Statements & Speeches

Second Reading of Bill S-225, An Act to amend the Criminal Code (physician-assisted death)

June 2, 2015

2015-06-02 (audio)

Honourable senators, on February 6, 2015 the Supreme Court of Canada in Carter v. Canada upheld the finding of a British Columbia court that “the prohibition against physician-assisted dying violates the section 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition.” The Supreme Court of Canada ruling stated that “by leaving them to endure intolerable suffering, it impinges on their security of the person.”

The Supreme Court suspended the effects of their ruling for 12 months so as to afford legislators the opportunity to ensure the “. . . Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.”

Public opinion has forced countries around the globe to engage in a public discourse on the merits of legalizing physician-assisted death. Senators Ruth and Campbell have brought forward a bill that is both relevant and timely. It will facilitate important discussions languishing in the background, and overdue. However, there is no question that we shall immediately find ourselves in the realm of the abstract, with issues difficult to discuss, and rarely resolved in debate; issues that often raise more questions than inform answers. For example: How do we balance the seeming conflict between individual and collective rights, between freedom of choice and those societal factors that constrain choice? Does the Hippocratic Oath prevent physician-assisted death, and if so, under what circumstances? How do we protect vulnerable individuals from too broad interpretations of the legislation and ensure there are clearly stipulated terms of reference?

This public discourse will challenge us all to confront big questions of philosophy, ethics and religion, moral values of our time, and our prevailing societal paradigms.

Senator Ruth, during her second reading speech, spoke of a September 2014 Ipsos Reid poll which showed that 84 per cent of Canadians overall support assisted death. However, those who would be tasked with assisting in the death — the physicians — have mixed views when it comes to supporting this initiative. Physicians have indicated that it is a big shift in the way they practice medicine. The Supreme Court of Canada decision states that “Some medical practitioners see legal change as a natural extension of the principle of patient autonomy, while others fear derogation from the principles of medical ethics.”

Honourable senators, it is important to acknowledge the deliberate choice of words used in the bill. Bill S-225 uses the term “physician-assisted death” as opposed to “assisted suicide” or “euthanasia.” Although many use the terms interchangeably, there are subtle differences among them. Euthanasia denotes a case in which the physician would act directly to end the patient’s life. This differs from physician-assisted death, described as a form of self-inflicted death in which a person voluntarily brings about his or her own death with the help of another, usually a physician, relative or friend. Physician-assisted suicide describes an action similar to assisted death, but it inevitably invokes the associated stigma that suicide carries with it.

These choices in the use of a single word may have a profound impact on how one understands the intent of the bill and even the true legal meaning of the determined action. Euthanasia is physicians acting upon a person, doing something to a person, or acting directly, whereas assisted death conveys the meaning that the person wishing to die is assisted, or enlists the assistance of a physician. The onus is on the individual wishing death proactively.

Canada can look around the globe for examples of legislation on physician-assisted death — particularly the debates emanating from countries with assisted death legislation already in place.

In Switzerland, assisted suicide has been legal since 1937, as specified in the Swiss Penal Code. However, it does not require the participation of a physician nor that the person be terminally ill.

In 1996, the Northern Territory of Australia became the first legislative assembly in the world to legalize physician-assisted death in the form of the Rights of the Terminally Ill Act. However, less than a year later, the Australian Federal Parliament amended the act to render it of no legal effect, while removing the territory’s constitutional power on any euthanasia law. Recently, as a result of a 2012 national poll showing 83 per cent of the population in support of assisted death, the Australian Senate put forward an “exposure draft bill” that was sent to committee for inquiry and study. In November 2014, the Australian Senate’s Legal and Constitutional Affairs Legislation Committee recommended further consultation with relevant experts before the bill be taken further. It also recommended that senators be permitted to vote their conscience should such a bill be introduced in the Senate.

The United States’ federation makes it clearly within a state’s jurisdiction to legislate, and multiple states have passed physician-assisted death legislation. Oregon was the first to pass its Death with Dignity Act in 1997, followed by Washington in 2008, and Vermont in 2013. The Oregon model, which was heavily used by drafters of the Washington and Vermont bills, enables physicians to prescribe a deadly dose of barbiturates that must be proactively taken by the patient him or herself; that is, the patient must initiate the final action. In all, 25 state legislatures as well as the District of Columbia will have considered assisted death legislation by the end of 2015.

The Oregon legislation limits availability to terminally ill patients with six months or less to live. The assisted death law in Oregon is now commonly accepted in its state, where there remains little debate on the topic. One of its features is the palliative care environment. Oregon has some of the highest rates of hospice referral, opioid prescriptions and end-of-life communication in the U.S. Their annual reports, which track those pursuing assisted death, indicate that 90 per cent of those who chose assisted death were enrolled in hospice care, with 95 per cent of them dying at home.

Physician-assisted death, similar to what is being proposed in S-225, was formally legalized by the Dutch Parliament in November 2001, and by the Belgian Parliament in 2002.

Honourable senators, proposed subsection 241.1(6) in clause 3 of Bill S-225 states:

The assisting physician must inform the person who wishes to make a request for physician-assisted death of his or her medical diagnosis and prognosis, the consequences of the request for physician-assisted death being honoured, the feasible alternative treatments — including, but not limited to, comfort care, palliative or hospice care, and pain control — and his or her right to revoke the request at any time.

Outlined within clause 3 are several options and alternatives to assisted death that, together, make up end-of-life care. The proposed legislative requirement to explore all feasible alternative treatments presents a unique challenge within the Canadian context.

Currently, palliative care is only available to 30 per cent of Canadians, with lengthy wait times, even in critical situations. Together with the pursuit of assisted death legislation, Canada must examine its palliative and end-of-life care. In order for this legislation to function in the manner that the Supreme Court of Canada concluded, a much more robust and available palliative care environment must exist. In September 2014, the Honourable Minister of Health, Rona Ambrose, said, “let’s talk about making sure we have the best end-of-life care before we start talking about assisted suicide and euthanasia.”

Now we have before us a larger question: What is palliative care? The most commonly accepted definition of palliative care comes from the World Health Organization that defines it as:

. . . an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.

Palliative care is not a new concept. The first hospices were set up in Winnipeg’s St. Boniface Hospital and in Montreal’s Royal Victoria Hospital. In 1973, Dr. Balfour Mount introduced the term “palliative care.” Since then, our own chamber has been actively involved in shaping the evolution of palliative care. In June 1995, the Special Senate Committee on Euthanasia and Assisted Suicide tabled a report called Of Life and Death. The Standing Senate Committee on Social Affairs, Science and Technology reviewed the progress that had been made on the report’s recommendations five years later.

Numerous studies ensued, undertaken by several different institutions — most notably committees in both the Senate and the other place, Health Canada and the Canadian Institutes of Health Research. An initiative launched by CIHR and partners in June 2003 that ended in 2009 was lauded internationally for its innovative approaches.

Interest in supporting palliative care in Canada was reinvigorated by the Senate 2010 report Raising the Bar: A Roadmap for the Future of Palliative Care in Canada. A year later, the Parliamentary Committee on Compassionate Care, followed with the report: Not to be Forgotten: Care of Vulnerable Canadians. The report recommended establishing a palliative care secretariat with the express purpose of developing and implementing a national palliative and end-of-life care strategy.

Hospices and palliative care centres are scattered throughout the country. An October 2014 fact sheet from the Canadian Hospice Palliative Care Association points out that only 16 to 30 per cent of Canadians have access to or receive hospice, palliative and end-of-life care services, depending on where they live in Canada. Even fewer receive grief and bereavement services.

Dr. Garey Mazowita, President of the College of Family Physicians of Canada pointed out:

While hospitals provide excellent care, they’re not always the most appropriate places for that care. Many Canadians would prefer, where appropriate, to be cared for in their own homes.

Honourable senators, despite these challenges, there are some real successes and advancements for end-of-life care in Canada. In British Columbia, Fraser Health has developed hospice residences staffed with multi-disciplinary teams to help those in the last months of life.

Alberta’s Palliative and End of Life Care Framework was fully defined in 2014. It concerns itself with patients and families when they are approaching a period of time closer to death, and is exemplified by an intensification of interdisciplinary services and assessments, such as anticipatory grief support, and pain and symptom management.

In Ontario, the Ontario Medical Association’s End-of-Life Care Framework aims to bring experts and the public together in order to improve the quality of end-of-life care across the province.

In Quebec, an act respecting end-of-life care passed in the Quebec National Assembly with all-party support and became law on June 10, 2014. The act outlines the creation of a palliative care system and makes provisions for physician-assisted death, quite similar to the Bill S-225, with key differences around witnesses, absence of a stipulated waiting period and provisions around physicians refusing to administer the final procedure. The act comes into effect December 2015.

However, there remain issues around jurisdiction. The Province of Quebec argues that physician-assisted suicide is a medical procedure and therefore falls under the purview of the provincial government, while opponents argue that it is in direct contravention of the Criminal Code which expressly outlaws assisted death. These issues will not be resolved until the Canadian Government meets the requirements of the Supreme Court judgment.

Honourable senators, while we have made some progress on the national discussion around end-of-life care, there remains much to be done. Without a universal and accessible palliative care system in Canada, it is extremely challenging to legislate physician-assisted death. Over the last 15 years, our own parliamentary reports have identified that a national palliative care strategy is desperately needed. Indeed the last report identified that:

Even where palliative care is available, quality and accessibility will vary based on place of residence . . . . This patchwork of service becomes still more pronounced in less populated regions. Many parts of Canada have no palliative care services at all . . . As our population ages, health services directed towards seniors will become a much greater need, and at present our health care system seems ill prepared for this shift.

Finally, I thank my honourable colleague, Senator Batters, for her heart-felt speech highlighting an important shortcoming she finds in Bill S-225, specifically as it refers to psychological suffering that is intolerable to that person.

There is no doubt that legislators will want to make provisions ensuring that there is no place for abuse of people who may be at a particularly vulnerable time in their lives. It will be critical to write clearly stipulated terms of reference to reduce overly broad interpretations of the legislation.

Yet, Bill S-225 reminds us of the need for a national conversation — a difficult one that touches ethics, medicine, law and religion. As stated in the Carter v. Canada decision:

On the one hand stands the autonomy and dignity of a competent adult who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable.

Honourable senators, it is time for the national conversation to move forward. Thank you.