Tuesday, January 18, 2022

What is the Good of Euthanasia? Part V: How different policies, from Quebec and Canada, have created a philosophical fork-in-the-road, for Canadian provinces.

Gordon Friesen
By Gordon Friesen
EPC board member

The legal justification for Medical Aid in Dying has two distinct parts. First, there is a purported "right" to "choose" death. Second, there is a claim that euthanasia be considered a legitimate medical "treatment".

Thus far, the acceptance of euthanasia, in Canada (and other places where the "medical aid in dying" vocabulary has been adopted) has depended on a slip-shod conflation of these two justifications, blithely ignoring the fundamental contradictions involved. It is my belief, however, that recent developments in the Province of Quebec are ultimately destined to bring this unstable MAID construct under increasing (and perhaps unsustainable) strain.

In fact, the first significant cracks have already appeared.

How medical provisions in Quebec are expected to differ from criminal immunity under federal law

Following the acceptance of federal law C-7 --extending euthanasia access to those not in imminent peril of death (and after March 2023, even to those suffering uniquely from psychological disorders)-- the provincial legislators of Quebec immediately undertook a review of their own law (QC Bill 52, "Act Respecting End-Of-Life Care").

The two most important recommendations of this review are 1) the acceptance of MAID by advance directive (on reception of a diagnosis of neurodegenerative disease), and 2) the refusal of MAID to those suffering from mental illness only. Both of these proposals are contrary to the federal dispositions of C-7: for Quebec wishes to enable advance directives (which the federal government has refused); and Quebec wishes to refuse MAID for mental illness (which the federal power has approved)!

The table is therefore (apparently) set for a major test of wills. However, this test is not to be based upon substantive disagreement only, but rather, on a true conflict of federal and provincial powers. Quebec, to be clear (as all other provinces) has exclusive jurisdiction in the domain of public health care. This means that Quebec will likely decree that euthanasia for mental illness is not medically justifiable, but that euthanasia by advance directive is. As a result, we will soon see (in all probability), people accessing Maid by advance directive (in the Province of Quebec) even though no criminal immunity has been created to that end in federal law. And similarly (assuming that the March 2023 deadline of C-7 is respected) we will also see people legally dying in Quebec, by euthanasia for reasons of mental illness, even though that province may have declined to define such deaths as legitimate instances of medical assistance in dying.

In other words, there will now be an open, and very significant, disagreement between that which is legally permitted (throughout Canada in virtue of the Criminal Code) and that which is offered as medical treatment (in Quebec, in virtue of provincial health powers). Nor is their any reason that such disagreement be definitely settled any time soon (one way or the other), because both province and federation would seem to be in the right from a constitutional point of view. And the ultimate meaning of these facts will be the realization (should honest clarity prevail), that we are not actually talking about one single thing (MAID), but of two very different things indeed: on the one hand, euthanasia decriminalized to support a purported "right to die"; and on the other, euthanasia justified as medical treatment.

A positive road forward

Throughout this present series of articles, I have attempted to show that the ethical path (and the logical implementation) of euthanasia-as-right-to-die and euthanasia-as-medical-treatment are entirely different and that great harm has already come of confounding the two. Happily then (in Canada at least), it would now appear that our political and legal landscape is actually divided (between the provinces and the federation) in such a way as to naturally force us towards precisely this desirable conclusion. And whether by the genius of our founders (or by the blind luck of historical compromise) we would now seem to be ideally placed to pursue these questions in a dynamic environment of honestly competing principles and policies.

For Quebec is not alone in possessing the real powers (and the potential motivations) required to adopt a distinct vision of medical euthanasia. There are, in fact, ten provinces, each representing populations of varying philosophical persuasions, and each of which benefits from the same constitutional powers described. Quebec has indeed furnished us with valuable precedents in this regard, but other provinces can soon be expected to respond in kind.

For instance, the original medical interpretation of euthanasia was strictly limited to patients who were actually dying. In the critically important Quebec Bill 52, the practice was explicitly defined as "end-of-life care". (And that, by the way, is the only instance in the world of euthanasia actually defined as medical care.) I personally had the honor of addressing the Quebec Special Commission (on the evolution of end-of-life care, 2021 -- french only, audition , memoire ) where I encouraged the deputies present to simply ignore C-7. "Why", I asked, "should Quebec accept a medical interpretation of euthanasia practiced upon people who were not dying?" For quite simply: a rapid study of the reasons proposed for adopting the original law 52 ("An Act Regarding End-of-life Care") reveals that these reasons could not possibly apply to the viable patient (a view with which several of the original architects of that law now concur). Moreover, the rejection of euthanasia, for the mentally ill, would imply that such arguments have not been entirely unfruitful.

Criminal law, and medical practice, therefore, are now on diverging paths. Euthanasia-by-choice and euthanasia-as-medical-treatment, are no longer interchangeable terms. There is no reason why other provinces should not define medical euthanasia in a narrower sense: to maintain the end-of-life provision, or indeed: to reject the notion of medical euthanasia entirely.

No such action would prevent deaths resulting from the legal immunity provided by federal bills C-14 and C-7, which now enable a de facto "right-to-die" (by decriminalizing assisted suicide and euthanasia under prescribed circumstances). However, provincial definitions of medical euthanasia will have a critical impact upon the medical professions, and upon the therapeutic experience of the typical non-suicidal patient.

It is time, I believe, that provincial representatives, everywhere, become aware of the power and the responsibility that they possess in this domain.

January 18, 2022

Gordon Friesen, Montreal

http://www.euthanasiediscussion.net/ (fran├žais)
http://euthanasiadiscussion.com/ (english site in development)
http://hopeandfree.com/ (personal philosophical musings)

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