A legal panel in Quebec is urging the province to move ahead with legislation that would allow the terminally ill to seek "medical assistance to die." But while the prospect of giving suffering patients more options and more autonomy appeals to many, there remains an equally strong contingent opposed to any change in law that would legalize the killing of another human being.
Will Quebec legalize medically assisted end-of-life procedures?
Wanda Morris, Executive Director of Dying With Dignity, thinks it should -- she's sees it as a question of individual rights. But others -- including bioethicist Margaret Somerville -- say legally sanctioning euthanasia would endanger weak and vulnerable Canadians. and have a harmful impact on society.
What do you think? Before choosing a side, have a look at what Morris and Somerville have to say in our online debate. Then decide who makes the most convincing case, and cast your vote...
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Medical aid-in-dying for those suffering grievously at end-of-life is not assisted suicide. Dying With Dignity -- the national charity of which I am executive director -- does not support legalization of assisted suicide. We strongly believe in something completely different -- that individuals at end of life who face the prospect of an unbearable death should have the right to end their suffering. Our debate title doesn't address this. A July 2012 Angus Reid Poll asked Canadians; "Should doctors be able to assist a patient to end their life?" Eighty percent of Canadians said yes -- and so do we.
Who owns my life? This is what Sue Rodriguez asked the Supreme Court of Canada in 1993. She was suffering from ALS, also known as Lou Gehrig's disease, and faced dying by degrees, with a healthy mind trapped in an increasingly useless body.
The nine justices decided not to allow Rodriguez the right to assistance to end her life. Their decision was not based on her rights - the judges agreed her rights under Section 15 of the Canadian Charter of Human Rights and Freedoms were being violated. The decision was based on a potential threat to weak and vulnerable Canadians.
Choice is the cornerstone of our medical system. No procedure, examination, or test can be conducted without our informed consent. Yet, in the most critical decision of all, amid suffering at end of life, we are not allowed to choose a gentle death.
Take the case of Leslie LaForest, a witness in the recent Carter Case in BC. Her doctors want to operate on a tumor growing beside her bowel. If they do, her vagina will be irreparably scarred, and she will no longer be able to enjoy intercourse. Even urinating will be painful. Without the operation, though, the tumor will grow to block her bowel, and she will have no way to eliminate waste.Toxins will accumulate inside her body, swelling her arms and legs. Eventually, the waste will force itself out of any available orifice -- she will literally vomit feces. Is it any wonder she seeks the right to be assisted to a much more gentle death?
Ms. LaForest is not the only one to face the prospect of unbearable suffering. The recent stories of Gloria Taylor, a woman with ALS, and Nagui Morcos, a man suffering from the ravages of Huntington's Disease, also paint a compelling picture of why the option to choose medical aid-in-dying is a critical component of compassionate, end-of-life care.
Those who oppose end-of-life choice generally fall into three camps: they are concerned about abuses, they have a disability and are fearful of being coerced to die, or their religion teaches them that end-of-life choice violates God's will.
Critics of end-of-life choice often raise concerns about safeguards. They point to statistics that show 3.2% of all deaths in Belgium, and 0.8% in the Netherlands, lacked direct patient consent at the time of death. Critics claim these statistics "prove" the safeguards aren't working.
I disagree. When we look at the data over time, we see that legalization cut reported cases of assistance to die without explicit consent by half.
In addition, similar studies from Australia and New Zealand (where end-of-life choice is not currently legal) found that 3% of all deaths were due to the administration of a fatal dose of medication without a patient's explicit consent - the same level as in Belgium before legalization. If these statistics teach us anything, it is that legalization actually prevents abuse. (Readers interested in knowing more about arguments for and against end-of-life choice, can find a comprehensive review on our website.)
We know from repeated anecdotal evidence that many Canadians at end-of-life are assisted to die by well-meaning physicians. It happens often, and without an explicit conversation. This "don't ask, don't tell" treatment puts our vulnerable populations at risk.
This is the kind of evidence that convinced Justice Lynn Smith, the BC Supreme Court Judge who heard the Carter case, to determine that medically-assisted death should be legalized in Canada. Anyone who wants an independent, objective assessment of the often conflicting information about this issue can read her well-researched, well-reasoned decision.
Opponents of choice argue the proposed laws could lead to coerced deaths of people with disabilities. I validate this concern -- members of this group have experienced healthcare discrimination in the past. But the controls and safeguards that would form an integral part of any legislation are designed precisely to prevent this abuse. The lack of transparency in our current system is what really places vulnerable groups at risk.
The disability groups that speak against end-of-life choice do not speak for all Canadians. This point was made eloquently by Joe Arvay, lead lawyer for the co-plaintiffs in the Carter Case. He argued the case brilliantly - from his wheelchair.
I believe individuals who oppose end-of-life choice on religious grounds are absolutely entitled to do so. For themselves. But I take umbrage when they try to use the coercive power of government to deny choice to Canadians who suffer at end-of-life.
If we are a democratic society that honours human rights as defined in our Charter, we need aid-in-dying. If we are a compassionate society that believes in providing options to relieve suffering, we need aid-in-dying. And if we are an educated society, willing to heed the results of careful research, it is truly time we legalized medical aid-in-dying for the grievously ill at end-of-life.
Ms. Morris starts by using sanitized language, a pro-euthanasia strategy I explain in my initial argument. She says her organization, Dying With Dignity, "does not support legalization of assisted suicide." But it's only the terminology they oppose, not assisted-suicide and euthanasia. Indeed, "dying with dignity" has become code for euthanasia, as has "medical aid-in-dying," a term Ms. Morris uses.
Ms Morris reports that a "July 2012 Angus Reid Poll asked Canadians 'Should doctors be able to assist a patient to end their life?' Eighty percent of Canadians agreed -- and so do we." But she fails to mention those Canadians were responding to that question in relation to patients who were "terminally ill and will die in less than six months, and the patient is expected to suffer a great deal of physical and mental anguish during that time." This question forces respondents to agree to both euthanasia and pain and suffering relief, or to neither. Their decisions about euthanasia are affected by their decisions about pain and suffering relief.
We all agree with killing the pain and suffering, but we disagree about killing the patient along with the pain and suffering. Consequently, we need to ask separate questions: Do you agree with fully adequate pain and suffering management? Do you agree with euthanasia? My answer to the first question is an unqualified "yes" -- the "Golden Rule" embodies the reason why. My answer to the second question is an absolute "no" -- our moral intuitions tell us intentionally killing another human is wrong, except when that is the only way we can save human life, as in justified self defence. Moreover, research shows that when patients have access to good palliative care, most even of those who wanted euthanasia change their minds.
Ms. Morris cites the Supreme Court's decision in Rodriguez , but is seriously confused about the judgment. Five justices (not nine) "decided not to allow Rodriguez the right to assistance to end her life." The majority's decision did not focus on section 15, the Charter right not to be discriminated against, and did take into account her rights to "life, liberty and security of the person" under section 7 of the Charter. The majority found these were not being breached, as the prohibition on assisted suicide was in accordance with the principles of fundamental justice, or, if there was a breach, it was justified under the saving provision in section 1 of the Charter.
The majority's decision was based on the potential threat to weak and vulnerable Canadians of legalizing assisted-suicide and on the state's interest in maintaining the value of the sanctity of life, by not allowing life to be intentionally taken. The judgment's clear respect for life is a fundamental value in all civilized societies and not just a religious value, as pro-euthanasia advocates claim.
Ms. Morris states: "Choice is the cornerstone of our medical system. No procedure, examination, or test can be conducted without our informed consent." But choice is not unlimited, which even Canadians who agree with euthanasia show by the conditions they impose on its availability. Which raises the question, if respect for autonomy is their overriding value, why don't just the patient's wishes prevail? In fact, this is being proposed in the Netherlands. If you are "over 70 and tired of life" you should be able to have euthanasia. But why even the 70-year age limit?
Ms. Morris is also confused about the nature of informed consent: As I explained in my initial argument, it implements a right to inviolability, a right not to be touched without one's consent; it's a negative content right, a right against. It sets no precedent for a positive content right, such as a right to euthanasia -- a right to be killed -- as she claims.
The strongest case for legalizing euthanasia is made through tragic individual cases and Ms. Morris presents examples, although it's debatable whether the alternatives of having surgery and "no longer be[ing] able to enjoy intercourse" and refusing surgery and experiencing a horrible death, qualifies as such a case. But the proper response to such cases is to offer fully adequate palliative care to all who need it. At present, less that 30 percent of dying Canadians obtain such care. And we know from research that when such care is available even most people who have asked for euthanasia change their minds.
A strong case against euthanasia lies not only at the level of its abusive use on individuals, especially vulnerable people -- those who are old, disabled or dying who receive the message their life is not worth living; but also, as again explained in my initial argument, its harmful impact on important shared values, institutions, and society, both present and future.
Ms. Morris argues "the option to choose medical aid-in-dying is a critical component of compassionate, end-of-life care." But killing is not medical treatment and is totally inconsistent with the philosophy that informs palliative care -- living as fully as possible, until we die a natural death.
She denies there is any evidence in jurisdictions where euthanasia has been legalized, such as the Netherlands and Belgium, that slippery slopes have resulted, and relies on the Carter case as evidence. But, again as explained in my initial argument, the evidence for the existence of both practical and logical slippery slopes is very convincing, as the High Court of Ireland affirmed in January 2013, in Fleming vs. Ireland and others, after extensively reviewing the evidence in the Carter case:
"The medical literature documents specific examples of abuse which, even if exceptional, are nonetheless deeply disturbing. Moreover, contrary to the views of the Canadian court, there is evidence from this literature that certain groups (such as disabled neonates and disabled or demented elderly persons) are vulnerable to abuse. Above all, the fact that the number of LAWER ("legally assisted deaths without explicit request") cases remains strikingly high in jurisdictions which have liberalized their law on assisted suicide (Switzerland, Netherlands and Belgium) -- ranging from 0.4% to over 1% of all deaths in these jurisdictions according to the latest figures -- without any obvious official response speaks for itself as to the risks involved." (Emphasis added.)
Ms. Morris claims physicians currently euthanize patients, which I challenge except as a rare event -- the Australian study, to which I'm assuming she refers, did not distinguish between justified pain management and euthanasia. But, if she's correct, it means physicians choose not to obey the law prohibiting killing. Why, then, would they obey legal restrictions on euthanasia?
Finally, ethics and democracy are not the same. A majority can support grossly unethical conduct, as we've seen in many horrific examples of breaches of human rights.
Asked another way: Should society change its laws to authorize physicians to help people to kill themselves through suicide or to kill them with a lethal injection?
My answer is a resounding "No". Here's why. (Note, I use the word euthanasia to include assisted suicide.)
First, I believe, it's inherently wrong for one human being intentionally to kill another. The only legally recognized exceptions have traditionally been when that's the only way to save human life, as in self-defence or "just war."
Utilitarians and moral relativists disagree. For them nothing, including euthanasia, is inherently wrong; rather its rightness or wrongness depends on all the circumstances and the values and preferences of the individual who wants it. They argue euthanasia should be legal, when its benefits for individual persons outweigh its risks and harms to them.
To get as many people as possible to agree with them they sanitize the language they use to advocate euthanasia. For instance, they don't speak of killing or even suicide, but, as in the Quebec government reports recommending euthanasia be allowed, of "medically assisted death." We all want medical assistance -- good palliative care, especially pain management -- when we are dying. This euphemistic language conceals and creates confusion about what euthanasia involves, namely, killing another human.
Another confusion used to promote euthanasia is the "no difference" argument. Pro euthanasia advocates argue that currently accepted end of life treatment decisions, such as refusals of life support treatment, result in shortening the patient's life, but are ethical and legal, and euthanasia is no different from them and that it's just another form of medical treatment. Therefore, to act consistently, euthanasia should be seen as ethical and legal.
They also argue the right to refuse treatment establishes a right to die. But that is wrong. Rights to refuse treatment are founded in respect for the right to inviolability, the right not to be touched, including by medical treatment, without one's informed consent. They do not recognize a right to die, let alone a right to be killed. At the very most, they establish a right to be allowed to die naturally.
Moreover, in respecting refusals of treatment the physician does not have a primary intention to kill the patient as is true in euthanasia. Pro-euthanasia advocates argue that you can't be sure what a physician's intention is. But courts across Canada determine an accused person's intentions every day in deciding on criminal culpability, where intention is a central element. We can assess a physician's intention according to whether the drugs given were medically indicated as reasonable treatment, for instance, to relieve pain, and were appropriate doses.
Causation also differs in refusals of treatment and euthanasia. Refusals of life support treatment result in natural death from underlying illness. In euthanasia, death results from a lethal injection or ingested drugs.
The "no difference" argument is also promoted by focusing on the ultimate outcome, namely death, and emphasizing this occurs whether or not euthanasia is involved -- people die anyway. But the issue is not if we die -- we all die. It's how we die and anti-euthanasia people believe there are valid ethical and legal distinctions between well-accepted medical practices at the end-of-life and euthanasia.
Yet another difference: anti euthanasia advocates give priority to the value of respect for life and pro euthanasia ones respect for individual autonomy, when, as in euthanasia, these values conflict.
Unbridled "radical autonomy" is the cornerstone for many of the so-called "progressive values" stances, including euthanasia.
But can dying people really can make free and informed (autonomous) decisions that they want "assistance to die" -- which is not the same as "wanting to die," which many terminally ill people do want. New concepts such as "relational autonomy" -- the idea that a person is not an isolated being, but exists in a context that influences their decisions, and that this must be taken into account when judging the validity of those decisions -- can restrain individual autonomy gone wild.
Pro-euthanasia advocates often justify overriding the value of respect for life by labeling it as religious -- they refer to it as "sanctity of life" -- and as passé in a secular society, such as Canada. But all societies in which reasonable people would want to live need to uphold respect for both each individual human life and human life, in general, as the Canadian Charter of Rights and Freedoms affirms.
Focusing just on individuals who want euthanasia, as pro-euthanasia advocates do, is not sufficient in deciding whether to legalize euthanasia. Euthanasia is not, as they argue, just a matter of personal decision-making. What we decide about it will affect others, important institutions, and society.
Implementing euthanasia requires changing the law to allow physicians to carry it out. How will this affect the value-carrying capacity of law and medicine, the two main institutions in a secular society carrying the value of respect for life? Legalizing euthanasia also means society becomes complicit in inflicting death on some of its members. What long term effects might result from that?
Finally, pro-euthanasia advocates adamantly deny there is any evidence in jurisdictions where euthanasia has been legalized of a "logical" slippery slope (the situations in which euthanasia will be available will expand over time) or a "practical" slippery slope (euthanasia will be used abusively). The latter is an especially relevant concern in relation to vulnerable people, including those who are old, disabled or dying. But convincing evidence from the Netherlands and Belgium proves them wrong. After extensively reviewing the evidence, the High Court of Ireland recently affirmed the practical slippery slope, and a recent chilling example of the logical slippery slope is the euthanizing, in December 2012, of 45 year old twins in Belgium. Deaf since childhood, Marc and Eddy Verbessem were facing the additional disability of blindness. Accepting that they were irremediably suffering, their physician euthanized them. In short, neither the logical nor practical slippery slopes can be avoided or controlled.
Making Sense of Apparently Inconsistent Court Decisions
After reviewing the two opening statements in this debate, the reader may be understandably confused about how different courts could reach such different conclusions on the same issues. There have been four recent court cases regarding legalization of medically-assisted dying: Carter (B.C., 2012), Baxter (Montana , 2008), Nicklinson (UK, 2012) and Fleming (Ireland, 2012).
In B.C. and Montana, the courts found the evidence showed the safeguards in permissive regimes are working. In England, the court ruled it had no jurisdiction as this was a moral rather than a legal matter, and did not comment on the safeguards. In Ireland, the court ruled not to overturn the existing ban as it saw no way to guarantee a foolproof system of safeguards. In the court's words:
"It would be impossible to ensure that the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of this option in order to avoid a sense of being a burden on their family and society."
Despite first appearances, these four judgments are compatible. The main difference between those that found for (Montana and BC) and against (Ireland) legalization is the degree of protection of the vulnerable they sought. When the Irish court decided its role was to ensure absolute protection of the weak and vulnerable, even from themselves, their decision logically followed. It is perhaps not surprising that it was Ireland, which does not allow abortion even to protect the life of the mother, that ruled in this absolutist way.
In B.C. and Montana, the judges reached different conclusions because they recognized that not one, but two, groups are at risk of harm: It is not only the weak and vulnerable who must be protected, but also those who face an unbearable death.
Both B.C. and Montana sought to find the best balance between the conflicting needs of these two groups. In both cases, the judges found that the safeguards, while possibly not an absolute guarantee against abuse, would provide a very high degree of protection and at least some relief -- though with onerous checks and balances -- to those facing an unbearable death.
Framing the Debate
Eric MacDonald, the Nova Scotia resident and former Anglican Priest who writes the Choice in Dying Blog, has studied much of Margaret Somerville's writing and concluded it consists primarily of theological ideas dressed up in secular language.
Framing voluntary euthanasia as wrong because "God says so" doesn't work well in our secular world. So the religious right often cloaks theological points in secular language. (See, for example, the article called How to argue against euthanasia without resorting to "because God doesn't like it.")
Yet their dogmatic, sometimes fanatical, beliefs come through in incendiary language. Medically-assisted dying is called suicide, murder and killing.
In a suicide, an otherwise healthy person ends their own life. A life is cut tragically short.
Those who receive medical assistance in dying are, by virtue of meeting the strict eligibility criteria, grievously ill and suffering unbearably at end of life.
The terminology needs to differ because we are describing two very different realities. Calling medically-assisted dying suicide is like calling surgery a knife attack. Context matters.
The Slippery Slope
Margaret and others argue that legalizing medically-assisted dying creates a "slippery slope." If we allow this change, they say, a host of other, morally reprehensible changes, inevitably follow.
This is flawed logic. Just because something might happen is no guarantee that it will. Margaret pointed to a pair of Belgian twins to support her case. Eddie and Marc Verbessem were born deaf. At 45, they asked for and received voluntary euthanasia.
Much of the press reported that this was simply because they feared going blind. There is much more to this story. It was not merely the perceived threat of blindness but a number of severe crippling diseases which prompted the brothers to request, and a Belgian doctor to provide, voluntary euthanasia. See details here. We might feel that Canada needs to set even more stringent requirements than Belgium regarding who receives medical assistance in dying. We can do so. We are starting with a clean slate and can put in any safeguards we choose.
The flaws of the slippery slope argument are clearly seen through the lens of history. An earlier slippery slope argument might have prevented Margaret and I from even having this debate: If women were given the vote, the argument went, we would become absorbed in politics, lose interest in our families, no longer want children and the human race would die out (see it here). More germane to this debate was the very recent argument that doctors charging for helping individuals with Advance Care Plans is a slippery slope to government-sponsored euthanasia.
If Canada lives up to the promise in respecting individual rights it has shown by accepting divorce, abortion and same-sex marriage, we will also grant the grievously ill at end-of-life the right to medically-assisted dying. In the future we may amend our eligibility criteria. However it will be in recognition of society's changing mores, not a slide down a slippery slope.
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