Friday, April 8, 2016

Hugh Scher: Letter to Members of Parliament and Senators

From: Hugh Scher, Scher Law Professional Corporation (Toronto, Ottawa)

Hugh Scher
To: Member of Parliament
House of Commons, Ottawa ON K1A 0A6
Dear Honourable Member:

Re: Response to Joint Committee Report on New Assisted Suicide Law

I am a constitutional lawyer and authority on human rights and the rights of people with disabilities in Canada, particularly in respect of end of life issues. I have advocated on these issues for the past 25 years.

I have served as counsel or been consulted on virtually every end of life case in Canada over the past 15 years. Despite this, the joint committee investigating euthanasia and assisted suicide refused to hear my testimony.

My review of the joint Parliamentary Committee report highlights the following major concerns:

1. The Committee appears to unquestionably endorse a Benelux style regime of euthanasia, which has proven to be the most abused system of end of life practices in the world;

2. Even the Supreme Court of Canada recognizes that 32% of cases of euthanasia in Belgium were carried out without request and without consent, despite a legal requirement for these elements. In 47% of those cases, the doctors refused to report the matter to the overseeing body, despite a legal requirement to do so. Despite these clear breaches of the legal requirements of the Belgian law, not one Belgian doctor was prosecuted;

3. The joint Committee report suggests the broadest possible euthanasia regime in the world without any meaningful safeguards or effective oversight;

4. The joint Committee report and recommendations would extend access to euthanasia to children which is clearly contrary to the recommendations of the Supreme Court of Canada;

5. The joint Committee report would extend access to euthanasia to those acting based upon an advance directive and without the requirement for consent at the time of the act. This also contradicts the recommendations of the Supreme Court of Canada;

6. The joint Committee report further supports granting access to euthanasia to people with psychiatric conditions which fundamentally undermines both suicide prevention measures as well as requirements and safeguards for voluntariness, capacity and consent in end of life practices;

7. The joint Committee report explicitly rejects the means of effective oversight that have been implemented by the Supreme Court of Canada during the period of extended time to allow Parliament to respond to the Carter decision. In particular, the Supreme Court of Canada has implemented a regime of judicial oversight which requires that court applications be brought to ensure compliance with the legal requirements established by the Supreme Court. A similar approach to effective oversight was recommended by the Federal External Expert Panel charged to consult and advise the government on legislative implementation of the Carter decision;

8. Judicial or Tribunal oversight to ensure compliance with legislated requirements and to identify vulnerability before the fact is an essential requirement for effective oversight in respect of any regime of assisted suicide;

9. The joint Committee does not limit acts of euthanasia to those who are terminally ill, as in Quebec, Oregon and Washington State, but rather extends them to the broadest group of people ever permitted to access a state-funded regime of euthanasia in the world;

10. The joint Committee report says nothing about the fraud and lack of transparency on which the Benelux and present Quebec regimes are based by allowing doctors to falsify death certificates and indicate that the cause of death is not the intentional killing of a patient by a doctor, but rather the underlying illness. Such a measure makes it impossible to appropriately monitor and enforce compliance with legislative requirements, to identify vulnerability and prevent abuse. It also makes it impossible to accurately monitor these practices going forward and will inevitably lead to skewed data;

11. The joint Committee report extends those charged to engage in euthanasia to doctors, nurses, and registered practical nurses. Such an approach is broader than any other jurisdiction in the world and is a recipe for abuse and for incoherence. It renders it impossible to accurately monitor and track these practices to ensure compliance, oversight, to prevent abuse, and to enforce and punish breaches of legislative requirements, including for required consent;
12. The requirement of judicial or tribunal oversight and of vulnerability assessment and identification before the fact by way of prior review are an essential requirement of any regime of assisted suicide and must be implemented by Parliament in the event that there is to be any prospect of safe implementation of an assisted suicide regime. Failure to implement such measures will leave vulnerable Canadians at significant risk without any means of enforcement or protection from abuse;

13. The joint Committee report fails to properly recognize the conscience rights of health care practitioners and to protect those rights from being trampled under the guise of access;

14. The joint Committee report improperly and unwisely cedes Constitutional and practical authority over implementation of an assisted suicide regime to the Provinces and to doctors writ large. Such an approach belies the notion of national safeguards, effective legal oversight, and fails to ensure the level of knowledge, training and experience for those who are charged to carry out assisted suicide measures. The most appropriate approach would be to designate a specific federal employee who would be specially trained and empowered to carry out such acts of assisted suicide. This is something that should not be left simply to doctors and nurses. It should remain the responsibility of the Federal State. To do otherwise, unwisely and unnecessarily undermines the fiduciary nature of the doctor-patient relationship;

15. The joint Committee report would implement the widest ranging and most dangerous regime of euthanasia in the world, completely lacking in proper and appropriate safeguards or effective oversight.
The Supreme Court of Canada only agreed to strike down the criminal prohibitions against assisted suicide based on the belief that the Federal Parliament would introduce a carefully tailored and rigorously monitored and enforced regime of assisted suicide that would protect Canadians from the risks of abuse that have occurred in other jurisdictions, particularly in the Benelux states of Holland and Belgium. The recommendations of the joint Committee do exactly the opposite. They are completely lacking in proper safeguards or effective oversight and represent a recipe for abuse and for incremental expansion over the course of time in ways not yet contemplated and that would seek to undermine effective means of oversight and proper safeguards embraced by the Supreme Court.

To the extent that assisted suicide is to be implemented in Canada, regard should be had to the regime in Oregon and Washington State which are far more limited. The regime should be subject to more specific requirements for a witness at the time of death in order to ensure effective oversight and prevent abuse.

I respectfully request that you consider the above concerns and recommendations for more effective measures to give effect to the Carter decision of the Supreme Court of Canada. In that regard, I do refer you to the vulnerable person standard at the link set out here which provides for a series of safeguards and oversight measures that should form the basis for any law intended to give effect to the decision in Carter with respect to any assisted suicide regime in Canada.

Read the Vulnerable Persons Standard.

I have had the opportunity in past to address members of the Liberal, Conservative and NDP caucuses on these issues. Should members wish to speak further with me, I am pleased to make myself available to provide what advice and insight that I can with respect to this topic that I have studied and litigated over the past 25 years.

Yours truly,

Hugh R. Scher
Scher Law Professional Corporation

Cc. Prime Minister Justin Trudeau
Minister of Justice Jody Wilson-Raybould

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