Essential safeguards identified to protect vulnerable people from abuse in assisted dying law

The following article was published by Advocate Daily on March 3, 2016.

Hugh Scher

Toronto constitutional and human rights lawyer Hugh Scher is endorsing the Vulnerable Persons Standard, a list of evidence-based safeguards to protect Canadians requesting physician-assisted death who may be subject to coercion and abuse.

“There is certainly no guarantee that this standard alone is going to prevent unwanted deaths or the impact on our culture of legalized assisted death,” says Scher, principal of Scher Law and a frequent commentator on assisted dying issues.

“That said, the standard goes a long way to providing a level of protection against the risk of abuse of vulnerable people. It does provide for an effective means of oversight, which is essential in the event that this policy of assisted death is to possibly be safely implemented in this country.”

The Vulnerable Persons Standard includes the requirement for access to palliative care, and for two physicians as well as a judge or tribunal to sign off on a death. There is a requirement that consent be received at the time of the death, and that the consent is assessed at that time.

The standard has wide support among medical, legal and community-based organizations, including the Canadian Association for Community Living, the Council of Canadians with Disabilities, the Euthanasia Prevention Coalition, Vivre dans La Dignite and the Catholic Health Alliance of Canada.

Scher is counsel for the Euthanasia Prevention Coalition, a leading national and international association of doctors, nurses, people with disabilities and of leading experts on euthanasia and assisted suicide practices in foreign jurisdictions.

The intent is for the standard to become part of the new legislation or a form of regulation as the federal government prepares to introduce a new law on assisted dying.

In Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court struck down the ban on doctor-assisted death last year and gave the government until June to come up with a new law that recognizes the ability of clearly consenting adults who are enduring intolerable physical or mental suffering to seek medical help in ending their lives.

Contrary to the Supreme Court ruling in Carter, a parliamentary committee report suggests that people diagnosed with incurable conditions likely to cause loss of competence, such as dementia, should be able to make advance requests for medical assistance in dying.

The committee says physician-assisted dying should be immediately available to competent adults 18 years or older and — after further consultations — should be expanded to include "mature minors'' within three years.

This week, a Calgary woman was granted an exemption to end her life with the help of two doctors in Vancouver, the Canadian Press reports. A Toronto man will also be bringing an application for a constitutional exemption before a Superior Court judge in Ontario. The cases are the first to come before the courts to gain access to the special dispensation before any legislative parameters are made into law.

Scher calls the deaths “tremendously unfortunate,” but a new reality under the Supreme Court’s ruling.

“It is a policy I do not agree with — a policy that is going to be ultimately terrible for Canada, and it is a tide that will likely be very difficult to reverse.”

Scher says it is curious that the Supreme Court and government are moving to introduce the assisted dying law at a time when the country is faced with record high health-care costs and the largest population of seniors in its history.

“It is certainly curious that such a policy would be endorsed now in our history given those demographics, given those economics and given what we know to be the serious risks that have arisen in other jurisdictions.”

Scher says if the government had a true intention of meeting the needs of people with disabilities, it would focus more effort on economic and social causes that would have a “far more meaningful impact” such as accessible health care and palliative care, and "truly responsive and accessible community care and supports that are presently woefully inadequate across the country.

"Such deficiencies are certain to push people in need toward unwanted deaths due to lack of access and meaningful supports in the community," he says. 

“Despite the fact this has been made a priority through various senate and committee reports, there has been no effective action to give effect to what is universally regarded as a Canadian right to palliative care, and addressing these deficiencies ought to take priority over the issue of the ability to access an assisted death, for those who may seek it out. Diverting resources needed to address these deficiencies in health and community care, toward a publicly funded euthanasia regime is greatly misguided," Scher says.

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