Doctor assisted death safeguards are an illusion

For anyone thinking that doctor assisted suicide is Canada is a good thing, I suggest they read this paper (A Right to Voluntary Euthanasia? Confusion in Canada in Carter) by John Keown.

The paper identifies all the abuses that have taken place in Belgium, the Netherlands and Switzerland. It also details why the United Nations, the UK, the US and Ireland all have grave concerns about these abuses.

John Keown, is Senior Research Scholar, Rose F. Kennedy Professor of Christian Ethics.

Starting on page 29, Keown discusses the problems in jurisdictions where euthanasia has been legalized.

Pages 29 to page 45 will give the reader a good understanding of the abuses in Belgium, Netherlands and Switzerland.

"...The first official survey [Netherlands] disclosed that in 1990 there were 2,300 cases of voluntary, active euthanasia and 400 cases of physician-assisted suicide; that over 80% of these cases went unreported; and that there were a further 1,000 cases of active euthanasia without explicit request (mostly, but by no means all, involving incompetent patients). The evidence from Belgium paints a similar picture: the common performance of non-voluntary, active euthanasia and a frequent failure to report. The evidence from Oregon is much more limited: there have been no comprehensive surveys like those in the Netherlands. Moreover, the safeguards in Oregon are in significant respects, not least the absence of review committees, even laxer than those in the Netherlands and Belgium. The Oregon law’s safeguards have been aptly described by leading health lawyer Professor Alexander Capron as “largely illusory...” 

"...The undisputed empirical evidence from the Netherlands and Belgium shows widespread breach of the safeguards, not least the sizeable incidence of non-voluntary euthanasia and of non-reporting..." 

"...the [Carter] judgment skates over the official condonation of nonvoluntary euthanasia of disabled infants by the Dutch courts and medical profession, and fails even to mention (despite it being cited in evidence) the repeated criticism of the Dutch by the United Nations Human Rights Committee. The judgment also fails to give anything like adequate attention to important expert committee reports which have taken full account of the Dutch experience in their unanimous and considered rejection of euthanasia, not least the reports of the House of Lords Select Committee on Medical Ethics and of the New York State Task Force. The judgment states that there is now much greater compliance with the requirement to report than there was “prelegalization.” However, voluntary euthanasia was declared lawful by the Dutch Supreme Court in 1984—in 2002 the legal guidelines were essentially translated into statutory form. The low rate of reporting in 1990 (18%) was, therefore, discovered six years after legalization. The fact that the reporting rate rose to 80% in 2005 (three years after the enactment of the statute) is an improvement, but from a low base, and obviously had nothing to do with “legalization.” That 20% of euthanasia cases in 2005 year were still being falsely and illegally certified by physicians as deaths by natural causes, and that some 550 patients were euthanized without the required explicit request, is hardly evidence of effective control..." 

"...the Dutch regime still falls far short of demonstrating effective control. If control were so effective, why the criticisms by the U.N. Human Rights Committee in 2001 and again in 2009? The assertion by Battin that the empirical data from the Netherlands “demonstrates that no or little substantive abuse has occurred” bears little relation to the disturbing reality disclosed by the Dutch surveys, unless she entertains the peculiar view that non-voluntary euthanasia is not a “substantive abuse.”

On page 37 Keown discusses The Ireland case in Fleming VS Ireland:

"...The U.S. Supreme Court had also noted that the state may fear that permitting assisted suicide would start it down the path to euthanasia with and even without consent. If suicide was a right, it was a right enjoyed by every man and woman and could not be limited to competent, terminally ill adults, and the decision of a duly appointed surrogate decision maker was for legal purposes the decision of the patient. A limited right to physician-assisted suicide was likely, in effect, a much broader license, which could prove extremely difficult to police and contain. This concern was further supported, the U.S. Supreme Court had added, by evidence from the Netherlands, where the Dutch government’s own survey had disclosed 1,000 cases of euthanasia without explicit request, and the euthanasia of disabled neonates and demented elderly.  

"...It noted also that the European Court of Human Rights had affirmed, in Pretty, the U.K.’s blanket ban on assisting suicide, concluding that “[c]lear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures,” and that in Haas v. Switzerland it had observed that “the risks of abuse inherent in a system that facilitates access to assisted suicide cannot be underestimated."

The Irish Divisional Court on Carter:

"...the Divisional Court could not agree that the accumulated evidence from other jurisdictions supported Justice Smith’s conclusion that “the risks inherent in legally permitted death have not materialized in the manner that may have been predicted.”

It added:
“Neither the evidence tendered at the hearing before us or the evidence given before Lynn Smith J. regarding contemporary practice in either the Netherlands or Belgium can be regarded as encouraging or satisfactory. After all, it was not in dispute but that in 2005—the year for which the latest data is available for the Netherlands—560 patients (some 0.4% of all deaths) were euthanized without having given their explicit consent.“

Moreover, the corresponding figure for Belgium was apparently higher, “as 1.9% of all deaths which took place in the entirety of Flanders between June and November 2007 were without explicit request.” The corresponding figure for Switzerland was also high: “almost 1% of all deaths.” Justice Smith had also noted that evidence was given that in some cases euthanasia without request is lawful in the Netherlands. In short, observed the Divisional Court, the evidence showed that the incidence of non-voluntary euthanasia in the Netherlands, Belgium, and  is “strikingly high.” Further, the evidence before Justice Smith also showed that “family burden” was more often cited as a reason for non-voluntary euthanasia, and that non-voluntary euthanasia predominated in respect of the elderly who were in a coma or demented, that is, “precisely one of the vulnerable groups most at risk.” Her finding that relaxation of the law did not disproportionately impact vulnerable groups such as the elderly or those with disabilities had to be measured against this evidence, as well as the evidence (apparently accepted by her) that disabled neonates were not infrequently euthanized in the Netherlands. The Divisional Court concluded, “Against that general background, the Court cannot at all agree with [Justice Lynn Smith’s] finding that the risks inherent in legally permitted assisted death have not materialized in jurisdictions such as Belgium and the Netherlands.” The court went on that, while it agreed with her that scrutiny of physician-assisted suicide would have to be “at the highest level,” she herself acknowledged that, more than thirty years after relaxation of the law, compliance with essential safeguards in the Netherlands was “not yet at an ideal level.” 

The Divisional Court added: “In fact, it might well be said that this is altogether too sanguine a view and that the fact that such a strikingly high level of legally assisted deaths without explicit request occurs in countries such as Belgium, Netherlands and Switzerland without any obvious official or even popular concern speaks for itself as to the risks involved in any such liberalisation.” (All emphasis added)

The Irish Supreme Court upheld the Divisional Court's decision.

The Carter decision and what it says

What does Carter really say about terminal illness?

by Barbara Maloney

The federal government’s Bill C-14 has been loudly criticized for limiting “medical assistance in dying” (MAID) to those whose death is “reasonably foreseeable.” Critics say that in Carter the Supreme Court did not limit “physician-assisted death” (PAD) to those with a terminal illness and to do so in C-14 is unconstitutional. They point out that Kay Carter, mother of one of the plaintiffs, was not terminally ill and so would not qualify for MAID under Bill C-14.

However, importantly, the Supreme Court was silent on whether Kay Carter would have qualified for PAD.

That’s because Kay Carter’s right to seek PAD was not at issue in Carter. Gloria Taylor’s right was. The court expressly stated it was pronouncing only on the rights of Ms. Taylor and “people like Ms. Taylor” and only in the “factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.”¹

And Ms. Taylor did have a terminal illness.

(Kay Carter’s daughter, Lee Carter, challenged the law prohibiting assisted suicide as a violation of her right to liberty, it putting her at risk of criminal prosecution for assisting in someone else’s suicide. The Supreme Court did not deal with this issue but confined its decision “to the rights of those who seek assistance in dying, rather than of those who might provide such assistance.”² )

Consequently, whether or not Kay Carter would be eligible for MAID under bill C-14 is irrelevant to a discussion of the bill’s constitutionality.

What is relevant is whether or not the Supreme Court intended that PAD must be available to those who were not “terminally ill” / at the “end of life” (however imprecise those terms may be). While the court did not explicitly state that PAD may be restricted to those with a terminal condition, it is reasonable to conclude that the court implied this, based on the trial judge’s ethical analysis of PAD. The trial judgment is of particular relevance because the Supreme Court relied on it so heavily and unequivocally affirmed it.

The trial judge, Justice Smith, said that a central question in this case “is whether it is ethical for physicians to provide [PAD].”³ The ethical debate is relevant, she said, because “both legal and constitutional principles are derived from and shaped by societal values.”⁴

Her lengthy ethical analysis was based on a comparison between PAD and existing end-of-life practices which are lawful, such as withdrawal or refusal of life-sustaining /life-saving treatments. She was persuaded by the ethicists who said there is “no ethical distinction” between PAD and these other “end-of-life practices whose outcome is highly likely to be death.”⁵ 

It is important to note that Justice Smith’s ethical analysis involved only a category of people who would, without treatment, die. In short, her ethical analysis and the analogy she relies on are only applicable to people at or near the “end of life.” One cannot, therefore, assume that Justice Smith (or the Supreme Court) would have applied the same ethical analysis or arrived at the same conclusion with respect to people who were not terminally ill.

It is entirely reasonable to assume that the Supreme Court was considering only that category of patients whom Justice Smith was considering in her ethical analysis, that is, those who, but for a life-sustaining/life-saving treatment, would die.

A further hint that the Supreme Court was contemplating only terminal/end-of-life patients can be found in its discussion about the types of treatments that those with a “grievous and irremediable medical condition” are currently allowed to request or refuse: the same treatments applicable to end-of-life patients that formed the basis of Justice Smith’s ethical analysis.⁶

Thus a reasonable reading of the Supreme Court’s Carter decision permits Parliament to restrict MAID to those who are terminally ill /nearing the end of life. Parliament could choose, of course, not to require terminal illness, but requiring it would not be contrary to Carter.

Barbara Maloney is a freelance writer living in Nepean, Ontario.

1 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, paras. 126 and 127.

2 Ibid. para. 69.

3 Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII), para 164.

4 Ibid. para. 317.

5 Ibid. para. 335

6 Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, para. 66.