BY PETER STOCKLAND
JUNE 18, 2018
Topics: Health, Death, Medicine
maids services and Modern Medicine
June 18, 2018 | By Peter Stockland Print
Two years ago, on June 1, 2016, federal Justice Minister Jody Wilson-Raybould was escorted to her seat in front of Canada’s Senate to explain her government’s rationale for Bill C-14, a legislative concoction with a name from a high school chemistry class and the full power to transform Canadian society forever.
The justice minister’s opening remarks were a similar blend of insistence that the bill was a shining example of clarity, reason, and balance while at the same time offering reassurance it would not tie the hands of doctors tasked with killing their patients on request. C-14 married strict safeguards with what Wilson-Raybould, reaching into her velveteen bag of political jargon, called “purposeful flexibility” in the delivery of medical death.
“It builds in clear statutory parameters around the types of individuals who are eligible (and) was carefully crafted to provide as much flexibility as possible to medical practitioners to determine when and how a person’s death has become reasonably foreseeable,” the minister appeared to explain.
What should have been a momentous moment in Parliamentary history became a slipstream of ambiguity, a muddled all-will-be-well juggling act, that reflected the fatal flaw in the legislation. The weakness continues to plague maids services even now on the second anniversary of its introduction.
In fairness, the justice minister could have justifiably put up her hands and told the assembled Senators: “It’s not my fault.”
The failures in the actual writing of Bill C-14 are on the Liberals. But the underlying defects caused by the scramble to get it completed to meet a deadline set by the Supreme Court of Canada belong squarely with the previous Conservative government. During the election year of 2015, in the aftermath of the Supreme Court’s decision, the Harper Tories resolutely refused to touch, much less move on, the re-writing of Canada’s laws regarding assisted death.
As one senior operative in the prime minister’s office told me privately: “That issue is not even on our radar.”
Of course, it did not require sophisticated tracking technology to foresee what would follow from the Court’s February 6, 2015 ruling in the so-called Carter case. The outcome of Carter, now known by the anodyne acronym maids services (Medical Assistance in Dying), was a moment of radical change for Canadian law, medicine, and our common life. For the first time in our history, doctors and patients, not nature and fortune, could legally and precisely fix the appointed time of death.
“The whole health paradigm has been turned upside down.” – Dr. Paul Saba
In Carter, the Court unanimously tossed aside its Rodriguez ruling from 1993. Laws against assisted suicide that were ruled constitutionally valid in Rodriguez were deemed constitutionally invalid by the time Carter rolled around 22 years later.
Out went the “sanctity of life” relied on by the Court in Rodriguez to uphold existing laws against assisted suicide. In came the Carter criterion of “intolerable suffering” as legal justification for medically administered death. The sheer speed of the change was as unsettling as its revolutionary legal, medical, and moral implications. In mere months, Canada’s long-standing understanding of how life properly ends disappeared faster than a frozen corpse on downhill skis.
No great mystery, there was subsequently enormous pressure on the Harper government to use the Canadian Constitution’s notwithstanding clause to buy time to draft an adequate response to Carter. No dice. There were then calls for a Royal Commission to sound out what Canadians really wanted. Deaf ear. There was pressure on backbench Tory MPs to introduce private members bills to help frame the response. Dead on arrival.
By the time Justice Minister Wilson-Raybould appeared in Parliament’s chamber of sober second thought, as the Senate is often called, the last call clock was ticking on a Supreme Court-imposed June 17, 2016 deadline to make MAiD the law of the land. B.C. Conservative MP Mark Warawa still fumes when he talks about the committee process that was quickly put together to review the draft legislation. The urgency to pass the bill, he recalls, allowed a heavy skewing toward those who favored medically administered death, and boxed out many of those opposed. He notes, for example, that the Dying With Dignity lobby group had three different witnesses appear at different times before the committee. Yet he was blocked from inviting prominent opposing groups to express their concerns.
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“When Dying With Dignity showed up a second and third time, I said ‘Hmmm, we’ve already heard from your group. Has your position changed?’ And they said ‘No, we’re here with new information.’ It was the same information reinforced three times. Yet a number of socially conservative experts were not permitted to testify because there wasn’t enough time. It indicated a very strong, very unhealthy bias.”
The result, Warawa says, is deep confusion across the country about what the law actually is concerning MAiD. It’s uncertainty that is exacerbated by a patchwork of provincial regulations, constant pressure from advocates for medically assisted death to remove remaining barriers, and lack of precision in C-14 itself.
“What we have right now has been described as the Wild, Wild West,” Warawa says. “When you have legislation that’s not clear, you get overzealous promoters who try to take it as far as they possibly can, even if that means going over the line. Their defence is always, ‘Well, I thought the law permitted it.…’ If we’re not enforcing the law because we don’t know what the law means, then we’re not acting like a democracy.”
The Langley-Aldergrove MP cites as an example Dr. Ellen Wiebe, a Vancouver-area physician who caused controversy last winter when she went into an Orthodox Jewish nursing home in the city and administered MAiD to an elderly patient despite the facility’s refusal to allow it on the premises. Warawa is incensed that there wasn’t even a criminal investigation into her action, which he believes clearly went “over the line” of what C-14 allows.
For her part, Wiebe categorically rejects any hint of impropriety. On the contrary, she says, she works within the law to protect the rights of patients to receive MAiD whether or not the facility permits the procedure.
“To me, places don’t have moral rights. Places don’t have consciences, only people do. It’s not just any place. It’s (the patient’s) home. Someone (denying MAiD) is taking (a patient’s) rights away to die in their home. That’s why a place should never have rights.”
But even Dr. Wiebe, a prominent voice for Dying With Dignity and a committed MAiD provider, acknowledges that she often “works at the edge of the law” because the legislation itself lacks specificity. She concluded within the first year of legalization that she would have to rely on her personal best judgement about whether or not to administer death.
Neither the re-written federal legislation, nor provincial regulations that followed it, define with clarity when a patient can receive MAiD, she says. At the same time, Dr. Wiebe believes wholeheartedly that any mentally competent person who requests medically assisted death for the relief of suffering has a right to receive it. And suffering, she says, is a subjective judgement for the patient to make.
Dr. Wiebe says when she undertook training in the Netherlands for administering euthanasia, she saw the issue as one of a clear-cut human right to autonomy. Falling back on personal judgement felt paternalistic to her. Leaving it to the personal judgement of some professional authority—even a doctor like herself—felt like interference in a fundamental human right to die when one chose.
“Then when I started doing it, I realized that I personally must be convinced in each case. I provide what is right up to the edge of the law, and never beyond, of course. I’m working beyond where some providers would work…it varies on how risk-averse people are. We have to submit 17 pages of paperwork, and we are being scrutinized line by line.”
She acknowledges, however, that the line, or edge, has already shifted significantly since she provided her first medically-assisted death in February 2016, four months ahead of the law being changed to make it legal. Part of the challenge is the federal legislation now permits (or limits, depending on perspective) MAiD to when death is in the “foreseeable future” but does not clearly define what that means.
The personal definition Dr. Wiebe initially worked from was based on Justice Minister Wilson-Raybould’s testimony to the Senate. Kay Carter, the central figure in the 2015 Supreme Court decision, would qualify under the “foreseeable future” wording, according to the justice minister.
Dr. Wiebe notes that Carter was 89 when she died, and had suffered from spinal stenosis, a painful though not life-threatening, condition. Her life expectancy would normally have been about five years, she says.
“If that was natural death in the foreseeable future according to our justice minister, then that was good for me,” Dr. Wiebe says.
Just over a year later, however, in June 2017, Ontario Superior Court Justice Paul Perell ruled in a case called A.B. versus Canada that a 77-year-old who suffered from inflammatory arthritis faced death in the “foreseeable future” and was eligible for MAiD even though, as Wiebe points out, the woman’s life expectancy was about 10 years and she was still an avid hiker.
Dr. Wiebe says she adjusted her personal judgement accordingly, though she remains “very, very careful” in such cases where pain relief is the primary objective and non-terminal conditions are involved. She is confident the oversight system of the B.C. coroner’s office and the province’s College of Physicians and Surgeons acts as an effective public safeguard. “I expect,” she says, “to be scrutinized.”
But at least one of Dr. Wiebe’s fellow Vancouver doctors is highly dubious that she and “five or six” other health professionals in the city are as bound by scrutiny as they are determined to push the limits of MAiD legislation to the maximum.
Dr. Will Johnston, a family physician and veteran pro-life advocate, recalls being part of a discussion at Vancouver General Hospital in September 2016 where Wiebe showed power point slides about the 100-plus patients to whom she had already administered MAiD. She was unabashed, Johnston says, that one of the dead was a psychiatric patient.
“Ellen has no apology about euthanizing someone where the primary indication, in her mind, was psychiatric, and she’s willing to put that up on a slide,” Dr Johnston says. “I e-mailed her recently and said, ‘Ellen, what did you mean by psychiatric (patient) in September, 2016? That’s not really legal, right?’ She hasn’t replied.”
For her part, Dr. Wiebe acknowledges she’s the only doctor who has legally assisted a psychiatric patient, heavy emphasis on legally.
“Four judges had to agree that (the patient known as EF) was eligible before I was able to. I felt very good about helping her. She was suffering so terribly. It was hard to be in the presence of that suffering…physically and emotionally draining. I had all her medical records so I could review (her) treatments for several years. Nothing worked.”
Dr. Wiebe says she has refused all subsequent requests from psychiatric patients for MAiD because they did not meet legal criteria. EF’s case was “really unusual” because of the degree of suffering and lack of alternatives.
“People sometimes say ‘why didn’t she just kill herself?’ But she was religious and had a large family who were religious, and that wasn’t acceptable. At the death, 10 people were with her, supporting her, loving her, and giving her up to God because her suffering was unbearable.”
Dr. Wiebe readily admits that she would like the law expanded to allow MAiD for psychiatric patients judged competent to make decisions in their own interests: “I wish I could help them.”
She’s adamant, however, it must never include those whose “brain isn’t functioning” well enough to be aware of what they’re deciding.
“If your brain isn’t functioning, you need to have society protect you to the point of taking all your rights away from you over your own person. I know what it’s like when people’s brains don’t function. I have a stepson who’s schizophrenic.”
For Dr. Johnston, however, Dr. Wiebe’s sense of her own capacity to make such distinctions suggests a health care “messiah complex” that the law must restrain. The same is true of other doctors in the city who promote MAiD as medicine, he says.
“It’s not just Ellen. She is completely replaceable by anyone else with a similar messiah complex who feels there is suffering out there that the pusillanimous medical profession will not address adequately. (They have) a clear idea in their own minds that ‘foreseeability’ is a very elastic concept meant to be used to grant death to anyone.”
“End-of-life care cannot be limited simply to medical aid in dying.” – Dr. Charles Bernard
In his own practice, Dr. Johnston says he has seen the way that legal elasticity has inverted the obligation to meet MAiD safeguards, and created pressure on hospital administrators to show why it should be denied.
“The administrative anxiety now is to be accused of obstructing access, not of killing someone inappropriately or facilitating an inappropriate death,” Dr. Johnston says. “The real risk here is the precedent that creates.”
Affirmation of Dr. Johnston’s warning comes from Quebec, where Dr. Paul Saba says he was personally put on the hot seat by local hospital administrators fearful that he might have inappropriately denied MAiD.
Dr. Saba says a patient wanted MAiD, but asked only for a referral to another doctor. Dr. Saba, who was fighting a legal battle with the Quebec government over the constitutionality of its assisted dying legislation, refused to do the referral too. Another doctor was brought in who agreed to provide the procedure, but then the medical direction of the hospital intervened and ruled the patient didn’t qualify under Quebec law anyway.
“The (second) doctor was livid and insisted the patient had a right to MAiD. I said, ‘Listen, the director (of) the hospital says no.’ It created quite a battle in which I was accused by the administration of impeding a person’s access to rights. I wasn’t impeding anything. I was just passing on information from the director of the hospital.”
In the end, Dr. Saba says, the patient was ruled ineligible for MAiD under Quebec law, received palliative care, was eventually taken off a respirator, and died peaceably. But the example shows, he says, how the ambiguity of the law is creating pressure cooker situations within Canadian medicine. He has argued in his court battles that there are 33 differences between the Quebec assisted dying law and the federal statute alone. And each clause of each law, beginning with how to define “foreseeable death,” is open to interpretation, breach and abuse.
“There’s no clear delimitation right now. We’re constantly in a morass. We don’t know what applies, and what doesn’t apply. The fact is, it shouldn’t apply because this is not medicine. This is bad public policy. It is putting people in danger.”