual and unhelpful. Being able to choose protects the dignity of persons; placing people in a situation where choice is coerced is to deprive persons of dignity, in my view. Nevertheless, it has been claimed that dignity is unhelpful in settling any bioethical questions. Steven Pinker has written a paper entitled “The Stupidity of Dignity,” intending to point out that the term is vacuous. In those terms the questions asked here are really tilting at windmills, and those who wrote them know that they are. But the other side of this is that since we have no clearer criteria regarding the acceptance of a patient’s free and informed choice to refuse treatment or to have treatment withdrawn than we have for assistance to die, the question of assisted dying is no different in essentials than the issues that arise in the case of a patient refusing or having treatment withdrawn, and we should not pretend that it raises special problems.
In their context, these questions are meant to introduce us to some Anglican principles which should guide the way that the choice for assisted dying is made. These principles are: (i) that moral discernment should take place in the context of compassion and love; (ii) that they be concrete, and “more concerned with faithfulness to the gospel and character of Jesus, than with abstract and generalized rules or principles”; (iii) communal, that is, that they take place in the context of community; (iv) conscientious, that is, respecting the conscience of the person (with the assumption that conscience must be followed); and, lastly, (v) critical, that is, not satisfied with totalising response of, as the document puts it, “other sides.” The implication is that only decisions made in the context of these principles are done with dignity, yet it is salutary to bear in mind that in the past the Church did not shrink from making totalising claims regarding morality.
Since the Church deplores assisted dying and would forbid it if it could (as is made clear by every question that is asked), I cannot see where compassion and love comes into its moral discernment. The reference to the gospel and character of Jesus and the apparent rejection of generalised rules and principles seems to belie the role of the Ten Commandments in the Anglican Book of Common Prayer, or the entirely judgemental pronouncements prescribed in the original Prayer Book (of 1549) for use during the visitation of the sick (quite aside from the fact that Christian principles can scarcely be required to determine what decisions are made by individuals in a secular democracy). The role of the Church community in moral discernment is made chiefly with respect to issues that have come into dispute in the last century, including sex outside of marriage, divorce, abortion, euthanasia and assisted dying, to all of which the Church has made a claim to speak with authority, and all of which have recently been effectively accepted as matters of godly order within the Anglican Communion, which would require communal consultation of the global Communion before adopting principles which contradict these central moral positions. Other than that it is known that it is wrong to lie, except when it isn’t (as it might be in the case of protecting someone from harm), wrong to kill, except when it isn’t (as in just war), and wrong to covet, although coveting is really the motor of our capitalist economy.
Under the question: “Will a framework for legislation foster a context in which the conversations called for by these principles will be encouraged, or be truncated?,” we are immediately told that “[o]ur Canadian society reflects the conflict between our commitment to care for the vulnerable, and the pressures of a more competitive individualism.” There is simply no basis for the latter comment. Competitive individualism in fact includes the vulnerable and their justified demands for care. There is no greater witness to that fact than the vast increase in disabled accessible facilities that has taken place over the past two or three decades, or that someone like Stephen Fletcher could be elected as a Member of Parliament. There will always be conflicting demands on the public purse, but there is no evidence whatever that the supposedly vulnerable would be affected negatively by the provision of assisted dying. Indeed, their right to be heard and to be counted depends more upon the increased application of principles of individual rights than on supposed communitarian values. The difference between now and a hundred years ago is that we are now, as Canadians, more like a community of equals than was true then, though we doubtless have a long way yet to go. But one of the things that allows us to be a community of equals is that we have individual rights. Without those rights we would still be responding with alacrity to our “betters” instead of demanding the respect that is due to our dignity as equal persons, and the so-called disabled or mentally challenged would still be hidden away as supposed judgements by God on the families concerned.
The next question is really a summary of all that follows. It goes like this: “How can a legislative framework ensure that appropriate care does not suffer from economic restriction, either real or ideological?” The problem here is that this is the wrong way to put it. First of all, we cannot disperse finite resources infinitely, so there will always be limits placed on what we can afford, even on hospice and palliative care. It is sometimes claimed that we should not allow assisted dying, for we cannot offer all Canadians the option of the highest quality palliative or hospice care. The fact that palliative and hospice care are limited is true, but irrelevant. Choices are always made within contexts. To say that we must wait until we have the best care possible for all those who are suffering or dying before we legalise assisted dying is to say that, despite the inadequacy of our ability to relieve their suffering, we must forbid Canadians from having the option to choose to die. And this simply makes no sense whatever. On this basis, those who were opposed to assisted dying need only point to some inadequacies in our health care system and say that we cannot allow assisted dying until these inadequacies are corrected. This is in fact what Members of Parliament argued in all seriousness in their last debate on the issue of assisted dying.
Take, for example, this question: “How can the legislative context itself provide a structure that supports healthy decision making, including assurance of quality palliative and hospice care within the issue of universality of access?” The implication is that without such assurance decision making cannot be healthy, and this is absurd, for decisions are always made within particular contexts. If there are no quality palliative or hospice care beds left, then a choice by a person to die, instead of opting for something he or she cannot have, is a perfectly reasonable and healthy one. In most of the questions which succeed this one, the situation as described drives people into a Catch-22 predicament.
For instance, the question about what constitutes an adult (without noting that there is already a legal definition that is used for the purposes of charging a person as a child or as an adult — apparently the highly-placed legal experts were absent that day), acknowledges a grey line between those who are competent to make such a decision and those who may not be competent, so there is some latitude for competent choice, and it may not be unreasonable to include competent minors in assisted dying legislation.
But then what are we to do, we are asked, about a person with suicidal ideation? Should they be given assisted dying, since such ideation may simply indicate the onset of a treatable mental illness? No, of course not, and no one would reasonably suggest so. There would have to be consultation with a psychiatrist, and a reasonable attempt made to deal with the presenting issues, in the absence of other compelling reasons to do otherwise. On the other hand, if the sources of the person’s mental distress continued for years of unhelpful treatment and hospitalisation, then perhaps it would be time to think again.
But how do we assure mental clarity for someone whose pain-killing drugs have decreased mental clarity? I suppose one might take the patient off all medication, and see what he or she had to say then? On the other hand, if the pain is controlled, what other reasons does the person give that might justify help to die? But then, what if the pain itself, translating the patient to a different world (as the document says), causes mental unclarity? Well, then, I guess we will have to take his or her word that the suffering really is that great, won’t we?! I know, some of this borders on the ridiculous, but, remember, these are people who, for the most part, disapprove of legalising assisted dying.
Or, then, there is the universal question: How can we be sure that the person is not being coerced? I suppose we can never be 100% sure, but a short conversation with that person alone will usually reveal other grounds on the basis of which the decision is being made, if there are any. But even if they are making the decision because they do not want to be a burden on the family, can this not be, suffering as they are, a perfectly reasonable basis upon which to make such a judgement? After all, it would be altruistic, and that, presumably, is an ideal basis for a moral decision. But if they implied that they were just a bother to so-and-so, then we might think that there was a bit of pushing going on in the background, and we could ask. And so on and on it goes.
At one point the Church’s submission acknowledges that “[p]alliative care and physician assisted suicide are not complete opposites.” Nice of them to notice. But they are not opposites at all. They are complementary. Many of those who choose dying with dignity in the state of Oregon in the United States are already in nursing facilities. One of the points of legalising assisted dying is so that people can live as long as they are able, without suffering unduly. If they choose hospice or palliative care, and then their suffering becomes so terrible that they say, “This is not what I signed on for,” then they can choose to receive help to die. And given Julia Lawson’s account of hospice care in her book The Dying Process, which is an anthropological study of an English hospice, then some will undoubtedly choose help to die at some point along the way.
I will simply end with this comment. The submission is written with so much ignorance of what happens when people die, or when they are suffering from long term degenerative conditions which in themselves cause intolerable suffering to the person experiencing it, that it is hard to believe that members of the committee really do know what it is to suffer, which belies claims about what the Church knows. For them, the structure of pain and suffering is, as Elaine Scarry puts it, “like some deep subterranean fact, belonging to an invisible geography that, however portentous, has no reality because it has not yet manifested itself on the visible surface of the earth.” (The Body in Pain, 3) On the next page she describes precisely how people are able to avoid taking the suffering of others into account: “… for the person in pain, so incontestably and unnegotiably present is it that “having pain” may come to be thought of as the most vibrant example of what it is to “have certainty,” while for the other person it is so elusive that “hearing about pain” may exist as the primary model of what it is “to have doubt.” (4) I hope that is why the Church has had such a hard time accepting that for some, suffering can be intolerable, because, as those who only hear about it, they still have doubt, and cannot believe it is serious enough to make death the better option. If this is not the case, then the Church’s much vaunted love and compassion is as ephemeral as ice-cream in a heat wave.