When the federal government passed legislation permitting physician-assisted suicide, it appeared a longstanding controversy had been settled. Although divisions still exist on the issue, polls show that about 80 per cent of Canadians support the new policy.
But as physicians begin navigating uncharted territory, uncertainty has set in. Several sections of the law are either ambiguous or restrictive in ways that can lead to undue patient suffering.
As written, the statute limits assisted dying to situations in which “natural death has become reasonably foreseeable.” But what exactly does that envisage?
Some in the medical community presume it means circumstances where death is known to be imminent — perhaps within a few days, or a week or two at most. And there are such circumstances. In the late stages of most cancers, the time of death can be predicted with considerable precision.
But is that what Parliament meant? Patients with Lou Gehrig’s disease face a “reasonably foreseeable” death. But the end might lie years in the future. The same is true for a variety of fatal disorders.
The lower courts are already struggling with this uncertainty. A judge in Ontario ruled last year that “reasonably foreseeable” does not impose a specific time limit.
That seems the proper interpretation. If the purpose of assisted suicide is to avoid prolonged suffering, patients who face months, or even years, of pain should have this option, even if the end is some time away.
The legislation also requires that patients be suffering “intolerably.” But that creates a cruel dilemma.
Physicians can provide assisted suicide only if the patient is fully conscious and actively consents right up to the moment when drugs are administered. But the medications used to treat intense pain often have a mind-clouding effect. Legally speaking, that might render the patient unable to meet the definition of active and continuing consent.
The only choice in such circumstances might be to withhold painkilling medication for what could be an extended period. Is that really what Parliament wanted?
This section of the statute was likely added to ensure the door was not opened too wide. That was certainly a legitimate concern.
There remain many in the community, including some physicians, who are deeply opposed to the whole idea. If the legislation appeared overly permissive, there would certainly have been widespread protests, and possibly adverse rulings in the courts. There is a fine line to be walked here.
Nowhere are these uncertainties felt more acutely than on Vancouver Island. B.C. leads the country in assisted death, and Vancouver Island leads B.C.
Over the past two years, 932 British Columbians chose this option, 397 of them on the Island. That’s more than 40 per cent of the total, even though we make up only 16 per cent of the province’s population.
One of the physicians who has taken a leading role, Victoria’s Dr. Stephanie Green, has spoken out about the necessity for greater clarity. She says doctors need to know they are acting properly, both professionally and legally. As things stand, ongoing confusion might be causing some physicians to step aside.
It was always likely that assisted-suicide legislation would take time to work through. A completely new field of medical ethics has been opened up.
But it does appear there is sufficient urgency to clarify at least two areas of uncertainty: the meaning of “reasonably foreseeable” and the requirement for intolerable suffering. Rather than waiting for the courts to bring clarity, which could take years, Parliament should act now and amend the statute.
This is difficult enough as it is, for patients, loved ones and physicians. They should at least know they are on solid ground, legally and morally.
