Saturday, June 11, 2016

Why the Liberal Government is Defending Bill C-14 So Strongly

Because I know a lot about death, and I've seen a lot of people die, some of my friends have been coming up to me and asking the same question:

Why is Justin Trudeau's government clinging so stubbornly to its assisted dying bill C14?

My blogging friend Kirby Evans asks the same question here.

And my answer to him and the others is, for a very good reason.

For if the Senate dismembers the bill in this fashion.

It could destroy an intricately balanced piece of legislation, demolish its carefully  crafted safeguards, and lead to the slaughter of the vulnerable.

And the main reason the Trudeau government is not throwing the doors to assisted suicide wide open, is because it can't be sure of what kind of brave new world we are now entering.

We are entering uncharted territory, we have no idea what might happen. And in a situation like that one caution is a virtue.

Which also explains why, as Michael Den Tandt points out, that even though the bill is less restrictive than many people imagine.

For starters, the language of the bill as now drafted does not say death must be imminent, that is, days or even weeks away. It stipulates that in order to be eligible for assisted death, an individual must have a “serious and incurable illness,” and be in an “advanced state of irreversible decline in capability.”

Aha! says the “make it less restrictive” camp, informally led by Sen. James Cowan; that’s a deviation from the Supreme Court’s language, which cites only “grievous and irremediable” ailments that cause chronic, intolerable suffering.

But then, C-14 introduces this qualifier: “… natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time they have remaining.”

It still leaves the decision in the hands of doctors and patients, and since all our deaths are reasonably foreseeable, it gives them a lot of latitude to determine when to end a life. And since the bill as written covers more than eighty percent of cases and conditions it's extremely unlikely that many Canadians will be condemned to interminable suffering.

But what makes Bill C14 so unique is that it practically challenges the courts, and the court of public opinion, to open that door further if necessary, once we see what brave new world we are living in.

The guiding logic, therefore, was to open the door as far as absolutely necessary but no further — allowing emerging medical practice, future court cases and study to inform amendments down the road.

The Liberals deliberately made their legislation tight, rather than loose, knowing there would be court challenges, and possibly a Supreme Court challenge, because that very process and the time involved were intended to provide opportunity for sober second thought.

Which it is very important to recognize, is the same cautious way EVERY country that has introduced assisted dying has acted. Tiptoed into it rather than rushed into it head first.

For it is an evolving process, we can only learn from experience.

And even in the Netherlands, fourteen years after assisted dying became lawful, they are still struggling to cope with the implications.

Laws permitting assisted suicide may justify the right of even psychiatric patients to end their lives in theory, but the reality of implementing such programs is messy, a study of the Netherlands finds.

"When you actually try to implement it even in a setting where there is excellent healthcare, there are a lot of red flags that need to be investigated further," said lead study author Dr. Scott Kim, a psychiatrist and bioethicist at the National Institutes of Health in Bethesda, Maryland.

There are reasons to be concerned even in that advanced country, and if the restrictions on assisted dying are dismantled, we too could face a flood of psychiatric patients seeking to end their lives.

Which as the president of the Canadian Psychiatric Association points out, complicates the situation.

Mental illness can affect how a person thinks. Depression fuels negative self-thoughts, self-blame, hopelessness and struggling with one’s place in the world. Negative events are dwelt upon and positive ones discounted, with emotional resilience lowered until mundane stresses seem overwhelming.

This predicament could be moot if suffering continued indefinitely. The value of suicide prevention is not to stay alive with intolerable suffering, but to avoid ending life during a vulnerable period. Unfortunately, cognitive distortions can lead some to decline treatment and seek death, despite the prospect of a healthy future.

Because throwing open the doors to assisted suicide could make that vulnerable group even more vulnerable.

In making the shift from a death-denying society to one that views death as another treatment option for illness, we must appreciate the nuanced differences leading to the common endpoint of death. Complex decisions without standards become value judgments or best guesses, and we should not be gambling with the vulnerable lives.

And the same goes for the fragile elderly or the disabled. Because I can't tell you how many times I have heard otherwise happy members of those two groups tell me they wish they could die because they don't want to be a burden to their families.

And I'm concerned that if assisted dying comes to be seen as an easy out rather than a last resort, many old and disabled people could be pressured into ending their lives before they are ready.

And that could also take the pressure off efforts to make their lives more comfortable and enjoyable, or undermine the work that is being done to provide the support seniors need so they can live in their own homes as long as is humanly possible.

Which has for years been one of my main missions in life.

So those are my concerns, or some of them. And while I'm not ruling out that Bill C14 could be improved, I'd be happy if it was. 

And while I'm not writing this to defend the Trudeau government, I'm speaking out for the vulnerable who I care about and fear are being forgotten.

I do understand why the government is proceeding cautiously. And to accuse them of    mounting an all out assault on the constitution for no good reason, or just for the hell of it, is unfair.

We are entering a brave new world. There are massive societal implications.

And until we figure out where we are going, we do need to tread carefully...

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  1. Anonymous9:56 AM

    Such a complex subject. Government has really picked up the ball on this from Harper. Such an important piece of legislation. We can't repeat mistakes made by Belgium on assisted dying. Senate has to tread carefully on this one. Sober second thought can also come from Supreme Court, as you suggested Simon. Am also hoping that this legislation brings more attention to treatment and prevention of mental illness.

    Lovely last photo.


    1. hi TS...yes it is a very complex subject with huge implications, and I can't help feeling the debate so far has been too simplistic, and way too black and white. Everybody is thinking of their own situation, and how they don't want to suffer when they die. And while that's fine, nobody should suffer, and I do support the idea of assisted dying. As I said in my post we need to tread carefully or risk hurting the vulnerable. Our mental health system is not as good as it should be. It can be a nightmare getting proper treatment. I know because about two years ago I helped a friend navigate his way through the system, and while he's fine now thank goodness, I'm still recovering from that depressing experience...

  2. Anonymous10:33 AM

    What really pisses me off about this issue is that ignorant so called Senator Plett referring to it as "assisted suicide". That idiot really suffers from tunnel vision!!!! FS

    1. hi FS...Don Plett is the worst jackass in the Senate, and that's saying something. He recently led the charge to deny transsexuals their human rights, by calling it a bathroom bill and making a beast out of himself. So yeah, I'm not surprised he's calling it the assisted suicide bill. Although I have to say that doesn't bother me as much as the sorry fact that he's a Senator. For that really is disgraceful and one of the best arguments why the Senate should be abolished...

  3. Anonymous11:26 AM

    Simon, I agree on the need to tread carefully. And in fact, the Supreme Court, along with the multi-party committee of MPs and senators, did tread carefully by considering all the evidence from a host of interest groups before coming to their recommendations.

    The court and parliamentary committee held open public hearings. The evidence they heard is on the public record. Their carefully crafted recommendations are also a matter of public record. The discussions that led to the Trudeau cabinet's decision to depart from those recommendations is not on the public record and never will be. That alone is cause for great suspicion.

    I'm not willing to give the benefit of the doubt to decisions taken in secret, especially when they lead to a bill that's unconstitutional on its face. It's plainly wrong to craft a bill that would deny Kay Carter the rights her family fought for and to force others like her to pay the cost of court challenges to obtain what the Supreme Court has already said is their right. I'm sorry, and I don't say this lightly, but Bill C-14 is Harperian.

    1. hi anon...the bill was crafted in a hurry, thanks to Harper and his Cons who dragged their feet to please their base. And maybe it can be improved. But it is the position of the health minister and other doctors I know that C-14 would have included the plaintiff in the Carter case. And all I'm saying is that in the rush to expand access, which I remind you will only affect a small percentage of Canadians, with the rest of them continuing to die as most do now, in a hospital bed or a palliative care unit. One must be very careful to protect the legions of vulnerable people in this country...

  4. As always, I appreciate your arguments Simon. However, I am still not convinced. I think the phrase "reasonably foreseeable" is what will, in the end, make the Bill be perceived as unconstitutional by the court and which will compel it to overturn the Bill based on the Carter decision. Furthermore, I just don't buy the alarmist arguments that people will be pressured into ending their lives. However, I will add this addendum - we have so systematically undermined our system of social welfare and pensions, etc., that we need to strengthen the way that people are cared for to ensure that there is no chance that they feel that they are a burden to society or their families. With a significantly strengthened social system, there would be no argument to make in this regard. And in a sense, this is precisely what troubles me. Both the Cons and the Liberals (and others) have made this argument concerning elderly and disabled people feeling pressured to end their lives, but they are not making the obvious connections - to wit: strengthen the social system significantly so that this is not an issue. Either way, in the end, regardless of the morality etc., your argument fails for the simple reason that the constitutional problem re. the Carter Decision still persists. In the end, I am fairly sure that the SCofC will overturn this bill in its present form. I think it is pretty clear that the Government knows this and it remains unclear to me why they are defending the bill in this way. If they were really concerned with the SCofC they would simply refer the bill for a ruling. Furthermore, the quickness with which Wilson-Raybould disregarded the Senate amendment process was, for me, deeply troubling. I don't think we would have bought this from the Conservatives, and I don't think we should buy it from the Liberals.

    1. hi Kirby...well I see we're back to disagreeing. As usual ;). But seriously I'm not sure that the Supreme Court will ermine the bill to be unconstitutional, since reasonably foreseeable is also accompanied by other language which allows for greater flexibility. Also the danger of people being pressured into dying before their time is a very real one I assure you. And a very big concern for groups that speak for the disabled. But at least we agree that assisted dying should not mean any relaxing of the push to strengthen the social system. As for the rush to ram the bill through I think that's just because of pressure from doctors, and other health workers who want clear guidelines and immunity from prosecution before they perform any assisted dying procedure. Because right now an extensive survey by the CMA shows that no doctors are willing to do that. So suffering people are being denied relief, while the politicians keep arguing over the merits of the bill. You know, I think another part of the problem is that people are getting hung up on words, and fail to understand that assisted dying is already happening in our hospitals, in the subtle ways that medicine allows, and sometimes one can be too legalistic and not humanistic enough...

    2. Only time will tell whether the bill as the Liberals want it will turn out to be unconstitutional. If the Carter decision had not been unanimous then I would have more doubts, but the Court was unequivocal, which leads me to believe that they are going to act fairly strongly on this issue. I am still not convinced concerning the "pressured into dying." You can "assure" me as you say, but your assurances don't convince me. So it goes. I don't accept "ramming" this legislation through regardless, and I really don't think it is pressure from healthcare workers that is the issue here (though I am not sure, as I have said, what the issue really is). I do agree that one can be too concerned with the law and not concerned enough with the humanity of a case. That's fair enough. However, if the Liberals were really as concerned with the humanity of the case as you say, then "ramming" through legislation would be the last thing they would do. We live in a society that has grown increasingly inhuman through the last generation, at least when it comes to the most vulnerable. That is precisely why I say that when it comes to assisted dying we need to make sure finances are not an issue for those in the situation, that way we protect both their humanity and their dignity. The argument put forward by the liberals (and the Conservatives) is acting as a smokescreen to fact that both parties have underfunded pensions and social services for a generation. Its not fair for Politicians who have intentionally ensured that the people in this country have no real financial security, to then say we can't enact a proper assisted dying bill because people don't have enough financial security.

  5. Anonymous11:50 PM

    Considering that 25 to 30% of healthcare costs arise from the last year of life and that its probably closer to 40% when longer term chronic sufferers are included there is good reason why legislation should not move the legal framework on assisted dying too far ,too fast.Although some may have total faith in the medical system and families to do the right thing for those at this stage in their lives,its not difficult to see conflicts of interest when bonuses and promotions can be related to improved administration efficiencies and potentially larger family inheritances are involved. If we lived in a perfect world no one would coerce a non terminally ill patient to end their life to save a few dollars but we don't.Unfortunately some have to pay a price for the benefit of the many until there are sufficient safeguards and society has matured to the extent that they can be included in the right to choose.

    1. hi I told Kirby the danger of vulnerable people being pressured into dying before their time is a very real one. And yes the burden of taking care of a loved one, and the desire to get their hands on their money, could create a situation that we absolutely need to do all we can to avoid. As I said if the bill can be improved I would be happy. But nobody should be surprised that the government is keeping its foot on the brake, because to do otherwise, at this stage, would be irresponsible...

  6. Thank you, Simon, for one of the more reasoned commentaries on this bill. I have to agree with you on this. Unlike so many others that expected wholesale changes the the minute Trudeau and the Liberals were elected with a majority, I think they may be right on this one. This topic and legislation on it are a major change from the "status quo" attempts by the Haprer Conservatives.