UOIT academics: Doctor-assisted dying legislation leaves many grey areas

More than 14 months after Canada’s Supreme Court struck down the country’s law on medically assisted death, the federal government has introduced new legislation (Bill C-14) to give dying patients the ability to ask for medical help ending their lives.

The Supreme Court gave the government until Monday, June 6, 2016 to have a new law in place. This means the legislation needs to pass both the House of Commons and the Senate in less than two months.

In the early days of public debate on Bill C-14, most corners appear to agree on at least one thing: the proposed legislation stops well short of answering all possible questions, particularly many issues of an ethical nature.

Researchers at the University of Ontario Institute of Technology (UOIT) weigh in with their early takes: 

Thomas McMorrow, PhD, Assistant Professor (Legal Studies), Faculty of Social Science and Humanities (FSSH)

“You surely can’t please everyone, and sometimes the surest sign of a sound political compromise is that nobody is quite thrilled,” says McMorrow. “C-14 is heavy on ambiguity. While the legislation promises the choice of a medically assisted death for dying patients suffering intolerably from a serious medical condition, it will not extend to as many people as the Supreme Court of Canada apparently contemplated in its landmark February 2015 ruling.”

McMorrow says the Supreme Court’s ruling never mentioned anything about a person's condition needing to be ‘terminal’. Neither does the new bill.

“Nor does it mandate that a prognosis as to one's time remaining be made. So, what the requirement of a ‘natural death’ becoming ‘reasonably foreseeable’ actually means is anyone's guess. It may very well be that the legislation the government has proposed more closely approximates majority opinion on the matter of medical aid in dying than either the reasoning advanced by the Supreme Court or the erstwhile legal status quo. But it is literally hard to tell.”

Related links:

• Assisted Dying Bill c-14 is heavy on ambiguity (Thomas McMorrow op-ed, Huffington Post [The Blog]) – April 15, 2016
• They've tried to hedge their bets (Oshawa Express report) – April 20, 2016
• Does Bill C-14 pass constitutional muster? A question Parliament must confront (Thomas McMorrow op-ed, Policy Options - Institute for Research on Public Policy) – April 22, 2016

Milly Ryan-Harshman, PhD, Lecturer, Faculty of Health Sciences (FHS)

“Although a law is preferable to ensure appropriate precautions will be followed, I do not think debate will cease,” says Ryan-Harshman, who teaches various FHS courses, including academic writing and ethics. “In Canada, in a broad sense, we have two moral communities: one is the secular, humanitarian community that favours assisted death, the other is the faith-based community that does not.” 

Ryan-Harshman is pleased the government addressed the topic of so-called ‘suicide tourism’, banning travellers from other countries to seek assisted death in Canada.

“It is not appropriate that Canada allow this. Not too long ago, there was media coverage about other medical tourism in Canada, and the prevailing view was that Canada shouldn’t do this as a means of improving budgetary bottom lines – some hospitals had been considering this.”

But she says the government still needs to outline how the law will work in relation to rights of conscience as well as constitutional rights. 

“There will be a need to balance the protection of (individual and institutional) conscientious objector status with those whose moral views differ from faith-based groups,” she says. “Canada should proceed cautiously on the more divisive aspects of assisted death such as those who are mature minors, those who have mental illnesses, and those who wish to state a preference for assisted death as part of their advance directives.” 

Jen Rinaldi, PhD, Assistant Professor (Legal Studies), FSSH

“So far, what we have available to read seems to follow the Vulnerable Person Standard: safeguards intended to protect against coercion and abuse,” says Rinaldi. “While some might find the precluding of mature minors, advance directives, and psychiatric disability too restrictive, it's not as though those restrictions are currently set in stone. This might mean the bill won't be so much a final compromise as it will be a first step of many.”

But Rinaldi says there are still some key unanswered questions.

“The bill’s preamble does not yet explicitly address palliative care, nor concerns regarding psychological suffering raised by various experts and organizations such as the Council of Canadians with Disabilities and the Centre for Addiction and Mental Health. But perhaps we cannot look to this proposed legislative framework – least of all its preamble – as a universal answer, given the measures needed to address social vulnerabilities that may emerge or already exist in other kinds of socio-legal reform.”

To arrange to speak with UOIT researchers on this topic, please contact:

Bryan Oliver
Communications and Marketing
University of Ontario Institute of Technology
905.721. 8668 ext. 6709
289.928.3653 (cell)
bryan.oliver@uoit.ca