Our first look at the new proposed assisted dying law

Just days after an Angus Reid Institute poll about Canadian attitudes on assisted dying (the same day my write-up on it concluded), we have information about what might be in the assisted dying legislation the Liberal government is drafting.

For those who haven’t been following the issue, here’s a quick recap.

On 6 February 2015, the Supreme Court in Carter v Canada unanimously ruled that Canada’s ban on medically assisted dying was a violation of patients’ Charter rights. The Court gave the government twelve months to come up with new legislation. The Conservative government at the time threw a hissy fit, ranted and raved about the decision, and did everything in its power to put off complying. They finally put together a half-assed three-person panel in July, two members of which were outspoken critics of assisted dying, which only gave the Liberals their conclusion in mid-December.

Well, the Conservatives got the boot in October, and good riddance. But when the Liberals took power January 1st, they found themselves a royal mess. The deadline was only four weeks away, and the Conservatives had done fuck all (except for appointing a wildly biased panel). So they scrambled to appoint a proper Parliamentary Committee to study the issue in the first week that the new Parliament sat, then had a hell of a time finding MPs to sit on it. They went to the Supreme Court to beg for a six-month extension, given the fact that the Conservatives had screwed the pooch so profoundly on the issue. The Supreme Court gave them four months, and told them to stop piss-assing around. (Okay, they didn’t actually say the last bit, but it sure seemed implied.)

In the end, the Special Joint Committee on Physician-Assisted Dying (PDAM) put together a wonderfully progressive set of 21 recommendations. They include:

• Medical assistance in dying should be allowed for anyone suffering from a condition that they find unbearable, even if that condition is not terminal (recommendation 2).
• Psychological and psychiatric suffering (as opposed to just physical suffering, or pain) should also be considered valid criteria for allowing access to medically assisted dying (recommendation 4).
• Existing competency criteria should be used to determine whether a patient can request medically assisted dying (recommendation 5).
• Patients should not be denied medical assistance in dying just because they have psychiatric conditions (recommendation 3).
• Medically assisted dying can be requested ‘in advance’ whenever patients are diagnosed with a condition that is likely to cause intolerable suffering or has a reasonable likelihood of causing a loss of competence (like dementia) (recommendation 7).
• Even minors, once found competent, should have access to medically assisted dying (recommendation 6).
• All publicly-funded health care institutions should provide medical assistance in dying (recommendation 11).
• Any health care practitioners that conscientiously object to providing assistance in dying on can do so, but must provide an effective referral (recommendation 10).

The recommendations were broadly lauded by progressives and other reasonable people (and criticized by religious organizations, natch). Bear in mind that the Committee wasn’t trying to be progressive. What they were actually trying to do was try to foresee probable Charter challenges, and design laws that would forestall them. Nevertheless, it worked swimmingly.

However, the general public, when polled by Angus Reid Institute a week ago, seemed far more conservative on the issue than the Committee. While they expressed broad support for assisted dying, they balked at some of the more progressive recommendations, such as extending the right to die to mature minors or those suffering from psychological afflictions (rather than physical). There have been a few criticisms of ARI’s methodology (including my own), suggesting that if Canadians got complete and clear information about the issue, the poll results might be very different.

Now, thanks to anonymous sources, we’re getting the first hints about what the Liberal’s assisted dying legislation might actually look like. And it’s about as disappointingly watered-down as you’d expect from the Liberals.

(Note that these “anonymous sources” are probably not whistleblowers. Political parties often stage fake ‘leaks’ of upcoming releases of politically hot material, to gauge public response. If it’s overwhelmingly bad, they can quietly fix the material, or at least prepare effective spin. Depressingly, ethically flexible journalists lap it up, and present it to us as if they’ve actually done the public a favour.)

The proposed Liberal legislation is going to be even more conservative than what the public opinion in the ARI poll asked for. (Which, again, was much more conservative than the Committee recommendations.) Among the things that will probably be lost:

• Advance requests by people suffering conditions likely to lead to a loss of competence will not be accepted. The idea proposed by the Committee was that people suffering from conditions like dementia, who can reasonably expect to lose competence later as their condition progresses, could apply for assisted dying while still in full control of their faculties. If their condition deteriorated and they lost competence, they wouldn’t be stuck unable to apply (due to lacking competence).

  While its true this proposal leads to some thorny problems – what if someone who has dementia pleads not to die, even though they requested it while still competent? – denying this right leads to a situation where patients facing a future loss of competence face a hard choice. They can either choose to accept that they’ll have to suffer without hope of relief… or choose to end their lives while still competent, even though they might have decades of life ahead of them, and might never even lose competency.

• Mature minors will be denied the right to die. So if a perfectly competent and mature fifteen year-old has an illness that causes them unimaginable pain and suffering, well Parliament says: “Fuck you, junior. Just suck it up for the next three years, then you can finally die and escape your misery.”

• There are also hints that the Liberals will introduce much stricter standards of competency screening. We can’t know what that means without details, but hints are they will rule out anyone suffering from any kind of psychological problems. Or, if not ‘rule out’, it will raise significant obstacles.

  This is troubling on two levels. First, it means that people who are suffering from psychological conditions – and suffering is no less suffering if the root cause is psychological rather than physical – will probably have a hard time getting medically assisted dying. But it also means that even people who are suffering physically may be denied assisted dying if they also happen to have a serious psychological condition.

In the end, though, there is nothing surprising in the leak. While the Liberals have shown exponentially greater courage than the craven Conservatives in being willing to tackle the issue at all, no one ever really thought that the Liberals would be heroic. Unsurprisingly, they’re going just about exactly as far as the Supreme Court specifically demanded they go… and no further.

Well, if the Committee is right, that just means they’re setting up future Charter challenges. I’m happy to see Canada move forward; I just wish it was in strides and not timid, shuffling stumbles.

I don’t know when the Liberals will formally release their proposed legislation – could be today; Friday is a popular day for releasing controversial stuff – but there will be time between the proposal and when it becomes law. So we have a window to pressure the Liberal government, and – more importantly – to educate the public. It’s a small window, so if this issue is important to you, seize it with relish. Spread the word, and direct people to groups like Dying with Dignity Canada, where they can educate themselves on the topic more fully. And ask your MP that since Canada is a country that offers people happy and peaceful lives… why can’t it be one that makes their inevitable end happy and peaceful, too?

Dying with Dignity Canada

UPDATE 2016-04-09: It looks like the Liberals plan to formally make the bill’s contents public on Thursday.