Imagine that I lived in a place, let’s call it Neverland, where prohibition (on alcohol) was kept in place until today. The government fully supported this ongoing ban. However, Neverland’s Supreme Court just declared that the law against drinking alcohol infringed on Neverland’s constitution. The government decided to make me the head of a panel to provide suggestions as what our alcohol laws should be. Now in this fictional world, my family was killed by a drunk driver and I have spent my entire life dedicated to keeping alcohol illegal and persuading the public about the evils of drinking. What would I suggest to the government? I would probably ask for the minimum cost of an alcoholic beverage be $3,000 and that the age of majority to purchase alcohol be 125. If my suggestions were put in place, alcohol would be legal, but not available in any practical sense.
This is exactly the scenario we now face with respect to Canada’s Supreme Court’s unanimous decision that the laws against physician-assisted dying (PAD) were no longer valid. The federal government was given one year (from early February 2015) to come up with suitable laws to allow for assisted dying. The Conservatives did absolutely nothing for five months, and then on Friday announced a three-person panel to advise them on issues surrounding legalization of PAD. Unfortunately, two of the three members of the panel, Dr. Harvey Chochinov and Ms. Catherine Frazee, are outspoken critics who oppose the legalization of PAD; so much so that they were two of the federal government’s expert witnesses when the government argued at the Supreme Court that PAD should remain illegal. There is already concern about impartiality of the panel (see here and here). The president of the Canadian Medical Association is quoted as saying “Despite their well-established views on these issues, the CMA is confident that the panel, chaired by renowned Canadian palliative care physician Dr. Harvey Max Chochinov, will undertake a balanced and comprehensive consultation”.
I must ask, why did the federal government not appoint to the panel other experts in palliative care and medical ethics (and there are plenty) who are not already on the record as staunch opponents to PAD? I think it is safe to assume that those who have never considered supporting PAD would not have have spent much time considering the best way to provide PAD for our population. Does anyone honestly believe that people with such strong views against PAD would do anything but suggest the most restrictive legal application of it?
To be clear, I fully support Dr. Chochinov and Ms. Frazee’s right to oppose assisted dying. Dr. Chochinov is a strong proponent of increasing the availability of palliative care, something I agree with completely. I, however, do not see why legalized PAD cannot be achieved while increasing palliative care support in Canada simultaneously. There are three states in the USA that allow PAD: Oregon, Vermont, and Washington. Now look at the rankings for access to palliative care among all US states. The same pattern holds true in Europe. Ms. Frazee states that there can be dignity in all states of life, disability notwithstanding: “a vital social ecology is gravely threatened by policies that accept uncritically the proposition that severe physical incapacity strips life of value, dignity and purpose“. Those who favor legalizing PAD do not argue that disability or impairment leads to loss of dignity (and therefore the possible request for medical aid in dying). I would never presume to determine another human’s sense of dignity. To me, dignity is 100% defined by each person’s self. One of the core issues of permissive PAD is the autonomy that all patients deserve, for medical decisions including those near the end of life. Yet the head of the government’s panel (Dr. Chochinov) has written “It would also appear that autonomy is intoxicating; the more people have, the more it becomes a cultural norm and a perceived entitlement.”
The majority of the Canadian public (84%) support legalized physician-assisted dying. Not in a theoretical way, but in a way that would allow for real access should it be needed. The Supreme Court of Canada unanimously agreed. Now we wait and hope that the federal government doesn’t deny the wishes of its electorate. Inevitably I fear we are headed towards a more drawn out legal battle.