Co-authored by Professors Ian Mitchell and Christopher Doig of the Cumming School of Medicine, University of Calgary
Last week, our federal Justice Minister, Peter MacKay, said that the government needs more time to draft legislation on assisted dying. Yet, the Supreme Court of Canada judges decided unanimously that, on February 7, 2016, the criminal law preventing Canadians from accessing physician-assisted dying in certain circumstances, will no longer be effective. Even though Minister Peter MacKay has not created rules, such rules will soon be needed.
The federal Justice Minister's decision not to present the necessary legislation to Parliament is not only disrespectful of the vulnerability of many Canadians; it highlights a recurring problem with Canadian democratic processes.
When the Supreme Court of Canada strikes down legislation on the human body -- for example, on abortion in 1988, on assisted reproduction in 2010, and now, on physician assisted dying in 2015 -- it presents a challenge to government to respond. In each case, legislators responded ineffectively or did nothing. Perhaps politicians believe these sensitive issues will not gain them votes in their constituencies.
But, like it or not, the February deadline is looming. The Justice Minister has said the government would request an extension if re-elected, but this is unlikely because an extension would seem an unfair denial of a constitutional right to suffering people. Moreover, the Supreme Court might wonder how a government that has been defending this assisted dying litigation since 2011 can genuinely argue that it is unprepared for this judicial outcome.
Because the federal government is abdicating responsibility on this vital issue, Canadians urgently need a new and democratic method of catching the legislative ball tossed by the Supreme Court.
To be sure, various bodies are responding. Provincial departments of justice and physician colleges are probably quietly working on legislation. The Canadian Medical Association, a non-governmental body, has educated its members, surveyed their opinions and accepted their vote that physicians' conscience rights should be protected. The Canadian Medical Association has canvassed how assisted dying takes place in other jurisdiction like Oregon and is preparing guidelines for how it might happen here.
However, in the absence of federal leadership, a democratic response is necessary. Citizens now need to build on the work done to date.
Given that patients are already asking for physician-assisted dying and expect to have access on February 7, we propose a three-step plan of address:
1. An ad hoc group of people with relevant experience should review the end of life care legislation in Quebec and in 10 international jurisdictions, the Canadian Medical Association proposals, and use their review to develop guidelines for implementing assisted dying legislation at federal, provincial and physician college levels.
2. A small and diverse pan-Canadian and international working group (approximately 10 people) with relevant experience should review the guidelines and propose amendments.
3. These amended guidelines should then be published on line and reviewed by citizens at town hall meetings organized by universities across the country for further amendment.
We believe this plan is far less expensive than a Royal Commission or a government led-consultation. The town hall meetings would be open to all citizens and their results would be published for all to view and for relevant authorities to adopt or to amend prior to adoption.
This matter is urgent. Many Canadians feel vulnerable in the absence of clear rules on physician-assisted dying, and others, who are grievously and irremediably ill, expect that on February 7, they may actualize their constitutional right to physician-assisted dying. Doctors are unlikely to participate without a clear legislative framework.
When a new Parliament sits after the October election, citizens can be ready to present it with draft rules for physician-assisted dying. This proposed strategy can succeed and will require contributions of time, energy and finances from citizens and organizations.
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