Saturday, January 23, 2016

Scher: Stringent safeguards needed for assisted dying law.

The following article was published by Advocate Daily on January 22, 2016.

Hugh Scher
he only way for the federal government to bring in an assisted suicide law is to ensure there are adequate protections from the prospect of abuse, says Toronto human rights and constitutional lawyer Hugh Scher.

Psychiatric, vulnerability and palliative care assessments should all be required, along with universal access to palliative care for all people seeking assisted suicide — something that is not currently available, he says.

“A person’s choice should never be to suffer to death or kill yourself, and there’s no reason in Canada why that needs to be the case,” says Scher, of Scher Law, who has spoken and consulted widely on the topic of assisted suicide and end of life practices.

The Liberal government has struck a committee that will be tasked with looking at how to implement a doctor-assisted death law, after the Supreme Court last week added a four-month extension to the government’s deadline to come up with new legislation.

Scher expects he will be called as an expert witness before a joint committee of Parliament in the coming weeks.

In a landmark decision last February, Carter v. Canada (Attorney General), 2015 SCC 5, the high court recognized the right of consenting adults enduring intolerable physical or mental suffering to access assisted suicide.

Scher calls the four-month extension “sensible” given the change in government, but he says the time period is “extremely short.”

“It’s going to make it that much more difficult for the federal government to conduct a fulsome, broad consultation on the issues in order to determine the best and most appropriate way to respond to the Supreme Court’s decision in Carter,” Scher tells
“The notion of a short extension combined with an exemption of the euthanasia regime in Quebec almost serves as a tacit acknowledgement of the appropriateness of the Quebec euthanasia regime as a model in Canada when, in my view, nothing could be further from the truth.”
Scher, who represents the Euthanasia Prevention Coalition, which is an intervener in both the Quebec and Supreme Court cases, says the Quebec euthanasia regime represents perhaps the broadest and “the most dangerous of regimes of its kind in the world.”

Quebec's law includes improved palliative care, which he says he supports, but it also implements what he calls a "Belgian-style" euthanasia regime, which has seen people killed without consent, and contrary to clear legislative provisions of second opinions, reporting, and consent.

He says the Supreme Court’s decision in Carter seems to mandate a broad approach, but then asserts Parliament’s mandate and authority to construct a safe and rigorously enforced series of safeguards.

Scher says it is ultimately up to Parliament to determine the most appropriate way to regulate assisted suicide, not the provinces or the Courts.

A requirement of judicial oversight, similar to what is now in place during the four-month extension where individuals can apply to the court for a declaration of compliance with established requirements is essential, if assisted suicide is to have a chance of safe implementation in Canada, as mandated by the Supreme Court, Scher adds.
“A model of effective, before-the-fact judicial oversight is perhaps the only way to ensure a level of adherence to the established safeguards, and to ensure a level of oversight with regard to compliance in a way that will hopefully assess and identify vulnerability, and at the same time ensure that safeguards are adhered to.”
Absent such an approach to effective before-the-fact judicial oversight, Canada is doomed to repeat the mistakes and horrible tragedies reflected by multiple unrequested killings in Belgium, he says.

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