A look at the obstacles of a physician-assisted death in Canada
[K]ay Carter had been suffering from spinal stenosis for years and knew she was going to become debilitated before she would die. Rather than wait until she was no longer in possession of her own body, the 89-year-old chose to die on her own terms. She left this world peacefully at the hands of a Swiss palliative care physician with her loved ones by her side.
Physician-assisted suicide was not legal in Canada at the time of Carter’s death, and as her condition worsened she knew she would lose the capacity to consent to have a physician assist her, so she travelled to Switzerland while she was still able-bodied.
“She had a premature assisted death because she couldn’t get one here in Canada,” explained Michael Begg, a professor of legal studies at Capilano University. “Some would say that the criminal prohibition killed Kay Carter, since it forced her to die years early.”
Carter’s story made up the framework for the legal case, Carter v. Canada, which over a five-year period would challenge the Harper government to reform the assisted suicide law in the Supreme Court of Canada. Carter was able to die on her own terms, but many before her had been denied that right, and their stories date as far back as Canada’s founding.
She received death threats and found herself having to wear a bulletproof vest into the clinic where she work … Many abortion doctors who ultimately quit practicing did so because of threats or attacks made against themselves or their families.
The Criminal Code of Canada was written in 1892 according to the moral guidelines of Victorian society. Protestant Christian worldview shaped legislature, and both suicide and assisted suicide were outlawed. The taking of one’s own life was an unforgivable sin, and those who were found guilty of it could not be buried in consecrated ground or ever hope to gain access to heaven.
In 1972, the law prohibiting suicide was repealed. The right to refuse life-saving medical treatment or intervention was also introduced, giving people more autonomy over their health care. Assisted suicide was still illegal, classified as murder for which physicians could receive a prison sentence of up to 14 years, but support was growing with newfound understanding of detrimental ailments that were prolonging people’s suffering well beyond what they were willing or able to cope with.
In 1993, ALS patient Sue Rodriguez appealed for the right to die with a physician’s assistance. She argued that in not being allowed to seek help, the law circumvented section seven of the Charter of Rights and Freedoms, which guarantees any individual rights to life, liberty and security of person.
“The government can violate a Charter right – but only where the courts find the violation is ‘justifiable’,” said Begg. People recognized that in denying Rodriguez the right to die, her personal autonomy was stripped away and in essence, the government claimed ownership of her body. The Supreme Court ruled that the state of the law was justifiable. “In 1993 there was a fear of potential abuse,” Begg continued, but the fear displayed by the courts was unfounded, because at the time there was no evidence to prove that the practice of euthanasia would go down a slippery slope. Rodriguez ultimately took her own life with the assistance of an anonymous physician.
“The political parties had no will to change the law to allow assisted dying because it was such a political hot potato. Most Canadians didn’t have a strong opinion on it, liberals and conservatives were not eager to take proactive steps to change the law,” said Begg. Carter’s family challenged the law again in 2011. In the time since Rodriguez had gone to court, Oregon, Belgium, Luxembourg and the Netherlands had legalized assisted suicide and set up regimes to carefully monitor assisted death and ensure that the practice was not being abused. The Canadian courts saw this and overturned the previous ruling, legalizing assisted suicide on Feb. 6, 2015.
Legalizing assisted suicide couldn’t be achieved overnight however, so the Supreme Court suspended the law for one year so regulations could be drafted. The Harper government put off writing the bill until Justin Trudeau entered office in Nov. 2015, and the Liberal government was hard pressed to draft euthanasia proceedings in time for the Feb. 6 deadline. The bill was further extended, and on June 6, 2016 formally became law, with regulations introduced on June 17.
“This is a legal right that Canadians have but if you don’t have a provider, you don’t have access, then you can’t exercise your right,” said Dr. Ellen Wiebe, a former full-service family doctor who specializes in women’s health and end of life treatment. “When I discovered that the palliative care physicians, who normally would be doing the end of life care would not…have anything to do with assisted death, then I realized that there would be a need for providers and that I could be one.”
As one of few doctors who provide abortion services and euthanasia, Wiebe has risked her life to tend to patients. Those who she has treated have been extraordinarily grateful for her services, she explained, but certainly there have been others who have frowned upon her work.
In 1994, an anti-abortion terrorist shot her colleague, Gary Romalis. The attack put Dr. Wiebe at risk since she was known publicly. She received death threats and found herself having to wear a bulletproof vest into the clinic where she worked. Her young son was terrified, and it was his fear that caused her to wonder if her work was putting her children at risk. Many abortion doctors who ultimately quit practicing did so because of threats or attacks made against themselves or their families.
Saddened that the stigma surrounding abortion never subsided as she had hoped, Wiebe pressed on and ultimately began performing end of life care for the same reasons she had when she began performing abortions. Wiebe was determined to provide a service that few others would because it was so steeped in stigma. She calls herself an activist for complete bodily autonomy.
Following the outcome of Carter v. Canada, Wiebe had one year to learn all of the skills she would need to administer euthanasia treatment. She travelled to the Netherlands and studied under doctors who had been practicing euthanasia for years. In Canada she set up a support group where doctors could learn and support each other in preparation for June 6 when the ruling became law.
Though she has observed far greater support in Canada for the right to die since then, Wiebe knows that controversy will linger for years to come. “The support is certainly solid, but there’s still lots of people who disagree,” she said, “and that will always continue, I think, because in the Netherlands where they’ve had decades of legal euthanasia they still have people who are against it.”
There are several activist groups in Canada currently speaking out against assisted suicide, including the Quebec-based Physicians’ Alliance Against Euthanasia. The coalition has spoken out against assisted suicide on the basis that intentionally ending life is a complete contradiction of the goals of practicing medicine. Some anti-euthanasia physicians have affirmed that they will not be participating in the practice while activists have stated that they intend to reverse the law yet again and call for a total ban on assisted suicide.
The Carter v. Canada ruling stated that a physician’s decision to participate in assisted dying was a matter left to his or her own conscience or personal religious beliefs. Abortion services are the same. A medical practitioner cannot be forced to provide a service that contradicts their personal beliefs. When there are no providers, a medical service that is a right guaranteed by law is made difficult if not impossible to obtain. Criminal law is mandated at the federal level and health care is regulated at the provincial level. A province can virtually outlaw euthanasia by making it inaccessible, which can be challenged in court on the grounds that personal Charter rights have been violated.
“There is potential to use the Charter to force a particular province to make assisted death more accessible,” said Begg, but if a physician doesn’t want to see their patients die when they believe there is a chance of saving them, they can’t be forced to.
“I had a patient who chose his date six months out…and he did live that long so he was able to die on the date that he had originally chosen.”
A primary fear is that people with non-debilitating or lethal conditions will give up living if an easy death is a viable alternative.
In Dec. 2012, Belgian twin brothers Marc and Eddy Verbessem died by lethal injection after finding out that they were going blind. Already deaf, they had no means of communicating with anyone but each other and their close family. They had lived together all their lives, and their brother reported that they felt they had nothing left to live for. Knowing that they would never see the other’s face again, they couldn’t bear to go on living.
In a bizarre twist, an amendment was added to the assisted suicide bill just days after their deaths enabling minors and Alzheimer’s patients to receive an assisted death. Despite making their wishes clear, the Verbessem brothers were an unusual exception to Belgium’s laws since they were neither terminally ill nor suffering unbearable physical pain. A case of an able-bodied person with no degenerative disease killing themselves followed by additions that would allow children to die also is the slippery slope that legislators feared when judging Rodriguez v. British Columbia.
Another fear is that the sick or the elderly will feel burdened or be pressured into undergoing euthanasia by their relatives if their medical treatments are costing too much. To prevent abuse of the conditions that allow for assisted suicide, Wiebe assesses her patients before they can receive the lethal treatment.
“Certainly it’s part of our job to assess each patient and be sure that they’re not being pressured. I haven’t seen anything that made me worry,” she said. “Every one of them I am satisfied that we did the right thing and that their choice was a good one.” She consults with her patients, often with their families or support groups present, to discuss their illness and their wishes. She asks her patients about their relationships and monitors how they interact with their family members before making a final judgement. It’s a subtle but obvious way, she said, to be sure that their wishes are entirely their own.
Patients are also required to undergo a 10-day reflection period before euthanasia will be administered. The reflection period was mandated to prevent patients from making hasty decisions after being diagnosed.
“There’s two reasons we’re allowed to shorten up the time from the 10 day reflection period, and those are somebody’s in danger of losing capacity — losing the ability to consent — or in danger of dying in those 10 days,” Wiebe explained. “I’ve had people who are within 24 hours of death, for example, and those have to be done very quickly, and others spend a long time deciding. I had a patient who chose his date six months out… and he did live that long so he was able to die on the date that he had originally chosen.”
Since June 6, Wiebe has consulted with over 100 patients and assisted 40 of them in ending their lives on their own terms. “It is wonderful work. Doctors love having grateful patients and I have the luck of being able to do something that people really appreciate,” she said.
The battle for the right to die has hardly abated. The regulations were written hastily so that they would meet the Supreme Court deadline of June 6, and as a result many Canadians believe the laws to be too restrictive. Safeguards such as the mandatory waiting period ensure that vulnerable people cannot undergo euthanasia before the terms of their illness have been fully processed, and two witnesses are required to attest to their wishes.
“The biggest of the flaws in the Trudeau government’s bill, critics say, is that the Criminal Code only allows assisted death for those who are facing imminent death,” said Begg. Only those suffering from a terminal condition can seek assistance, omitting hundreds of people who are suffering irreparably but not likely to die. People like Kay Carter, who would have lived in agony.
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