What I want to do is offer a kind of (illegible)
I'm going to paint with broad brush strokes. I'm going to start my story in 1972 for reasons I'll explain in a moment.
So almost not quite 50 years ago. And bring you up to date on end of life issues and in particular,
focussing on what in Canada we call mate medical assistance in death that encompasses both physician assisted suicide or assistance,
medically assisted suicide and and mercy killing.
So what I want to do is describe to you from where we've come and where we are now, and some rather dramatic changes are about to occur in Canada.
It's a new bill that's just been introduced in parliament, though it's on hold during the pandemic where we're likely to be heading.
And along the way, I'm going to charge or mention some of the some of the key arguments and some
of the shift that has occurred in in both in the reasoning of Canadian courts.
There've been a number of there's been a number of significant court decisions, but also in the in the philosophical debate in in Canada.
So. Let me start by observing that.
Bioethics probably didn't begin until the late 1960s.
Now, when I say bioethics, I mean secular bioethics. Catholic bioethics had existed for a long time before that.
But the Hastings Centre was founded in the very late 60s, I think 1969.
And now we could take that as the kind of marker for the beginning of professional secular medical medical ethics.
My own career in medical ethics began a few years after the founding of the Hastings Centre.
In 1972, I was asked to introduce a course in medical ethics for our undergraduate medical students at the University of Manitoba Faculty of Medicine.
Just to put this in historical perspective, we were the first university first medical faculty in Canada to introduce an ethics course.
Indeed, I was regarded as something of an interloper.
The idea that you might have an ethicist in a hospital or an ethicist gaining access to the to the minds of medical students was still very new.
And to many physicians and medical administrators, very strange at all events.
In in seventy two, I was I was asked to create a course in medical ethics for our undergraduate medical students.
And my colleagues thought, well, hey, if we're going to let this philosopher teach our students,
we'd better make sure that he that he's had some experience on the wards.
So I read. Was taken with a couple of my colleagues to do ward rounds in our large teaching hospital, Health Sciences Centre M.B.
I want to tell you a story about the very first patient we saw die was given a physician's white coat, which I thought was somewhat deceptive.
The patient wasn't asked for permission for it.
It was not asked to get permission for me to be present.
But I came in and he accepted my presence and the two doctors, one was an oncologist and one a respirator allergist.
This patient had metastatic lung cancer. He was a pig farmer and they chatted with him, ask him how he was feeling.
And then after a short chat, we went out into the hall to discuss his case.
One doctor turned to the other and reported the or they were sharing their impressions of the results of some recent
tests and apparently the tumour mass in his lung had shrunk and they were both feeling pleased and satisfied,
congratulatory. Almost in my naivety, I asked, So what does that mean?
He's going to survive live, perhaps to be discharged from hospital?
And the reply was no. The tumour had disseminated throughout his body.
The shrinking of the tumour mass did not mean that he would survive.
Well, I said then, presumably he'll experience less pain, less suffering at the end of his life.
No, that didn't follow either. And when I reflect back on this.
Experience. It seemed at the time. And it's still 48 years later, seems to me bizarre.
Why? Why should physicians. Why should clinicians take satisfaction and the shrinking of a tumour?
If it isn't going to improve either the length of life or the quality of life of the patient.
And I later discovered that this was not an uncommon and not an uncommon
phenomenon in modern medicine that
a kind of professional bias or blindness that somehow prevents you from seeing something really obvious.
In this case, that really obvious thing was that the oncology treatments,
the powerful drugs that were making this patient very sick, weren't actually doing him any good.
Notwithstanding the fact that the tumour has shrunk. And I still find that today, almost 50 years later in medicine,
doctors often take a lot of satisfaction from reducing cholesterol levels, improving bone density,
lowering blood pressure,
even in circumstances where the clinical benefits are really dubious and sometimes the adverse consequences are pretty serious.
You said that to the side. My next question to them was, Will does the patient know that he's dying?
And they looked from one to the other and the answer was, well, we haven't told him he's dying,
but we did tell him that he should be thinking of selling his pig farm because it was unlikely that he'd be able to go back to.
Farming. This was still.
I was a graduate student in Oxford, and it was an era of great paternalism in British medicine.
It was still an era of great paternalism in North American medicine.
Patients were often not told accurately and honestly the bleak prognosis.
It was argued or it was widely believed that was wrong to take take away hope from a patient.
And so information was titrated to the patients in the same way that drugs work by a paternalistic physician now.
That was 1972 and we were entering the era of consumers rights, women's rights, children's rights.
We can call it the age of autonomy. Today, patients are almost mugged with the truth.
Relevant information is given to the patients, and it's widely believed that patient autonomy has to be respected and that unless a patient
indicates that he or she doesn't want to have accurate and complete information on their case,
that the default position is that patients should be told the truth so that they can plan their lives,
say their farewells, make a will, make amends to people with whom they're they've had difficult encounters in the past.
And so on. OK, that's sort of prelude by my very first patient encounter, patient autonomy wasn't really a very prominent value in Canadian medicine,
and I'm going to offer the opinion that it wasn't a very prominent value in North American medicine and certainly not in British medicine.
In the early 70s that that came later. So. I taught my course to these medical students, these undergraduate medical students,
and one of the big issues we confronted was the phrase that was used at the time was pulling the plug, the withdrawal of life support,
either because the patient had requested the discontinuation of a ventilator, a respirator, dialysis, or in some cases,
the patient who had pneumonia or some other bacterial infection might request might refuse an antibiotic.
And so the question was, well, if if I pull the plug, if a physician discontinued treatment, knowing that a patient will die,
the withdrawal of life support or doesn't put the patient on life support in the first instance.
Could the patient is the patient guilty? Is the physician guilty of killing the patient?
Might the physician be criminally responsible?
Actually, there were items in the Criminal Code of Canada suggesting that once Life-Support had been initiated,
if it were then discontinued, that this might count as a kind of homicide and that a physician might be liable.
And some physicians were were very worried. Well, if I respect the patient's right, some thought it was a right to refuse medical treatment,
either initially or to ask for it to be discontinued once it had been started in circumstances where death is likely or even certain to ensue.
Is the fisher is the physician morally blameworthy? Might they be morally responsible?
Might they even be held criminally responsible? The withholding and withdrawal of life support in Canada in the 70s was very common.
And indeed, today most Canadians die in hospital and almost all died in circumstances where they could have been assisted to live longer,
either because life support has not been withdrawn or because it's not being initiated.
So it's it's truly a common procedure in candidate today.
But in 1972, it it caused anxiety, caused the moral stress, and there was a lot of debate.
And the point I want to make a draw to your attention.
And stress and I'll come back to this later. Is it the most common argument against pulling the plug or withholding medical treatment?
Was that. Well, there were two arguments.
One was that it would expose the vulnerable to abuse or exploitation.
That patient may be very anxious, maybe not entirely competent because of pain or because of drugs sedating them for the control of pain.
And so patient wishes about end of life treatment, including the withholding and withdrawal of life support,
were regarded as unreliable and to protect vulnerable patients.
It was argued to avoid a slippery slope. It was necessary to for physicians if you could get blood in a vein, regardless of what the patient wanted.
You should put blood in the vein if you could keep a patient alive. You should.
Sometimes the value of the sanctity of life was invoked.
Sometimes it was fear of a slippery slope, including the desensitisation or even brutalisation of physicians.
Hey, if I if I pulled the plug, what will that do to my commitment to the life and health of my patient as my first consideration?
The first principle of that of most versions of the Hippocratic Oath.
So. The point to which I want to draw attention is that every argument being used today in England in opposition to legalising either
physician assisted suicide or mercy killing was used in Canada in 1972 against the withdrawing or the withholding of life support.
In in particular, the slippery slope argument and what I think we know,
because today I think it would be very difficult to find anyone in Canada or England or perhaps even America who would who would say
that a patient does not have the right to insist that Treatment Life-Support not be initiated or to insist that having been initiated,
it now be withdrawn? I don't think you'd really have to struggle to find anyone who would who would oppose a patient's right.
To refuse medical treatment, even in circumstances where the refusal would mean certain and very quick death.
But there was great opposition to it, too, to that to recognising that right 50 years ago,
based on slippery slope arguments, the obvious conclusion is that not all slopes are slippery.
And when I hear arguments against the legalisation of medically or medical
assistance in death or the extension of this to patients who aren't already dying
or the extension of viable living wills to patients with Alzheimer's disease
or its extension to patients who are suffering as a result of mental illness.
Or two children in every case. It's the slippery slope argument that seems to be dominant and I think having some historical perspective,
being able to recognise that the slippery the the projected or predicted slippery slope really needs to be supported with empirical evidence.
Well, we didn't have all that much empirical evidence at that time, but we have lots more.
We have lots more evidence today. OK, let me skip ahead.
That was 1970 to my encounter with the pig farmer.
And by beginning to teach biomedical ethics in a faculty of medicine,
I want to skip ahead to nineteen ninety two in Canada and the province of Quebec.
A case arose on the same point a young woman who in her late teens contracted Gien Barette syndrome.
So she was completely paralysed. She was in hospital in the Hotel du Hospital in Quebec.
And after several years of life on the respirator in a state of total paralysis, she she requested to be disconnected from the respirator.
And the hospital was afraid because of the wording of the criminal code that they might
be criminally liable or that they might be civilly sued if they disconnected her.
Her name was Nancy B. The initial B was used.
The judge in this case. Ruled that she had a right to refuse medical treatment.
Her testimony, by the way, was that she'd had several years of this and her exact words were.
About life on a respirator. Where this is no life.
And the judge respected her right to make that decision.
Perhaps not the decision that every patient would make, but if it was the decision she made, she was a competent adult.
And that's the first and almost the only legal case in Canada.
I am surprised that the hospital didn't just pull the plug when she requested it because it was so common.
But no one had ever taken it to court.
So in nineteen ninety two we had a we had our first and just about only decision on a patient's autonomous right to refuse medical treatment.
If, if, if they regarded it as not in their best interest,
regardless of what the hospital or the physicians or the nurses or their family might, might say.
So it was nineteen ninety two now the very next year with a very famous case in Canada that went all the way to the Supreme Court.
And it's the decision, the Supreme Court decision was given in 1993 and it was called the Sue Rodriguez case.
Sue Rodriguez had degenerative neurological disease called ALS you'll all be familiar with ALS.
And she regarded as she argued, that she wasn't ready to die yet.
Her quality of life was still good. Actually, I'm going to interrupt myself and take us back to 1972,
because something else of significance happened in 1972 that I should have mentioned, our prime minister at the time was Pierre Elliott Trudeau.
Father of our current prime minister, Justin Trudeau, and the Trudeau government changed the criminal code and decriminalised suicide.
So now this was a law that had long since fallen into (illegible)
No one no one who attempted suicide was me, was being prosecuted and sent to prison if they survived.
But Trudeau in 1972 had suicide removed from the from the criminal code, but left in the criminal code as a crime,
punishable with up to 14 years in prison, assisting, aiding, abetting or counselling suicide.
Now let me go back to Sue Rodriguez that that was 1972, suicide was removed from the criminal code,
but assisted suicide was it was still a serious criminal offence.
In 1993, Sue Rodriguez, ALS patient, argued that she was able to take her own life at present,
but her quality of life was still satisfactory for her.
However, she knew that if she reached a point and she knew what she thought, she knew what that point would be when that point would be.
I recall her saying, if I can no longer hug my grandchildren without all my ribs cracking at that point, I will be ready to end my life.
On the other hand, by that point,
I won't be able to take my own life and I should have a right to physician assistance or to medical assistance in in ending my life.
If an able bodied person has this right, isn't it a violation of Canada's Charter of Rights, the equality provision section fifteen?
I'm being I would be discriminated against. I am discriminated against by the criminalisation of physician assisted suicide compared to
someone who's able bodied because they have the right to and the ability to take their own life.
Whereas if a physician is willing to help me, that physician is legally prohibited from doing so and which would face severe legal sanctions.
Her case went to the Supreme Court. The Supreme Court ruled against her in 1993.
It was a very narrow decision, by the way.
It was five to four against with the woman who later became chief justice, Beverley McGlocklin, which is part of the minority of four.
But the majority of five five cited the sanctity of life that placed great stress on slips on the slippery slope argument.
What they said was they agreed that the government was violating her right to life, liberty and the security of the person.
That's Article seven of the Canadian Charter of Rights and Freedoms.
They agreed that it was violating her equality of the equality provision section fifteen of the charter.
But they said based on Section one of the Charter of Rights,
which specifies that none of the rights guaranteed by the Charter of Rights and Freedoms is absolute,
and they can all be restricted,
limited or overridden if the government can demonstrate that it's reasonable to do so in a free and democratic society.
And what the Supreme Court ruled in ninety three was that the government's goal or objective, which was to protect vulnerable Canadians, begin.
We're back to the slippery slope argument, was a worthwhile objective for it, for the for the government to violate your charter rights in Canada,
they have to have an exigent and urgent objective and it has to be an important one of the court said protecting vulnerable
Canadians is such an objective and they rule that it was reasonable for the government to prohibit assisted suicide,
even to someone as clear and competent and articulate and thoughtful as as Sue Rodriguez,
the minority of four judges on the panel of nine, thought that it should have been legalised at all events.
There was virtually no evidence that could be cited either in favour of their vulnerable people and those who are disabled.
Those who are frail and elderly. Those who are.
At the end of life, there was no evidence either that these people needed special protection or that this would protect them.
But the court felt that it could get it and that it couldn't uphold suit.
Sue Rodriguez's claim. And they found they found, they found against her.
I want to remind you of something. 1993. Neither physician assisted suicide nor euthanasia was legal anywhere in the world.
Actually, I've got to bite my tongue. Both have been legal in Switzerland since forever.
And by the way, with virtually no, say, sort of a physician, assisted suicide has been legal in in Switzerland since.
Since almost forever. For a very long time.
But Oregon legalised it via its Death with Dignity Act in a legalised physician assisted suicide only in 1997.
And it wasn't until 2002 that physician assisted suicide and euthanasia were legalised in the Netherlands and in
Belgium. So I'm sorry, I just come back.
Switzerland legalised assisted suicide. Didn't have to be a physician in 1942.
So with the exception of Switzerland, when the Supreme Court of Canada made its ruling and the Rodriguez case,
there was no evidence or very little evidence was mostly speculative about whether if we legalised physician assisted suicide or euthanasia,
that it would lead to a slippery slope in the vote and great harm would come to vulnerable Canadians.
So that was the situation in 1997, in 2015
The case for physician assisted suicide and euthanasia came back to the Supreme Court.
So actually, it was about 20 years later that it was argued in the superior court of British Columbia.
And Supreme Court took the case and ruled on the case in 2015.
So 20 years after the Rodriguez case of a woman called Lee Carter and another
woman called Gloria Taylor and a couple of other plaintiffs challenged the law.
Again, Lee Carter had gone to the Dignitas clinic in Zurich with her mother, Kate.
Kate Carter was, I think, 87, 88 years old, had was in very severe pain.
And she had spinal stenosis. And Carter was afraid that she could have could have been charged with a crime of assisting her
mother's suicide because she accompanied her mother to Switzerland from British Columbia.
And there had been a number of cases in in England. I know where there had been some question.
If I if I go with an elderly relative to or a suffering relative to Switzerland.
Will, I have will, I have broken the law? At all events.
Lee Carter, the case daughter, brought this constitutional challenge, as did Gloria Taylor,
who, like Sue Rodriguez, said 20 years earlier, Gloria Taylor had ALS. This time
The Supreme Court ruling two, we're talking about February of 2015.
The Supreme Court ruling was unanimously in their favour. And I've read there were, I think, well over 100 expert witness statements.
The testimony at trial in Vancouver read to thousands of pages.
And interestingly, I couldn't find any reference to the sanctity of life.
None. It had just disappeared. Was no longer part of the part of the argument, either the crown, the attorney general on behalf of Canada or the.
That the plaintiffs, no one referred to the sanctity of life.
The argument was entirely based on whether whether we needed in order to protect vulnerable patients,
whether we needed an absolute ban or whether a regulatory approach with safeguards would be adequate.
And this time there was lots of evidence and the trial judge.
Madam Justice Lynn Smith, looking at all the evidence from from expert witnesses brought on behalf of the plaintiff.
And the witnesses brought on behalf of the crown. She ruled that there was no evidence that the safeguards wouldn't work.
That looking at what had happened in in Oregon, then in Washington state, in the Netherlands,
in Belgium and Switzerland, the slippery slope argument just wasn't balance.
The Supreme Court in February of 2015 accepted her judgement on that evidence and ruled
that although the government's objective was worthwhile protecting vulnerable Canadians,
the means adopted weren't proportional. There was no evidence that it was necessary to have a complete ban on physician assisted suicide.
And there was every reason to think that the freedom and dignity of those who wish to have a Medick medical assistance in death could be respected.
At the same time as safeguards could be put in place that would protect vulnerable Canadians.
So the safeguards very briefly work that the person requesting medically assisted death.
And I say that we say medically assisted rather than physician assisted because of the
assistance can be provided in Canada by a nurse practitioner as well as by a physician.
So the the argument was that if it's ascertained that the patient making the request is is competent,
is making a voluntary request, is suffering from a grievous and irremediable medical condition,
is suffering intolerably in a way that can't that can't be relieved,
then patients have have have a right to make the request and to have their request granted.
So that decision was reached by the Supreme Court of Canada in in nineteen nineteen ninety three, the Rodriguez case.
In ninety nine oh, and the I should say,
the Supreme Court threw out the criminal code provisions but allowed them to stay and gave the government six months.
Well, for various reasons, the government took more than a year.
But in June of June 17th of 2000 and sixteen, the government brought in its made legislation.
And here I think I want just very quickly to tell you about the legislation that was brought in, a bill, C14.
It's called.
In June of 2016 by the federal government, by the way, for the Americans who may be participating in this criminal law in Canada is federal.
Unlike in the United States, where where each state can have its own criminal provision.
So we legalised in.
In June of 2016 in Canada,
we legalised both physician assisted suicide and mercy killing a number of American states now have legalised physician assisted suicide.
None, to my knowledge, has legalised mercy killing.
So in Canada, as in Belgium and the Netherlands, both are both are legalised under the heading of medical assistance and death.
So the the legislation of the government was more restrictive, however, than the Supreme Court's legislation.
And this has been a source of stream of litigation and the government's about to revise its revise its legislation.
So let me just briefly describe the contested provisions and what's likely to happen next.
So, first of all, the Supreme Court did not say this contrast for our the American participants in particular,
contrast with the legislation and in the not in those states which have legalised physician assisted suicide.
They did not say that you have to be DI. The Supreme Court didn't.
But the government's legislation as a requirement for eligibility said that death had to be reasonably foreseeable.
Well, as we knew at the time, everyone had their own interpretation of what reasonable foresee a foreseeability means.
Did it mean that you had to be dying imminently, let's say, within six months or or a year?
Did it mean. Could it if you had a less but might live a Stephen Hawking death?
Stephen Hawking's lived for many decades after his diagnosis. The average length of life is three, four, five years for HLS patients.
Is that a reasonably foreseeable death or not?
What if you're just very old? We had a we had a case in the very next year after the legalisation of made in Canada.
There was a case called a B in Ontario involving a patient with a woman who had osteoarthritis.
And the judge said her death was reasonably foreseeable because she was seventy seven years old.
So you can see that there were many different interpretations of what reasonable foreseeability meant.
And there were constitutional challenges. People said it's discrimination against me if I'm suffering intolerably.
If I've got a grievous medical condition. That's irremediable.
I should have the same right to medical assistance in death as as a patient who is is imminently dying.
A case came up last year, 2019, in Quebec.
Actually, two cases came up. They were heard together. Glad to.
And to Sean and Madam Justice Bode Well ruled that the reasonably foreseeable, reasonable foreseeability requirement was unconstitutional.
And she pointed out that the government offered not a shred of evidence in defending the
reasonable foreseeability clause that it was necessary to protect vulnerable Canadians.
That is, that she didn't think it was necessary and she felt it was a violation of the fundamental rights of both Mr. True Shaw and Ms.
Gladue. And she she threw out the law. She threw it out as a separate Quebec provision about your patient having to be at the end of life.
And she threw out the federal government's bill C14 provision.
So the government had to come, had to change the legislation.
And we now have a new bill.
Bill C seven, which has not passed through parliament yet and which has partly eliminated the reasonable foreseeability requirement.
So it's not a requirement that your death be reasonably foreseeable under the proposed new legislation.
So that I suppose that counts as progress.
But the government has now defined as they've kept reasonable foreseeability in the new in the new proposed legislation.
They've kept it in this way if if your death is imminent.
Then there doesn't have to be the 10 day waiting period and you don't have to be.
I didn't mention, but the original legislation passed by the government require that you be that you had to be competent when you
got your certificate entitling you to mate and you had to be competent at the point at which it was administered,
which which means that has a rose.
In one case, if you've got cancer and it's spreading to your brain, you might lose eligibility before you received make you couldn't afford to wait.
And the same is true for some all simers patients.
If if the Alzheimer's disease if the dementia is advancing in an erratic and difficult to predict way,
you might get your certificate for made because you're competent at the moment.
Lose confidence and then you wouldn't be eligible. So reasonable foreseeability is is gone.
But if you aren't imminently in the new proposed legislation. But if you aren't imminently dying,
the government now says you've got to be suffering intolerably in order to be eligible and there has to be a 90 day waiting period.
In other words, the new proposed bill requires 90 days of intolerable suffering.
For many Canadians, that's so that's a step backwards rather than a progressive step.
So I am sure it's going to be challenged in parliament. We have a minority government.
I don't know what. What will happen with that provision was a lot of the government had a consultation.
Several hundred thousand Canadians participated online just a few months ago.
And overwhelmingly, Canadians want the eligibility criteria to be made more permissible.
They think that you should be able via an advance directive to specify that you want to medically assisted death should you lose competence.
That would help early stage all time risk patients who are many of them are having to opt for death prematurely because if they wait,
it's playing Russian roulette. They may lose competence and and may not be eligible.
Final point, the new proposed legislation explicitly excludes.
Patients for whom the underlying medical, the sole underlying medical condition that's causing their suffering is mental illness.
And many of my colleagues believe that to rule out Aben issue,
every case of mental illness as a potential case for a medically assisted death is discrimination against the mentally ill.
That is many of my colleagues would argue, and I have a lot of sympathy with this, that being mentally ill doesn't mean that you aren't.
That you're never competent to make medical decisions.
And as a matter of fact, medically, you know, people are allowed to specify which treatments they want to be withheld or withdrawn in the future.
But they're not allowed to request made under it or they wouldn't be under the government's new proposed legislation.
So let me just conclude by flagging just about the 45 minutes in which I was zanmi by flagging the areas of controversy and candidate today.
So one is a reasonable foreseeability. Should we require that?
That you have to be dying or if you're not dying. Should we impose a 90 day, 90 days of intolerable suffering?
That's one controversial issue. Second controversial issue has to do with living wills, advance directives,
should you be able to request medical, medical assistance and death via an advance directive?
Just as you can already do it for the withholding or withdrawal of life support,
the government has made no provision in its draught, in its new draught legislation for advance directives.
And several hundred thousand Canadians who have Alzheimer's are somewhat concerned that this that the menu of
end of life option in Canada and won't include a figure unless the government's new legislation is amended,
won't include the option of an advance directive for four made.
There's also some controversy about an age limit in most American jurisdictions.
You have to be at least 18 to be eligible for physician assisted death.
The Supreme Court said they require specify that you have to be an adult.
But many people thought that adults could include a mature minor.
And as many of you will know in both the well, Belgium has eliminated any age limit.
And the Netherlands has allows children as as young as 12 to twelve and 16 if their if their parents consent and if they're suffering
intolerably and if they have sufficient cognitive capacity to have to have a mercy killing administered under the government's legislation,
you have to be 18. And it looks as if they're not going to allow the mature minor doctrine.
And in Canada, virtually every province has mature minor legislation which lets children under 16 opt for abortions
or birth control or make other important medical decisions on their own if the circumstances warrant.
And if they are sufficiently mature, well, no matter how tense and unbelievable and hopeless your suffering is in Canada,
the government seems not prepared to modify its its age limit.
So we have issues to do with Alzheimer's disease. We have a lot of controversy around mental illness,
whether someone with a mild or moderate mental illness who is still competent and who is suffering.
If you meet all the conditions not withstanding your medical illness,
so you're competent, you have a good a good appreciation of what your alternatives are.
Your suffering intolerably, your diseases irremediable.
There is an issue amongst psychiatrist whether you could ever say that a mentally ill person.
That their condition was irremediable or hopeless. But if you met all those conditions and you were suffering intolerably and you were complet.
The government is proposing, nevertheless, to exclude you. So I think there's almost certain if this legislation passes,
it's almost certain that there will be another constitutional challenge at some point in the not too distant future.
OK, so that's my very broad brush stroke painting of the last 50 years in Canada.
And I'll now throw it back to Doug again. And he will throw it to you for answering your questions, comments, criticisms.
All right. Thank you, Arthur. So you do do keep on putting in your question.
Say a couple of them there at the moment. I also have a couple that were sent in an advance.
So maybe I'll start with those for people who may be thinking about some of the other questions they want to add.
So what a series of questions kind of on a theme here.
So I'll start with the. I want to turn 20 questions all at once.
I'll start with the first one.
So what protections of any would there be for medical practitioners in Canada with conscientious objections to euthanasia?
OK. Do you want to give me several and then I'll get those on this.
On this theme tonight, you probably OK. So a follow up on that really would be the should doctors be encouraged to leave the profession?
Yeah, well, you know, Guy, that has been a pressure that's been a controversy whether whether a physician who
had conscientious objections to two made could opt out or could could refuse.
Related to that, we have in Canada a number of publicly funded religious affiliated hospitals, Catholic affiliation, hospitals and nursing homes.
And the issue has arisen. Well,
if I'm at the end of life and I'm living in a Catholic nursing home or I'm a patient in a Catholic hospital and I wish to be
assessed for made I wish to receive made in the hospital or in the nursing home where I trapped perhaps in the palliative care ward,
I can the hospital opt out? Can a doctor or nurse or pharmacist opt out?
Can a health care institution opt out? Now, in Canada, that's largely a provincial matter.
And I, I sat on the provincial territorial expert panel, which made a series of recommendations to provinces and.
And territories in Canada as to how they should deal with this issue and various colleges
of physicians and surgeons have weighed in and gave each of them is provincial.
So you'll get different recommendations in in different provinces.
If you were the except in rare circumstances, physicians, nurses, pharmacists, social workers,
I think would not be obliged to provide maid services to to a patient if you were the only physician or nurse in a remote area,
let's say, of northern Canada. And patients would be denied.
This health service, it's covered under our Medicare programme.
If this is viewed as an important,
medically necessary service by this patient and they would otherwise be denied what a physician nevertheless have the right to opt out.
My own view is that is that if you have conscientious objections as a pharmacist to providing birth control or abortion pills,
you shouldn't be the only practising where you are, where you're the only pharmacy.
And your conscientious objector principles mean that people living in the area don't have access.
So in most cases, with the exception I just mentioned, physicians do have the right to opt out.
But the more controversial opt out from providing made what?
What if a patient asks the physician the question about made, does the physician have an obligation to refer the patient to another doctor?
And here, the provinces, very other the colleges of physicians and surgeons in different provinces have made different rulings.
I'll offer my own. Ontario requires a referral. My own view is that that's correct.
Patients, the needs of patients have to trump the ethical scruples of the physician.
Not that the physician should have to provide the service,
but the physician should have to make the patient aware of how to gain access to the service.
If the physician isn't, or the nurse or the pharmacist isn't willing to provide it himself or or or herself.
The issue of public hospitals, publicly financed hospitals that are religiously affiliated or nursing homes.
Here I have very little sympathy for those Catholic and Jewish and other nursing homes that have refused even to allow patients to be assessed.
But this is where they're living. These are mostly in.
I should have mentioned in Canada above, one percent of all deaths are at the moment are via mate.
In Oregon, it's a small fraction of one percent.
In the Netherlands and Belgium, it's ranges between three and four percent, mostly in Canada as in other jurisdictions.
The patients who request and receive made have end stage cancer metastatic cancer,
or they have a chronic degenerative diseases such as such as illness.
So that's the overwhelming. And if if you happen to be living in a nursing home,
maybe the only one in your region that's Catholic affiliated or Jewish affiliated or Muslim affiliated or evangelical Protestant affiliated,
it seems to me a denial of your fundamental human rights and your constitutionally protected rights that you can't be assessed or can't have this.
Can't have the made procedure where you're living in your home.
But we've had cases of patients sent out of the hospital,
one who died in an ambulance on the way to an office where she was going to receive an assisted death.
I find that very undignified. At all events, the regulations differ from from each province and from each provincial college.
Thank you so much. So that's a slightly different one.
What can UK supporters of assisted dying learn from the Canadian experience?
You're in a position to save a private have on that.
Yeah. I mean, that's a good question. I right, Faith. Read The Guardian every day and have for years.
And so I've been following the debate.
And it strikes me that popular support for assisted physician assisted suicide and mercy killing is as high in the United Kingdom,
or maybe I should say in England. I'm not so sure, but Northern Ireland, Scotland or Wales.
But I imagine Northern Ireland might be an exception. It's as high in the UK as it as it is in the Netherlands, in Belgium, in Oregon or in Canada.
The levels of support are over 80 percent, depending on the exact question and how it's worded.
There is overwhelming support in Canada, as there was for decades before it was legalised.
So my first piece of advice is to acquire Fundamental Charter of Rights and Freedoms that can overturn laws that
are unduly restrictive of individual liberty and unequal treatment of people who are unable to take their own,
their own life. So it's because of the Charter of Rights and Freedoms that these court cases have and have been effective in forcing our legislatures.
Because I am certain that if it hadn't been for the Khadr case in February of 2015, we would not have had Bill C14 in June, on June the 17th of 2016.
In particular, the government in power in 2015 was a conservative government.
It was ideologically hostile.
And even though the Supreme Court gave them six, gave them only a certain length of time to change the law, they stalled and they stalled.
And then a new liberal government came in and they were ready to move immediately.
So. So we had to wait about a year and a half after the Supreme Court threw out the legislation.
But I think having a fundamental charter of Rights and Freedoms has made the struggle much easier encountered in Britain.
I think there would just have to be a very effective campaign.
And sometimes a single case can catalyse public opinion and mobilise it in such a way that the government of the day feels compelled to act.
You need a liberal home secretary such as Roy Jenkins with respect to the legalisation of of homosexuality in Britain.
It's gonna be that kind of sea change. I think public opinion is very supportive.
The issue then becomes a political one. How you how you translate that public support into into legislation.
I think he's probably answered this fairly quickly because it just kind of expand slightly on the first question.
You mentioned these nursing homes, some of these Catholic nursing homes that have been continuously objecting.
But to what extent would you say has made being accepted by health professionals in Canada in general?
Are there many people conscientiously objecting or is that is a fairly small minority?
I saw an opinion poll. And not so long ago that suggested that over 80 percent of physicians are supportive of it.
Actually, it's between 80 and 85 percent. And it didn't matter which they broke the or the overall level of support for made was 80 percent or over.
And different subcategories. But even amongst Catholics in Canada was over 80 percent.
And amongst physicians, it's clearly over 70 percent who support the legalisation.
Now, the number who participate or feel comfortable participating. I think initially it will be comparatively low.
So that may lead to problems of access. But over time, I can tell you in the in in the Netherlands, if you had a patient with you,
if you ask Dutch physicians whether a patient with metastatic cancer who's suffering terribly should have the right to euthanasia,
it be difficult to find any who would say no. In Canada, it would be higher,
but it would be somewhat small and it would be confined almost exclusively to a religious
minority and even amongst Catholics or Orthodox Jews or fundamentalist Protestants.
Support for the right of patients to have made as an option at the end of life seems very high, by the way.
So I could have mentioned this earlier, but did one of the options we've had in Canada long years before the legalisation of medically assisted death.
Was the auction of sedation to unconsciousness, which is sometimes called terminal sedation and sometimes called palliative sedation.
Well, thousands of Canadians who are suffering intolerably at the end of life have had the option even without the legalisation of euthanasia,
physician assisted suicide have had the option of a terminal sedation.
They are sedated to unconsciousness, food and water, hydration and nutrition are withheld and the patient dies in about two weeks.
That also hastens death. And interestingly, and I just throw this out for people, is something that deserves reflection.
In Canada, we have virtually no safeguards. Protecting vulnerable people when it comes to the withholding or withdrawal of life support.
We have virtually no safeguards when it comes to sedation, to unconsciousness.
We have virtually no safeguards when it comes to a kind of palliative care that might involve dramatically
increasing the level of analgesia to a point where you might have a respiratory collapse or cardiac arrest.
But when it comes to physician assisted suicide or medically assisted suicide or euthanasia,
we have very elaborate, complicated hoops through which a patient has to jump.
I mean, I would ask the question if. If.
If a patient who's suffering greatly, whether dying or not, has a right to refuse dialysis, if they're if they have end stage renal failure,
they have the right to refuse a respirator to or to have a respirator disconnected or to refuse an antibiotic if they have a bacterial infection,
knowing that death is certain. If all those rights are established and have not led to great abuses of vulnerable people.
I've got interrupted. So we get just one other quick point before the next question.
The US. We've got only preliminary. We've made has been legal in Canada for it'll be four years on June the 17th.
So not quite four years. As in Oregon, interestingly, the people who are using made are disproportionately.
The wealthier and better educated and actually somewhat younger Canadians.
So the fear, the slippery, the big slippery slope. Fear was that the numbers would expand dramatically.
That hasn't happened in Oregon or in Canada.
And that there wouldn't be that made would be used as a way of bumping off racial minorities, frail, elderly people, the poor.
I can see that that would be a concern in the states where lack of health insurance in Canada.
Oh, and another fear was that made would mean a neglect of starving of funds for palliative care.
So palliative care physicians were one subsection of the medical community that was previously very strongly opposed to make.
They felt it was almost an insult to their then professionally. What we can't control, of course, we can draw pain.
But more important, they felt that it would be an altar that made would be an alternative to good palliative care.
Now, in horror, virtually everyone who receives physician assisted suicide is either in hospice or getting palliative care.
And the same is true in Canada. This is not an option for people who don't have access to palliative care.
And it's actually led to the legalisation of medical assistance in death,
as in most European countries and in most North American jurisdictions has led to an improvement in palliative care.
So the slippery slope that was forecast at the bottom of which would be no money for palliative care instead will bump you off cheaply and quickly.
That's just been empirically falsified everywhere. So the palliative care doctors have come round to it then, given the way it's unfolded.
I haven't seen a recent polling of palliative care doctors, but anecdotally, the answer is yes.
And a number of palliative care physicians are participating on the maid committees
that are both approving of requests and and administering made in Canada.
So I couldn't guess how that I'm almost certain that the percentage who approve or at least are willing to accept are no longer opposed.
Has has gone up. But I. But I, I can't say by by how much.
So what do you said the two rationales for restriction, sanctity of life and protection of the vulnerable.
But the first seems to have been dropped. The no mention of sanctity of life.
And the most recent discussion of the legislation so can't work.
So the question is, can the new legislation reasonably be justified on the basis of protection of the vulnerable?
Or has they, in fact, smuggled sanctity of life implicitly into the justification kind of in the background?
Yeah. Well, let me just say a word about sanctity of life.
If I had a dollar for every radio, TV and newspaper debate in which I've participated in the last 50 years.
They virtually all until the last few years involved invocation of the sanctity of life.
And the reason I think this has faded.
At least it's not explicitly invoked any longer is because it's very widely accepted now that we live in a multi faith,
multi-ethnic, pluralistic society. And it's very difficult to find a non-religious, non-sectarian justification for the sanctity of life.
It's almost all the idea that human life is sacrosanct and must never be violated.
Is is just very different. It's very difficult to find a basis for that other than a religious basis.
And I think that's the reason why it's not being explicitly invoked of respect for life is being invoked.
And indeed, going back to the Carter case.
In 2015, the Supreme Court of Canada, in its unanimous decision in favour of made invoked respect for life.
That's Article seven of the Canadian Charter of Rights and Freedoms, our right to life, liberty and security of the person.
So they invoked respect for life in justifying assisted death.
And the argument was that absent the legalisation of of assistance in death,
patients would have to kill themselves and they might have to do so prematurely.
And indeed, we've we've had cases in Canada of patients who've tried to bring themselves under the made legislation
will either been ruled not eligible because they were their death wasn't reasonably foreseeable.
So they started themselves to death or in one or two cases,
they've starved themselves to the point where their death was reasonably foreseeable and then they were eligible for mate.
Now, that seems that kind of the legislation has this cruel implication and that the federal government,
in the short case that I mentioned earlier to Sean.
Glad you were justice will do it throughout the reasonable foreseeability, cause the government of Canada said, well, hey,
if you said to John to ship to shore and Nicole, glad to see the government said, well, you can take your own lives.
Or you can stop eating and drinking and be the judge in that case was really offended by the guy.
These don't seem like adequate alternatives. Now, Doug, there was a second part to that question that I haven't addressed yet,
and I'm not sure I understood it is is sanctity of life being smuggled in and how?
Well, I'm not sure. I'm sorry.
I don't. I've been I've been skipping porn and reading from the other questions to try and fill up.
The next one will be is I'm not dividing my attention. OK, so great.
Put that put that one aside. Let's go on to the next question.
Here is a straightforward question, not a straightforward answer, probably, but I think it gives us an interesting other area.
How is intolerable suffering being defined?
So, yes. So the legislation under Bill C14 used a number of phrases that were ambiguous and vague.
I've already talked about reasonable foreseeability. Irremediable is another.
The debt is the disease. The medical condition has to be irremediable.
But what does that mean? So, for example, if a if a patient with cancer who's tried several oncology drugs refuses to try yet another one.
Could you say will you? Therefore, we can't say it's your remediable because you're not.
Or if a patient declines. What could potentially be a lifesaving surgery?
So what the government made clear and what the Supreme Court earlier made clear in the Carter case was
that irremediable means are not able to be cured by a treatment which is acceptable to the patient.
And a similar interpretation has been given to intolerable suffering.
It has to be suffering that is intolerable to the patient.
OK. So is he happy to kind of let me just say I want to say one other word.
In order to be eligible under the new draught legislation that hasn't passed yet in Canada.
You have to be eligible, you have to be suffering in intolerably.
Now, if intolerably means literally, you can't tolerate it.
Then no one would I mean, then you'd have that, then your choices would be stupefy yourself with drugs.
So something like terminal sedation, in which case you wouldn't be eligible for mate because you wouldn't be.
You'd no longer be competent. So intolerable has been interpreted as meaning severe rather than literally an entire right.
I mean, also, if you say Atlantics to what the patient experiences,
you could get these weird situations where the patient claims that's intolerable, but it just doesn't seem like there's anything going on at all.
And I'm. I guess the case is we might get close to that as well, though not exactly.
That is where you have very serious, intractable depression.
Course you can believe that there is suffering going on in those cases. So they know it's not totally weird.
But I'm assuming that's part of what was behind the idea of having those 90 days.
You kind of want to think he misses what I was wondering, are they. Would they ask for 90 days?
Is it something to do with wondering if it maybe might just get better or maybe it will go away or something?
Is that the idea? Yeah. Good question. So let me just reiterate, I think the new draught legislation explicit.
Schnozz, who's suffering results from mental illness.
So if you're suffering as a result of depression or bipolar disorder or whatever it might be, you wouldn't be eligible.
You just ruled out. If so, who is the gun?
So who is the government trying to protect with the 90 days?
Who are the vulnerable patients who are suffering intolerably but will be forced to wait almost
three months before they can be released so that the categories of patients would be the following?
You've had a crippling accident.
And haven't had much time to adjust or a sudden onset of disease, which is very disabling and perhaps involves a lot of suffering.
So the government wants to make sure that no one. The government wants to make sure that everyone has a chance to adjust to their what
could be new life circumstances and that that the suffering has to be enduring.
That was part of the original legislation, but the government originally introduced a 10 day waiting period,
but it had initially a reasonably foreseeable death clause.
So if you're if you're already dying. We'll make you wait 10 more days.
Now that you don't have to be dying. They're saying you have to wait 90 days in order to be eligible.
Also, I think the government assumed that mental illness is the sole underlying disorder is the exclusive underlying medical condition would
be ruled out by the death reasonably foreseeable because there aren't many medical conditions where death is reasonably foreseeable.
There are a few, I suppose anorexia nervosa might be might be one.
So they're thinking of of an accident victim or the sudden onset of a disease or dramatic change in a person's circumstances,
which involves intense suffering, which they are finding unendurable, but which over time they might they might adjust to they might find acceptable.
That, I think, is the category of vulnerable patients. They have in mind.
Sorry, I forgot about the condition that doesn't apply to mental illness.
It just kind of counterintuitive, but thank you. Here's one on the slippery slope.
So about your point on slippery slope arguments. You said we need empirical evidence for whether the slope is slippery or not.
But one might reply that once we have the evidence that there is a slippery slope, then it's too late because we're already down slope.
So they might say that a reasonable risk of a slippery slope is enough to add restrictions.
So what do you think about that?
Well, the Canadian Charter of Rights and Freedoms says that the government can infringe your liberty or your other guaranteed charter rights.
But only if it's reasonably done what demonstrable or demonstrably reasonable in a free and democratic society.
So the burden of proof. If the government's proposing to limit your liberty.
The burden of proof is on the government. Now, I understand this question is asymptote so high, how high should the burden be?
How much evidence should they be? And I don't think they would be required to provide a level approaching certainty,
but they'd have to have good evidence that that vulnerable people were being abused, exploited or or harmed.
Keep in mind and the point I'm going to make now was made many years ago by Mary Warnock, British philosopher.
Some of you will have will know we'll have no,
she said it's not just it's not enough just to look at the harm that may come to of vulnerable patients or vulnerable people.
You've got to look.
You've also got to look at the harm that may come to those who are suffering intensely dying or not dying if it's a chronic degenerative
disease and tour it into the experiencing intolerable pain and whose desire or need to die with dignity will be sacrificed.
So you've got potential harms on both sides.
We know for certain that that there are thousands, perhaps tens of thousands of dying patients in Canada whose deaths are very ugly indeed.
And not at all what they would have wanted. As Gloria Taylor said, I want my in the Khadr case.
She was one of the plaintiffs. She said, I want my death to be to reflect the values by which I live.
I want to die with dignity. I want to die on my terms.
So if you offer if you think that there it will be or maybe some harm to vulnerable patients.
And if you've got some evidence that there may be patients who will wrongfully die.
Because you've legalised rape, that's nevertheless the proportionality test.
Consequentialism, where utilitarianism says that that harm, even if you had some evidence that there would be such harms,
has to be weighed against the harm that would be caused if you don't permit people to have certain options at the end of their lives.
And there has to be if you're going to prohibit.
People's exercising their their freedom of choice in the menu of options available at the end of life.
You've got to have good evidence. How good? It's a matter of judgement.
It's a matter of balance. Yes, sir.
So back to another one about professional attitudes to euthanasia.
So in the UK,
progress on physician assisted dying has been blocked by conservative professional organisations such as the British Medical Association.
Has that been true in Canada? Also, do you think it's common in other countries generally?
And if so, why is this happening? Given what you've said about the opinions of individual doctors?
Yes. Well. Isn't it the case?
You'll have to tell me if this is true, dog,
that that the Royal College of Physicians and Surgeons in Britain recently changed its position from being opposed to being neutral.
I wish I could tell you that. I'm afraid I don't have the answer from I.
I think initially colleges of physicians and surgeons and other professional medical bodies were very wary of of medical medically assisted death.
I'll just interrupt you there. Professor Tom Wilkinsons just jumped in to say that.
Yes, you're correct on that. I can hear you now.
So I think medical opinion can and does shift when public opinion shifts to doctors who are ordinary folks as well.
Their views also shift. And in Canada, medical opinion is now very strongly in favour.
It usually lags behind. And I think it likes behind because doctors.
Fear. Fear being involved.
I mean, I'll be the one who has to give the lethal injection or who has to handle the lethal pill to the patient to to swallow.
And there's a there's a feeling that I'll be killing my patient.
All I would say is that that's the sentiment that I very widely heard from physicians 48 years ago.
And I began working at a hospital and working at a medical school.
With respect to a patients asking for the plug to be pulled.
The doctor said, but I'll be killing the patient. I can't do that. The Hippocratic Oath says I will not administer poison.
Although there's a lot of controversy about what that really meant at the time for partridges.
So traditional physician ethics has regarded death as a defeat.
I think modern physician ethics is coming to recognise that putting the best interests
of your patient first doesn't necessarily mean prolonging your patient's life.
After that, life has become in the patients sides more burdensome than beneficial.
And I think the the development of palliative care is an important speciality in medicine, has helped to change attitudes,
though not necessarily the attitudes of palliative care physicians or not as rapidly as some others.
But the I the idea that the doctor is devoted to life, to life, to prolonging life as the primary goal,
maybe as the sole goal that used to be much more common then than it is now.
I, I think persuading the medical profession in England may be like.
Pushing a door that's already mostly or party opened, I think doctors are much more respectful today than they were 50 years ago.
A patient autonomy rights, the patient's right to decide from a menu of treatment options.
Your obligation as a physician to inform the patient what the options are and if
the patient's right to decide and if the patient decides not to prolong life,
it's your obligation to provide an easeful death, the kind of death that the patient would want.
Now, some patients will value suffering at the end of life. Perhaps some Christian patients, a place of big value on on suffering at the end of life.
That's their choice. Thank you, just so, Don.
Don, this is the BMA is still thinking they're officially opposed, but they've recently surveyed their members.
So things might be shifting their time from one or two more.
So not one here. So what cases to the maid committees turned down in general?
Yeah, that's such a good question. And the evidence is very fragmentary.
There have to be reports, but we don't have a national body collating all the reports and analysing them.
The prime reason for the prime reasons,
the two criteria that seemed most frequently when applied to have resulted in a negative decision are, first of all, competence.
So you can imagine that the population applying for made is often frail, elderly, dying, sedated and so competent may well be in question, by the way.
Same, the same. Difficulty in assessing competence.
Prevails when it comes to living wills and advance directive.
Right. Were they are they competent? Is this really what they want?
Were they adequately informed? So competence is one.
Does the patient to have the capacity and patients who may have a lethal disease, but also a mental illness,
it may be questionable whether they whether they're whether they have adequate capacity.
So that's one has been one of the main reasons for as far as I can tell, from preliminary data.
And the second has been the reasonable foreseeability cost.
It's interpreted very differently. So we have the A.
B case that I mentioned in 2017 in Ontario, where a patient with osteoarthritis was said to satisfy their reasonable foreseeability.
A natural death is reasonably foreseeable because they were 77 years old.
There've been so many different ways of interpreting.
Some patients with a last saw who've been diagnosed with a lesser diagnosed with Huntington's disease,
their deaths may be years away or Alzheimer's disease.
And yet their death. What they've got is a lethal disease.
So does that count? And some physicians and some made committees in some provinces have been very conservative.
They're worried that the teeth of the law may bite into their rear end if they provide a mate
certificate or if they provide if they administer made to a patient who wasn't imminently died.
Everyone feels confident about the patient with metastatic cancer, who has a very short time to live and suffering intolerable.
Not everyone feels confident about patients with chronic degenerative diseases.