Roger writing the LAWmag

Active Euthanasia Law Lands in Canada

In a refreshing but jaw-dropping move, at least to elder law lawyers, the government of the Canadian province of Quebec is proposing a statute that would allow active euthanasia. The formal title of Bill 52 is An Act Respecting End-Of-Life Care (Loi concernant les soins de fin de vie).

The Assemblée nationale, again, in Bill 52, leads the way in Canada in terms of law that meets or, some might argue, precedes public morals and opinion in this controversial area. This, as they did in the now-historic abortion debate many years ago, and the first-in-Canada prohibition of discrimination based on sexual orientation, both now law book staples from coast to coast.

Just Ask

Ask anybody with a life-threatening disease, especially one that is slow in the taking, and you should get a universal response: they all would want this option for themselves. Jumping off a tall building or walking into the Pacific Ocean is not a legacy to leave behind. That leaves only slow physical and intellectual collapse in the arms of family for the lucky and, for all regardless of circumstances, end-of-life in a hospice bed pricked with needles, listless, slurred-speech, bare bones and private sadness and despair.

hospice image © John Takai - Fotolia.comIt is a feature of this issue that the importance of the debate over active euthanasia struggles to get the attention of the average citizen. To many, the subject is avoided, it exudes the creeps, the heebie-jeebies.

But it is front and centre on the minds of every single very elderly person, and one hundred percent of our citizens that are suffering from terminal disease.

These people matter.

The Proposed Law

Canada's Criminal Code prohibits assisted suicide. So the provincial bill, yet to become law, skates around the jurisdictional issues by coming at it from a  health care angle. The proposed law refers to the right of a patient to "receive end-of-life care" (§3(3) and 5):

"End-of-life care means palliative care provided to persons at the end of their lives, including terminal palliative sedation, and medical aid in dying...."

The proposed law, if ever passed, is thoughtful, wise and caring. The need-to-know, core statements of law are at §13 and §26:

"(A) patient who meets the following criteria may obtain medical aid in dying: (1) be of full age, be capable of giving consent to care .... (2) suffer from an incurable serious illness; (3) suffer from an advanced state of irreversible decline in capability; and (4) suffer from constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable.

"The patient must request medical aid in dying themselves, in a free and informed manner...."

"An institution must offer a private room to every patient who is receiving end-of-life care in its facilities and whose death is imminent."

Whoever sat one day in their legal drafting office and crafted this law managed their way through a difficult issue and appears to have presented a workable solution in a modern and democratic society with an aging population and the growing cost of health care all-around.

Bill 52 was tabled at an opportune time, just as the Quebec legislative assembly was recessing for the summer. This will allow months of public debate and comment to then feed into the machinery of government when the bill is considered for further readings in the fall.

In Active Euthanasia, Suicide - This Time, The Law Does Not Blink, we wrote of the history of this area of the law, and of one recent British Columbia case on point. Included, in the reasons for judgment of that case (Carter v AG), the profound difficulty facing a person with a soon-to-be fatal condition was laid bare. On a lesser scale must be the challenge facing judges who are faced very real dying litigants with little time, caught up in very legitimate but profound disagreements on the law:

"Ms. Taylor is the mother of two grown sons and the grandmother of an 11-year-old granddaughter to whom she is very close.  In December 2009, she was diagnosed with amyotrophic lateral sclerosis (“ALS”), also known as Lou Gehrig’s disease.  ALS is a neurodegenerative disorder that causes progressive muscle weakness and eventually progresses to near total paralysis....  ALS patients ... lose the ability to use their hands and feet; the ability to walk, to chew and to swallow; the ability to make their speech intelligible to others; and, ultimately, the ability to breathe.

"In January 2010, Ms. Taylor was advised by her neurologist that she would likely be paralyzed in six months and would likely die within the year....  ALS is a fatal disease with no known cure and that it is simply a matter of time before Ms. Taylor’s condition deteriorates to the point where she will be incapable of ending her own life without assistance, and will be left to die in circumstances which are painful, frightening and repugnant to her.... I will refer to only one paragraph from her affidavit....: I am dying.  I do not want to, but I am going to die; that is a fact.  I can accept death because I recognize it as a part of life.  What I fear is a death that negates, as opposed to concludes, my life.  I do not want to die slowly, piece by piece.  I do not want to waste away unconscious in a hospital bed.  I do not want to die wracked with pain.  It is very important to me that my family, and my granddaughter in particular, have final memories that capture me as I really am - not as someone I cannot identify with and have no desire to become."1

Gloria Taylor ultimately died of a perforated colon in October of 2012. But even in Bill 52 had become law in Quebec, moving there in Ms Taylor's case might not of helped her as Bill 52 requires a three-month residency. This would act as an impediment but not a gate-stopper as many other Canadians facing terminal diseases would fly to Quebec if that is the only place to receive the medical services they desperatley want, to die, and where, yet, outside, the Canadian flag flies.

Furrowed Brows

Bill 52, as all rare and historic laws that propose to shift the law to its very roots, will now attract considerable attention by those in favor. But it will also call out those with the very genuine concerns that any law that allows for active euthanasia is opening a door to the abuse if not the wrongful taking-of-lives of an extremely vulnerable segment of our population.

Those who live in Québec are first, now, to wrestle with the profound question: how, if at all, would Bill 52 make their community a better place?

REFERENCES

Posted in Human Rights, Law Makers, Politicians, Elder Law, Wills, Estates, Probate
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