Panel recommends a 'dangerous approach' to regulating assisted suicide.

This article was published by Advocate Daily on December 17, 2015

Hugh Scher

Recommendations in the report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying are an “irresponsible and dangerous approach” to the legalization and regulation of assisted suicide across Canada, says Toronto health, human rights and constitutional lawyer Hugh Scher.

The panel’s 43 recommendations, are a “startling display of a lack of informed understanding of the risks and harms associated with measures to legalize euthanasia and assisted suicide in Canada,” says Scher. “They particularly reflect a complete lack of understanding of considerations such as vulnerability, depression and the requirement for fully informed decision-making based upon clear information and full options being presented to the patient.”

Among recommendations in the 134-page report that was received by federal health and justice ministers earlier this week, is that children 12 years of age or younger be eligible for assisted suicide or euthanasia,and included a series of options around euthanasia and assisted suicide.

The report comes while the Supreme Court of Canada is weighing the federal Liberals' request to delay the implementation of the court's decision in Carter v. Canada (Attorney General), 2015 SCC 5, which will be addressed by the top court at a hearing on January 11, 2016. The Feb. 6, 2015 ruling strikes down the country's Criminal Code ban on assisted suicide, but gave lawmakers 12 months to adopt new rules and to implement effective oversight and safeguards.

Scher represents the Euthanasia Prevention Coalition, which acted as an intervener at all levels in Carter, and is also an intervener before the Quebec Court of Appeal in D'Amico, which is being heard tomorrow.

“The provincial panel has demonstrated a clear bias in its approach to the issues of euthanasia and assisted suicide in its recommendations,” says Scher. “This is most clearly demonstrated in its recommendation that 12-year-olds be permitted to access euthanasia on-demand, paid for by the public.”

Scher says the recommendations would represent the broadest available regime of euthanasia of any jurisdiction around the world including where those practices have been in place for many years.

“Even the Province of Quebec in its own legislation has been far more limited and restricted in its requirements in order to access euthanasia. Such restrictions include the requirement to be of adult age, competent, consenting and to be experiencing a terminal illness which is certified by at least two doctors,” he says. 

“The panel recommended broad and sweeping legislation, implementing a regime of euthanasia and assisted suicide available on-demand across the country and paid for by tax dollars.”

In fact, he says the proposed recommendations are more sweeping than those in Carter.

“These measures pay significant attention to protecting doctors from the risk of criminal prosecution and lawsuits, but pay little or no attention to the risk of harm to vulnerable people,” says Scher. “The proposals set out by the panel provide little if any safeguards and absolutely no effective oversight in order to properly and responsibly address and respond to the SCC decision in Carter.”

In particular, he notes there is no consideration of the fundamental requirement of before-the-fact adjudicative oversight to ensure compliance with requirements set out by legislation, in order to ensure that those who are put to death do not have their lives taken from them against their will, and without strict compliance with nationally established safeguards and requirements aimed at ensuring that both an informed and responsible decision can be taken.

“Such measures would have to include universal access to quality palliative care, adequate measures to determine capacity and consent, and assurance that all possible options have been reviewed with the patient in order to enable a fully informed decision.”

Scher adds that such measures would also require the engagement of multiple doctors of different specialties, including palliative care and psychiatric experts, in order to ensure that capacity and vulnerability are appropriately assessed and identified before the fact and that legitimate informed consent is possible in the circumstances.

“The absence of any consideration of the requirement of before-the-fact adjudicative oversight or any meaningful oversight relative to legalized assisted suicide stands in stark contrast to the ruling in Carter and reflects a misguided and dangerous approach to the assisted suicide question,” says Scher. 

“The need for before-the-fact adjudicative oversight, assessment and identification of vulnerability and depression, in order to prevent improper deaths and to ensure compliance with established national and universal safeguards is essential, however, this panel has sacrificed those fundamental requirements in favour of an approach that protects doctors from risk of civil or criminal liability including in cases of wrongdoing,” says Scher. 

“Such an approach is dangerous and misguided. It reflects the clear pro-euthanasia bias of the panel," says Scher.

Scher adds that several organizations, including the Euthanasia Prevention Coalition and the Physicians Alliance Against Euthanasia, are reacting with "dismay and concern at the unbalanced focus of the panel and have raised particular concerns regarding the notion of euthansia on demand for minor children of 12 years old, to the fact of protection of doctors from criminal responsibility, including in cases where strict requirements and safeguards are not adhered to."

Scher has acted as counsel to the Euthanasia Prevention Coalition in several high-profile cases including Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482 (CanLII); Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341; Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (CanLII); Bentley v. Maplewood Seniors Care Society 2015 BCCA 91; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII); Carter v. Canada (Attorney General) 2013 BCCA 435 (CanLII); and Carter v. Canada (Attorney General), 2015 SCC 5.