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Assisted Dying Bill C-14 Is Heavy On Ambiguity

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The Minister of Justice introduced Bill C-14 on medical assistance in dying. The government states that the proposed legislation will give dying patients who are suffering intolerably from a serious medical condition the choice of a medically assisted death.

It will not extend that choice to as many people as the Supreme Court of Canada apparently contemplated in its landmark ruling in Carter v. Canada, that organizations such as the B.C. Civil Liberties Association and Dying with Dignity Canada maintain it must, or that Parliament's special joint committee recently recommended it should.

Excluded are those seeking medical aid in dying strictly on account of mental illness, mature minors otherwise authorized to consent to the withholding and withdrawal of life-saving treatment, and individuals who wish to make advanced directives to have their lives ended at a time when they are no longer competent to make that decision themselves.

What the requirement of a "natural death" becoming "reasonably foreseeable" actually means is anyone's guess.

Moreover, it appears that those suffering intolerably from a grievous and irremediable medical condition but for whom "natural death" has not become "reasonably foreseeable" will not have access to medical assistance in dying, either.

The bill would therefore appear to raise the threshold set in Carter, since the Court never mentioned anything about a person's condition needing to be terminal. As it turns out, nowhere does this proposed piece of legislation feature the word "terminal," either. Nor does it mandate that a prognosis as to one's time remaining be made.

Apart from that, what the requirement of a "natural death" becoming "reasonably foreseeable" actually means is anyone's guess. In an otherwise illuminating breakdown of the bill, the Department of Justice website unfurls canopies of shade in response to the question: "Would the person have to be dying from a fatal disease to be eligible?"

"No. A person who is dying as a result of one condition, is in a state of decline due to another condition, and is suffering unbearably from a third condition, would still be eligible to receive medical assistance in dying."

The fact of the matter is that as the bill stands, this opaque phrase is doing most of the heavy lifting. One suspects that is exactly how the drafters intended it. Both the previous and the present government's reticence on the matter is well known.

There are a lot of considerations to weigh when legislating in this area, as evidenced by the lengthy set of provisos with which Bill C-14 begins. It is rare for ordinary legislation to include preambles. It is reminiscent of the preamble to the Protection of Communities and Exploited Persons Act passed in the wake of the court's decision in Bedford, on another contentious issue.

The government was (perhaps understandably) reluctant to legislate either a) in support of medical assistance in dying "on demand" for anyone with an intolerable medical condition or b) in a manner that directly contravenes the relatively permissive parameters laid out by the Supreme Court.

You surely can't please everyone. There are those who will maintain that anything short of prescribing medical aid in dying on demand is too restrictive, meanwhile others who believe anything but a criminal ban is overly permissive.

Sometimes the most prudent way to make a difficult decision is to defer it. And sometimes the surest sign of a sound political compromise is that nobody is that thrilled with it. Other times, such deferral amounts to an abdication of responsibility. And in this instance, such ambivalence owes not just to balance but ambiguity.

It may very well be that the legislation the government has proposed more closely approximates majority opinion on the matter of medical aid in dying than either the reasoning advanced by the court in Carter or the erstwhile legal status quo. But it is literally hard to tell.

Is it too much to ask others -- doctors, nurse practitioners, disciplinary committees for the medical professions and, eventually, the courts -- to shoulder the burden of offering the definition the government is reluctant to give?

That's a question worthy of debate.

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