The Special Senate Committee on Euthanasia and Assisted Suicide
Of Life and Death - Final Report
June 1995
Introduction
Throughout the ages, people have reflected upon the issues of death and dying. While most recognize that death is inevitable, fear of the unknown has pervaded such discussions. Different societies have attempted to address these fears and concerns in diverse ways in accordance with their religious or cultural backgrounds and norms in order to make the final passage of life more comforting. With the advent of modern medical technology and the more common usage of artificial measures to prolong life, many people today are more fearful of the process of dying than of death itself.
In recent years, a number of events that received a considerable amount of media attention has prompted many Canadians to consider end of life decisions in order to better prepare for their future.
A series of court decisions in Canada established the right of persons to make some decisions regarding their own medical treatment. Case law strengthened the right of individuals to withhold and withdraw treatment, for example, the 1992 Nancy B decision. In that case, the Quebec Superior Court granted a competent woman suffering from Guillain-Barré syndrome, an incurable neurological disease which left her incapable of movement, permission to cease treatment with a respirator at a time of her choosing. This is reflected in the consideration and enactment by most provincial legislatures, that had not already done so, of some form of legislation regarding advance directives, living wills and substitute decision-makers.
More recently, the focus has been to consider assisted suicide and euthanasia. In 1993, the Supreme Court of Canada in the Sue Rodriguez decision canvassed the issue of whether the prohibition in the Criminal Code against assisted suicide violates the Canadian Charter of Rights and Freedoms. The majority of the Court upheld the prohibition but the public debate continues.
Polls taken over the last few years have consistently indicated a growing support for people being able to take control of the dying process, although there are differences of opinion as to whether the people who were polled had sufficient understanding of the exact nature of what they were considering.
In 1993, the Canadian Medical Association, recognizing the need for its involvement and guidance on these issues, published a series of five papers. In so doing, its goal was twofold: "to educate Canadian physicians about the ethical, legal and social aspects of euthanasia and assisted suicide" and "to present a physician perspective on these issues to patients, other health professionals, public policy officials and academics".(1) The membership of the CMA appears to be divided on the issue of assisted suicide and euthanasia; however, they are continuing their study.
It was within this context that a Special Committee of the Senate of Canada, appointed on February 23, l994, undertook "to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide". The Committee heard testimony for 14 months from witnesses all across Canada and received hundreds of additional letters and briefs; thus, the full range of opinions on the various issues were fairly represented. This did not make the task of reaching a Committee consensus on the issues any easier. Although the Committee was able to agree on many aspects regarding medical and health care practices, the opinions of the members were divergent on the more difficult questions of assisted suicide and euthanasia.
The study also provided an opportunity to assist all members of Parliament who will be debating the issues on a non-partisan basis culminating in a free vote in Parliament. The Committee also hoped through this Report to help the public to develop a better understanding of this very complex subject. The goal of the Committee was simply to set the stage for the full and open national debate that will take place in the coming months and years.
This Report is an initial step in the long process ahead for Canadians attempting to find solutions to the problems that it raises. The manner in which we, as a society, respond to these problems will have a significant impact on the lives and deaths of all Canadians and will reflect on Canadian society as a whole for many years to come.
The Committee respectfully submits this Report to the Senate.
Chapter I
Overview
The debate with respect to how we die has not been and cannot be limited to a discussion regarding assisted suicide and euthanasia alone. In attempting to examine these two issues, it immediately became apparent to the Committee that their task involved a great deal more than simply considering the advisability of the legalization of these acts.
Scope of the Report
The Committee found that it had to examine and become familiar with many of the current health care practices across Canada by medical practitioners, nurses, medical institutions and community services as well as the role that governments play in influencing and directing the provision of such services. A broad spectrum of end-of-life decisions that must be made every day by or on behalf of patients also needed to be considered as part of any discussion on assisted suicide and euthanasia.
These other end-of-life considerations ultimately may or may not influence the way in which each individual thinks about assisted suicide and euthanasia; nonetheless they must be explored in order to ensure that those who engage in future debate are fully informed of the wide ramifications of the issues. An examination of the availability and quality of palliative care, pain control and sedation practices, and advance directives are some examples of the areas that must first be considered.
The division of legislative powers affected the scope of the Report. Some of the issues discussed herein concern criminal law matters, while others deal primarily with health care. Under section 91(27) of the Constitution Act, 1867, the Parliament of Canada has exclusive jurisdiction over criminal law and procedure. The provincial legislatures, on the other hand, have jurisdiction over the administration of justice, pursuant to section 92(14). This means that the Parliament of Canada defines what constitutes a criminal offence but the criminal law is then administered by the provinces and the decisions to investigate, charge and prosecute offences are matters of provincial policy. Provincial crown prosecutors are given discretion in these areas.
Health is primarily a matter of provincial jurisdiction as a local or private matter under section 92(16); in addition, authority over hospitals and the regulation of the medical profession are granted to the provinces pursuant to sections 92(7) and 92(13) of the Constitution.
Given the nature of the subject being examined, there were instances in which the Committee, in dealing with matters falling primarily within the federal Parliament's jurisdiction under the Constitution, had to consider overlapping provincial aspects of the issues as well in order to make useful recommendations and suggestions.
The Committee's study was also limited in other ways. There were aspects of the various issues that the Committee was not able to examine in any depth: the treatment of persons in persistent vegetative states (PVS), severely disabled newborns and other situations present unique problems. These raise difficult questions that require further consideration. As only a few witnesses made occasional references to these types of cases, the Committee believed that the extremely complex issues they raised required greater clarification and study than the Committee could undertake at this time.
Background
Some of the witnesses offered their reasons as to why the issues surrounding death and dying have only recently received a considerable amount of public attention. The Committee felt that some of these should be addressed in order to provide the context within which the various issues dealt with in the Report were considered.
a) The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, which came into force on April 17, 1982, has considerably altered the legal and judicial fabric of the country. The Charter guarantees fundamental freedoms (press, religion, expression, association), democratic rights, mobility rights, legal rights, equality rights and language rights. Since the advent of the Charter, the Supreme Court of Canada has handed down more than 250 decisions. If a law is challenged and found by a court to infringe on any constitutionally protected rights and freedoms, that court will declare the law under consideration to be of no force and effect. Thus, the Charter provides Canadians with a mechanism whereby individuals can challenge government action.
Rights and freedoms are not absolute, they can be restricted according to Section 1 of the Charter but only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The decisions of the Supreme Court of Canada indicate that it has maintained an equilibrium between rights and the limitations that may be imposed on them.
The Charter also protects societal values, such as liberty, equality, security, life, personal autonomy and the common good. It has significantly influenced the manner in which Canadians perceive those rights and values.
The Charter has greatly contributed to the trend toward individual rights. Indeed, it protects the rights of individuals to make their own decisions and maintain their own views, however radically their opinions may differ from those held by others. Some have attempted to argue that such constitutionally entrenched rights and freedoms include the right to make certain decisions with respect to death and dying. For instance, Sue Rodriguez utilized the Charter in her challenge to the assisted suicide provisions of the Criminal Code.
b) Technological progress
With the advances in modern technology and innovative medical treatments, human beings are now capable of prolonging life and postponing death. While many people have benefitted from these changes, technological progress in medicine has at the same time raised complex new questions to which the answers are not obvious. Patients, their families and medical practitioners must decide if a patient dying of cancer who goes into cardiac arrest should be resuscitated and whether that same patient should be given antibiotics if he or she contracts pneumonia. Today, when so much can be done, there are many situations that raise ethical questions of what should be done.
In this regard, Ms. Marian Chapman, Chair of the Ottawa-Carleton Council on Aging and a retired professor of family medicine, testified that:
The evolution of medical technology to maintain life and its availability for use in the care of the individual has created a new context within which the dying process must be assessed.
Chapman 32:54 (2)
Prof. Edward Keyserlingk, who teaches bioethical law and medicine at McGill University, expressed the problem in the following terms:
Technology has put us in this position. People used to die. Now we have great trouble letting people die. It is not because of ill will, it is simply because people are increasingly good at what they do. One can maintain a person for a very long time beyond the point where most people think it reasonable.
Keyserlingk 1:47
c) Attitudes toward death
Some medical professionals seem to view death as a battle to be fought against at all costs. Dr. Elizabeth Latimer, who is presently the director of palliative care at Hamilton Civic Hospitals, expressed her views about the present day perception of dying by the medical profession:
Our current medical profession views death as an enemy. In this century we have come to view our mandate to be to overcome death. Combined with this, doctors are also usually action-oriented individuals. We feel a sense of failure when we are not able to cure someone. This sense of failure causes us to distance ourselves from the dying in a way that is not effective for them or helpful in their case.
Latimer 4:8
Prof. Brian Mishara, who teaches psychology at the Université du Québec à Montreal and founding president of Suicide-Action Montréal, shared this view:
Some physicians feel that their goal is to cure illness, and it is a personal defeat when the patient dies.
Mishara 2:36
This attitude on the part of some medical professionals has resulted in many individuals fearing the process of dying. Some witnesses testified that they do not want their lives prolonged needlessly by artificial and intrusive measures when they become terminally ill. They want to be permitted to die peacefully.
Virtually none of the witnesses suggested that life should be prolonged needlessly. Indeed, most of them were of the view that there are many situations in which certain medical interventions are no longer appropriate. For instance, Dr. James McGregor of the Ontario Palliative Care Association explained:
There needs to be careful and appropriate consideration of the clinical context and, with consistency and planning around the goals and wishes of the patient, non-initiation and cessation of life-prolonging treatments may be part of palliative care. The burdens of treatments at times may outweigh their benefit for the patient. In such situations, non-initiation or cessation of futile treatment improves quality of life and relieves suffering.
McGregor 4:54
Dr. Balfour Mount, founding Director of the Royal Victoria Hospital Palliative Care Service and professor of palliative care medicine at McGill University, testified:
Withholding and withdrawing life-prolonging treatment at the patient's wishes is part of palliative care.
Mount 5:30
d) Settings for death
In the past, most people died at home in familiar, comforting surroundings in the company of family and friends and without aggressive treatment and life-support. At present, it is becoming more and more common for people to die in the sterile setting of a hospital surrounded by strangers and medical equipment, rather than by loved ones. Dr. Robert Elgie, Director of the Health Law Institute at Dalhousie, commented:
Since the turn of the century, there has also been a dramatic shift in the places where people die. Sixty years ago, the vast majority of deaths occurred at home. It is now estimated that close to 75 per cent of all deaths will occur in hospitals or long-term institutions.
Elgie 20:56
Dr. Latimer makes a similar point:
In Canada, as in any country like ours, natural death has been removed from view into hospitals and institutions. Consequently, a lot of young people growing up have never seen anyone die and they do not know what that can look like. That can compound some of the fearfulness.
Latimer 4:14
Ms. Angèle St. Germain, a Registered Nurse from Montreal, testified that:
Barely twenty something per cent of people die at home. Death has been institutionalized with all that this involves...They [families] do not have the necessary information to realize that they can be close to their loved ones.
St. Germain 9:24
While many witnesses referred to the institutionalization of death, palliative care addresses this problem to some extent by placing more emphasis on human relationships and ensuring that patients are not isolated from the community. To this end, many hospitals have established palliative care units. Also, with the development of palliative care there seems to be increased possibilities for persons to die in their home.
e) Attitudes towards physicians and patients' rights
Some witnesses pointed out that, in the past, there has been an assumption within the doctor/patient relationship that the physician knew what was in the best interests of the patient. As a result, patients seldom requested any information other than what he or she had already been provided by the physician. Furthermore, it was only in the rarest cases that the patient refused to consent to a medical procedure and, more often than not, such consent was considered irrelevant in any case. Ms. Ann Mullens, who received the Atkinson Fellowship in Public Policy in 1994 to study assisted suicide and euthanasia, informed the Committee:
That phrase, "the best interests of the patient", should cause us concern; and we should be wary of it. In 1960, when doctors were surveyed in the U.S., 80 per cent believed it was not in the best interests of the patient to tell them they had cancer...The danger lies in paternalism, in telling people we know what is best for them, whether we like it or not. The danger comes from not putting the power in the hands of people or at least having a shared responsibility.
Mullens 30:8
There has been significant movement away from this paternalistic approach to health care in North America. Patients are more frequently asserting their right to make health care decisions for themselves. The more traditional attitudes of the medical profession are now being challenged by some as more patients demand to be given full rights and responsibilities in this regard. Dr. Paul Landry, of l'Association des Hôpitaux du Québec, expressed his view in the following manner:
We also mentioned that it was important to have a new approach in relations between therapists and patients in which the paternalism of yesterday is gone and relations between patients and caregivers are now much more consensual.
Landry 19:33
Moreover, health care professionals are increasingly recognizing the importance of individual choice and personal responsibility in the area of health care. Since, and perhaps because of, the civil rights movement both with respect to race and gender in the 1960s, "rights-talk" has entered into and informed the discussion of death and dying. Many people now speak of a "right" to refuse treatment or a "right" to die. In this connection, Dr. Elgie had this to say:
There are a number of reasons for this increased interest, or at least increased awareness, of the issues. There is an increasing recognition by patients of their autonomy and their right to self-determination with respect to decisions regarding what shall or shall not be done for their bodies. The 1970s reinforced this with the legal acceptance of a new philosophy about informed consent and patients are, accordingly, becoming better consumers.
Elgie 20:55
f) Changing demographics
Many witnesses indicated that the increasing average age in Canada places, and will likely continue to place, significant demands on the health care system. Professor Barney Sneiderman, who teaches law and bio-medical ethics at the University of Manitoba, stated:
I agree with the sentiment you have expressed as to how we go about creating a health care system for the twenty-first century, particularly given the fact of an increasingly aging population, which will bring its own pressures to bear.
Sneiderman 6:72
Dr. Landry offered this view:
The aging of the population is of course a phenomenon which preoccupies and concerns us to the highest degree. Primarily the emergence or predominance of degenerative diseases, chronic diseases, including the increase in the incidence of cancer, the appearance of AIDS, which was mentioned earlier and Alzheimer's, very often raise the questions here concerning us with the respect to quality of life.
Landry 19:33
Furthermore, a new demographic group - persons with HIV/AIDS - has emerged. Dr. Michel Morissette, a clinical physician and professor at Laval University, informed the Committee that many members of this group have been very active in promoting their right to take control of their health care and have brought their special needs and desires to the debate. He testified:
Many AIDs victims are young people, generally well informed and concerned about their independence and self-determination. These patients want to be involved in the process of making decisions that affect them and this gives rise to a new dynamic in the doctor-patient relationship, although a certain generation of physicians is not at all familiar with this.
Morissette 32:5
Russel Armstrong, a member of the Canadian AIDS Society which is a national coalition of community-based organizations stated:
As some of you may be aware, AIDS is estimated to have caused 14,000 deaths in Canada, to date. In several ways, AIDS is different from other terminal diseases. During the previous presentations, senators addressed the issue of the stigma associated with this disease, as opposed to other diseases which are not. To date HIV/AIDS has disproportionately affected marginalized groups, specifically gay and bisexual men, although, today, in almost all Canadian communities are people living with HIV/AIDS...In many ways AIDS is a disease of the modern age. In the relatively short period of time since it first emerged, AIDS has become one of the most talked about and studied diseases of our century. It has an active community-based movement associated with it, a movement that has worked to heighten awareness of the disease, to provide care, support and advocacy, and also to ensure that the rights and dignity of those who live with the disease are respected.
Armstrong 12:39-40
A convergence of events involving judicial decisions, changes in medical technology, evolving attitudes, debate within professional organizations, Charter arguments, and the development of palliative care has broadened the scope of this study beyond assisted suicide and euthanasia. The Committee realized that terms would have to be defined, and full discussions on palliative care, pain control, and withholding and withdrawing treatment should occur before any discussions with respect to assisted suicide and euthanasia could take place. These matters are considered in the following chapters.
Chapter II
Terminology
The terminology used in Canada and abroad, in referring to questions of death and dying, is wide-ranging and diverse. Throughout the course of its hearings, the Committee often heard the same terms being defined in various ways. However, the differences in the definitions are seldom based on the literal meaning of the terms; this is generally not disputed. The disagreement is essentially with respect to the moral significance of the words. In fact, the definitions of the terms may and often are developed in order to argue a specific moral or ethical perspective with respect to the acts in question. For instance, most witnesses argued that acts of withholding or withdrawing a life-support system are fundamentally distinct from acts of euthanasia because, in their view, withholding or withdrawing life saving treatment is, in effect, allowing natural death to occur; while an act of euthanasia is the cause of death. Other witnesses argued that withholding and withdrawing actions are forms of euthanasia because, morally, these are as active as lethal injections.
Dr. Paul V. Adams of Manitoba Physicians for Life, describes what many view as the fundamental moral or ethical difference between acts of withholding and withdrawing and acts of euthanasia:
There is an essential difference between causing one to die, which is euthanasia, helping one to die, which would be assisted suicide, and allowing natural death to occur, which I referred to as withholding or withdrawing treatment. Frequently, there is confusion regarding the third category, that is, allowing natural death to occur when death is inevitable, and there is no clinical or ethical reason to intervene. This is not euthanasia. It is both morally and ethically acceptable and it should continue to be legally acceptable.
Manitoba Physicians for Life 18:40
Dr. McGregor shared this view:
Although cessation and non-initiation of treatment have been considered as "passive euthanasia", in fact, we believe they simply represent non-interventionist actions, allowing the natural history of the illness to progress. These acts are not considered to be euthanasia or assisted suicide.
McGregor 4:54
And Dr. Keyserlingk explained that:
Legally, this omission under these circumstances [not providing life support when it is refused by a competent patient or when treatment has become futile for an incompetent patient] would simply be good medical care.
Keyserlingk 1:28
Professor Arthur Schafer, an ethical expert at the Centre for Professional and Applied Ethics at the University of Manitoba, stated:
Withholding or withdrawing life-saving medical care, "pulling the plug", used to be called "passive euthanasia". However, as you reread the briefs of many of my other colleagues, you will see that none of them still uses the term "euthanasia" for these very widespread social practices. Indeed, tens of thousands of Canadians die every year by what would have been called "passive euthanasia" and what would have been condemned by church groups and by individuals as an alarming, dangerous, negative development as recently as 12, 15 years ago.
Schafer 18:122
Another example involves the moral distinction or lack thereof between acts of euthanasia and acts of assistance in suicide. Some witnesses argued that, morally, assisted suicide is identical to euthanasia, as did Dr. Margaret Somerville, Director of the Centre for Medicine, Ethics and Law at McGill University:
In defining euthanasia, we need to look as well at whether physician-assisted suicide is different from euthanasia. I would propose to you that it is not.
Somerville 6:7
Dr. Keyserlingk held the same position:
Is there anything of moral and legal significance that is different between assisting the suicide of a patient who is still able to take the glass and drink it and the patient who is beyond that because of no longer having the physical ability but who wants to be killed and is doing it with an overdose? Is there anything of moral and legal significance that establishes the real difference there? I tend to think that it is going to be a hard case to make because in both cases it is the patient's wish. In both cases, the argument can be made on the basis of self determination and people's right to choose their manner and time of dying. The manner is slightly different, but in both cases it is the patient's wish, and in both cases we can get very close.
Keyserlingk 1: 55-56
Dr. Douglas Kinsella, a professor and Director of Bioethics in the Faculty of Medicine at the University of Calgary and Dr. Marja Verhoef, an assistant professor in the Department of Community Health Sciences at the same university, both conducted a survey with respect to physicians' opinions on assisted suicide and active euthanasia. Interestingly, they held different views in comparing these two acts. Dr. Kinsella concurred with Dr. Somerville and Dr. Keyserlingk. He argued that the only difference lies in who is present at the time of death:
From the moral perspective of the physician, there is in fact no essential difference between active euthanasia and assisted suicide...In the actual commission of assisted suicide, it should be noted that the only significant difference from active euthanasia is that the physician is usually absent at the moment of the suicide.
Kinsella 16:6
Dr. Verhoef maintained the position that assisted suicide and euthanasia are two fundamentally different actions on the basis that each action results in a change in the power structure. Unlike euthanasia, an assisted suicide places more control in the hands of the person who wishes death:
Euthanasia is a deliberate termination of the life of a patient by someone else at the patient's request. Assisted suicide is the deliberate provision of the means for suicide by someone else at the request of the patient. In the Canadian context, this other person is usually considered to be the physician. In assisted suicide, the final act is solely the patient's, the physician being only indirectly involved. Conversely, with respect to euthanasia the physician provides the means and carries out the final act, which greatly amplifies the physician's power over the patient. The balance of power between doctor and patient in assisted suicide is more equal.
Verhoef 18:79
As the foregoing excerpts indicate, there is simply no consensus on what terms to use or how to define them due to the divergent views on the moral and ethical significance of the various forms of conduct. Thus, in order to ensure consistency and to avoid any misunderstanding, the terms used throughout this Report are set out below along with the meaning ascribed to each. In defining these terms, the Committee has opted for a literal meaning that appears to be undisputed and widely accepted. First, the major activities surrounding death and dying were divided into categories and these were labelled. The Committee then became aware that some of these activities may be qualified in various ways. Therefore, these qualifiers have also been defined.
Qualifiers
Some of the activities described below may be performed on or by competent or incompetent individuals and may be involuntary, nonvoluntary, or voluntary. Therefore, the Committee has defined the following qualifying terms:
competent
incompetent
involuntary
nonvoluntary
voluntary.
"Competent" means capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision.
"Incompetent" means not capable of understanding the nature and consequences of the decision to be made and/or not capable of communicating this decision.
"Involuntary" means done against the wishes of a competent individual or a valid advance directive.
"Non-voluntary" means done without the knowledge of the wishes of a competent individual or of an incompetent individual.
"Voluntary" means done in accordance with the wishes of a competent individual or a valid advance directive.
Activities
For the purposes of this Report, and hopefully for the ensuing debate as well, the Committee has defined the following activities:
palliative care
total sedation
treatment aimed at the alleviation of suffering that may shorten life
the withholding of life-sustaining treatment
the withdrawal of life-sustaining treatment
assisted suicide
euthanasia.
"Palliative care" is care aimed at alleviating suffering - physical, emotional, psychosocial, or spiritual - rather than curing. It is concerned with the comfort of the suffering individual.
"Total sedation" is the practice of rendering a person totally unconscious through the administration of drugs without potentially shortening life.
"Treatment aimed at the alleviation of suffering that may shorten life" is the administration of sufficient amounts of drugs to control suffering even though this may shorten life.
"Withholding of life-sustaining treatment" is not starting treatment that has the potential to sustain the life of a patient.
"Withdrawal of life-sustaining treatment" is stopping treatment that has the potential to sustain the life of a patient.
"Assisted suicide" is the act of intentionally killing oneself with the assistance of another who provides the knowledge, means, or both.
"Euthanasia" is a deliberate act undertaken by one person with the intention of ending the life of another person to relieve that person's suffering where that act is the cause of death.
Miscellaneous Terms
Finally, several miscellaneous terms were used throughout the Report and these have also been defined including advance directives, surrogate decision-maker, substituted judgment, best interests judgment, futile treatment, and free and informed consent.
"Advance directive", referred to as mandate in the Quebec Civil Code, and also commonly known as a living will, is a document executed by a competent individual concerning health care decisions to be made in the event that the individual becomes incompetent to make such decisions. Advance directives can be divided into two categories - instruction directives and proxy directives. The latter are also known as durable powers of attorney for health care. In an instruction directive, an individual sets out what or how health care decisions are to be made in the event that he or she becomes incompetent. In a proxy directive, an individual sets out who is to make health care decisions in the event that he or she becomes incompetent. A valid advance directive is one completed according to the requirements set out in the relevant legislation. Throughout this Report, when the expression advance directive is used, validity is assumed unless otherwise indicated.
"Surrogate decision-maker" is someone who is authorized by law or by a person, through a power of attorney, for example, or is appointed by a court to make treatment decisions on behalf of an incapable person.
"Substituted judgment" refers to a judgment made by a surrogate decision-maker on behalf of an incompetent individual according to what the surrogate decision-maker believes would be the wishes of the incompetent individual were the individual competent.
"Best interests judgment" is a judgment made by a surrogate decision-maker on behalf of an incompetent individual according to what that surrogate decision-maker considers to be in the incompetent individual's best interests.
"Futile Treatment" is treatment that in the opinion of the health care team will be completely ineffective. This term does not include treatment that may be effective but whose results are deemed undesirable.
"Free and informed consent" means the voluntary agreement by a person who in the possession and exercise of sufficient mental capacity, as defined by an appropriate medical professional, makes an intelligent choice as to treatment options. It supposes knowledge about the consequences of having or not having the treatment and about possible alternatives. The consent must be free from coercion, duress and mistake.
Chapter III
Palliative Care
The Committee began its hearings with the expectation that the large majority of its time would be spent on the ethical, social, legal and medical issues that have come to be associated with assisted suicide and euthanasia. However, at the outset of the hearings, it became apparent that a major and unanticipated issue was the question of alternatives to assisted suicide and euthanasia. Some witnesses told the Committee that people need better support during the dying process and in dealing with the circumstances surrounding death and that palliative care could address many of these needs. Dr. Neil Macdonald, of the Clinical Research Institute of Montreal, explained:
One cannot in a moral society consider terminating a fellow citizen's life, if that citizen is suffering because of lack of access to good palliative care. Regardless of one's views on euthanasia, one must concur that, as a first principle, impeccable care for dying citizens must be ensured.
Macdonald 22:26
The Committee heard a significant amount of testimony with respect to both the benefits of palliative care and also the limitations and restrictions of the present day palliative care services offered in Canada. For this reason, a background paper was prepared setting out the history and present state of palliative care services across Canada. This supplemental information is included in Appendix M of this Report.
Although the concept is not new, modern palliative care began in Great Britain in 1967 when Dame Cicely Saunders established the hospice movement. Over the past twenty-five years, Canada has seen a remarkable development in the availability of palliative care services, from its beginning in the 1970s to a network of providers throughout Canada in the 1990s. In 1991, a national organization, the Canadian Palliative Care Association, was founded.
A generation ago, most Canadians dealt with their family physician, who knew the patient's family and social environment intimately. As medical care became more specialized and institutionalized, there was a tendency to focus on the disease rather than the patient. Palliative care reflects, in part, a shift back to patient centred medical care. As Dr. James Gordon, a Quebec neurologist said:
I give my patients palliative care at the same time as I am giving them active, aggressive, curative treatment, most of the time. In that way people will come to understand that they will get palliative care from their doctors. That means kindness, decency, being treated as people. It does not mean a specific protocol for dealing with a specific kind of problem, although that may be included in your training.
Gordon 27:21
Palliative care is defined as care aimed at alleviating suffering - physical, emotional, psychosocial, or spiritual - rather than curing. It is concerned with the comfort of the individual. Dr. Latimer described the objectives of palliative care as follows:
The goals of palliative care are excellence in physical care for the patient and excellence in the support of counselling for the family and the patient. Palliative care will seek to enhance the quality of life for the patient and their family.
Latimer 4:6
Palliative care is interdisciplinary and is centred around the person rather than the disease. Dr. McGregor described it as follows:
Included in that interdisciplinary team are volunteers - lay people - who provide hands-on bedside care; emotional and spiritual support, and some basic care of the individual patient. Also, we include the family and teach the family how to become involved in caring for the patient...Not only professionals can provide palliative care...Palliative care is not the domain of any profession.
McGregor 4:65
Dr. Mount pointed out that the benefits of palliative are recognized worldwide:
The World Health Organization states that palliative care affirms life and regards dying as a normal process; it neither hastens nor postpones death; it provides relief from pain and suffering; it integrates the psychological and spiritual aspects of the patient.
Mount 5:30
In Canada, palliative care is usually provided by a specialized team located within an acute or long-term care facility, in a free-standing hospice, or in the home. These services are funded in a wide variety of ways, such as health care facility global budgets, home care programs, fee-for-service under provincial health insurance plans, salaried positions, and private donations.
Points of View of Witnesses
Palliative care was endorsed by all the witnesses who raised the issue before the Committee. The individuals working in the field, whether health care professionals or volunteers, believe that palliative care enhances the quality of health care services and improves the care of the dying. The Committee heard testimony about situations in which palliative care immeasurably improved the last days and months of dying individuals. Dr. McGregor and Dr. Latimer shared their thoughts based on their own experience in the field:
I have had this happen personally in my experience practising palliative medicine. The patient, in the final stages of living, has gone on to find new meaning out of the darkness of despair through the shared journey of exploration of meaning and reinforcement of their value as individuals.
McGregor 4:54
Palliative care promotes opportunities for healing in relationships and for forgiveness in families. There is not a waiting time for death, but rather an active and positive opportunity to live.
Latimer 4:6
The Committee was consistently told that palliative care is presently available to only a small percentage of dying individuals and that it is unevenly distributed across Canada. For example, Dr. Latimer stated that organized palliative care is not available throughout Canada to all Canadians.(3)
Dr. McGregor also expressed this viewpoint:
It is society's responsibility through government, health care planners, professional organizations, and health professions to provide the resources to ensure a system of intensive caring for dying patients and their families. This necessitates the development of the field of palliative care to ensure that the appropriate expertise is widely and readily available as well as accessible to all...It is unfortunate that Canadians continue to die in pain because this expertise is not available to them.
McGregor 4:53
Palliative care facilities have traditionally focused on cancer patients and as a result patients with other medical problems, such as amyotrophic lateral sclerosis (ALS), multiple sclerosis (MS), Alzheimer's disease, end-stage renal or respiratory or cardiac disease, have had difficulty in obtaining access to palliative care.
Many witnesses told the Committee that palliative care facilities, programs and staff suffer from inadequate funding. The lack of a coordinated approach to the provision of services in many provinces and territories makes it difficult to assess or meet funding needs. In addition, restrictions on physician reimbursement have limited access to palliative care. Dr. Mount described the situation:
In most provinces, there is an absence of secure, accepted funding mechanisms...One of my colleagues, a young family physician with a Masters degree in epidemiology and a fine mind and burning interest in palliative care, moved to Halifax and depressed me by not going into palliative care. I said to him, "Why do you not do palliative care?" He said, "Because I have to feed my family." There are not secure funding mechanisms in most provinces - Quebec is an exception - to fund palliative care physicians.
Mount 5:31
Another major constraint is the limited number of health care professionals currently being trained in palliative care in Canada. For example, there are no official palliative care specialty programs for health care professionals:
An official program in training must await recognition of palliative medicine in Canada as a specialty. Forty physicians come through our program each year one way or another. That sounds terrific. By "come through", I mean they may be there for a week to as long as a year. At present there are two funded fellowship programs, one in Ottawa and one in Edmonton.
Mount 5:38
In addition, health care professional students receive very little training in palliative care as part of their basic education. Dr. Macdonald presented the Committee with the results of a 1994 survey on palliative care training in Canadian medical schools, conducted by the Canadian Palliative Care Education Group, a committee of the Canadian Society of Palliative Care Physicians:
I wish to put the results of our 1994 survey before the Senate committee because it is germane to your discussions. Answers from all 16 of our schools are included here. First, we asked: Is there a formal palliative care course in your faculty? The answer was "no" in all 16 cases.
Macdonald 22:24
Dr. Macdonald also told the Committee that only four of the sixteen medical schools have increased formal teaching of palliative care in the past two years. He concluded that:
As reflected in the opinion of colleagues designated by their deans as responsible for palliative care education in their faculties, the current status of education on pain and palliative care is far from satisfactory.
Macdonald 22:16
Dr. Harvey Chochinov, a psychiatrist from the Manitoba Cancer Treatment and Research Foundation, also referred to the lack of education in this area:
Hospitals need not demonstrate proficiency in palliative or pain management in order to operate; medical schools need not provide more than beyond minimal training in this area for accreditation; and physicians are not required to demonstrate competence or proficiency in this area of medicine in order to gain licensure in this country. Death and dying is the least-studied phase of the human life cycle and receives the least amount of support from medical research funding agencies.
Chochinov 17:12
Dr. Macdonald expressed his view as to why education in palliative care is critical in the field of medicine:
Palliative care is not a single issue topic, but rather presents to undergraduate students a method of whole patient care that will certainly benefit the students in specific technical areas such as the proper use of analgesics but, more importantly, should influence their overall approach to medical care.
Macdonald, 22:28
Many witnesses pointed out that if palliative care is to become more effective at meeting the needs of dying patients, more research is required into pain control methods. According to Dr. Latimer:
We use opioid analgesics, pain-relieving narcotic drugs, very well in palliative care, but we have reached our saturation point with what we can do with those drugs. There are two or three pain syndromes that are particularly difficult for us to treat, nerve pain, bone pain, and pain that is largely comprised of suffering in the psychological sphere.
We have not put serious research money in Canada into addressing either physical pain relief or the relief of suffering. If we were to be serious, those would be the two paths that we need to put serious research money into.
Latimer 4:16
Another concern raised by some of the witnesses was that not all people facing death want palliative care. While palliative care is beneficial for the vast majority of people who are dying, these witnesses said that it is not always the appropriate response for everyone; it will not always be the solution to the problems of those facing death. Mr. Arn Schilder, of the British Columbia Persons with Aids, described the ineffectiveness of palliative care in his personal situation:
I do not see a great deal of dignity in being anaesthetized beyond being compos mentis in a palliative care ward. I would rather look at my Maker with open eyes and make a decision...Palliative care may not be for me because pain management may not be possible. I am one of those unusual cases...Because of my personal situation, the drugs that could treat opportunistic infections are not going to be available to me. I would personally want to have the choice. The opportunity to die in palliative care would be very nice...However, I do not necessarily want to go into a palliative care facility. I want to die at home. I want to choose the time when it is right. I do not want to lose my mental capacities. That happens in a palliative care environment because you are heavily anaesthetized.
Schilder 16:25-26
In addition, some witnesses said that not all suffering involves physical pain. Dr. Scott Wallace, of British Columbia, told the Committee:
The process of dying may involve some of the most miserable and distressing sensations known to man...Accompanying these debilitating and demoralizing symptoms is the loss of dignity, self-esteem and privacy which comes from depending entirely on others to manage each and every aspect of one's bodily and mental needs, 24 hours a day.
Wallace 15:86
Several witnesses noted that AIDS patients are a special group and palliative care programs, in order to be effective for them, must be tailored to their particular needs. Dr. Morissette, a clinical physician working with 85 HIV/AIDS patients, had this to say on the issue:
AIDS is a disease that stigmatizes its sufferers, causes them to be ostracized and opens the door to discrimination and violation of individual rights, if not collective rights as well...
Many AIDS victims are young people, generally well informed and concerned about their independence and self-determination. These patients want to be involved in the process of making decisions that affect them...
We must also note the difficult deaths faced by these individuals, both physically...and psychologically, socially and spiritually (isolation, abandonment by their family, guilt, fear of suffering and dying, of death and the hereafter...).
The symbolic burden of AIDS, in particular because of the issues relating to sexuality and social marginalization, casts this disease in a particular light.
Morissette 32:5-6
Sister Agathe Coté descibed how Maison Marc Simon, a hospice for HIV and AIDS victims in Quebec City, addresses the special needs of these individuals:
Maison Marc Simon is not a place of death, but rather a place of life, where people with HIV and AIDS are accepted as they are and their differences are respected. Emphasis is placed more on the quality of life than on the number of days one has left to live.
Coté 32:11
Although the recognition of palliative care as an essential service is a recent phenomenon, health care professionals and families have always provided palliative care on a personal and informal basis. For example, nurses have long provided continuing care and comfort even when a cure was no longer possible. The Canadian Nurses Association explained:
Regardless of any discussion of euthanasia, nurses support the need to provide palliative care. They feel especially strongly about this subject because when there are no more cures to offer, there is still nursing care, and it needs to be the best. The CNA believes palliative care is an essential health care service.
Canadian Nurses Association, 19:6
Witnesses also referred to the shift that is evident in many parts of Canada from institutional care to home care. Dr. Ferguson, from the New Brunswick Extra-Mural Hospital, informed the Committee:
In many provinces, homecare has been developed more or less as a project or program. With us, it is part of the system. We like to think that we have a different approach to it, and we are encouraging it to be used more effectively. That is our objective, at any rate.
Ferguson 20:53
He describes the many benefits of providing palliative care in the home:
Dying at home can provide the opportunity for quiet, privacy, dignity, and family closeness. That may make death easier for the patient, and provide more consolation for the bereaved. Assuming a stable and caring home environment exists, emotional and physical comfort is often greatest at home with family, friends and pets nearby. Surveys of surviving relatives of deceased patients show that the patients and the survivors were very satisfied with the care we provided for the deceased.
Ferguson 20:49
Some witnesses said it is neither appropriate nor even possible for everyone and it can sometimes place an overwhelming burden on those in the home providing the care. Ms. Eleanor Ross, President of the Canadian Nurses Association, testified:
When we advocate home palliative care, we are not advocating that it be put onto the family. That is why when we talk about the palliative care team we talk about the need to support the family. The family not only needs day-to-day support but also breaks and respite care. We advocate that there be those breaks. If we have a long term chronically ill patient we need to organize programs to have someone go into the home to relieve the family so that, for example, they can go on a vacation for a week or two; or to bring the client back into the hospital so that the family can have a break.
Ross 19:13
Committee Deliberations
The Committee commends the health care professionals and the many volunteers who work in palliative care in Canada. The programs that have been developed to date in order to care for the dying have improved the quality of the life and death of many Canadians.
The Committee, however, is concerned that the demand for palliative care is still greater than available services. They believe there should be universal access to competent and effective palliative care. It should be integrated with other health care services and, ideally, its availability should not vary substantially from region to region. The Committee urges governments, at all levels, as well as health care planners, providers, and educators to make the development of a comprehensive system of palliative care in Canada a priority.
The Committee believes that national guidelines or standards for palliative care are essential. Although the provision of health care services is a provincial matter, the federal government does have a role to play. Palliative care requires a dynamic federal, provincial and territorial response. The Committee encourages the cooperation among the various levels of government and health care professionals. The division of Health Canada responsible for health protection and promotion could, for example, in cooperation with the provincial ministers of health, as well as health care experts from across the country, encourage the establishment of national palliative care guidelines and standards. This type of initiative was first undertaken by Health and Welfare Canada in 1989 when it issued a pamphlet entitled "Palliative Care Services Guidelines". The Committee was told, however, that these guidelines require updating.
The Committee urges governments to consider the most appropriate way of supporting palliative care providers with the objective of encouraging more young professionals to enter the field of palliative care. The Committee feels that the involvement of volunteers in the delivery of palliative care should be increased and supported.
The Committee members are of the opinion that the health care delivery system should ensure that palliative care is also available to all patients with chronic or degenerative illnesses, such as ALS, MS, AIDS, Alzheimer's and other diseases.
As the palliative care delivery structure expands, health care professionals will require more training and resources will be needed for palliative care programs in health care educational institutions. Continuing education should be made available to health care professionals as mandated by their professional governing bodies.
In order to improve public awareness of palliative care and to enhance public support for an expanded palliative care structure, the Committee encourages the federal Minister of Health, in cooperation with the provinces and territories, to sponsor a national information program. The members feel that it is important for Canadians to be informed about what palliative care is, what it can do and where it is available.
The Committee supports home care and community-based care, although it recognizes that home care may not be appropriate for everyone. It can sometimes place overwhelming and unremitting burdens on the caregiver in the home. For that reason, home care must also be supported by good respite programs. The members are aware that the burden of care has traditionally been borne primarily by women. They believe that respite care can help to ensure that caregivers are not disadvantaged in the workplace because of the demands of caregiving.
Recommendations
The Committee recommends governments make palliative care programs a top priority in the restructuring of the health care system.
The Committee recommends the development and implementation of national guidelines and standards be continued.
The Committee recommends the training of health care professionals in all aspects of palliative care be increased.
The Committee recommends there be an integrated approach to palliative care. The delivery of care, whether in the home, in hospices or in institutions, with the support of volunteers, must be coordinated to maximize effectiveness. The provision of respite services is an essential component.
The Committee recommends research into palliative care, especially pain control and symptom relief, be expanded and improved.
Chapter IV
Pain Control and Sedation Practices
It is not always the possiblity of debilitation and disease that people fear most when they think of their dying but rather the pain and suffering which often accompanies that passage of life. Comprehensive palliative care could address most of the worries of dying patients by providing the best available methods of pain control and that in turn would do much to alleviate their suffering.
Since pain control and sedation of patients are also practised outside the palliative care context, the Committee decided these procedures should be considered in a separate chapter.
Many witnesses repeatedly indicated that pain control techniques are not being adequately used and, often, sufficient medication to control pain is not being provided. Several witnesses suggested this is due to a lack of training and education of medical professionals in the area. Others stated that some medical professionals fear liability if the administration of drugs to control pain results in a hastening of death. Finally, fear of addiction of patients was also offered as a further explanation for the failure to provide adequate pain control in some circumstances. Dr. Macdonald observed the problem in the following terms:
What is required...is an attitudinal change on the part of the medical and administrative leaders, supported by expressed public comment telling educators that incorporation of the principles of palliative medicine in the training of its future physicians is a priority community expectation.
Macdonald 22:28
In addition, witnesses pointed out that although physical pain can in most cases be alleviated with adequate pain control, there is a small percentage for whom even the best pain control measures will not completely alleviate their physical distress:
There exists a large number of worst-case scenarios. That is, despite the best palliative care, despite the best treatment and pain management, there exist cases where our worst nightmares and fears are realized.
Mishara 2:36
We do have people for whom we are not able to relieve pain. They are few. We call them people with intractable pain problems. They are devastating problems.
Latimer 4:16
Medical institutions and medical professionals are following two distinct types of practices with respect to pain control and sedation:
treatment aimed at the alleviation of suffering that may shorten life
total sedation
Treatment Aimed at the Alleviation of Suffering that may Shorten Life
The Committee has defined the provision of treatment aimed at alleviating suffering that may shorten life as the administration of sufficient amounts of drugs in order to control suffering even though this may shorten life. Whether the treatment does shorten life will depend upon the dosage provided. Some patients, depending upon the drug, the disease and their own level of tolerance, may require much higher dosages in order to alleviate suffering than other patients. An example of this practice includes giving potentially life-shortening doses of drugs for relief of cancer pain.
Legal Status
The Honourable Allan Rock, Minister of Justice and Attorney General of Canada, informed the Committee that the current legal status of providing such treatment is relatively clear. He testified:
The Criminal Code does not require futile treatment, nor does it require capable patients to accept treatment they do not want. Similarly, necessary palliative care which is carried out in accordance with generally accepted medical practice is not prohibited by the Code whether or not this treatment results in the death of the patient.
Rock 31:17
The Canadian Bar Association referred specifically to the legal status of terminal sedation as a medical technique to control pain:(4)
One may argue that the Criminal Code does not apply to terminal sedation; there is no intent to kill, so the homicide provisions would not apply; similarly, there is no reckless disregard for life, so the provisions of criminal negligence would not appear to apply, as a matter of law. Following this, there would be no issue of prosecutorial discretion.
The policy of the Ontario coroner is illustrative of the practice in this regard. Palliative care that results in death is not considered to be criminal, so long as four conditions are satisfied: (1) the care must be intended solely to relieve suffering; (2) it must be administered in response to suffering or signs of suffering; (3) it must commensurate with that suffering; and (4) it cannot be a deliberate infliction of death. Documentation is required, and the doses must increase progressively.
There is no precedent in this area. There have never been any legal convictions for providing such treatment and although there are no decided cases on point, a reference was made to the practice of providing potentially life-shortening treatment with the purpose of alleviating suffering in the Rodriguez case. The real issue in that case concerned assisted suicide under section 241 of the Criminal Code. Mr. Justice Sopinka, writing for the majority of the Supreme Court of Canada, however, drew a legal distinction, based on intention, between the administration of drugs that are likely to hasten death on the one hand and assistance in suicide on the other. Without deciding the issue, by implication he seems to have suggested that if the intention is to alleviate suffering, it is legally permissible to provide treatment notwithstanding that this may hasten death.
The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based upon intention — in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death...In my view, distinctions based upon intent are important, and in fact, form the basis of our criminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear.(5)
Despite the fact that there is little doubt that this practice is legal, the Minister of Justice suggested there seems to be some confusion within the medical profession, and the public in general, as to what is legally permissible in this regard:
When is it permissible to keep prescribing morphine when you know within the next six hours it will cause death? The underlying disease will not kill the person, however the treatment for the pain will. At present, that is shrouded in obscurity.
Rock 31:25
He explained many would like the law in the area to be clearly set out and simplified and there is support for greater clarification of the issue:
The question arises: Can the Criminal Code be made plainer or simpler in these respects? The Law Reform Commission of Canada, in its 1983 report on these issues, called for greater clarification, and others have supported this view.
Rock 31:17
Points of View of Witnesses
There was general agreement among the witnesses that providing treatment to alleviate suffering that may hasten death is a practice that occurs quite often in Canada. For example, Professor Schafer, testified:
If we think about it, what the palliative care physician frequently does in giving an adequate dose of painkilling medication is hasten the death of the patient, entirely justifiably in my judgment, and entirely justifiably in the judgment of every one of my philosophical and legal colleagues whose briefs I have read.
Schafer 18:124
However, there was some disagreement with respect to how often the drugs provided are actually life shortening. Some witnesses said the incidence is low because doses that would be life shortening in healthy patients are not life shortening in end stage cancer patients, due to the tolerance that develops over time among the latter group of patients. Dr. Macdonald stated:
Another area of confusion is whether or not we are killing the patient with these drugs. That was a subject of correspondence I had with the committee. People think, for example, if we increase the dose of opioids so that a person is stuporous, we may kill the patient if we give them a little more. In my experience, that is highly unlikely to happen. Patients rapidly become tolerant to the respiratory effects of opioids, morphine and like drugs. If we give them a large dosage of a drug, we may sedate the patient but it is unlikely that the patient would die of our drug. They may die of pneumonia or an associated problem which sedation might make more likely to come about, but to die directly of a drug effect is unusual.
Macdonald 22:32
Other witnesses indicated the incidence is higher than the foregoing argument suggests because, even in cases where patients have become more tolerant to the effects of certain types of medication, the doses given are life shortening. For instance, Russel Ogden, who conducted research on cases of assisted suicide and euthanasia, particularly with respect to persons with AIDs or HIV, also describes the case of a doctor who admitted to having provided morphine injections to his terminally ill father. The doctor stated he was aware of the fact that it may have hastened death. (6) The British Columbia College of Physicians and Surgeons decided the doctor simply provided his father with quality palliative care and did nothing wrong since treament that may coincidentally hasten death is neither illegal or unethical.
Many witnesses testified that health care professionals quite frequently do not provide patients with sufficient pain medication. One reason for this is the concern that the patients will become addicted to the medication. As both Ms. Carol Rees of Action Life, and Ms. Jakki Jeffs of Alliance for Life, informed the Committee:
The higher effective dosages of morphine required to control pain in cancer patients are withheld from patients because health care workers fear that administering them could hasten the patient's death or result in addiction.
Action Life 8:11
I believe fear of addiction to morphine, either by the medical practitioner himself or by the patient, is another reason why morphine is not used as it ought to be. Again, research shows that .04 per cent of patients treated with morphine become addicted. Let us educate our public and our doctors to effective pain management.
Alliance For Life 8:44
Reverend James Dickey, in sharing his experiences based on his work as a pastoral minister, related an anecdote that supported this view. He told the Committee of an 83-year-old man who was in agony yet the doctors refused to administer pain medication because they were afraid that he would become addicted. (7)
A more commonly cited reason for why some health care professionals refuse to provide sufficient pain medication is the belief that doses sufficient to control the pain would be potentially life shortening and, thus, liability may ensue if such medication is provided. Ms. Monique Coupal, of the Fédération québecoise des centres d'hébergement et de soins de longue durée, expressed this viewpoint:
We find it surprising, even unconscionable, that in 1995 some physicians still hesitate for all sorts of reasons, to prescribe sufficient doses of medication to ease what we consider needless suffering. They do this out of fear either of accelerating the dying process or even, in some cases, out of fear of making a terminally ill patient dependant on a drug.
Coupal 32:39
Ms. Patricia Rodney, a registered nurse from British Columbia, illustrated the reluctance of some health care professionals to provide analgesics to alleviate pain if it may result in a hastening of death. She related a personal incident of a patient who was dying of a stroke and was in pain. The family was distressed and requested that the doctors provide analgesia and sedation. The nursing staff was also concerned and asked the physician in charge to administer some morphine. The physician was reluctant but eventually ordered one of the nurses to administer an analgesic. The patient died soon after but the nurse was not concerned about this because she knew this was inevitable. She was, however, concerned when the physician said "Well, I guess you killed that patient, didn't you". Ms. Rodney used this example to demonstrate that:
The game playing and behaviours that revolve around issues such as analgesics can be very complex and very pervasive...Within hospitals and health care facilities we have an organizational context that results in conflict, fragmented communications, and poor decision-making. It is not the fault of doctors or of nurses; it is the fault of our entire system.
Rodney 15:129
In other instances, the lack of training of medical professionals in this area is a fundamental reason for the underutilization of pain control techniques. Dr. Robert Pankratz, President of Canadian Physicians for Life, testified:
We try to educate our fellow physicians. Perhaps 50 per cent of the physicians that I have daily contact with are inadequately informed as to the modern techniques and their patients are suffering as a result.
Pankratz 14:31
Dr. Kinsella also expressed this view:
It is quite clear that there has been this almost bizarre ethic of behaviour within the medical profession in terms of its ability to come to grips with the control of pain, control of nausea, control of vomiting, control of all those things which occur in some but not all patients who are dying. It is a deficiency in the educational system. There is absolutely no question about that. If we are going to do anything about it, we must reform the educational system and physicians in that respect.
Kinsella 16:17
Dr. Paul Henteleff, President of the Canadian Palliative Care Association, informed the Committee that there should be a greater emphasis on providing necessary resources in order to ensure that there will be adequate training in this area:
We need more resources for training so that we do not have to have doctors being taught piecemeal, by nurses who know more than they do. There is room for considerable research because we cannot pretend we already know everything that could possibly be known about how to make people comfortable, despite the fact that they have incurable and fatal illnesses.
Henteleff 5:9
A majority of the witnesses felt that providing treatment for the purpose of alleviating suffering should be permitted notwithstanding that it may hasten death and refusing to provide such treatment would be inappropriate and negligent, in some cases. Professor Schafer indicated:
If a physician withholds adequate palliative care on the grounds that it will hasten the death of a patient whose life is more burdensome than beneficial, and who is suffering terribly, and this causes the suffering and the pain to continue, that would now be almost universally recognized as negligent, incompetent, perhaps even criminally negligent medical care.
Schafer 18:124
Moreover, Dr. David Roy, Director of the Centre for Bioethics at the Clinical Research Institute of Montreal, stated that a failure to alleviate pain often precludes patients from spending their last moments with family and friends:
There should be no law or morality that would limit a clinical team or doctor from administering the frequent dosages of pain medication that are necessary to free people's minds from pain that shrivels the spirit and leaves no time for speaking when, at times, there are very few hours or days left for such communication.
Roy 22:7
Committee Deliberations
The Committee recognizes that providing treatment aimed at alleviating suffering that may shorten life is legal. However, it also recognizes that there are misconceptions on the part of the medical profession and the public as to the current legal status of this practice. The Committee believes that there should be certainty as to what is and what is not lawful. Treatment aimed at the alleviation of suffering that may shorten life should be considered in the following situations:
For competent patients, such treatment should be permitted only when the patient has given a free and informed consent.
In the case of a patient who is incompetent but has completed a valid advance directive while competent, the wishes expressed therein should be respected. In the absence of a valid advance directive, the health care team should turn to the most appropriate surrogate decision-maker. That individual should make a substituted judgment if he or she knows what the patient would have decided were he or she competent. A best interests judgment should be made where the patient's wishes are not known.
The Committee accepts the statements made by many of the witnesses that this type of treatment is currently being provided in Canada. However, it is concerned about the lack of sufficient evidence with respect to the prevalence of this practice. The unavailability of data in this regard is not surprising for two reasons. First, there is conflicting evidence on what sorts of doses actually shorten life. Second, since the legal status of providing treatment aimed at the alleviation of suffering that may shorten life is somewhat unclear to some health care professionals, they are reluctant to admit that they provide such treatment out of fear that they may be held criminally liable.
The Committee is concerned that, as a result of the confusion within the medical profession as to the current state of the law some patients are suffering needlessly because health care professionals are withholding adequate pain medication for fear of liability. In addition, this confusion seems to have resulted in the practice being shrouded in secrecy. This, in turn, may shield the detection of potential abuses in this area. Thus, the Committee strongly urges that there be a codification in law of the permissibility of this practice and that guidelines be established in order to regulate it.
The Committee is particularly concerned by the evidence that inadequate training of health care professionals in this area may have resulted in some patients suffering unnecessarily. The Committee is of the view that improved education in pain control is essential.
Recommendations
The Committee recommends the Criminal Code be amended to clarify the practice of providing treatment for the purpose of alleviating suffering that may shorten life.
The Committee recommends the division of Health Canada responsible for health protection and promotion, in cooperation with the provinces, territories and the national associations of health care professionals, develop guidelines and standards for the provision of treatment for the purpose of alleviating suffering where that may shorten life.
The Committee recommends education and training with respect to pain control be expanded and improved for all health care professionals.
Total Sedation
The Committee has defined total sedation as the practice of rendering a person totally unconscious through the administration of drugs without potentially shortening that person's life.
Dr. Marcel Boisvert, a Professor of Medicine at McGill University and palliative care physician at the Royal Victoria Hospital, illustrates when the technique of totally sedating a patient can occur within the palliative care context:
What we are pushed to do occasionally — not often — in palliative care is that, in some circumstances, in the dying process where distress is so bad that the only way to relieve people is sedation. Shortness of breath is the best example. In the palliative care field it is very often the paradigm of a difficult death - running after and catching each breath, 40, 50 times per minute. We can administer drugs that will relieve this. We can very often relieve 100 per cent of the pain, but rarely can we relieve 100 per cent of severe shortness of breath except by severe sedation.
Boisvert 6:35
On the other hand, Dr. Gordon, provides an illustration of when a patient may be totally sedated in a non-palliative care setting:
The specific cases of barbiturate coma of which I spoke was that which would be induced for the purpose of controlling epileptic seizures...That is a therapeutic use of barbiturates for epilepsy which does not respond to any other treatment. If someone has seizures which will not stop, that is an accepted therapeutic treatment. No one would ever dispute that...It is the use of barbiturates to induce coma in people who are suffering so badly, and whose pain is so uncontrollable, that the only way to control it is literally to put them to sleep.
Gordon 27:19
Legal Status
The current legal status of this practice is clear. If the sedation is done with the consent of the patient or the patient's surrogate, it is legal. If the sedation is contrary to the clearly expressed wishes of a competent patient or the patient's surrogate, it is illegal — just as any medical treatment without proper consent is, in most cases, illegal. A health care professional who totally sedates a patient against the patient's competently expressed wishes may be charged with assault under section 265 of the Criminal Code and may be sued for battery in a civil action in common law jurisdictions. Under the civil law system in Quebec, it should be noted that health care professionals can be held civilly liable for such conduct, pursuant to art. 1457-1481 of the Quebec Civil Code.
Points of View of Witnesses
The prevalence of the practice of total sedation is unclear. Although several witnesses alluded to it in the course of their testimony, there was little evidence as to the extent of this practice in Canada. Mr. Réjean Carrier, an experienced social worker who has practised both at Hotel-Dieu de Québec and at the Maison Michel Sarrazin, had this to say:
Some palliative care services have developed after everything else was tried in the way of drugs, special care and attention, the technique of sedation, that is to say putting patients to sleep to render them unaware of their physical or moral pain.
Carrier 3:8
Many witnesses who referred to the practice seemed to assume that it was legitimate, as did Dr. Morissette in explaining the circumstances in which the technique may be used:
Artificial sleep...is used in two situations. First, when a person is not yet ready to die but is in such tremendous pain, and second when there is an element of physiological exhaustion, which means that we have a difficult time controlling the suffering with drugs. At that point, the procedure is to induce sleep for a period ranging from several hours to several days and then to allow the patient to emerge from his sleep.
Morissette 32:19
Both Dr. Mount and Mr. Don Logan of the Christian Brethren, a religious organization in Winnipeg, also seemed to assume that this practice is permissible:
Sedation of patients where we have been unsuccessful in alleviating suffering is part of palliative care.
Mount 5:30
Sedation is a solution for the 5 per cent whose pain cannot be controlled.
Christian Brethren 18:30
The argument was put forward by some witnesses that, in their view, this type of total sedation is very similar to acts of euthanasia. Mr. Alister Browne, a biomedical ethicist with the B.C. Civil Liberties Association, held this position:
Some procedures associated with palliative care come very close to active euthanasia, in my opinion. For example, you have heard testimony to the effect that where a patient's distress is difficult to control, they will be "snowed", after having gone through elaborate consent requirements, and put to sleep. They are rendered unconscious, kept unconscious, and perhaps are woken every eight days or so. That measure seems not unlike active voluntary euthanasia.
Browne 14:136
Dr. Morissette agreed that these two actions are close; however, he felt that total sedation was the more acceptable approach:
Some places such as Maison Michel Sarazin are already using artificial sleep. Naturally, some ethicists will tell you that we are very close to euthanasia when we resort to this procedure and yes, in effect this is true. However, I believe that this could be a valid option.
Morissette 32:15
The concern was raised by many witnesses that, while medical professionals in Canada are providing this type of sedation, there are no existing professional guidelines or national standards governing this practice. Mr. Carrier testified:
There is a danger in using this technique because it could also be abused. For example, who can decide whether a state of distress is unbearable for a patient and whether that patient should be put to sleep. If this technique were an alternative to relieving pain and to euthanasia, an assessment protocol would be necessary in order to prevent it from becoming something that would be easily prescribed.
Carrier 3:8
Committee Deliberations
The Committee recognizes that the practice of total sedation is used in Canada both for the temporary treatment of patients in acute circumstances and for terminal patients. In the case of terminal patients suffering intolerable pain that cannot be relieved by other treatments, the Committee recommends that it be clearly defined when total sedation should be permitted. It therefore recommends that the practice should be considered in the following situations:
For competent patients, this type of sedation should only be provided when the patient has given a free and informed consent.
For incompetent patients who have completed a valid advance directive, the expressed wishes should be respected. Where a valid advance directive does not exist, the health care team should turn to the most appropriate surrogate decision-maker. That individual should make a substituted judgment if he or she knows what the patient would have decided were he or she competent. A best interests judgment should be made where the patient's wishes are not known.
The members are concerned that no guidelines whatsoever have been established to regulate this practice in Canada. The Committee is of the view that society has a compelling social responsibility to ensure that the proper regulations are in place to protect against any potential abuses with respect to sedation practices. In this connection, it strongly believes that national standards and guidelines should be developed.
The Committee is of the view that more research and study is required in this area.
Recommendations
The Committee recommends the division of Health Canada responsible for health protection and promotion, in cooperation with the provinces, territories and the national associations of health care professionals, develop guidelines and standards for the practice of the total sedation of patients.
The Committee recommends the federal government, in cooperation with the provinces and territories, undertake a study in order to determine the frequency and conditions under which total sedation is practised.
Chapter V
Withholding and Withdrawal of Life-sustaining Treatment
Medical technology has been evolving at such a pace that life support systems now maintain life for much longer periods. While that technology is a necessary and welcome development, some people view it with reservation. Many people fear a prolonged artificial existence but choose to live under these circumstances, while others believe that a life under these conditions is unacceptable. As a result, medical professionals, patients and others mandated to decide on their behalf are increasingly confronted with decisions concerning withholding or withdrawing life-sustaining treatment. Individuals refusing this type of treatment have successfully sought the approval of our courts, although such decisions have not been codified in statute law. Uncertainty still surrounds the issue.
The Committee has defined withholding life-sustaining treatment as not starting treatment that has the potential to sustain life - for example, not instituting cardiopulmonary resuscitation (CPR); not giving a blood transfusion; not starting antibiotics; or not starting artificial hydration and nutrition.
Withdrawing life-sustaining treatment is stopping treatment that has the potential to sustain life. Examples include removing a respirator or removing a gastric tube supplying artificial hydration and nutrition.
Withholding and withdrawing life-sustaining treatment can be voluntary, non-voluntary and involuntary:
Voluntary : done in accordance with the wishes of a competent individual or a valid advance directive. For example, a physician removes a respirator at the request of a competent individual.
Nonvoluntary : done without the knowledge of the wishes of a competent or an incompetent individual. For example, when a physician, at the request of the family, removes a gastric tube supplying artificial hydration to an individual in a persistent vegetative state whose prior wishes cannot be determined.
Involuntary : done against the wishes of a competent individual or a valid advance directive. For example, CPR is withheld from a competent individual who has requested that all treatment be provided despite the fact that the health care team has stated that CPR will be futile.
Legal Status
Mr. Justice Sopinka, writing for the majority of the Supreme Court of Canada in the Rodriguez case, summarized the current legal status of the withholding or withdrawal of life-sustaining treatment in the following manner:
Canadian courts have recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued (Ciarlariello v. Schacter, [1993] 2 S.C.R. 119). This right has been specifically recognized to exist even if the withdrawal from or refusal of treatment may result in death (Nancy B. v. Hotel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que.S.C.); Mallette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.). (8)
The Quebec Civil Code provides individuals with the right to refuse medical treatment. This right was reaffirmed by the Quebec Superior Court in the Nancy B decision. (9) The relevant sections of the Civil Code provide:
Article 10..Every person is inviolable and is entitled to the integrity of his person.
Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.
Article 11. No person may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent.
Article 12. If the person concerned is incapable of giving or refusing his consent to care, a person authorized by law or by mandate given in anticipation of his incapacity may do so in his place.
Dr. Keyserlingk made reference to the Nancy B decision as follows:
The hospital [in Nancy B] was concerned, "Are we not killing the patient if we stop the life support?, to which the court replied, "Not at all. This is the patient's right to refuse"...From the hospital's point of view or the physician's point of view, they do not have a right to treat when it has been refused. It becomes a form of assault.
Keyserlingk 1:32
It is legally acceptable throughout Canada to withhold or withdraw life-sustaining treatment from competent patients who so wish it. Dr. Keyserlingk and Dr. Ted Boadway, Director of Health Policy at the Ontario Medical Association, said:
Such a duty [to provide life-support] does not exist in some circumstances, one of them being if the treatment is refused by a competent patient...Legally this omission under these circumstances would not be euthanasia by omission, it would simply be good medical care.
Keyserlingk 1:28
The current situation ... is that the courts have ruled that physicians must respect and uphold competent patient wishes respecting treatment choices at all stages of life, regardless of whether that may result in a hastened death.
Boadway 20:70
The general principle of respect for refusal of life-sustaining treatment for competent patients who request it is widely accepted. There remain a number of difficult aspects of the issue that the courts have not yet settled. There are no decided cases on whether life-sustaining treatment can be withheld or withdrawn from incompetent patients, for example, young children and patients in persistent vegetative states. Futile treatment withheld against the patient's wishes is another grey area in law. A further question that remains is whether artificial hydration and nutrition is a medical treatment that can be withheld or withdrawn in the same way as any other medical treatment. While the courts have dealt with this last issue, they are divided.
In the Astaforoff case,(10) the British Columbia Court of Appeal affirmed a decision of the British Columbia Supreme Court in which the judge, while acknowledging the Court's duty to preserve the sanctity of life, went on to hold that that duty did not include requiring the necessaries of life to be forced on someone against his or her wishes. By contrast, in the Niemic case, (11) the Quebec Superior Court decided the issue in the opposite direction. In that case, the Court authorized a hospital to feed and to treat surgically, in whatever manner necessary, a competent adult who had refused all medical treatment. The Supreme Court of Canada has not yet been asked to rule on these complex issues.
Some witnesses stated that medical professionals require clearer direction with respect to these aspects of withholding and withdrawing treatment: (12)
In reality, however, the common law is not sufficiently clear to be well understood by practitioners or the general public, nor is it completely generalizable from one case to the next, thus leaving enough ambiguity in the minds of practitioners that they are uncertain of their obligations and possible legal liability for either failing to treat or treating. These problems are particularly evident in the case of the patient who is in a persistent vegetative state.
Boadway 20:70
The Law Reform Commission dealt specifically with the cessation of treatment:
...There is, rightly or wrongly, some uneasiness among medical specialists and the public in general. This uneasiness lies particularly in the perception that present legislation casts serious doubt on the legality of certain current medical or hospital practices.(13)
Mr. Scott Rowand, President of the Wellesley Hospital in Toronto expressed another concern:
I do not believe adequate legal protection exists, something which was recommended by the Law Reform Commission of Canada in Working Paper 28, for hospitals or professional caregivers in some circumstances in terms of cessation of treatment.
Rowand 9:32
British Columbia Crown Counsel Policy Guidelines
The British Columbia Crown Counsel Policy Guidelines refer specifically to these activities. These guidelines provide that "withholding or withdrawing treatment means a qualified medical practitioner, with consent by or on behalf of the patient, discontinuing or not intervening with medical procedures to prolong life beyond its natural length. This conduct, when provided or administered according to accepted ethical medical standards, is not subject to criminal prosecution." (14)
These situations are not only problematic from a legal point of view, they also raise moral and ethical questions. The witnesses' views in this respect reflect the difficulties that arise in these cases and the diversity of opinion regarding what is and is not acceptable.
Points of View of Witnesses
Some witnesses testified that the arguments for accepting the withholding or withdrawal of life-sustaining treatment from competent persons apply equally to incompetent persons who make requests while competent. Professor Eike-Henner Kluge, who teaches biomedical ethics at the University of Victoria, stated:
If I have shown that competent persons have the right to decide whether they want to live or die, then it follows that same right must also hold for persons who make such requests when they were competent but now are competent no longer.
Kluge 2:20
Another point of view expressed by the Lubavitch Organization in British Columbia was that the wishes of an incompetent person cannot ever be known and so no legitimate substituted judgment is ever possible:
Any decision, whether it be to respect a "living will" or the need to make a determination with no known instruction should only be done on the side of the protection of life. Societies over the centuries have used the protection of life as a keystone for their moral foundations. Any move away from this stance will endanger all of society and its values by undermining the fundamental principle of the sanctity of life and our responsibility to protect it.
Lubavitch-B.C. Brief p.5
Some of the witnesses described futile treatment as treatment that, based on medical judgment, is completely ineffective. Others described it as treatment that has a low probability of effectiveness and results that are not worthwhile, thus involving both a medical and a moral judgment. Dr. John Williams, Director of the Department of Ethics and Legal Affairs, Canadian Medical Association, testified:
This problem of futility is one of the most difficult ones in medical practice today. The statement that we have presented to you called the "Joint Statement on Resuscitative Interventions", which was very recently passed by our three associations, addresses the question of futility. It certainly does not answer it, but it at least addresses it, and it sets out some parameters within which the further discussion of futility can take place, in particular, whether it should be a determination by the qualified medical professional that a treatment is incapable of achieving a specified end, or whether it should be a decision on the part of the patient or the family that such an end is either desirable or undesirable.
For instance, is a resuscitation which should perhaps keep a patient alive for another two weeks in the hospital futile or not? The answer may be,"yes and no". It would not be futile in the sense that it would achieve the goal of keeping someone alive for two more weeks, but whether that goal is worthwhile or acceptable is really a decision that is based on the values of patients, caregivers or whoever. It is an open question, and we have not attempted to resolve it at this time.
Williams 25:8
Some of the witnesses expressed their view that it is acceptable to withhold or withdraw life-sustaining treatment even if the treatment is not futile, for example, a medically necessary blood transfusion for an otherwise healthy Jehovah's Witness. As Dr. Douglas Sawyer, Chair of the Ethics Committee of the Canadian Medical Association, stated:
[In your opinion, should the refusal of treatment be applied only when it is considered futile, or are there other situations?] I think that a patient can refuse treatment for any reason. When a patient refuses, the question of futility does not come up. The question of futility comes up if the patient is incompetent and unable to refuse, but the treatment is considered futile.
CMA 25:7
Several witnesses suggested that there is no morally significant difference between the withholding or withdrawal of artificial hydration and nutrition on the one hand and, the withholding or withdrawal of a respirator, blood transfusion, or CPR on the other. Therefore, if one may be withheld or withdrawn, then so too may the other.
Other witnesses held the view that there is a difference between these two types of actions. They said that withholding or withdrawing life support is ethically acceptable, but this does not include artificial hydration and nutrition. Canadian Nurses for Life offered their opinion that withdrawing nutrition and hydration is inappropriate and undesirable:
Providing basic nutrition and hydration has never been medical treatment because neither treat any illness or disease...The following is the text of the resolution passed at the International Congress of the World Federation of Doctors who Respect Human Life which took place in Rome, Dec. 1-2, 1989. This federation has almost 300,000 members in 59 countries. "In every case of terminal illness, it is a cruel and anti-medical practice to withdraw nutrition and hydration and thus to cause the patient to die of hunger and thirst, which can only increase his suffering. Nutrition and hydration are a basic life-maintaining need even if administered intravenously or by gastric tube."
Canadian Nurses for Life Brief pp.2-3
Apart from the foregoing problematic areas, many witnesses made general comments about the frequency, and conditions under which withholding and withdrawing treatments that sustain life occur. Some witnesses confirmed that the wishes expressed by patients are in fact being respected in most cases. However, the Committee was also told of some situations in which patients' wishes are not being honoured. For example, Reverend John Oldham, who has had clinical pastoral training at Victoria Hospital in Winnipeg and has led a number of seminars on death and dying, informed the Committee that life-sustaining treatment is sometimes given to patients despite their wishes, or the surrogates' refusal, to consent to it:
Aggressive treatment is sometimes carried out more than necessary, I believe, against the wishes of patients and families, by strong-willed, determined doctors in intensive care units. Sometimes it is overly aggressive. Those are judgment calls and they are very difficult to make.
Oldham 18: 27
Some witnesses related cases in which a health care team withholds treatment, against the wishes of the patient or the surrogate, because it decides that treatment would be futile. The Christian Brethren of Manitoba provided an example:
The Doctor...said that Mother's case had been considered and a decision has been made to withdraw the support machine, and they had in fact, already begun to reduce the number of breaths per minute, and the machine would be switched off completely at 6 p.m.
Father again indicated that he could not give his permission, and he could not interfere with God's own rights in giving life or taking life.
In conclusion I would say, that our state of sorrow and shock at this time was increased by the knowledge that the Hospital Directors had authority to remove the life support machine (by what was conveyed to us), regardless of our feelings about it, and further that we had no power to stop them from doing so.
Christian Brethren, Brief pp.4-5
Another issue of concern for some of the witnesses is that there are times when a patient is not in a position to make a free and informed choice as to the refusal of treatment. Here, the role of health care professionals is of utmost importance. Ms. Rodney offered the Committee an illustration of this type of situation based on her experience as a nurse. She recounted a case of a 76-year old diabetic who, as a result of his illness was quite limited in his physical mobility and also required long-term dialysis. As his condition began to deteriorate, he informed the health care team that he wanted to stop dialysis. The team was concerned about this decision because he had not previously mentioned it and the deterioration in his health was not so great as to justify his request:
With some reluctance, he disclosed that he wished to stop his dialysis because he felt he was becoming an increasing burden on his wife and was stressing her own resources. After finding that out, the team...had a much better understanding of how to proceed. They negotiated a new plan of care with him. They arranged to get more homecare support for him to assist him and his wife...Mr. C. and his wife were able to cope much better. He withdrew his request to have the treatment stopped and lived what he described as a good quality of life for another four years.
Rodney 15:124
Some of the witnesses shared their views with the Committee on the differences between acts of withdrawing and withholding. A few suggested there is a moral distinction between these. The Lubavitch of British Columbia stated:
The discontinuation of any medical treatment such as respirator, oxygen, intravenous, nasal-gastric feeding or pharmacological treatment cannot be endorsed. It would only be possible to take these actions if the physician knew with absolute certainty that his conduct was not interrupting life. Such a determination is impossible for anyone to make with absolute and total certainty. Therefore, once initiated, instrumental support of vital life processes should not be interrupted unless and until death has been determined.
Lubavitch-B.C., Brief p.13
Dr. Somerville expressed the opinion that there is no ethical distinction between withholding and withdrawing:
There is also an issue about there being any difference between withholding and withdrawing life-sustaining treatment. Ethically and legally there is not, provided in either case the act is justified. Again, to some extent, whether it is justified is a value judgment. However — and I think we need to acknowledge this — withdrawing treatment can feel different from withholding treatment for the health care professionals involved.
Somerville 6:6
Despite the different views of the witnesses, they were almost unanimous in finding that withholding and withdrawal of life-sustaining treatment is morally acceptable in principle and that when a competent patient or patient's surrogate refuses to consent to treatment, that decision must be respected. As Dr. Mount remarked:
There is general agreement now that there is no place for the introduction of life-prolonging treatment when the patient is against that or no argument against discontinuing that. That issue has been sorted out and largely agreed to by a broad range of authorities.
Mount 5:27
Professor Schafer concurred in this view:
These very powerful values — freedom, liberty, autonomy have led to an almost unanimous consensus in the biomedical ethics and legal communities: that what used to be called `passive euthanasia' [withholding and withdrawing life-sustaining treatment] is morally legitimate and ought to be legally permissible.
Schafer 18:122
Committee Deliberations
The Committee does not believe that there is any moral difference between withholding and withdrawing life-sustaining treatment. Therefore, in its opinion, the same ethical arguments that apply to withholding also apply to withdrawing.
The Committee recognizes that the withholding and withdrawal of life-sustaining treatment is legal when it is requested by a competent patient. However, if the wishes of an incompetent individual are known, through an advance directive or through previous conversations with a family member or a friend, then the surrogate decision-maker should make a substituted judgment and those wishes should be respected. Where the wishes of an incompetent person are not known, then a best interests judgment should be made.
The Committee recognizes that there is uncertainty on the part of the medical profession and the public as to what is legally permissible in this area. The Committee is of the opinion that the practice regarding the withholding and withdrawal of life-sustaining treatment should be clarified in law. In this regard, the following criteria should be considered:
When a patient refuses life-sustaining treatment, the health care team should assess the patient's competence.
If the patient is competent, the health care team should ensure that the patient is making a free and informed choice, in which case the patient's refusal should be respected.
When the patient is incompetent but has completed a valid advance directive while competent, the wishes expressed therein should be respected. In the absence of a valid advance directive, the health care team should turn to the surrogate decision-maker. That person should make a substituted judgment if he or she knows what the patient would have decided were he or she competent. A best interests judgment should be respected where his or her wishes are not known.
Life-sustaining treatment should not be withheld or withdrawn against the wishes of a competent individual or his or her surrogate unless the treatment is `futile', as defined by the Committee.
Futility must be understood very narrowly as treatment that will, in the opinion of the health care team, be completely ineffective.
The Committee considers artificial hydration and nutrition as treatment; thus, the withholding and withdrawal of it is as acceptable in some circumstances as is the withholding and withdrawal of artificial respiration, blood transfusions and CPR.
The Committee believes it is unacceptable that life-sustaining treatment is being withheld and withdrawn without adequate guidelines in place governing such practices.
Recommendations
The Committee recommends the Criminal Code be amended and necessary legislation be enacted in order to explicitly recognize and to clarify the circumstances in which the withholding and withdrawal of life-sustaining treatment is legally acceptable. The criteria enunciated in this chapter under "Committee Deliberations" should be considered.
The Committee recommends the division of Health Canada responsible for health protection and promotion, in consultation with the provinces and territories and the relevant professional associations, establish guidelines to govern the withholding and withdrawal of life-sustaining treatment.
The Committee recommends professional guidelines be amended so that they are consistent with these recommendations, the amended Criminal Code, and the national guidelines.
The Committee recommends the Federal Ministry of Health, in cooperation with the provinces and territories, sponsor a national campaign designed to inform the public as to their rights with respect to the refusal of life-sustaining treatment.
The Committee recommends research be conducted in order to determine the frequency with which and conditions under which life-sustaining treatment is withheld or withdrawn under the recommended legislation and guidelines.
Chapter VI
Advance Directives
Throughout the Committee hearings, witnesses referred to the importance of patient involvement in health care decisions and the emergence of advance directives as a method of accomplishing this. Health care professionals emphasized that it is crucial that patients guide medical practitioners and nurses as to what treatments they do and do not want. This is also important for family members who are often faced with making critical decisions for one another regarding matters of health. These decisions are much easier when families are aware of the wishes of the patient.
An advance directive, referred to as mandate in the Quebec Civil Code, and also commonly known as a living will, is a document executed by a competent individual concerning health care decisions to be made in the event that the individual becomes incompetent to make such decisions. Advance directives can be divided into two categories: instruction directives, and proxy directives also known as durable powers of attorney for health care. In an instruction directive, an individual sets out what or how health care decisions are to be made in the event that he or she becomes incompetent. In a proxy directive, an individual sets out who is to make health care decisions in the event that he or she becomes incompetent.
Legal Status
Most provincial legislatures in Canada have enacted or are considering some form of legislation regarding advance directives. Quebec, Ontario, Manitoba, and Nova Scotia have passed and proclaimed legislation that codifies respect for advance directives into law. In British Columbia, legislation has been passed but not yet proclaimed. Newfoundland's An Act Respecting Advance Health Care Directives and the Appointment of Substitute Health Care Decision Makers was reintroduced on March 16, 1995 and is currently awaiting committee study.
While no legislation exists on advance directives in some provinces, a few are studying the issue or considering legislation in this regard. Alberta had introduced legislation, the Advance Directives Act, however, it was dropped from the Order Paper when the legislative session ended in November 1994. The Minister of Health is currently accepting and analyzing public input received as a result of a discussion paper concerning advance directives before any new plans are made to reintroduce legislation.
In the Northwest Territories, the development of guidelines entitled Standards and Procedures for Advanced Treatment Directives for both Coordinated Home Care Programs and Facility based Long Term Care Programs, has been initiated by the Department of Health. In New Brunswick, a committee established to study advance health care directives has presented its report to the Department of Justice. The Department intends to study the report to determine whether legislation is required.
Prince Edward Island, Saskatchewan, and the Yukon have no current plans to introduce legislation or to study the issue.(15)
Points of View of Witnesses
Most witnesses agreed that advance directives should be legally binding in all provinces and medical staff should be required to defer to patients' wishes, expressed through valid advance directives. Dr. Latimer, for example, supported this view:
I would be in favour of people having the option to decide about their treatment which can be conveyed in a living will, in terms of what sort of treatment they would like to have toward the end of life. In other words, they may choose not to have certain kinds of therapies which prolong their life. They should have the right, or the option to be able to choose.
Latimer 4:10
Dr. Latimer also noted how such legislation could serve the health care profession:
Anything that can clarify for doctors and health care systems the sort of treatment a person wants to have is to be applauded. If it happens through a living will or through the durable power of attorney, coming into effect soon [in Ontario], or a combination of the two is to be applauded. A patient simply letting their doctor know the general nature of their wishes about those kinds of things can only be applauded.
Latimer 4:10
Mr. Carrier and Ms. Chapman explained some of the benefits of mandating observance for advance directives:
In my view, the living will is an interesting option to the extent that we can ensure that no treatment will be given against the person's will and that it will be possible to check with the person to see what he or she wants at the end, if, of course, that person is still able to choose...The [living] will can protect against "aggressive therapy".
Carrier 3:13
The legitimacy of the advance directive as enshrined in the provincial legislation will address some of the problems regarding treatment decisions, such as the withholding of treatment if a person's wishes are known prior to his or her becoming ill. In accordance with the advance directive, treatment or non-treatment will respect the individual's wishes and ensure that these wishes are respected in the event that the person is not able to express his or her own views. Many of the difficult situations and eventualities that arise at the end of life could be prevented if this legislation were available across the country and advance directives became widespread.
Chapman 32:57
Mr. Bureau pointed out that expressing free and informed consent or refusal of treatment by way of advance directives aids the family and friends when faced with the task of making difficult decisions:
If the dying person's wishes are honoured, the mourning process will be facilitated, less painful and certainly less destructive because there will be less guilt and tension in the family and among the caregivers.
Bureau 4:36
A few witnesses, however, expressed some reservations. Dr. Keyserlingk testified:
The problem with this whole movement is, if we all start writing our wills and saying that we do not want certain things at the time when it becomes heroic, it could be that the burden will shift. Then, if people do not have a living will, medicine will begin to think, "I guess they want everything".
Keyserlingk 1:52-53
Professor Mishara pointed out that a living will makes it more difficult for people to change their mind about their wishes:
So one of the problems...is how to protect the rights of individuals to change their mind; they may have signed a piece of paper one day when they were feeling alone and isolated...but after the pain is effectively relieved, they feel better and they feel differently.
Mishara 2:41
Some nurses expressed a number of concerns:
This emphasis on the need for a living will also implies that, unless clearly directed by their patients, nurses will give poor nursing care; the patient has lost any or all right to refuse treatment and that these rights must be acquired by signing a legal document; that patients must expect to be treated excessively if no such document exists; that patients unable to exert their rights have no rights. Canadian Nurses For Life believes that there does not appear to be any good reason for making into law what is already good nursing practice...The underlying premise of requiring a living will is that nurses not only treat patients contrary to their wishes, but that they routinely overtreat patients.
Nurses for Life 8:7
Ms. June Scandiffo, of the Right to Life Association of Toronto, stated the following:
Certainly, the idea of having one person that you trust speak for you is valid. The thing that must be remembered is that people have to be aware of things like conflict of interest. Obviously, the person who signs such a document must trust you and your judgment. But not all of us are trustworthy. Will there be coercion in signing these things?
Scandiffo 8:52
Committee Deliberations
While the Committee is aware of the concerns raised by some of the witnesses with regard to legally mandating respect for advance directives, the benefits appear to be significant. The members hope that those provinces and territories that have not already done so will implement advance directives legislation in the future.
The Committee is concerned about the apparent complexity of some existing legislation on advance directives. The members are of the view that if the process of preparing and executing such documents is clear, straightforward and available at minimal cost, more people will be encouraged to complete advance directives.
Recommendations
The Committee recommends those provinces and territories that do not have advance directive legislation adopt such legislation.
The Committee recommends the provinces and territories establish a protocol to recognize advance directives executed in other provinces and territories.
Chapter VII
Assisted Suicide
Assisted suicide is defined as the act of killing oneself intentionally with the assistance of another who provides the means, the knowledge, or both.
Examples of assisted suicide include the following:
a physician gives a patient information about how to take a lethal dose of a drug and writes a prescription for the drug knowing that it is the intention of the patient to kill himself with the drug. The patient takes the lethal dose and dies as a result.
a friend of a partially-paralysed woman goes to the pharmacy to get a prescription for barbiturates filled, brings them to her, pours them into her hand, and brings her a drink to wash down the pills. The woman takes the pills with the drink and dies as a result.
The necessary and sufficient elements of assisted suicide are that the patient is the agent of death but death results from the assistance supplied by another person.
Refusal of treatment is not suicide or assisted suicide, nor is treatment aimed at the alleviation of suffering that may shorten life. Euthanasia is also not a form of assisted suicide because, unlike assisted suicide, the final act is not accomplished by the person wishing to die.
Legal Status
Neither suicide nor attempted suicide are illegal in Canada, the offence of attempted suicide having been repealed in 1972. Assisting with a suicide, however, is a criminal offence. Section 241 of the Criminal Code provides that:
241. Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Assisted suicide is an offence under subsection 241(b). "Aids and abets" under this provision includes providing the information or the means to a person who commits suicide. This sub-section is the focus of the present chapter.
The Common Law and the Charter
The leading case in this area involves Sue Rodriguez who, at the time of the Supreme Court hearing, was a 42-year-old woman suffering from amyotrophic lateral sclerosis (ALS, also known as "Lou Gehrig's Disease"). The prognosis for her type of ALS was a steady loss of physical ability, for example, walking, speaking, swallowing, and breathing, followed by death in two to fourteen months. Near the end, she would be conscious and aware of her situation but bedridden and completely dependent upon the care of others and the support of artificial respiration, hydration and nutrition.
Sue Rodriguez did not want to die as long as she had the capacity to enjoy life, but realized that there would come a point where she would no longer be able to commit suicide without assistance. She commenced a court action, asking that the Criminal Code provision prohibiting assisted suicide be declared contrary to the Charter. As the Supreme Court of Canada phrased it, she asked "that a qualified physician be allowed to set up technological means by which she might, when she is no longer able to enjoy life, by her own hand, at the time of her choosing, end her life." She was unsuccessful in the courts and died in February 1994. It is uncertain whether her death involved assisted suicide or voluntary euthanasia. No charges have been laid.
In a five to four decision, the Supreme Court of Canada held that the provision against assisted suicide, section 241(b), does not offend the Canadian Charter of Rights and Freedoms. While the prohibition against assisted suicide infringed Sue Rodriguez's Charter right to liberty and security of the person, it did not do so in a manner contrary to the principles of fundamental justice. It was also argued on her behalf that a handicapped person wishing to commit suicide, but physically unable to do so, had a right to assisted suicide under the equality provisions. Mr. Justice Sopinka who wrote for the majority held that, even if there had been a breach of the Charter's equality provisions, this would be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter.
There were three dissenting opinions. Chief Justice Lamer held that the prohibition against assisted suicide limits the right to equality guaranteed under the Charter and that the limitation is not demonstrably justified in a free and democratic society. He concluded that the vulnerable could be protected in a manner that does not limit the equality rights of the disabled. Madam Justice McLachlin (with Madame Justice L'Heureux-Dubé concurring) held that the prohibition against assisted suicide infringes the right not to be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice and is not demonstrably justified in a free and democratic society. She held that the vulnerable could be protected in a manner that does not limit the right to liberty of Canadians in an arbitrary manner. She found the equality provisions of the Charter to have no application in this case. Mr. Justice Cory agreed substantially with both Chief Justice Lamer and Madam Justice McLachlin; he held that the prohibition against assisted suicide infringed both the right not to be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice and the right to equality and also that the infringement is not demonstrably justified in a free and democratic society.
It is important to note that five judges upheld the present law on assisted suicide, while four rejected it. A more detailed summary of this decision is reproduced in Appendix N to this Report.
British Columbia Crown Counsel Policy Guidelines
The British Columbia Attorney General has issued Crown Counsel Policy Guidelines on Active Euthanasia and Assisted Suicide. (16) The Committee is unaware of any other provinces that have issued similar guidelines. According to the British Columbia guidelines, a medical practitioner will not be subject to criminal prosecution for assisted suicide and euthanasia unless there is a substantial likelihood of conviction and the public interest requires it. They provide that:
A substantial likelihood of conviction is significantly more a prima facie case, but considerably less than a virtual certainty of conviction...For this reason, Crown Counsel must be flexible in applying the substantial likelihood of conviction standard recognizing that the more serious the allegation, the greater the interests of justice in ensuring that provable charges are prosecuted.
The specific factors to be considered in determining whether the public interest requires a prosecution include:
The importance of supporting proper professional and ethical standards within the health care professions;
Society's interest in the protection of vulnerable persons; and
Society's interest in protecting the sanctity of human life, recognizing this does not require life to be preserved at all cost.
Points of View of Witnesses
The Committee heard a wide range of ethical, social and legal arguments ranging from requests for the outright legalization of assisted suicide to suggestions that society should take stronger measures to clarify the fact that suicide should always be discouraged.
Despite the clear illegality of assisted suicide, the Committee heard testimony that assisted suicide does take place in Canada. Other witnesses, however, have said that assisted suicide is very rare. Most witnesses who testified did not make a clear distinction between assisted suicide and euthanasia making it difficult to establish any dependable figures. Russel Ogden, whose M.A. Thesis was on assisted suicide and euthanasia of persons who have AIDS or HIV, and Dr. Boadway both stated that assisted suicide takes place on a regular basis:
I discovered that here in British Columbia, euthanasia in the AIDS population occurs both with and without the assistance of physicians. Between 1980 and 1993, I learned of 34 cases of assisted suicide or euthanasia amongst the AIDS population. I also learned of other deaths outside of the AIDS population, but I did not include those in my data. I have learned of many more deaths amongst patients with ALS, cancer and AIDS since the publication of these findings.
Ogden 14:75-6
Since I spoke out about assisted suicide a year ago, I cannot stop people talking to me about it [including] physicians and nurses. I deliberately try to avoid learning anything about the circumstances of the case because I do not want to know. However, I can tell you that it is constant.
Boadway 20:83
On the other hand, Reverend Kenneth Weir, a chaplain from New Brunswick, stated:
I can honestly sit before you and say that I have been there, I have worked with the staff, I have lived in the profession for nine full years, it has been my life, and I know what goes on in the institutions. I cannot cite one single instance of this [assisted suicide] happening in our institutions. . . Such happenings do not go unnoticed or unspoken about, and I have the confidences of doctors and nurses, and the ancillary staff.
Weir 24:22
Because of the reluctance of witnesses to discuss illegal activities, it was not possible for the Committee to gather accurate or complete information on the incidence of assisted suicide. As Reverend Oldham said:
There is no question in my mind and in my heart that there are many people across this nation, professional people and others, who are not here because of the fear of investigation and potential punitive action.
Oldham 18:28
Dr. Chochinov pointed out to the Committee that there is very little information overall about who requests assisted suicide, or why they do so:
What do we know of this group for whom physician-assisted death would be considered? The answer is: exceedingly little. How large a group might this be? What is the distribution of their underlying disease processes and burden of symptoms? To what extent does pain, depression and social support influence the desire for death? To what extent can intervention influence or alter one's desire for death? These are all empirical research questions which can and must be answered.
Chochinov 17:6
The Committee was unable to ascertain how often assistance is requested and by which patient groups, how often assisted suicides are taking place, and under what conditions assistance is being requested and provided. The Committee heard sufficient evidence to suspect it is being requested and provided.
Witnesses Arguments Against Decriminalizing Assisted Suicide
One of the most commonly heard arguments against assisted suicide was the importance of protecting life as a fundamental societal value. A related argument involved the sanctity of life, but the two are not the same. Life is a fundamental societal value because society cannot survive if this value is not protected. The Thomas Moore Lawyers' Guild and Dr. McGregor described the fundamental value of life as follows:
Recognition of this social context in which individual rights are considered is crucial, we believe, especially when dealing with the issue of life and its protection. Socieites are judged by their treatment and protection of life.
Thomas Moore Lawyers' Guild
Euthanasia and assisted suicide are contrary to the basic respect for human life which is at the core of societal values.
McGregor 4:55
Those who base their opposition to assisted suicide on the value of the sanctity of life use different terminology. They consider all human life sacred as reflected in such religious principles as "Thou shalt not kill". This value was emphasized in terms of the Judeo-Christian tradition. Dr. Senn and Reverend J.A. Baycroft of the Anglican Church of Ottawa said:
The Judeo-Christian belief still plays a major part in our society. It says that life is not something that we arrange for ourselves, that it is a gift and that we have no more right to take it away ourselves than we did to demand it to start with.
Senn 9:6
I believe that my life is part of the whole of human life, that it is not simply my individual possession. Not only am I required to respect the lives of other people, but my respect for my life is indivisible from my respect for the lives of others. If I set an example by abandoning my will to live, should I be depressed enough and should things get tough enough, there is a danger that that will weaken the thresholds and undermine the commitment of others, particularly the vulnerable in society.
Baycroft 28:8
The notion of respect for life was also expressed by representatives of the Alberta Indian Health Care Commission:
The elders and spiritual leaders firmly respect life. In their prayers, they pray for people to have a long and respectful life. It is not part of our culture to actually approve of someone taking their own life. They do not want to alter nature. When it comes to terminally ill people, they leave it in the hands of the Creator. They will make every effort to ensure that an individual does get well. They will pray for that person right to the final breath.
Bottle 30:23
In addition, some witnesses pointed out that, while personal autonomy is a value in our society, it is not absolute:
The principle of self-determination, of the patient's autonomy, goes hand-in-hand with interdependence. We can't have one without the other. We are individuals living in a society, a community and the community has rights when it comes to an individual member's behaviour. Our whole society is based on this, and one person's actions can set off emotions or consequences for his family and his immediate neighbours in the community.
Dionne 13:12
Many witnesses referred to the concept of a "slippery slope". They fear that allowing assisted suicide would inevitably lead towards allowing voluntary euthanasia, and perhaps even the involuntary euthanasia of the elderly, the disabled, and other vulnerable individuals. Although it may be presented in simple terms, the issue is more complex and involves concerns about emotional, psychological and financial pressures that may make it difficult to restrict assisted suicide if it is allowed at all. Doctors Roy, Adams and Johnston characterized it as follows:
It is illusory, or at least highly questionable, that a society would be able to uphold the voluntary character of euthanasia once it became legally, socially and ethically acceptable for many people. It would be difficult, if not impossible, to construct a law that would prohibit people from using persuasion, however subtle, on people to request euthanasia when that is probably not what they want.
I have seen that, particularly with respect to AIDS patients who have been totally abandoned by their parents, brothers and sisters and by their lovers. In a state of total isolation, cut off from every source of life and affection, they would see death as the only liberation open to them. In those circumstances, subtle pressure could bring people to request immediate, rapid, painless death, when what they want is close and powerful support and love.
The assumption that we could maintain the voluntary character of euthanasia is linked to a naive idea that we live in an ideal world of ideal hospitals, doctors, nurses and families, but I have been around too many bedsides and I have seen too many circumstances of intense strife where lucidity is absent and chaos dominates for a period of time.
Roy 22:8
There could be a negative impact upon the present regard accorded to the elderly, the physically handicapped, the mentally ill, the infirm, and the seriously impaired newborn.
Adams 18:45
However, knowing my own weaknesses and recognizing the weaknesses I have seen around me in the practice of medicine, within hospitals, and within the health care system in Canada, I can simply say to those who would ask so eloquently for these freedoms that, on the ground, in the trenches where it matters, the first to die would be the weak and inarticulate, the defenceless, not the strong-willed, those possessed of unattractive situations or stories of particular hardship. It would be the ordinary people whose continued existence is resented by unsympathetic relatives or an unsympathetic health care system.
Johnston 14:28
Witnesses who opposed decriminalization of assisted suicide saw an essential difference between withholding and withdrawing, and assisted suicide. They argued that when life-sustaining treatment is withheld or withdrawn, death results from natural causes. When assistance with suicide is provided, death results from unnatural causes. As Dr. Morissette pointed out:
When you cease treatment or disconnect a person from life-prolonging equipment because the treatment has become disproportionate or because the individual feels he no longer has the desire or the ability to fight, there is a clear difference between allowing death to occur naturally and causing it. I believe that, essentially, the crux of the answer lies in this. It is the whole question of allowing death to occur naturally versus causing it.
Morissette 32:14
Many witnesses referred to the difference in intention between the activities discussed earlier in this Report, such as withholding and withdrawal of life-sustaining treatment and treatment aimed at relieving suffering that may hasten death, on the one hand and assisted suicide on the other. Dr. Latimer illustrated this idea:
Some proponents would also say that palliative care is just one step short of euthanasia and that there is really not a great deal of difference between the two. They might also say that some of the drugs we use for effective pain control may result in the end of life of a patient and that, therefore, this is equal to euthanasia. These are also false. Using appropriate therapies for the treatment of severe pain, shortness of breath and other symptoms, has as its goal the relief of suffering, not the death of the patient. The goal of euthanasia and assisted suicide is the death of the patient and any interventions that are taken are designed to achieve that. The field of palliatve care and hospice care must not be seconded or distorted by pro-euthanasia groups who may wish to champion their own issues. There is a clear distinction between effective palliatve and hospice care and any practice of euthanasia and physician-assisted suicide.
Latimer 4:7
A number of witnesses argued that it would be premature to permit assisted suicide until good palliative care is available to all Canadians. Only then will it be possible to accurately assess the potential benefits and potential harms of permitting assisted suicide. Dr. Richard MacLachlan, of the College of Family Physician of Canada, made this point succinctly:
We believe that it is absolutely imperative that only with a comprehensive palliative care and suicide prevention program available throughout the country should there be a consideration of assisted suicide or euthanasia.
MacLachlan 23:6
It was also argued that good palliative care would make it possible to alleviate the suffering which leads to requests for assisted suicide, without the harm associated with assisted suicide.
I believe that we have not exploited all possibilities in palliative care. Let's exploit all the possibilities and then perhaps we'll say "Yes" or "No" to euthanasia; we will know.
Carrier 3:21
Unfortunately, that form of treatment [palliative care] is not available to all Canadians. One of the serious issues that this raises is: Can we, as a society, condone some form of active euthanasia if we cannot first guarantee that all Canadians have access to quality palliative care to diminish their physical and psychological suffering?
Mishara 2:36
Additionally, some witnesses felt that palliative care might result in reducing the requests for assisted suicide to a sufficiently low level that the harms of permitting assisted suicide would clearly outweigh the benefits. Dr. Kinsella, among others, made this point:
There will be cases that we will not be able to handle properly. Those cases will be hard cases, and I do not know what else to say other than the fact that they will be hard cases. I do not mean to be debonair and cavalier and dismiss the horrors and suffering that these people will endure, but it is a reality. We will not be able to help some of them to the extent that we would like to help.
That does not mean that the rare cases should drive the social and moral fibre of this country in terms of its attitudes towards dying, and this is a step that I, personally, simply cannot bridge. We cannot say that we have to change the ethics of this country for the occasional dreadful, horrible case that cannot be accommodated by the system.
Kinsella 16:20-21
Another argument concerning palliative care was that allowing assisted suicide would reduce the incentive to further develop palliative care in Canada. A number of palliative care specialists appearing before the Committee expressed this view:
[If euthanasia or assisted suicide is legalized] research into pain control and special psychosocial and spiritual care and attention for patients could well decrease and indeed even become no longer a priority. The same would be true of palliative care programs.
Carrier 3:10
One of the fears I would have if we were to introduce euthanasia/assisted suicide changes in law is that we would lose the momentum we are achieving for the care of the dying.
Latimer 4:9
A major concern of witnesses opposed to changes in the law on assisted suicide was the potential pressure that would be placed on vulnerable and sick people. Patients may see themselves as being a burden on their family or friends or on society in general, or they may be vulnerable to other external pressures, and consequently request assisted suicide even though they do not really wish to die. The Canadian Conference of Catholic Bishops, the Council on Aging (Ottawa-Carleton) and Pauline Lesage-Jarjoura of the University of Sherbrooke Ethics Committee, all commented on this issue:
The frail, poor, elderly and others who are vulnerable will be subject to pressure from third parties or even themselves if an earlier death is an option. This pressure could increase as health care resources decrease. At what point does the possibility of choosing death become an obligation?
Canadian Conference of Catholic Bishops 22:49
We are concerned about the pressures, both internal and external, on individuals and on their caregivers to unnaturally lengthen or shorten the process of dying. The evolution of medical technology to maintain life and its availability for use in the care of the individual has created a new context within which the dying process must be assessed. All of these pressures influence our decisions with respect to euthanasia and assisted suicide.
Internal pressures affecting the individual may include the fear of death, however, for many seniors it is not so much the fear of death itself as the fear of a painful death which causes stress. Loss of control, concern over being able to financially pay for the support required to continue living, and the fear of becoming a burden to family members are further internal pressures that can affect an individual's desire for euthanasia and assisted suicide. In certain situations, individuals may make decisions which are not in their best interests but rather with the intention of protecting and safeguarding their families from the emotional and financial pressures that may ensue. ... A major concern raised by members of the council was the increased vulnerability of seniors. With age, physical abilities and sometimes mental abilities decline, often leaving the individual dependent on others and thus vulnerable to victimization. Financial abuse is quite common, with seniors losing part or all of their savings or being pressured to turn over their monthly income to the management of another person. In some extreme cases, seniors live with the knowledge that there are those who wish them dead so as to profit from their estate.
Council on Aging 32:54
In a world that does not try to give a positive meaning to old age and suffering, it will become "normal" to ask to put an end to life and "abnormal" to want to live despite subtle pressure from all sides. We will have to justify our own survival.
Lesage-Jarjoura Brief, p. 19
Some witnesses felt that coming to terms with suffering and the suffering associated with dying were an important part of life, and neither could nor should be avoided by such mechanisms as assisted suicide and euthanasia. Suffering can bring the individual and the community together, and unite them both with higher values. Dr. Morissette commented:
It is necessary, and I firmly believe this, to have suffered oneself in order to understand the suffering of others, whether it involves grief, deep or transitory, the loss of a loved one, a wrenching experience, or rejection and heartache in love. Sometimes, when we have learned lessons from our own sufferings, when we have been able to do this, we come to think that those who have not suffered have perhaps not truly lived. The experience of meaningful suffering can have a spiritual dimension. I do not wish to glorify suffering here because it must be relieved, but it is part of the human condition.
Morissette 32:10-11
Several witnesses referred to the possibility of personal and family reconciliation and growth in the last few months or days of life, which would be lost had the individual chosen the option of assisted suicide. Both Reverend John Horgan, of the Catholic Health Association of British Columbia, and Iain Benson, of Canadian Physicians for Life, described this process:
During the last six months of life, we find that our patients often reassess and realign hope. Hope is often restructured. It is no longer hope for cure, but there is hope that one might see and enjoy loved ones. There is the possibility of resolution, reconciliation and the experience of forgiveness in the circle of loved acquaintances. There is the opportunity for new manifestations of care, compassion, and affection for the dying. This is what the dying person receives from the caregivers and loved ones. The caregivers — and I speak as a professional — receive immensely from our patients and our families.
Horgan 14:149
A month ago I sat at the bedside of a very dear friend of mine who was 39 years old and dying of cancer. Two months before she died, she asked her husband to help her commit suicide. He refused. Three days before she died she had what can only be described as an extraordinary reconciliation with her family. This would not have happened had the suicide request been granted.
Benson 14:24
Witnesses suggested that assisted suicide could have a very negative effect on family members, friends or health care professionals involved with the person who dies. It was recommended that the implications for other persons associated with an individual requesting assisted suicide be further researched. As the Canadian Pharmaceutical Association put it:
Pharmacists are divided on the issue of euthanasia and assisted suicide. We cannot make a strong recommendation on the legalization of those procedures. The debate on physician-assisted suicide in Canada and the United States continues to focus almost exclusively on the rights and responsibilities of the two principles, the patient and physician. This raises an important and largely overlooked question. What are the rights and responsibilities of, for example, the health care professionals that might be involved in physician-assisted suicide or euthanasia. Is physician-assisted suicide or euthanasia an appropriate use of prescription drugs? Is it appropriate for a physician to involve a pharmacist in assisted suicide or euthanasia without the knowledge of the pharmacist or their consent? Should and would pharmacists knowingly participate in ending a patient's life? If so, under what conditions? From an ethical perspective, should euthanasia be legalized?
Hall 23:22
Mr. Carrier also stated:
Having worked with people, family members who have had to mourn a parent who has committed suicide, it appears that the suicide of a parent is a very difficult moral and spiritual legacy for a son or daughter to accept. What will be the case with euthanasia or assisted suicide? What will be the impact? How will relatives experience mourning?
Carrier 3:11
Mr. Mark Pickup testified:
Canada is not made up of 27-million little islands! If I choose to end my life via doctor assisted suicide, it does not just affect me. It will affect my wife, my children, my mother and siblings. It will diminish my doctor's view of her own profession (because she will have traded her role as healer for the role of executioner) and, in a general sense, it will threaten the doctor-patient trust relationship...We are interdependent. Words like "family" "neighbours" "community" and "citizenship" attest to this reality. Individualistic autonomy is a myth.
Pickup, Brief p. 16
The concern was expressed that decriminalizing assisted suicide would erode the trust that exists between patients and their physicians, nurses and other health care professionals. This was linked to a concern that assisted suicide would violate a fundamental ethic of medical care, calling into question the motives of caregivers.
An important basis of trust in the doctor-patient relationship is that patients trust their physicians to do no harm. It may be that euthanasia and assisted suicide may well undermine this trust, interfering with the doctor-patient relationship and with open and honest communication with the patient and the physician.
McGregor 4:55
Historically, medicine has prohibited euthanasia and physician-assisted suicide as medical acts. This prohibition derives from medicine's Hippocratic imperative to do no harm...Clearly and undeniably, legally tolerated active euthanasia and assisted suicide would render the teaching and learning of medicine an undertaking of incompatible and macabre duties. Medicine as we have known it would die in such an environment. When medicine as we have known it dies, so too will the ethic of Hippocrates which has ensured for centuries that health care should do no harm.
Kinsella 16:7,11
Several physicians also warned that economic restraints on the health care structure might lead to assisted suicide occurring more often than anticipated, were it to be legalized. Both Dr. Jim Lane, of Canadian Physicians for Life, and Dr. Roy expressed this concern:
The most expensive time in a patients life is the last months. Many think that the patients would not be killed to save money but the prospect is there.
Lane 14:26
In an era where it is difficult to provide adequate care for people due to budgetary constraints, we have some AIDS patients who cannot receive drugs for serious infections. Within these constraints, a law that would permit euthanasia and give it social blessing could end up being something that was altogether too socially convenient.
Roy 22:11
Some witnesses were of the view that, if assisted suicide were legalized, it would not be possible to establish adequate guidelines to safeguard against abuses no matter how carefully they are drafted. It would be difficult to ensure that such guidelines were followed in any given circumstance:
As lawyers, we can safely say that our collective experience shows that any system of legal guidelines, no matter how well-intentioned, will inevitably result in errors, given the simple fact that guidelines are administered by human beings and all humans err and fail.
Thomas More Lawyers' Guild 12:9
I believe that every safeguard that could be created has weaknesses and is open to failure. We know that what doctors do and say to patients is done behind closed doors and is between the doctor and the patient. In the case of euthanasia, the only witness that could testify that safeguards were or were not followed would be dead. The other witness to the safeguards would be unlikely to testify against him or herself. Legislative safeguards of physician-assisted suicide protect the doctor against prosecution, not the patient or the public. I believe that it is my duty as a physician, and a duty of my profession, to tell the public how difficult it would be to monitor and police any safeguards.
Lane 14:26
Another concern raised was the difficulty of preventing some instances of nonvoluntary euthanasia, or even murder, from being disguised as assisted suicide.
Since motives are so important in assisted suicide, as they are in euthanasia, is it possible to be assured that the motive was mercy as opposed to something else?
Keyserlingk 1:44
Finally, there was a fear that any move to decriminalize assisted suicide would send the wrong message to those groups most vulnerable to suicide in our society. Mr. Gary McPherson, the Chairman of the Alberta Premier's Council on the Status of Persons with Disabilities, said:
Canada has identified a suicide problem among its youth, and we have responded "How can we prevent it?". Canada has identified a suicide problem among Aboriginal peoples and we have responded "How can we prevent it?". Canada has identified a suicide problem among people with disabilities and we have responded "How can we assist them to kill themselves?".
McPherson 18:53
Witnesses Arguments In Favour of Decriminalizing Assisted Suicide
Witnesses in favour of decriminalization made the argument of respect for the principle of autonomy or the capacity for self-determination. Dr. Boisvert said:
Is life a transcendental value? Is it a value that literally transcends everything? The simple, clear-cut answer to that is "No". We do not transfuse Jehovah's Witnesses; we allow people to refuse treatment that will bring about their death in a short while. In Canada, and in most western countries now, life is not a transcendental value. We recognize that to be alive is just not enough. There has to be more to it. The autonomy of persons, or of patients, can be greater than life.
Boisvert 6:29
Dr. Wallace, in referring to the principle of autonomy, cited the 1983 report of the Law Reform Commission of Canada which provides:
Law must also recognize, as it now does implicitly, the principle of personal autonomy and self-determination, the right of every human being to have his wishes respected in decisions involving his own body. It is essential to recognize that every human being is, in principle, master of his own destiny. He may, of course, for moral or religious reasons, impose restrictions or limits on his own right of self-determination. However, these limits must not be imposed on him by the law except in cases where the exercise of this right is likely to affect public order or the rights of others. (17)
Dr. Wallace went on to say:
Unfortunately, the Law Reform Commission chickened out when it came to make recommendations, because, on this particular issue, they decided that since prosecutions are rarely laid, and since the person usually gets a suspended sentence, they see no reason to change the law. If that is not putting the cart before the horse, I do not know what it is. I would suggest rather that if we have a law which is rarely used, and when it is used it is a tap-on-the-wrist penalty, then we do not need that law.
Wallace 15:84
Some witnesses felt that the pain and suffering of dying patients that cannot be alleviated justifies permitting assisted suicide. Mr. Tom Sigurdson from Alberta testified in this regard based on his own experience:
There was physical pain every morning with the routine morning wash, and the same in the evening. There was incredible physical pain and horrible indignity every time her bowel had to be cleared manually...No one should have to suffer the pain and indignity which my wife suffered. Her body betrayed her, and she should have been allowed to die at a time of her choosing. ... I appear before this committee to ask, indeed to beg, that your final recommendation to Parliament be one that allows the terminally ill a choice — a choice to leave this world when they are satisfied that there is no quality of life left for them, or when their pain and suffering is too great. Had Cynthia been given that choice, there could have been a time when I would have kissed her goodbye and held her until she exhausted her last breath. Instead, I am left with a memory of horrible pain and a hollow haunting stare. I pray that soon no Canadian will have to suffer such pain and indignity against their will.
Sigurdson 15:122-123
Some witnesses told the Committee that a prolonged dying process can cause a loss of dignity. Furthermore, it can lead to a loss of independence and control over their lives which for them, is paramount. Professor Kluge and Ms. Marilynne Seguin, of Dying With Dignity, both made this point:
Ms Rodriguez had made it very clear, both publicly and privately, that the manner of dying that faced her, its quality and nature, and the state of utter dependence that it involved, were unacceptable to her. They violated her fundamental values and her sense of dignity as a person.
Kluge 2:13
That is the whole issue — the freedom for that person to choose and to define what is tolerable and not tolerable for them...We have to expand our minds to allow ourselves to see what suffering is to somebody else and acknowledge that suffering.
Seguin 7:44-45
The Unitarian Council explained that when disease has resulted in a loss of dignity for individuals, it is merciful to allow them to die if they so wish it:
It is our Unitarian view that the current law, which does not permit assisted suicide, is both inequitable and lacks compassion. It is unfair to force someone to live when they no longer wish to continue living. A law which does not allow for each individual's request for assistance lacks compassion. Under this principle, Unitarians assert that the law must be changed to treat with compassion the clearly stated desires of those individuals who feel that their irreversible illness has eroded the dignity and the value of their lives.
Kiely 14:62
Some witnesses emphasized that Canadian society deeply values freedom of conscience and religion, as well as diverse cultures, to the extent that they have been enshrined in the Canadian Charter of Rights and Freedoms:
We affirm the right of conscience and the use of the democratic process within our congregations and in society at large. This principle also reflects a dynamic tension between the rights of the individual and the rights of the community. We have already stated that... no one has the right to dictate another's beliefs or values. We uphold the right of each member and friend of our societies to speak her or his mind on any matter of conscience, for we believe the open sharing of values and ideas can only further our debate.
Kiely 14:62-63
Some witnesses raised the issue of equality: because it is not illegal to commit suicide they argued, the only people who cannot commit suicide as a result of the law are those not physically able to do so. As Martin Campbell of Dying with Dignity expressed:
The [situation] of Sue Rodriguez shows how the present law discriminates against the disabled. I can commit suicide because I am physically able to do so, but someone who cannot, because of medical conditions or otherwise, is prohibited from making that choice.
Campbell 7:21
This concern for equality was related to the argument that to maintain the criminalization of assisted suicide might induce individuals with a debilitating illness to commit suicide earlier than they might want. As Professor Kluge remarked:
The Criminal Code sometimes forces the individual to buy the retention of her or his dignity, but only at the price of a hurried and premature taking of life, a barrier that sometimes forces an undignified, horrifying and appalling dying on the individual person in the name of protecting the personhood of that very individual.
Kluge 2:9
Some witnesses argued that decriminalizing assisted suicide would actually reduce the number of requests for assisted suicide. They said it would provide people with a form of psychological insurance, reducing concern about the possibility of a painful and undignified death. Professor Schafer, Sheila Noyes and Dr. Buckman all addressed this point:
It may be that only a small number of Canadians would ever, when it came to the point, require the assistance of a physician to end their lives. But a very large number of Canadians, Madam Chair, would take great comfort, and have confidence and security in the knowledge that, if they were in a position to need it, they could receive assistance from a sympathetic physician to die in a way that seems dignified to them.
Schafer 18:29
Those who are terminally ill with a debilitating illness which renders them totally helpless must have a choice. They need to know that before they reach the point of unendurable suffering, they can choose to have a swift, peaceful and certain death. I believe that the knowledge that this is available to the terminally ill would immeasurably enrich their final months by removing the terror. It would allow them to fight their illness for as long as possible, and to enjoy the days they have left with their families.
Noyes 18:7
Assisted suicide is like the emergency exits or life jackets on airplanes. The number of times they will be used is very very few indeed; however, absolutely everybody who flies on an airplane is glad to see them there. If someone said that you could get on their airplane but that there were no life jackets or emergency exits, most people would feel very nervous.
Buckman 26:4
The Committee heard testimony about the consequence of failed suicide attempts. Mr. Ogden and others illustrated this occurrence:
A dominant feature of many of these deaths was the abysmal, horrific circumstances in which they took place. ... The intent is a quick and easy death but it does not always work that way. Psychic scars that are left on the survivors are immeasurable.
Ogden 14:76
This practice [suicide] is going on today and it is going on largely covertly, sometimes with the assistance of physicians, sometimes not. I fully agree with Russell Ogden's finding that many of the individuals who attempted to end their lives without physician assistance did so badly, further exacerbating pain and suffering.
Rowand 9:37
Some witnesses said that the slippery slope could best be avoided and the vulnerable best protected by the strict regulation of assisted suicide, since they say it is already taking place despite its illegality. Mr. Bureau, for example, stated:
As a result of a strict framework for practice and guidelines for the protection of the dying person, there will be far fewer abuses of euthanasia and assistance in self-euthanasia [assisted suicide]. In my view, it is far preferable to have a certain tolerance of this practice under exceptional circumstances in an open system than to prohibit it officially while allowing it to be carried out in a secret, clandestine system often beyond any form of solidarity or control. There are often fewer abuses in an open, unambiguous, supportive, sympathetic system that respects the person involved.
Bureau 4:36
Dr. Boadway made the point that it is better to discuss openly and regulate such incidents, rather than allow assisted suicide to occur clandestinely:
I believe the people of Canada would best be served by a recommendation that decriminalized the process that is occurring daily across this country, following the full and proper consultation between physicians and patients. It is possible to develop a process to ensure that free and open decisions are made, and to define when either euthanasia or assisted suicide could take place without the fear of abuse. The law as it stands is not enforced or enforceable. It is therefore incumbent on you to change the law to something that will both reflect the values of Canadians and be meaningful to society and the courts.
Boadway, 20:77-78
Ms. Mullens described the consequences of failing to change the existing law:
What will happen if governments do nothing? I think there will be increasing challenges to the legislation, but juries and judges will become increasingly reluctant to commit. The law will become unenforceable or meaningless. ...The situation will be wide open, with no scrutiny, no record keeping or formal system of compliance...That, I think, is the real slippery slope.
Mullens, 30:6
Some witnesses argued that assisted suicide should be decriminalized because public opinion polls have repeatedly shown that most Canadians favour permitting assisted suicide:
If national polls are accurate, an increasingly strong majority of Canadians are demanding such legalization.
Kiely 14:63
Legalization of physician-assisted death, as sketched before in terms of using palliative care consultants and palliative care committees, recognizes patients' rights of autonomy, respect for persons, protection and support for physicians, and appears to be in congruence with the opinions and beliefs of the general public.
Verhoef 18:85
A few witnesses made the argument that if treatment provided to alleviate suffering that hastens death and withholding and withdrawal of life-sustaining treatment are accepted, then assisted suicide should also be accepted. Mr. Considine, counsel for Sue Rodriguez, made the following comment:
We already recognize patient choice with respect to the cessation of life when a patient states that he wishes to be disconnected from life support systems or that he does not wish to have life support systems applied. Those are conscious decisions made by the patient when the patient is competent and after the options have been explained by physicians. We already do it.
We also do it to some extent with palliative care. We recognize that the principle of palliative care is to relieve the mental and physical suffering. We also recognize that a secondary effect may be the hastening of death.
If we recognize that the patient may have the choice with respect to those particular options, then, considering a patient who is in very similar circumstances in the sense of being terminally ill, who is competent, who has had all the options explained to him and the physician is satisfied he understands those options, surely that patient also ought to be able to have physician-assisted suicide as another option for dealing with the final stages of disease.
Considine 14:20
Professor Schafer also maintained this position:
None of the arguments - not this argument [re: the difficulty of ascertaining competence] and none of the other arguments you have heard - is more decisive or stronger against euthanasia or physician-assisted suicide than it is against what, at the beginning of my presentation, I called "indirect euthanasia" or "palliative care" or "passive euthanasia" or "appropriate care".
Schafer 18:130
Committee Deliberations
In its submission, the Canadian Bar Association summarized the dilemma facing the Committee:
The questions of euthanasia and assisted suicide raise fundamental issues of public order or policy with which each court presented with such a case has had to grapple. Much of Canadian law, like the society it reflects and upholds, is devoted to protecting the vulnerable, and protecting human life generally; the sanctity of human life is a fundamental principle on which much of our legal tradition is based. There are other public interests at stake, as well, such as protecting the medical profession from loss of trust or integrity. At the same time, our legal system is devoted to protecting and defending rights of individuals to make their own decisions, and hold their own opinions, however radically they may differ from those of society around them. (18)
The members were asked to ponder many aspects of life and death, including life as a fundamental value in any society, autonomy as an individual value, and suffering as a reality generally associated with the end of life.
In a number of areas, the same values were embraced by witnesses on both sides of the debate, but there was disagreement on how best to achieve them. The Committee considered Dr. Mount's comments:
I do not think that this is a national debate about death with dignity because I would suggest that people who would come down on both sides of the question would favour death with dignity. Second, I do not feel this debate is helpfully characterized by either pro-life or pro-choice alternatives. Again, I feel that people on both sides of the question would see themselves as holding both views. Third, I think this debate is not about discontinuing or withholding inappropriate life-prolonging treatment, an issue that has been under debate in our country and others for some three decades and on which consensus has largely been reached...Fourth, this debate is not about double effect. That is the risk of shortening life as a consequence of treatment given for the purpose of alleviating suffering. That may happen as a consequence of good palliative care and it is unrelated to euthanasia or assisted suicide. Fifth, I think this debate is about the best response and the best way for Canada as a nation to respond to the sort of suffering we have heard about.
Mount 5:26-27
Throughout the course of its hearings, the Committee heard a wide range of viewpoints from the more than one hundred and fifty witnesses who appeared before it. Although the Committee had no difficulty on reaching a consensus on matters discussed in earlier chapters, there was a considerable difference of opinon on the issue of assisted suicide. The Committee considered a complex set of interrelated factors: the dying person, the family, the social environment, the present medical practice and the provision of various health care services. It had heard that a small percentage of Canadians in the final stages of dying do not wish to prolong their illness, either because they fear or are undergoing unrelievable suffering or because of the loss of dignity and the loss of control over the process of dying.
The Committee members hold differing views as to how society can best deal with the suffering of these individuals. While they recognize the different ethical arguments and points of view, all of them have deep concerns about the implications of permitting assisted suicide.
They also recognize that the values of individual autonomy and the interests of society can at times be in conflict and that, in some circumstances, individual autonomy must be restricted in the interests of society. Some members feel that aid should be provided to the dying in ways other than assisted suicide because they believe that the societal interest in upholding the respect for life must prevail. Other members think that intolerable suffering justifies providing assistance in committing suicide. The Committee agreed, however, about the need for tolerance and respect for opposing points of view.
Committee Members' Views Opposed to Changes to the Existing Legislation
The members opposed to changing the existing legislation with respect to assisted suicide are primarily concerned with maintaining the fundamental social value of respect for life. They feel that legalizing assisted suicide could undermine respect for life which they believe is the most universally accepted value in society. Few democratic societies permit assisted suicide. In a pluralistic society, respect for life is a societal value that transcends individual, religious or diverse cultural values.
These members are also concerned about the risks associated with changes to the present law. In their view, legalization could result in abuses, especially with respect to the most vulnerable members of society. The ill and the frail are particularly dependent on those around them and on the health care system. Inevitably, and often without realizing it, these individuals cede control over their lives to the system and to those on whom they are dependent. For this reason, it would be difficult for others to assess whether an informed choice was made without coercion. If assisted suicide were legalized and accepted by the community, how could the expectations of the people surrounding the patient not influence his or her decision, particularly if the patient feels she or he is a burden on the family.
They think that some would feel pressured to resort to assisted suicide where financial and institutional resources are scarce. Financial restraints that affect the health care infrastructure could also result in attempts, perhaps unconsciously, to influence patients to die more quickly and conveniently. All of the above factors could make it difficult to establish whether a request for assisted suicide is voluntary.
There was also some concern over the issue of the "slippery slope". Changes in the law with respect to competent persons could lead the way to possible changes in the law for incompetent persons.
Some of these members think that if assisted suicide were to be decriminalized but voluntary euthanasia remain a criminal offence, the effect would be a law that might create an inequality contrary to section 15 of the Charter. Those who are physically incapable of committing assisted suicide would be prevented from ending their lives when that option is, in principle, available to others. These members would prefer upholding the prohibition on assisted suicide rather than risk opening the door to euthanasia.
The ability to adequately control, monitor and enforce the most stringent safeguards on assisted suicide was a further consideration for these members. The Netherlands experience illustrates that guidelines are not always followed. They believe a society cannot adopt a policy permitting assisted suicide without initiating a process that may be difficult to control.
Some of these members note that individual autonomy cannot be absolute because individuals need each other in order to realize their goals, and likewise the actions of individuals have an impact on other people close to them and on society as a whole. Individual rights must be limited to the extent that they cause harm to other persons. While disallowing assisted suicide may seem unfair or harsh in an individual circumstance, this is outweighed by the negative impact that decriminalization would have on the popular conscience. How can society say that assisted suicide is a valid course of action without sending the message that suicide is appropriate? Since we are aware of an unacceptably high rate of suicide among young people, especially in the aboriginal community, how can we justify any action that suggests assisted suicide is a legitimate response to suffering? Accepting decriminalization would trivialize death and lead to a view of death as a solution to problems.
In addition, these members are of the opinion that dying with dignity is not simply a matter of controlling the time or means of death but involves the right to receive, up to the end, the care needed to relieve one's suffering and to be surrounded by human attention and compassion. It is the right to feel one still has value as a person. Dignity exists when one faces the final stages of life with a feeling of self-worth and with the care, solicitude and compassion to which all human beings are entitled.
Among these members, some feel more research in the area of assisted suicide is required. They are of the view that the lack of available information would make it difficult for them to support a change in the law with respect to assisted suicide at this time but would not preclude a consideration of it at a later date.
Committee Members' Views in Favour of Changes to the Existing Legislation
The members in favour of changes to the law were influenced by the testimony, and the many letters the Committee received, describing the pain and suffering of persons with debilitating and irreversible illnesses. They are concerned with the loss of autonomy experienced by many individuals because of their condition. This loss can be aggravated by a paternalistic attitude of some health care professionals and institutions exerted over individuals in their care. While these members recognize the value and potential of better palliative care and optimum pain control, there is still a small percentage of ill and suffering patients for whom these measures would not alleviate their pain and suffering. The figure most often cited by the witnesses in this regard was five per cent.
Nevertheless, these members believe that relatively few within this most difficult category would choose the option of assisted suicide if it were available. Many would simply be comforted by the knowledge that assistance in their suicide would be permitted, if they should feel the need for it. This would give them control over their lives and so protect their right to autonomy and alleviate their fears of suffering.
These members are of the opinion that the Hippocratic Oath should not limit physicians in terms of their role in society. The practice of medicine, our laws and our cultural norms have evolved tremendously over the centuries. Although many doctors characterize themselves as "healers", their function should encompass much more. Their role is, or should be, to care and comfort the ill and also to alleviate their suffering. Where the pain and suffering of the irreversibly ill cannot be alleviated by any means, they should have the option of requesting assistance in committing suicide.
Notwithstanding the decision in the Rodriguez case, some of these members believe that the existing criminal law provisions create an inequality under section 15 of the Charter. They said that while section 241 (b) of the Code appears to be neutral in its application, its effect is not. It prevents persons who are physically unable to end their lives without assistance from choosing suicide when that option is available to others who do not require assistance, without contravention of the law.
They feel that we are already on a type of "slippery slope". They believe that, at present, assisted suicide is taking place despite its illegality and it is occurring without adequate controls. Thus there is more potential for abuse because there is a greater risk to the vulnerable from unregulated medical assistance at the end of life, than from legislative changes accompanied by appropriate safeguards. To insist upon maintaining the status quo for fear of the effect of change could very likely result in greater harm than thoughtful and carefully drafted exemptions from our current criminal law provision.
Therefore, these members would favour an exemption to the Criminal Code that would permit persons to assist in a suicide under clearly defined safeguards. The Minister of Justice, in cooperation with his provincial and territorial counterparts, should engage in discussions with the Canadian Medical Association and the other national bodies that regulate the health care professions in order to develop such safeguards. They should, at a minimum, include the following elements:
The individual must be competent and must be suffering from an irreversible illness that has reached an intolerable stage, as certified by a medical practitioner.
The individual must make a free and informed request for assistance, without coercive pressures.
The individual must have been informed of and fully understand his or her condition, prognosis and the alternative comfort care arrangements, such as palliative care, which are available.
The individual must have been informed of and must fully understand that he or she has a continuing right to change his or her mind about committing assisted suicide.
A health care professional must assess and certify that all of the above conditions have been met.
No person should be obligated to provide assistance with suicide.
These members believe that regulations must be established in order to deal with the monitoring and enforcement of the safeguards by the appropriate level of government and that records must be maintained of all applications for and instances of assisted suicide. In order to avoid abuse, the safegards must provide for review both prior to and after the act of assisted suicide.
In the event that the government decides to consider the recommendations of these members, they urge that the necessary safeguards accompanying the legislation be made available, at least in draft form, to all members of Parliament before the proposed legislation is debated.
Recommendations
The Committee recommends no amendments be made to the offence of counselling suicide under subsection 241 (a) of the Criminal Code.
A majority of members recommend subsection 241(b) of the Code also remain intact.
A majority recommends research be undertaken into how many are requesting assisted suicide, why it is being requested, and whether there are any alternatives that might be acceptable to those who are making the requests.
A minority recommends an exemption to subsection 241 (b) of the Criminal Code be added, under clearly defined safeguards, to protect individuals who assist in another person's suicide. These safeguards should include, at a minimum, the elements listed in this chapter under "Committee Deliberations". They further recommend, that in order to avoid abuse, procedural safeguards must provide for review both prior to and after the act of assisted suicide.
Chapter VIII
Euthanasia
The Committee has defined euthanasia as the deliberate act undertaken by one person with the intention of ending the life of another person in order to relieve that person's suffering where that act is the cause of death. It is euthanasia, for example, if someone administers an individual suffering from amyotrophic lateral sclerosis (ALS) a lethal substance.
Euthanasia is voluntary when it takes place in accordance with the wishes of a competent individual, whether these are made known personally or by a valid advance directive. An example would be when a health care professional gives a lethal substance to a patient who is both competent and suffering, at that patient's request.
Euthanasia is nonvoluntary when it is done without the knowledge of the wishes of a patient either because he or she has always been incompetent, or is now incompetent and has left no advance directive. An example would be when a daughter smothers her incompetent father who is suffering from advanced ALS, but who did not make his wishes known while he was competent.
Euthanasia is involuntary when it is done against the wishes of a competent individual, or against the wishes expressed in a valid advance directive. An example would be when a nephew gives a lethal injection to his competent uncle who is suffering from cancer but does not want the injection.
Legal Status
Under the Criminal Code all forms of euthanasia are illegal in Canada, as well as in all other jurisdictions, except in the Northern Territory of Australia. (19) Acts of euthanasia are either first or second degree murder in Canada, although they may be and have been prosecuted as offenses other than murder.
Our criminal laws are based upon intention, not motive. Motive only becomes relevant at the sentencing stage where no mandatory sentence is provided. The fact that the motive in acts of euthanasia is to alleviate suffering is immaterial in terms of the imposition of a charge. The written submission of the Canadian Bar Association provides:
In the Canadian system, motive (as distinct from the intent to do the acts in question) has never been relevant to the elements of an offence; that is, it has never been a factor in finding criminal liability...Traditionally, motive has gone to issues of sentencing, not to the elements of an offence. (21)
Although under our present criminal law cases of euthanasia should be charged and prosecuted under first or second degree murder, in practice this is seldom the case. Often they are not prosecuted in a consistent manner because of the potential difficulties in securing a conviction. This may result, with respect to the same factual situation, in no charges being laid or in charges ranging from administering a noxious substance to first degree murder.
Due to the inconsistencies in the charging of such cases, the sentences for the same conduct can range from probation and community service to life imprisonment with no possibility of parole for twenty-five years. (22) Since the charges are usually for lesser offenses, the sentences have in most cases been relatively light. Furthermore, the courts in sentencing have tended to consider, not only the motive for the commission of the offence, but also such factors as a request to die made on the part of the deceased.
The Deputy Chief Coroner of Ontario, Mr. Jim Cairns, informed the Committee about the inconsistent manner in which euthanasia cases are being prosecuted and sentenced. He described three recent Ontario cases in order to illustrate this:
The first case involved a son who increased a morphine infusion on his father in a hospital. His father was dying of cancer, and the son had made a pact with his father that he would not let him rot away for three or four days, but would increase the morphine... When it was reported to our office, it was clear...that the son had had the deliberate intention of increasing the morphine, with the deliberate intention of killing his father... He pleaded guilty to mischief likely to endanger life and was given probation.
The second case...[involved] a nurse injecting potassium into a patient. In that case, initially the nurse was charged with first degree murder... That nurse eventually pleaded guilty to the administration of a noxious substance, was given a three-year suspended sentence, and voluntarily agreed not to be involved with nursing or health care ever again.
The final case involves a doctor who injected potassium into a patient. At a preliminary hearing, the doctor was charged with second degree murder... This involved a prominent surgeon in a community where the doctor had done a lot of good work. The concern was: Would a jury convict someone of second degree murder — that is what the present law states — or would they find him not guilty and would we, by default have a situation where the present law was not being upheld? Due to a number of situations that arose, the doctor agreed to plead guilty to the administration of a noxious substance and received a suspended sentence.
Cairns 20:7
In referring to the legal status with respect to euthanasia, Professor Bernard Dickens, of the Faculty of Law at the University of Toronto, explained:
The limitation of the existing murder provision is that by the Criminal Code the minimum punishment for murder is life imprisonment. We distinguish first degree murder from second degree murder not by reference to the sentence but by reference to eligibility for parole; that is, those convicted of first degree murder cannot, with exceptions, be eligible for parole in less than 25 years. Those convicted of the only alternative, second degree murder, are not eligible for release in less than 10 years. Prosecutors at times seem to find this too harsh, and juries again seem to have reservations about imposing sentences they consider excessive.
Dickens 10:31-32
British Columbia Crown Counsel Policy Guidelines
As was stated in the previous chapter, the British Columbia Ministry of the Attorney General is the only province at present that has issued guidelines for the exercise of prosecutorial discretion in cases where "a police report reveals a person, motivated by compassion for the deceased, participated in causing a death". These guidelines provide that a medical practitioner will not be subject to criminal prosecution for active euthanasia unless there is a substantial likelihood of conviction and the public interest requires a conviction.
Points of View of Witnesses
Many of the witnesses had reflected on the difficult questions surrounding euthanasia in light of their own personal experiences. The impact that this had on their lives affected their views on the subject to a great extent. Ms. Noyes related her thoughts to the Committee:
I learned much through watching the suffering of my mother. I learned that only one person feels the physical pain and that is the dying person...Surely it follows that only that person can determine whether or not life under such circumstances is worth living...It is as morally unjustifiable to deny people the right to assist someone to die as it would be to compel people to take this course against their wishes.
Noyes 18:6
Mr. Walter Lawrence, who appeared with the Evangelical Fellowship of Canada, told the Committee how his experiences after a diving accident that had left him quadriplegic influenced his opinion on the issue:
I think it is inherent in all of us to be able to contribute, to give to one another. What we so often do is frame the way we can contribute in a small way...Once it is gone we feel that there is no contribution to be given. It was at that time — and, believe me, I talked about it [suicide] a lot to a lot of people — these people could have said, "Well, yeah, Walt, your life is really of no value, so why don't we help you and assist you toward your desire to end your life?" They did not do that. Thank God, they did not.
Lawrence 15:63
Some witnesses testified as to the incidence of euthanasia in Canada, although there was some disagreement among them on this point. For example, Dr. Wyman, President of the Ontario Medical Association, speaking for himself and not for the Association, stated:
I have spoken with physicians who have been involved directly in the process. I know for a fact that it does occur on a regular basis. Those who say that it does not are either not talking with many physicians or deliberately turning a blind eye to the numbers.
Wyman 20:81
Mr. David Thomas, a crown attorney from Timmins, Ontario, told the Committee:
In the course of my case, it became apparent that euthanasia goes on routinely across Canada, both passive and active, under the guise of aggressive palliative care. Even as we are speaking someone is probably being euthanized, and most often it goes unreported and undetected. Even in the case that I handled, the chances of it being detected were extremely remote.
Thomas 29:41
Dr. Gordon Crelinsten, of the Royal College of Physicians and Surgeons of Canada, informed the Committee that:
Voluntary, intentional acts to cause death within the hospitals at which I have practised in the province of Quebec, are extremely rare if not non-existent.
Crelinsten 20:40
Similarly, Dr. Kinsella testified:
I graduated from medicine in 1957, and I practised in Quebec, in Ontario, in Dallas, Texas, and I practised in Alberta. Quite honestly, I have never personally encountered a physician, either formally or informally, who was engaged in what I would consider to be, according to the definition I have given you, active euthanasia or assisted suicide. I know there are physicians around who say it is more common than we all think, but if it is, I do not know where it is taking place.
Kinsella 16:14-15
The Committee found various legal, ethical and social arguments were addressed by the witnesses both against and in favour of euthanasia. They often mirrored those that had been expressed on the issue of assisted suicide, although there were a few that applied more specifically to euthanasia.
Witnesses Arguments Against Decriminalizing Euthanasia
The fundamental value of life was raised by certain witnesses as the primary reason for not allowing euthanasia. Archbishop Bertrand Blanchet, of the Canadian Conference of Catholic Bishops, explained:
The justice of a society finds its measure in the ability to further and protect the lives of its members, given that life provides the basis for all other good in society...The legal, philosophical and religious traditions of the West have stressed defending life against any and all assaults.
Blanchet 22:45-46
Dr. McGregor stated:
We have an edict that our society is based on which says you do not kill. Can you take that and make special exception to a basic principle of society and say, "Do not kill, yes, but in this situation you can."I am not sure that if you do that, you do not start a whole cascade of things that may complicate life far more than it is already.
McGregor 4:59.
Some witnesses were of the opinion that legalizing euthanasia might pressure certain vulnerable groups who feel they are a burden on others. Dr. McGregor and Dr. Latimer supported this view:
Frail, dependent and vulnerable people often feel valueless and that they are an undue burden on those who love and care for them, perhaps even on society, as some patients have said to me. Such persons may feel compelled to request euthanasia should it be legalized.
McGregor 4:53
It is not unusual for people who are seriously ill to feel they are a burden on others, particularly those who care for them, and we have grave concerns that people would begin to feel that the most valiant way would be to ask to have their lives ended. Subtle pressures may ensue in that way.
Latimer 4:7
Others believed that permitting voluntary euthanasia would place society on a slippery slope, as did Dr. Roy:
People in favour of euthanasia tend to argue that it would only be given to those who ask for it with clear, lucid, free, uncoerced consent. It would be difficult for a society to withstand for long the pressures — once voluntary euthanasia is acceptable — to move on and to give euthanasia to those whose lives seem to have no sense, no purpose, no worth in the eyes of the others.
Roy 22:9
A number of witnesses expressed concern that economic considerations with respect to the provision of health care might influence decisions about euthanasia if it were decriminalized:
Since the health care system is costly in the various Canadian provinces it could be tempting to solve this economic problem by killing our elderly, the bedridden and the confused who occupy beds in our hospitals. And we should not deny it: although things have changed in recent years, the elderly are not that welcome in the world of caregivers in our hospitals. It is often said that they take up space, that they take up too much space and that they take up beds.
Carrier 3:9
Respect and support for the chronically ill and disabled also raise the worrying possibility that euthanasia could be covertly linked to limited health care resources. No public policy on euthanasia would ever be proposed on the basis of saving money, but, once such a policy were in place, who can say that financial concerns would not become a consideration within facilities and agencies or even within families?
Brief, Canadian Nurses Association, p.8
An important point...is the economic conflict of interest that the medical profession is involved in when it comes to euthanasia. The BCMA [British Columbia Medical Association] is involved in negotiating for funds, and we are living under a capped budget. If we overrun this budget, the excess dollars come out of the pockets of the physicians of British Columbia. This pro-ration model is the same model used in most provinces in our country. If euthanasia were legalized and it could be demonstrated that euthanizing patients would save money for the system, then the medical profession would find itself in a conflict of interest between patient care and pro-rationing.
Lane 14:26
There was a concern that vulnerable groups would be most susceptible to these economic pressures. The availability of euthanasia may exert subtle pressures on such groups to request it, feeling themselves a burden to society:
We fear that, by legalizing euthanasia, society's social and economic pressures could force the aged, the infirm and the incompetent to have to give daily justification of their right to live. It would be a tragedy if, in changing the legislation to legalize euthanasia as an act or mercy, we condemned a segment of our community to excusing their decision to live and to occupy a place within the health care system.
Thompson 14:52
Some witnesses said that suffering can be meaningful and can provide an opportunity for personal growth if the individual is surrounded by family and friends.
It is possible to give support and comfort during suffering that makes it bearable and gives it meaning. The dying process can be transformed into a meaningful event, livable and bountiful. It is possible to create an environment to which someone who is both ill and in pain, and has reached the terminal phase of his illness, can go to live rather than go to die, where he will meet a team that will support him, including his family...It is also possible to transform the dying process into a natural event in personal growth. During the dying process the individual can live and grow as a human being instead of just declining physically, as often happens. We counterbalance physical decline with comfort, serenity and love - since the team works within the family, in a context where friendship, love and respect flourish.
Dionne 13:6
Others said that the final stages of life of a patient can sometimes bring the patient, the family and friends closer together:
Nurses who work with the chronically and terminally ill often believe that there is value in living life to its natural end. Nurses have told us that the knowledge of approaching death brings people together as human beings and allows the patient to learn and feel a sense of resolution. Family members sometimes experience the final days, weeks or months as a precious time in which they have the chance to express their love and deepen their appreciation of their loved ones.
Canadian Nurses Association 19:5
Many health care professionals were concerned about the possibility that their participation in voluntary euthanasia would undermine the relationship of trust between the patient and the physician. Mr. Carrier held this view:
There would also be a risk that the general public would lose trust in health professionals and in our institutions. Who will guarantee patients that their doctors will never practise euthanasia when they are terminal?
Carrier 3:10
Similarly, Dr. Lane testified:
We, as doctors, are very privileged to have entrusted to us the concerns, the care and the words of our patients. We realize how fragile this trust is, and how easily it can be undermined when we are not doing what is in the best interests of our patients. Euthanasia jeopardizes the doctor-patient relationship.
Lane 14:25
Witnesses Arguments for Decriminalizing Euthanasia
Some witnesses stressed the rights of individuals to choose the timing and manner of their death:
My basic view of this is fairly clear-cut, that is, each of us is master of our own fate and we have the right to choose our own demise.
Wallace 15:89
Others felt that euthanasia is a merciful and appropriate response to suffering:
When requested, I see euthanasia as a positive Christian act; a moral act, not something that must be apologized for. "Blessed are the merciful for they shall obtain mercy" weighs far more with me than the intense effort of saying that life and suffering teaches us something. Suffering does teach us something, but there comes a time when there is no more to be learned by the patient or by the people who love the patient.
Dickey 8:58
Others went further and stated that the unrelievable pain and suffering of individuals is the justification for the decriminalization of voluntary euthanasia. Mr. Alister Browne, on behalf of the British Columbia Civil Liberties Association, stated:
There are many arguments for legalization, but the one which strikes us as being the most powerful, clear and direct goes as follows: We have a right to minimize our suffering; we have a right to preserve our dignity. Sometimes we can only do those things by dying, and sometimes we need help to die.
Browne 14:126
Witnesses told the Committee that the availability of voluntary euthanasia would provide a sense of security and reassurance to people facing death, even if it were never used. Reverend Kiely shared his personal experiences with the Committee:
What my mother does fear is pain...she does not trust doctors too much. Her doctors have promised her the best of pain management and expressed confidence that she will not suffer unduly, but she does not believe it. She is still worried. What does seem to have calmed her is a promise that I made to her that, should it all become unbearable, I will end her life...In truth, because of my mother's character, her courage, and her own religious beliefs, I doubt that I will ever be called upon to do this. I can say with confidence, because she just told me, that simply knowing that there is an out if it gets too bad has given her peace of mind and has eased her suffering.
Kiely 14:65
Some witnesses felt that in a pluralistic society, a person's views should not be imposed on others. Dr. Donald Bailey, President of the Manitoba Association for Rights and Liberties, testified as follows:
The state has no business imposing someone's religious position. But you can respect it. If you are opposed to certain kinds of moral behaviour, that is fine. You do not have to condone it, but you should not deny another person the right to that choice if that other person wants to do that.
Bailey 17:33
There were some witnesses who stressed that since they believed euthanasia is occurring at present, it is better to regulate it in order to minimize abuses:
I do not think continuation of a practice that ignores the reality that this exists is in the interest of patients or the public. Some regulation is better than an ostrich approach where we continue to deny that this exists.
Rowand 9:38
A number of witnesses referred to the public opinion polls taken over the last few years in order to make the point that Canadians seem to consistently favour some form of aid in dying:
More than 70 per cent of respondents in surveys in Canada said they were in favour of assistance in voluntary dying for dying patients; more than 80 per cent were of the same view in Quebec.
Bureau 4:36
It will be very difficult for the Government of Canada to make legislative change in this area. Yet, if you are talking about society, and if you believe the polls, then 78 per cent of Canadians feel that they should have it.
Mullens 30:15
Some witnesses stated that there is no significant difference between euthanasia, on the one hand, and other end of life decisions, such as withholding and withdrawing of treatment and providing treatment to alleviate suffering that hastens death, on the other:
On the whole, we seem to manage pretty well in determining patient competence in order to make palliative care decisions and to make end-of-life decisions about withdrawing and withholding medical treatment. I cannot see why it would be more difficult, more problematic, more dangerous or more abusive to allow patients to make similar decisions on whether they, as in the case of Sue Rodriguez, require the assistance of a physician to end their lives.
Schafer 18:130
Ms. Monique Coupal, of the Fédération québécoise des centres d'hébergement et de soins de longue durée, in response to the question of why some favour a change in the law on assisted suicide and euthanasia, informed the Committee:
The directors of nursing care and the caregivers who have told us that they are uncomfortable with the situation and would like to see the law amended, feel compelled to consider these issues in the face of suffering that can no longer be adequately alleviated or wonder about the distinction between euthanasia and respecting a patient's right to refuse treatment, which can go so far as halting all food and fluids, which will lead to death.
Coupal, 32:51
Committee Deliberations
The following excerpts illustrate the different views of the Committee members considered in their study of euthanasia. The Law Reform Commission's 1982 Working Paper provides:
The protection of human life is a fundamental value in all legal systems. Law, whatever its specific variations and particular cultural, political or social context recognizes this value to various degrees by forbidding homicide and punishing acts which constitute a danger or serious threat to the lives of other human beings. The preservation of life is not, however, an absolute value in itself, even for the Canadian legal system. If it were, of course, attempted suicide would not have been decriminalized, nor would self-defence be recognized as legitimate. (23)
Mr. Justice Sopinka, in the Rodriguez decision, expressed the view that while there is a consensus that human life must be respected, there is support for the view that the quality of life is an essential component of this principle:
The principle of sanctity of life is no longer seen to require that all human life be preserved at all costs. Rather, it has come to be understood, at least by some, as encompassing quality of life considerations, and to be subject to certain limitations and qualifications reflective of personal autonomy and dignity. (24)
Five members of the Canadian Bar Association who submitted a separate brief on their own behalf to the Committee in March 1995, in referring to the issues of assisted suicide and euthanasia, concluded as follows:
Regardless of how one sits at the end, we are ultimately faced with inadequate protection from abuse, the need for better care of the dying including education and management of pain, and the need for more public dialogue about the real limits to death and dying in our society. Failure to legalize euthanasia and assisted suicide does not end the search for better and more adequate solutions to the plight of the hopelessly ill and dying members of our community.(25)
Nonvoluntary Euthanasia
There are many types of medical decisions that may be considered nonvoluntary euthanasia. Such cases involve incompetent persons whose wishes are not known. Persons in persistent vegetative states and severely disabled newborns may fall under this category. Although the Committee received very little evidence on these matters, it recognizes that such cases pose great problems for health care professionals and family members faced with the task of making decisions for patients who are not able to express and have never expressed their wishes. These cases require more clarification and study and the medical profession should play a leading role in dealing with them.
The Committee, however, discussed cases commonly referred to as "mercy killings". It believes there are some inadequacies in terms of the application of the present Criminal Code provisions as they apply to cases where compassion or mercy is the motivation for terminating an incompetent person's life who is suffering from intolerable pain in the final stages of life. Under existing law, cases of nonvoluntary euthanasia ought to be prosecuted as first degree murder since the death is planned and deliberate. The penalty for first-degree murder is imprisonment for life, with no eligibility for parole for twenty-five years.
The members are of the view that there is a difference between a killing motivated by compassion or mercy and other forms of murder. Juries are often reluctant to convict in cases where the crime is motivated by compassion or mercy and in particular when they involve someone who is in the final stages of his or her life. This often leads to plea bargaining resulting in a charge of a lesser offence or to a suspected offence not being prosecuted. Thus, the actual practice of the law does not coincide with the letter of the law. The members, therefore, believe a less severe penalty should be imposed than is presently provided in the Criminal Code in cases involving an element of compassion or mercy. These elements must, however, be clearly defined and limited.
Voluntary Euthanasia
The Committee could not ascertain the extent to which voluntary euthanasia takes place principally because people are reluctant to speak openly about illegal actions; however, the Committee was informed that requests are made by individuals and that premature deaths do occur in order to end suffering.
The Committee agrees that there is no justification for failing to alleviate controllable pain and suffering. The issue upon which there was disagreement among the members is the most appropriate way to address the needs of those for whom pain control is ineffective.
Another issue with which the Committee was consistently confronted was the question of how to balance two different interests: individual rights and the interests of society. To what extent can the individual rights of autonomy and self-determination be protected without compromising society`s interest in upholding the principle of respect for human life?
The Committee members were not always in agreement on how these and similar questions should be answered and their recommendations reflect these differences.
a) Views of Committee Members Opposed to Voluntary Euthanasia
The majority of these members oppose voluntary euthanasia for the same reasons they oppose assisted suicide but they also have an additional objection in the case of voluntary euthanasia. They are of the opinion that there is a fundamental difference between assisting suicide and performing euthanasia; in assisted suicide, it is the dying person who is the principal agent of death while in acts of euthanasia, the agent is another person. Since a second person is directly involved in the case of voluntary euthanasia, they do not believe adequate safeguards could ever be established to ensure the consent of the patient was given freely and voluntarily. This is essential in order to prevent abuses and to avoid opening the door to nonvoluntary euthanasia.
The majority of these members reject both assisted suicide and voluntary euthanasia. They believe that if assisted suicide is accepted, so too must voluntary euthanasia be permitted. If assisted suicide is decriminalized and not voluntary euthanasia, the result may be an infringement of section 15, the equality provision in the Charter: those who are physically capable of committing assisted suicide would have the option to choose the time and manner of their death while those who are physically incapable of committing assisted suicide would not.
Some members feel that the common good could be endangered if the law is changed to accommodate the few cases where pain control is ineffective. They believe if there is clarification of withdrawing and withholding treatment, better training for personnel who work with those with irreversible illnesses, as well as improved management of pain relief and palliative care, most cases can be assuaged. These members, nevertheless, believe that while there are a small number of cases that cannot be dealt with adequately, these are not sufficient to justify legalizing euthanasia because it could create serious risks for the most vulnerable and threaten the fundamental value of life in society.
They also feel that there is a moral difference between euthanasia and the legitimate practices of withholding and withdrawing of life sustaining treatment and providing treatment aimed at alleviating suffering that may hasten death. In acts of euthanasia, the intention is to cause death, whereas in other end of life decisions the intention is to alleviate suffering.
These members are sceptical as to the validity of opinion poll results often cited by those witnesses in favour of changes to the existing laws. They are concerned with the acceptance of such poll results at face value without close analysis of the questions asked, and the knowledge of the respondents with respect to the issues polled. Moreover, they have noted the confusion as to the terms used.
One member of the Committee, while favouring a change in the law with respect to assisted suicide, does not believe that the law regarding euthanasia should be changed. This member believes that Canadian society must move slowly on the issues of assisted suicide and euthanasia. A step by step approach is the more appropriate course of action. Assisted suicide is the first step because the principal agent of death is the dying person. Since that person has final control over the situation, there is an additional opportunity for that person to change his or her mind at the last minute. Voluntary euthanasia, on the other hand, should not be considered at this time since it may not be possible to design and put into place sufficient controls to prevent abuses.
While all these members oppose voluntary euthanasia and insist that it remain part of the Criminal Code, they believe the present penalties for this conduct are inappropriate where there is an essential element of compassion or mercy. Our law now makes voluntary euthanasia, like nonvoluntary euthanasia, first degree murder because the death in such cases is planned and deliberate. They believe that the mandatory life sentence for murder with no eligibility for parole for twenty-five years is too harsh in such cases and a less severe penalty should be provided. These members emphasize that this compassionate or merciful element must be clearly and narrowly defined in order to limit the availability of a more lenient sentence.
b) Views of Committee Members in Favour of Voluntary Euthanasia
For these members, the equality argument under section 15 of the Charter is persuasive. If assisted suicide is permitted, as they believe it should be, voluntary euthanasia must also be accepted in order to avoid the unequal treatment of those who are physically incapable of committing assisted suicide.
Those in favour of changes believe the principle of autonomy that justifies allowing the withholding and withdrawing of life sustaining treatment also justifies permitting voluntary euthanasia. These members believe that the provision of treatment aimed at the alleviation of suffering that may hasten death is also similar to voluntary euthanasia. The death of the patient in all of these activities is a foreseeable consequence.
They believe that physicians who take the position that their role is to heal are excluding an important part of their function in society - to provide comfort and care to the ill. This latter role also includes the easing of suffering. For these members, euthanasia can be a merciful and appropriate response to suffering, in cases where it cannot be alleviated by other means.
They believe the Criminal Code should be amended to permit voluntary euthanasia for competent individuals who are physically incapable of committing assisted suicide. The amendment should contain the same or similar safeguards as those recommended for assisted suicide. These members believe that the fact that the dying person requests death in voluntary euthanasia, unlike other forms of euthanasia, justifies permitting some form of legalization in such cases.
Involuntary Euthanasia
The Committee believes that an act of terminating a person's life against his or her wishes is murder and should continue to be treated as such.
Recommendations
Nonvoluntary Euthanasia
The Committee recommends nonvoluntary euthanasia remain a criminal offence.
The Committee recommends the Criminal Code be amended to provide for a less severe penalty in cases where there is the essential element of compassion or mercy. Parliament should consider the following options:
A third category of murder could be created that would not carry a mandatory life sentence but rather would carry a less severe penalty; or
A separate offence of compassionate homicide could be established that would carry a less severe penalty.
The essential elements of compassion and mercy must be clearly and narrowly defined in order to limit the cases in which a less stringent sentence would be available.
Parliament should determine the appropriate penalty.
Voluntary Euthanasia
The majority recommends voluntary euthanasia remain a criminal offence. The Criminal Code, however, should be amended to allow for a less severe penalty similar to that provided for nonvoluntary euthanasia in cases where there is the essential element of compassion or mercy.
The minority recommends the Criminal Code be amended to permit voluntary euthanasia for competent individuals who are physically incapable of committing assisted suicide. This amendment would be subject to the same or similar minimum safeguards as outlined in the chapter on assisted suicide.
The minority further recommends, that if voluntary euthanasia remains a criminal offence, the Criminal Code be amended to provide for a less severe penalty similar to the penalty for nonvoluntary euthanasia.
The Committee recommends research be undertaken into who is requesting euthanasia, why it is being requested, and whether there are any alternatives that might be acceptable to those who are making the requests.
Involuntary Euthanasia
The Committee recommends that the prohibition against involuntary euthanasia continue under the present murder provisions in the Criminal Code.
Conclusion
This study has covered the most important issues surrounding assisted suicide and euthanasia. There remain, however, issues regarding nonvoluntary euthanasia and end-of-life decisions, such as those involving persons in persistent vegetative states, neo-natal infants and other questions that require careful consideration
The Committee's deliberations were the result of careful analysis of opinions, of knowledge based on experience and beliefs grounded in personal morality and ethics compiled from witness statements and numerous briefs. The Committee's conclusions reflect consensus in many areas and differences on some of the most basic questions addressed. The members hope their Report will facilitate debate on the part of people and governments.
The Committee has endeavoured to respect and reflect Canadian societal views concerning the complex issues of assisted suicide and euthanasia. It believes that if the debate continues in an atmosphere of tolerance and empathy, the issues can be resolved in a manner that will respect and balance the fundamental right of individual choice with the common good of Canadian society.
Notes
- 1. Canadian Medical Association, Canadian Physicians and Euthanasia by Frederick H. Lowy, Douglas M. Sawyer and John R. Williams (Ottawa: Canadian Medical Association, 1993).
- 2. Refers to the issue of the Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide and the page number. Complete information regarding witnesses is found in Appendix A.
- 3. Latimer 4:12.
- 4. Submission of the Canadian Bar Association, March 1995.
- 5. R. v. Rodriguez, [1993] 3 S.C.R. 519 , p. 607.
- 6. Russel Ogden, "The Right to Die: A Policy Proposal for Euthanasia and Aid in Dying" (1994) XX: 1 Canadian Public Policy p. 4.
- 7. Dickey 8:61.
- 8. See N.B. v. Hotel-Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Q.C.A.).
- 9. R. v. Rodriguez at p.598.
- 10. Attorney General of B.C. v. Astaforoff [1983] 6 W.W.R. 322 (B.C.S.C.); aff'd [1984] 4 W.W.R. 385 (B.C.C.A.).
- 11. Procureur Général du Canada v. Hopital Notre Dame et Niemic (1984), C.S. 426.
- 12. See Appendix G to this Report for an example of an amendment that has been suggested. The Committee does not endorse this specific proposal but rather offer it for illustrative purposes.
13. Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper 28 (Ottawa: Minister of Supply and Services Canada, 1982) p. 28.
14. The full text of these guidelines is reproduced in Appendix I of this Report.
15. See Appendices J and K to the Report for a more detailed summary of the status of advance directives legislation in Canadian provinces.
16. These guidelines have been reproduced in full in Appendix I to this Report.
17. Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper 28, p.37
18. Submission of the Canadian Bar Association, pp. 4-5.
19. For a more detailed discussion of the current legal situation regarding euthanasia in selected countries, see the Apppendix P to this Report.
20. The full text of the provisions of the Criminal Code that may be applicable in cases of euthanasia have been reproduced in Appendix F to this Report.
21. Submission of the Canadian Bar Association, March 1995 p.12.
22. For examples of inconsistencies in the charging and sentencing in euthanasia cases, see the summaries of relevant Canadian court decisions found in Appendix L to this Report.
23. Law Reform Commission of Canada, Euthanasia, Aiding Suicide and Cessation of Treatment, Working Paper 28, p.3.
24. R. v. Rodriguez p. 595.
25. Submission by Janice Dillon, J.C. Marc Richard, Lucille Birkett, David Golden and Christine Glazer, p. 25.