Guest post by Michael Nafi, Department of Humanities, Philosophy and Religion, John Abbott College
Bill C-14 on Medical Assistance in Dying has given rise to much debate in the Canadian House of Commons, in the mainstream media and various blogs, with both consensus and dissension stretching across the French/English language divide. The tide is unlikely to subside as the Bill moves to the Senate. Furthermore, as the parliamentary session nears its end, speculations abound on the fate of the Bill after the Liberal majority government today missed the June 6th deadline for its required legislative response to the Supreme Court (SCC) ruling in Carter v. Canada.
Critics have pointed out a number of shortcomings of the Bill and called for a number of amendments. However, regardless of the final form the law might take, there can be little doubt that the issue of medical assistance in dying will be revisited in the future on at least two fronts: i) the exclusion of persons under the age of 18 from such medical assistance and ii) the rejection of the possibility for persons who anticipate a deterioration of their health to provide advance directives to end their life in the future.
In this brief comment, I will steer away from these undoubtedly important questions to focus on a core section of the Bill pertaining to the conditions of eligibility for medical assistance in dying, that is Art. 241.2 (2), which defines the meaning of Grievous and irremediable medical condition. Contrary to many critics of the Bill, I will argue, in particular, for the usefulness of the notion of foreseeable natural death, especially as it appears in paragraph (d) of this article.
It might be of some use to recall a few salient facts that seem to have been lost amidst these passionate debates. For instance, although Lee Carter and Hollis Johnson, a couple from BC, were the first appellants to be named in the 2015 SCC case, it was Kathleen (“Kay”) Carter, Lee’s 89-year old mother who suffered from spinal stenosis and travelled to Switzerland in January 2010 to end her life in accordance with the law in that European jurisdiction. Prior to that, she had not only been confined to a wheelchair but was unable to feed herself or go to the bathroom on her own. In addition to the significant assistance she required to fulfill such basic human needs, she was suffering from chronic pain. According to the BC Civil Liberties Association, Gloria Taylor, another appellant in the SCC case, “became the first Canadian ever to win the right to ask a doctor for help in dying.” Ms Taylor had been suffering from amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s Disease, a progressive neuromuscular disease which, in spite of significant advances in research over the last years, remains without any known cure. Although Ms Taylor was given only a year to live when she was first diagnosed, she survived for three years before she died suddenly and unexpectedly in 2012, from an infection. Ms Taylor’s case illustrates the difficulty in establishing an absolute prognosis of life expectancy and the fact that medical research may or may not advance rapidly enough to bring new hopes to patients suffering from such dire conditions.
It is also important to note that although the SCC held that Sections 241 (b) and 14 of the Criminal Code unjustifiably infringe on s. 7 of the Charter, its ruling is not a call for an unimpeded liberalization of assisted suicide. In fact, the ruling specifically states that the “prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act…” Furthermore, the infringement of s.7 of the Charter is recognized by the court strictly to “the extent that they (the above-mentioned sections) prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) 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.” In other words, the Carter ruling pointed the legislator towards two lines of concomitant criteria for physician-assisted death to be allowed.
The introduction of Article 241.2 (2) of Bill C-14 actually makes use of the exact terms of the second line of criteria of the SCC ruling: “grievous and irremediable medical condition”. This introduction is followed by a series of provisions contained in paragraphs (a) to (d). It might be worthwhile to note that the French version of the Bill is more explicit in introducing these provisions as concomitant (“à la fois”). The split of the article into four paragraphs may give the impression that they are a set of cumulative restrictions of the meaning of grievousness and irremediability. However, regardless of the version one reads, there are clear indications that Article 241.2 (2), in its entirety, was meant to define, in other words restrict in some senses, but also explicate, hence interpret and potentially open up, the exact terms of the second line of criteria of the SCC ruling, for the ultimate purposes of clarifying the guidelines of eligibility to medical assistance in dying.
Paragraph (a) of Article 241.2 (2) defines grievous and irremediable medical condition as “a serious and incurable illness, disease or disability”. These were the exact terms of the second line of concomitant criteria of the SCC ruling.
Paragraph (b) of Article 241.2 (2) has been a source of contention against Bill C-14. It interprets grievousness and irremediability as an “advanced state of irreversible decline in capability”. The Quebec Bar understandably raised the concern that this does not appear as an explicit criterion of eligibility in the SCC Carter ruling. However, as I recall above, both Ms Carter and Ms Taylor were suffering from such an advanced and irreversible decline in capacity. Unless one wishes to argue that the SCC Carter ruling means that medical assistance in dying ought to be provided immediately after a dire initial diagnosis, it seems fair to assume that this provision does not contradict the test contexts before the SCC. The Bar’s further contention that unless the terms of this section of the Bill were amended, the resulting federal law might be contested because it would not include, at the very least, the two lines of concomitant criteria of eligibility of the Carter ruling does not seem justified. Indeed, Article 241.2 (1), which, as indicated by its heading, focuses on eligibility, explicitly deals with the first criterion of consent in its paragraphs (e) and (f). In addition to this, in its paragraph (c), Article 241.2 (1) does include a broad reference to the grievous and irremediable medical condition of the second line of criteria of the SCC ruling.
All of this brings us back to what I have by now repeatedly emphasized: that the primary functions of Article 241.2 (2) of Bill C-14 are to define and explicate the notion of grievous and irremediable medical condition.
Paragraph (b), which requires that a person seeking medical assistance in dying be in an advance state of irreversible decline in capability, might seem to impose an unduly restrictive definition of grievousness and irremediability compared to the SCC ruling. The Quebec Bar’s expressed a concern that patients might resort to such drastic measures as refusing to be fed to fall within such a restriction, as, the Bar contends, is demonstrated by several cases in Quebec. In view of the tragic proportions of the grievous conditions the Bill addresses, this concern should be examined very seriously. However, the Bar’s memorandum does not provide any specific examples of such cases to allow for further contextual and comparative analysis of this point.
I would argue that it is precisely the concomitance of the provisions of paragraphs (b), (c) and (d) that provides some balance and reaches out for a consistency with the SCC ruling.
Paragraph (c) states that the grievous and irremediable medical condition, or, in almost exactly the same terms as the SCC ruling, the “illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable”. In other words, this provision helps make the cause of enduring suffering, considered from the point of view of the person seeking medical assistance in dying, a further indication, and not simply a restriction, of the grievousness and irremediability of the condition of that person.
Finally, paragraph (d) was criticized for introducing an unclear notion of foreseeable natural death. The Quebec Bar fears the notion to be vague enough to lead to an inconsistent interpretation of the law. First of all, broad notions should not always be discounted in legislation as they are precisely a way to counter undue restrictions. For instance, for all the concerns it has raised in its domain of application, the notion of “reasonable accommodation” introduced by the Supreme Court of Canada has been a remarkably flexible balancing tool to deal with conflicting rights and interests in the work-place. Secondly, foreseeable natural death is a rather salutary notion to deal with another potential and core issue in the medical field. Indeed, judgment of the grievousness and irremediability will fall mostly on the medical profession and will be generally formulated for persons seeking medical assistance in dying in terms of a “prognosis as to the specific length of time that they have remaining.” Quite clearly, paragraph (c) indicates that, at the time this judgment is made, an account must be taken of all the medical circumstances and that a prognosis of life expectancy need not be established for the condition to be considered grievous and irremediable and hence eligible for medical assistance in dying. In other words, the introduction of the notion of foreseeable natural death in the criteria of eligibility might actually loosen up the conditions for such a judgment and hence operate as the opposite of a restriction.
As in most contentious fields of deliberation, the granting of medical assistance in dying could not be expected to run through easy, clearly pre-defined mechanical processes. However, all in all, Bill C-14 does a remarkable and subtle job at offering some balanced guidelines. Within these guidelines, the notion of foreseeable natural death is likely to play a key role in offering some flexibility and openness in a process that will always remain difficult for all concerned.
This is a thought-provoking post, but I tend to see a few problems with it.
First, in Canadian constitutional law, a division of powers issue generally has to be kept separate from a Charter one, so that, in context, the following sentence by Mr. Nafi may be misleading: “In fact, the ruling specifically states that the ‘prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act…’” Quite often, a statute, a bill, or specific provisions are challenged both on division of powers and Charter grounds, not to mention Part II of the Constitution Act, 1982, concerning the rights of aboriginal peoples. One has to be careful not to import reasons across different questions. Here, there can hardly be room for doubt that C-14 would be an infringement of section 7 of the Canadian Charter of Rights and Freedom. The true question, rather, is whether it would be justified under section 1. Again, these questions ought not to be conflated. Regarding the more relevant one, it’s true that the ratio decidendi in Carter only was that an absolute prohibition of medical assisted dying was not a minimal impairment. It’s also true that C-14 doesn’t contemplate such absolute prohibition. However, a careful reading of the decision reveals the SCC did provide some guidelines on what a minimum impairment would look like. This is hardly surprising, because, every time the Court is convinced that a measure isn’t a minimal impairment, it’s because it has some idea of what would be. Mr Nafi’s mentions the Court’s guidelines on how to determine whether the restriction of MAD by criminal law is an infringement to section 7, but not the ones on how to assess whether an infringement would be justified (under section 1).
Second, Mr. Nafi’s reading of C-14 does not convince me. The proposed section 241.2(1) of the Criminal code provides that: “A person may receive medical assistance in dying only if they meet all of the following criteria […].” One of these criteria is provided for at proposed section 241.2(1)c), which reads: “they have a grievous and irremediable medical condition.” To define 241.2(1)c) is the specific purpose of 241.2(2), as its introductory paragraph reads: “A person has a grievous and irremediable medical condition only if they meet all of the following criteria […].” These are set at par. a), b), c), and d) Mr. Nafi talks about in detail in his post. Contrary to what he claims though, these are to be placed on a same equal logical footing as cumulative conditions, not as a derived set of interpretative factors, so that one may be more incidental than another, which would be closer to some more general concept of “grievous and irremediable medical condition.” For instance, d) is no “reader” to a), b), or c), even though such an interpretation seems to make a whole lot of “natural” of “functional” sense to a particular reader. More than that, even if it were the actual legislative intent, it wouldn’t alter the fact that, here, the clarity of the introductory paragraph must prevail. I mean, Mr. Nafi’s reconstruction of these provisions is an interesting one, but it just doesn’t seem to correspond the way the bill reads in law, where, as a matter of interpretation, a distinction has to be maintained between substantive and interpretive provisions. [Besides, that a prognosis of life expectancy is not absolutely necessary is expressly provided for at d), not c), or c) read in the light of d).]
It may well be that C-14, “does a remarkable and subtle job at offering some balanced guidelines.” I doubt it, but that’s not the point. The point is: there are guidelines, in Carter, which relate, not only to section 7 restrictions when it comes to restrict MAD through criminal law, but also to what, among such restrictions, may represent a justified one. No one knows with certainty what the SCC’s final answer to that question would be regarding C-14. What’s helpful, however, from a positive constitutional law perspective, is to actually deal with the relevant guidelines the Court has actually given. To that extent, I am not sure the “foreseeable natural death” condition, as we find it in C-14, would be “flexible” the way Mr. Nafi seems to think it is, that is, flexible enough to pass the Oakes test.