MPs wrestle with sensitive moral and legal questions in crafting new physician-assisted death law
By Kathleen Harris
This week’s parliamentary report on the right to die has put a profound moral and legal question to federal legislators: Should children suffering from incurable illness be allowed to end their own life with the help of a doctor?
Among the 21 recommendations from the joint panel of MPs and senators is one to allow “competent mature minors” to request a physician’s help to die.
The committee tabled its 70-page report Thursday called “Medical Assistance in Dying: A Patient-Centred Approach.” It suggests a two-phased approach, with an initial phase allowing doctor-assisted death to adults 18 years and older and then expanding it to mature minors within three years.
Dr. Derrick Smith, head of psychiatry at Vancouver’s Children’s Hospital and chair of the physicians’ advisory council of Dying with Dignity Canada, said it is right to determine the capacity and competence rather than the arbitrary age of someone making such a “momentous decision.”
Age is ‘arbitrary’
“Some people who are 21 do not have the capacity to consent and some people who are 14 do,” he said. “It’s really artificial to try and have an age as a cut-off point. You’re much better off going with something measurable like capacity to consent. If the cut-off is 18 and we’re prepared to let people 18 have physician-assisted death, why would we want to have 17-year-olds suffer interminably?”
The committee’s recommendation to include mature minors has generated much controversy, with critics insisting it goes far beyond the parameters set out by the landmark Supreme Court decision on Feb. 6, 2015, that struck down the ban on assisted death.
But Smith believes the discussion should go even further — to include young children.
“The committee isn’t going to address that, but as a society we should,” he said. “Obviously a five-year-old is not going to be able to give consent for something like that, but should we allow a substitute decision maker like the parent to say, “Johnny’s had enough suffering. I think it’s time that we assist him to terminate the suffering.”
Conservative MP Mike Cooper, who filed a dissenting report with three of his fellow caucus members, said including minors deviates from the “clear road map” set out by the Supreme Court. He called it “illogical” that someone not old enough to vote would be old enough to decide to die.
To date, Belgium and the Netherlands are the only two countries that allow minors to obtain medical assistance in death. There is little research or data on how it has worked so far, and Cooper said Canada is heading in a dangerous direction.
“I think there are risks when you’re talking about minors; about their ability to have capacity, a full appreciation of the consequences,” he said. “Most jurisdictions have not gone down this road, and I think from a policy standpoint we’re entering uncharted territory and we should proceed with a great deal of caution.”
Liberal MP Rob Oliphant, who co-chaired the committee on medical assistance in death, said the Supreme Court decision was based on two adults with physical conditions, but the report “hugs closely” to charter rights of all Canadians, including minors and the mentally ill.
“What other issues could come up and should be in the legislation to ensure that Canadians’ rights are protected in the spirit of the charter, in the spirit of the decision?” he said. “We looked at how age could be a charter issue, ability could be a charter issue, capacity could be a charter issue.”
Dr. Dawn Davies, medical director of the palliative care program at Stollery Children’s Hospital in Edmonton and chair of the Canadian Paediatric Society’s bioethics committee, believes the panel should have stuck to consenting, competent adults. She said it’s “premature” to set a three-year deadline to include minors.
In most cases, palliative care can mitigate and manage the pain and suffering of patients, yet she is one of fewer than 20 full-time pediatric palliative care physicians across the country.
“Until we can improve that, I have very grave concerns, because I think a lot of adults are asking for assisted death out of a sense of control … but I think in the case of children, we don’t even know what their issues are.”
Court challenges expected
Davies expects that requests from minors could wind up in court with challenges from medical professionals, child protection services or even relatives.
She could not predict how many minors would actually seek medical assistance to end their own lives, but in her experience most terminally ill patients want to live to reach milestones such as birthdays or graduation.
But she worries about young people who may have devastating injuries, like quadriplegics whose life-altering experience causes despair.
“In many cases, people do go on to live productive, fulfilling lives, and I really worry about new catastrophic injuries for minors — that possibly leading to requests,” she said.
Davies said with advancements in pain management and end-of-life care, the issue is less about preventing pain and suffering and more about control over ending one’s own life. She calls that a “real departure” for human beings.
“For myself, I’d say it goes beyond being a physician. It is such an about-face for our whole society that one person will be able to take the life of another person for any reason,” she said. “I just don’t think personally that I would ever be comfortable with that.”
The Liberal government has until June 6 to pass new legislation on doctor assisted death.
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