Friday, June 17, 2022

Analysis from a local fly on the wall: Quebec euthanasia Bill 38

This article was written before the Québec government decided to delay Bill 38. Nonetheless, the article is important because Bill 38 will likely return after the October 22 Quebec election.

--a predictable exercise in expanding the footprint of euthanasia

Gordon Friesen
By Gordon Friesen, EPC Board Member

Just as Canadian lawmakers decided that our original euthanasia law Bill C-14 (2016) needed to be revised, so also, lawmakers in Quebec reacted to the resulting law Bill C-7 (2021) by beginning a process to amend their own legislation (Quebec Bill 52, 2014). This process began with a Special Commission (also 2021). And the recommendations of that Commission have now been presented in Quebec Bill 38.

Experience around the world has shown that such legal evolution of euthanasia laws usually move in one direction. To revise is to expand. And in this respect, the current Quebec initiative is no different; several expansions are made.

Most important, of course, is the principle of euthanasia for patients who are not actually dying, and for patients incapable of consent through authorization by advance directive (more on this later). But there are also stricter rules on who must permit and who must collaborate with the practice.

For instance, several palliative care homes currently refuse to provide euthanasia. In the original law, it was merely stipulated that such homes had to inform potential clients as to which end-of-life services they would provide. In the revised version, it is stated that ALL such facilities MUST provide euthanasia (in the absence of special authorization from the Ministry).

In addition, we find a modification to the basic definition of a nurse's duties (in the Nurses Act, 2O2O, clause 36) it stated where "...providing nursing and medical care ... to maintain and restore the health of a person ... to prevent illness, AND PROVIDING PALLIATIVE CARE" has been changed to "AND PROVIDE APPROPRIATE SYMPTOM RELIEF”. This substitution both diminishes the full meaning of Palliative Care, and suggests that the killing of patients --defined as mere "symptom relief"-- should be a standard expectation of all nurses.

There is also a clause referring to ALL members, of all care teams, in all long term treatment facilities, which I like to think of as the "Stool Pigeon Clause":

“29.12. If a patient who has made an advance request appears to be experiencing the suffering described in the request... A health professional who is a member of the care team responsible for the patient ... must, on finding that the patient appears to be experiencing such suffering, notify "a competent professional" (where "competent professional" is code for "euthanasia provider").

This apparently signifies that everybody working with a given patient (having made an advance euthanasia request) is now duty bound to report that person to a potential euthanasia provider when he or she has crossed the defined threshold.

Lastly, in the original law, only doctors were authorized (or obliged) to provide euthanasia. In Bill 38, however, the term "competent professional" is substituted (3.1), to include also "a specialized nurse practitioner, provided the latter is acting as a specialized nurse practitioner practising in a centre operated by a public institution.”

One must not fall into the trap, therefore, of believing that only willing individuals will be euthanasia providers. On the contrary. As defined “competent professionals”, all doctors and eligible nurse practitioners (and certainly those working in the relevant institutions) are liable to find themselves confronted with requests to evaluate, certify, and perform. In fact, under the universal euthanasia regime we now have in Quebec, it seems impossible that such professionals may much longer escape euthanasia-compliance.

And in any case, although there still exists a right to refuse participation, that right does not go so far as to avoid finding a more willing replacement.

(Section 50) “Such professionals must nevertheless ensure that continuity of care is provided to the patient, in accordance with their code of ethics and the patient’s wishes”

1) More people will be eligible, that is: people not at the end of life; and people incapable of consenting to any care (through the use of advance requests).

2) The nature of nursing and the expectation of newly formed nurses has changed to include euthanasia, implicitly defined as "symptom relief".

3) Palliative Care facilities can no longer simply choose to forgo euthanasia (even by giving up public funds). They will need special authorization from the Ministry.

4) All health professionals working in facilities housing patients who have made advance requests for euthanasia, will be obliged to monitor and report them (to the nearest "competent professional") when those patients have crossed their defined thresholds.

5) All "competent professionals" (including nurse practitioners as well as doctors) will have specific obligations to evaluate, certify, and euthanize both capable patients making current requests, and incapable patients who now respond to the conditions of previously registered advance requests.

6) No refusal of these functions is possible without timely collaboration in finding a replacement.

(Moreover, the inevitable case remains to be litigated as to what must happen when no other willing "competent professional" can be found, due to geographical or other constraints.)

In short, it defies imagination that conscientious objection will not soon be relegated to a "grand-fathered" status, whereas, in many institutional settings: newly formed doctors and nurses will be expected to demonstrate euthanasia-compliance as a simple condition of employment.

--And yet there is more than meets the eye

Most interestingly, however, Bill 38 has revealed itself to be more controversial than was at first believed. For in the last three weeks, two embarrassing episodes have occurred: 

  • First, there was a clause involving eligibility for neuromuscular disorders, such as quadriplegia and cerebral palsy, which was withdrawn in order to ensure quick passage of the Bill (May 25, 2022). 
  • Second, although it had been confidently predicted that Bill 38 would receive the unanimous assent required to pass rapidly before the Summer Recess (June 10), that too has proved to be impossible (even without the aforementioned clause). Therefore the Bill has been pushed back to the next session.

The reasons for these set-backs are extremely interesting. For they touch on certain inherent contradictions between the Federal vision of euthanasia, and that of Quebec. Moreover, they suggest practical strategies for combating both.

However, these things cannot be explained in a short space. They will, therefore, provide the subject for a separate article.

Gordon Friesen, Montreal (français) (english site in development) (personal philosophical musings)

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