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Canadian Judges Have Allowed (And Hidden) Doctor-Assisted Deaths

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DOCTOR ASSISTED DEATH
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By Juliet Guichon, Pauline Alakija, Christopher Doig, Ian Mitchell and Pascal Thibeault

To date, courts have declared three Canadians eligible for a physician-assisted death. In at least two cases, the court ordered that the medical certificate of death should misstate the truth. Instead of recording a death from "drug toxicity", the medical certificate of death will apparently state that the person died of the underlying illness: ALS in one case, and lymphoma in the other. When family members, statisticians and historians review these death certificates, the documents will reveal nothing to indicate that anything other than the natural progression of the disease processes occurred.

If provinces and territories adopt this current judicial practice, then they will subvert both accurate death reporting and expert death monitoring.

Accurate recording of major events such as birth, marriage, and death is a hallmark of Canada's vital statistics. After any death, stating the cause accurately is necessary to achieve certain public goals related to human protection, prosecution, prevention health promotion and health planning. To achieve these purposes, a newly lawful death should not be confused with a natural death. A natural death occurs when the natural disease progresses uninterrupted until death ensures.

For example, the natural course of ALS is to cause paralysis, inability to protect the airway, then pneumonia. This natural process is interrupted when drugs are injected to shorten that course of events and cause death. A death by ALS with its course of paralysis and pneumonia is, however horrible, a natural process of death. A death by multiple drug toxicity is a non-natural cause of death. Such deaths are reported to coroners and medical examiners, who make great efforts to ensure that death reports and death certificates are accurate.

Indeed, the coroner or medical examiner is typically the only public official empowered by legislation to determine cause and manner of death when deaths occur in certain circumstances, such as when the suspected cause is by toxicity or from a reason other than disease. Coroners and medical examiners are expert at determining how deaths occur, and have the independence and public duty to record these conclusions accurately. Accuracy in death recording and reporting are essential in death monitoring.

Scrupulous monitoring is necessary for physician-assisted dying because the Supreme Court of Canada ruled that physicians could be exempt from criminal liability only where there is "a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced." Concern for misuse of physician-assisted dying requires expert death monitoring.

Yet when A.B., the Ontario court applicant, requested in early March 2016 that the coroner be excluded, the court complied. The applicant's lawyer complained that the Ontario Chief Coroner could not assure the lawyer that the coroner would not seize and autopsy the body after a physician-assisted death.

But nor should a coroner give such an assurance regarding a death. The coroner's job is to determine who died, when, where and how the person died and by what means. Coroners and medical examiners cannot make promises as to what they will do to establish those five facts. The nature and extent of their efforts depend on the circumstances. After a court approved physician-assisted death, the coroner could examine the court judgment, court order, consent form and medical record; and interview the physician who administered the drug. If satisfied that all the questions could then be answered, the coroner might not conduct invasive procedures.

By ordering a misstatement of the truth on official records, judges have prevented the very people who would both determine and tell the truth from performing their statutory duties.

This unexpected judicial behaviour of ordering misstatement in official records might only be temporary; court applications for physician-assisted dying will not be necessary after June 6. Nevertheless, provinces and territories should not adopt the unusual precedent as they draft legislation to govern this new manner of death.

Instead, provinces and territories should look to their own coroner and fatality inquiry statutes, which have created systems for ensuring that death records are accurate and that monitoring of death occurs by death experts. Provinces and territories should clarify that physician-assisted deaths (as non-natural deaths) are mandatorily notifiable, and ensure that coroner and medical examiner offices are adequately staffed and funded.

The courageous disclosure of private medical information by suffering witnesses in the 2011 Carter trial helped lead to the historic judicial result that now permits physician-assisted death for a small class of people. Such brave candour should not now be followed by prevarication in official records and the absence of mandatory, scrupulous monitoring of a new cause and manner of death.

Juliet Guichon, Christopher Doig and Ian Mitchell are faculty members in the Cumming School of Medicine, University of Calgary; Pauline Alakija is a forensic pathologist and clinical professor at the University of Alberta medical school; Pascal Thibeault is a master of laws student at the University of Toronto.

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