A "uniquely Canadian approach" to freedom of conscience
Provincial-Territorial Experts recommend coercion to
ensure delivery of euthanasia and assisted suicide
Expanding Carter criteria, maximizing Carter’s impact
B1.1 "Grievous and irremediable medical
condition" includes mental illness
Suffering not a prerequisite
B1.3 Competence not a prerequisite:
euthanasia for dementia
B1.4 Euthanasia and assisted suicide for
children and adolescents
B1.5 Assessment, euthanasia and assisted
suicide by non-physicians
No "waiting/reflection" period
B2.5 Physicians need not be present at
B2.6 Euthanasia & assisted suicide in
hospitals, hospices, retirement & nursing homes
B2.7 Families and caregivers may not be
B1. Expanding the Carter
"Grievous and irremediable medical condition" includes mental illness
(, : p.
7, 15, 34, 36-37)
B1.1 It has been noted that the term "grievous and irremediable medical
condition" is broad enough to include blindness and chronic depression.1
The Experts affirm that it should be understood to mean "a very serious
illness, disease or disability that cannot be alleviated by any means
acceptable to the patient." Cutting to the chase, this can mean any very
serious illness, disease or disability for which a patient refuses
B1.2 Consistent with Carter, the Experts state that mental
illness qualifies (p. 15), which necessarily includes mental illness for which a patient
refuses treatment. This means that
physicians should be able to provide therapeutic homicide or suicide
precisely because of mental illness. However, the Experts recommend that
requests from the mentally ill should receive "heightened scrutiny" to
ensure that they are competent to decide whether or not they should be
killed or helped to kill themselves.
B1.3 A survey of physicians by the CMA
demonstrated that support for euthanasia or assisted suicide among
physicians willing to consider providing it can drop by almost 60% if
the patient is not terminally ill. Only 14% of responding physicians
were willing to consider providing either euthanasia or assisted suicide
for someone not terminally ill (Appendix
D2.12), and only about 6% of the respondents
would consider doing so for psychological rather than physiological
suffering (Appendix D2.10).
B1.4 These returns suggest that a large majority of
physicians will not be willing to provide therapeutic homicide or
suicide for those who are not terminally ill, let alone for those who
are mentally ill. Of this group, a significant number may refuse to
facilitate euthanasia or assisted suicide for the mentally ill or those
not terminally ill through "effective referral" or similar means.
Presumably, similar trends would be observed among other health care
Suffering not a prerequisite
(: p. 6, 30-32, 35)
B1.2.1 The existence of "enduring" and "intolerable" suffering is one of the
criteria established by Carter. The Experts acknowledge this requirement,
and clearly wish to expedite euthanasia or assisted suicide "when
suffering becomes intolerable."
B1.2.2 However, the Experts recommend, in addition, that people who ae
suffering should be able to authorize euthanasia and assisted suicide as
long as they have been diagnosed with a "grievous and irremediable medical
B1.2.3 What the Experts suggest is that, upon diagnosis, these patients should
be able to have therapeutic homicide and suicide approved in advance, in
anticipation of intolerable suffering.2 Since the patient alone determines
what constitutes intolerable suffering, the Experts propose that the patient
should provide "a very clear statement of what the patient considers or
would consider to be suffering that is intolerable." If the patient
subsequently becomes incompetent, the physician would kill the patient "when
certain conditions that the patient believes would constitute enduring
intolerable suffering are met."
The patient's symptoms and/or presentation at the time of the provision
of the assistance will need to be assessed against the criteria for
intolerable suffering set out by the patient in advance. (p. 32)
B1.2.4 Since actual experience would seem to be necessary to determine
whether or not suffering is tolerable, it is by no means clear how a
patient (particularly one who is not suffering) can determine this in
advance. This is rather like asking a patient to predict whether or not he
will regret being killed in accordance with his request.
B1.2.5 In any case, what the Experts recommend would effectively permit
therapeutic homicide and suicide authorized by advance directive, on
condition that the patient making the directive has been diagnosed with a
"grievous and irremediable medical condition."
B1.2.6 But, assuming competence, why make such a diagnosis a condition? Why not
let anyone make an advance directive authorizing therapeutic homicide and
suicide, even if they are not seriously ill or disabled? The Experts could
not agree upon an answer to this question.
Some members of the Advisory Group believe that this is consistent with
existing practice with respect to advance directives and so should be
permitted, while others believe it is not possible to give informed consent.
. . prior to a diagnosis of a grievous and irremediable medical condition.(p.
B1.2.7 The Experts recommended that governments consult further for a year and
then update legislation if need be.
B1.2.8 According to CMA surveys, the number
of physicians willing to provide euthanasia or assisted suicide appears
to range from 6% to 29%, depending upon the condition of the patient,
and excluding reference to safeguards. Only about 6% of physicians would
consider providing euthanasia or assisted suicide for psychological
rather than physiological suffering (Appendix
D2.10). However, it appears
that such surveys have always proposed or have always been assumed to
refer to a scenario involving a patient who is actually suffering, not
someone who anticipates suffering some time in the future, so it seems
doubtful that the surveys are a reliable indicator of physician support for what the
B1.2.9 A further complication is that the health care
professional who receives and approves such an advance directive may not be
the person required to lethally inject the patient some time in the future. Particularly in the case
of dementia, health care professionals may unwilling to kill a patient on
the basis of an advance directive, especially a patient who does not appear
to be suffering. This has already been illustrated in the case of Margaret
Competence not a prerequisite: euthanasia for dementia
(: p. 29-31)
B1.3.1 According toCarter, only a patient who is competent can give consent for
therapeutic homicide and suicide. The Experts recommend that the requirement
for competence be limited to the point at which the patient consents by
signing an approved declaration. As explained above, that would allow competent patients to authorize euthanasia or assisted suicide even if
subsequently became incompetent.
B1.3.2 The Experts argue that this is would be particularly advantageous for
people diagnosed with dementia or other degenerative diseases, who would
thus be able to authorize euthanasia in advance, at a point of their
choosing, even if they are not competent when the time comes to kill them.
B1.3.3 What would happen if, after becoming incompetent, such a patient does not
appear to be suffering, or wants to live?
B1.3.4 The Experts seem not to have considered this question.
B1.3.5 Certainly, the Experts state that a patient can, at any time, revoke or
withdraw a request for therapeutic homicide or suicide. However, this is the
only direct statement made by the Experts about revocation or withdrawal of
a request in the sixty page document,4 and the context suggests that it
refers to a competent patient.
B1.3.6 Assuming that an advance directive made when a
patient is competent is binding, the Expert recommendation implies that an
advance directive authorizing euthanasia that is signed by a competent
patient becomes an irrevocable death warrant when the patient becomes
incompetent. It also implies that health care professionals
may be expected to lethally inject incompetent patients who do not appear to be
suffering or who want to live (B1.2.9).
B1.3.7 While the CMA has not surveyed
physicians about their willingness to execute advance directives by
killing dementia patients who are not suffering or want to live,
existing returns suggest that such an expectation would make conflicts
of conscience among health care professionals more prevalent.
Euthanasia and assisted suicide for children and adolescents
(: p. 29, 34)
B1.4.1 The Supreme Court of Canada authorized euthanasia and assisted suicide
for adults. The Experts reject what they call "arbitrary age limits." They
argue that euthanasia and assisted suicide should be provided to children
and adolescents who are judged competent to decide whether or not their
lives are worth living, given the suffering they may experience from
incurable illness or disability.
B1.4.2 A National Post article incorrectly reported that the
recommendation was limited to "terminally ill" children; it is not. The
co-chair of the Advisory Group has stated that a 12 year old child could
make that decision, though not a five or seven year old. The Experts
acknowledge that parents would not be able to prevent their children from
being killed or helped to kill themselves.5
B1.4.3 It is important to consider this recommendation within the context of the
others. When those recommendations are taken into account, what the Experts
recommend is that
- euthanasia should be available to children and adolescents with
serious and incurable medical conditions, including mental illness, as
soon as they consider their suffering intolerable;
- competent children and adolescents should be able to authorize
euthanasia and assisted suicide by advance directives, defining in
advance what they would consider to be "intolerable suffering," so that
they can be lethally injected if they are judged to be incompetent when
the defined circumstances exist;
- euthanasia and assisted suicide for competent children and
adolescents should not be delayed by waiting or reflection periods;
- parents would not be advised of plans to kill their children or
assist with their suicide if their children did not want them to know.
B1.4.4 By making unqualified recommendations for euthanasia and assisted suicide
for children and adolescents, the Experts go further than the Supreme Court
of Canada, but also further than the successful appellants in Carter. The
asked the court to strike down the law to the extent that it denied
therapeutic homicide and suicide to competent adults. They did not argue that
18 years old was a mere "arbitrary age limit." On the contrary, during his
oral submission, Joseph Arvay said:
For those born with a disability, it is not likely
they will be vulnerable. They will have had years to adapt to their
disability. And even if some may not, by the time they turn 18, any decision
they make will be a very considered decision. It will not be an impulsive
B1.4.5 Conflicts of conscience among health care professionals are
likely to be more prevalent in the face of demands that they participate in
providing euthanasia and assisted suicide for children and adolescents,
particularly in the case of the disabled or mentally ill, in the face of
parental opposition, or when they are expected to conceal the cause of death
Assessment, euthanasia and assisted suicide by non-physicians
(, , : p. 22, 25-26, 38)
B1.5.1 The Experts note that others, including nurses and pharmacists but also
"personal support workers," may have a role to play in assisting physicians
who provide euthanasia and assisted suicide. They recommend that the
Criminal Code be revised to exempt such assistants from
prosecution. Strictly speaking, this does not seem necessary, since they
would not be liable to prosecution as parties to an offence for assisting
with what would not be an offence to begin with.
B1.5.2 However, the Experts also recommend that the Criminal Code be amended to
allow nurse practitioners to give lethal injections or provide lethal
prescriptions, and to allow registered nurses and physician assistants
acting under the direction of physicians to do so. Further, they recommend
that nurse practitioners and health professionals (the latter working under
the direction of physicians) be allowed do everything that is required in
processing and fulfilling euthanasia/assisted suicide requests, including
the second independent assessment of patient eligibility.
B1.5.3 The Experts also envisage a "personal support
worker" giving a patient the lethal medication used for assisted suicide (p.
25). The term would cover a wide range of regulated and unregulated
occupations, including personal care aides and group home supervisors.
B1.5.4 All of this is necessary, the Experts say, to ensure that "scope of
practice legislation does not create barriers" to euthanasia and assisted
B1.5.5 Should these recommendations be adopted, it would seem that the term
"physician-assisted" would no longer be appropriate.
B1.5.6 Allowing non-physicians to provide
assisted suicide and euthanasia would increase the likelihood of
disagreement and conflicts of conscience among other health care
professionals who would not otherwise be directly or indirectly involved. On the
other hand, it might relieve some of the pressure on objecting physicians to
become directly or indirectly involved in the services.
B2. Increasing the impact of
B2.1 The Supreme Court confined itself to setting the
eligibility criteria for assisted suicide and euthanasia. It gave no
direction as to safeguards or as to how or where the services were to be
B2.2 A number of the Experts’ recommendations thus do
not go beyond what is required in Carter, but, nonetheless, have
implications that increase its impact.
B2.3.1 The Experts recommend that competent patients who have been found
ineligible for euthanasia and assisted suicide should be allowed to look for a
physician willing to declare them eligible. Similarly, should a physician
providing a second opinion conclude that a competent patient is ineligible,
the Experts recommend that the primary attending physician should be able to
seek a different opinion from another physician.
B2.3.2 The practice recommended by the Experts is allowed in the Netherlands.
The Levenseinde Kliniek (End of Life Clinic) in Amsterdam was established in
2012 by a Dutch euthanasia advocacy group (Right-to-Die-NL).7 It responds
only to requests for euthanasia from patients whose applications for
euthanasia have been rejected by their own physicians,8 so it is the paradigm
for euthanasia "doctor shopping." As noted below (B2.4.5), the Clinic
has been twice reprimanded by the euthanasia oversight committee for failing
to exercise proper care, and some pharmacists have refused to provide
euthanasia drugs to Clinic physicians because they did not believe that
euthanasia was appropriate for a particular patient.
B2.3.3 During its first year of operations, the Clinic granted
euthanasia or assisted suicide requests for 162 patients, whose suffering
consisted of one or more of the following (in order of occurrence):
• physical decline or loss of strength;
• loss of autonomy
• loss of dignity
• shortness of breath
• loss of sensory
• loss of mental capacity
Other kinds of suffering identified by the patients
but not statistically significant were pain, loss of capacity to maintain
social contacts, detachment, nausea, hopelessness, bedridden and confusion.
(The same suffering was identified by the 300 patients whose requests were
B2.3.4 The study providing this information was one of
two described by two American commentators as "well done but contain[ing]
gaps" and indicative of "worrisome trends." They stated that the research
and other reports suggested that the 'slippery slope' argument "be taken
very seriously."10 This was disputed by the lead author of the study.11
B2.3.5 Leaving that point aside, CMA surveys of
physicians suggest that the majority of Canadian physicians would be
unwilling to participate in euthanasia or assisted suicide in the
circumstances described in the study. (Appendix D2.14) Conflicts of
conscience among health care professionals asked or ordered to participate
in euthanasia and assisted suicide are more likely if they suspect that
doctor shopping has compromised the process leading to an authorization to
kill a patient.
No "waiting/reflection" period
(: p. 40-41)
B2.4.1 The Experts believe that "at least some time" should pass between a
request for euthanasia or assisted suicide and its execution, but they
rejected the idea that "a set amount of time"should be imposed because that
would, in their view, "impose an arbitrary barrier to access that would
negatively impact both patient decision-making and physician judgement."
B2.4.2 The Canadian Medical Association is of the view that the waiting time
should be "proportionate to the patient's expected prognosis," but
recommends that a minimum of 14 days should normally pass between a first
and second request for euthanasia or assisted suicide, and recognizes that
longer periods may be appropriate.12
B2.4.3 The Experts demonstrate an enthusiasm for therapeutic homicide and
suicide that appears to surpass that of the lead lawyer representing the
appellants in Carter. Speaking from his wheel chair during his oral
submission to the Supreme Court of Canada, Joseph Arvay considered the need
for "waiting periods," at least in some circumstances.
And then I think about those who may be disabled in
the prime of their life because of a car accident or a diving accident. And
many of those may say, as soon as that happens, "I want to die," and that's
an understandable reaction. But it makes sense for those people to impose a
fairly long waiting period. Maybe a matter of years before we allow them to
seek and obtain assistance in dying. Because our collective experience tells
us that most of them, almost all of them, will, too, adapt, although some
might not and we have to respect their decision.13
B2.4.4 The Levenseinde Kliniek (End of Life Clinic) in Amsterdam receives a
notable increase in requests for "emergency euthanasia" during the holiday
season, which pushes all employees to the limit to process the applications
to provide the service. The Director of the Clinic states that the process
can be reduced "to a very short time" so that requests can be quickly
handled. He admits that this is "absolutely undesirable (absoluut
onwenselijk)," but insists that "care remains paramount (blijft
zorgvuldigheid voorop staan)" and that one must "help people in need (Mensen
in nood moet je helpen)."14 Clearly, a minimum waiting period would interfere
with the processing of euthanasia requests during a Christmas rush.
B2.4.5 On the other hand, the Clinic has been twice reprimanded by the
euthanasia oversight committee for failing to exercise proper care: once for
killing an elderly woman whose medical conditions included anorexia nervosa,
posttraumatic stress disorder, anxiety disorder, and depression,15 and once
for killing an elderly stroke victim who was said to be "suffering
unbearably" because she did not want to live in a nursing home.16 In April,
2014, physicians at the Clinic complained that pharmacists were refusing to
provide them with euthanasia drugs, mainly because they did not believe that
euthanasia was appropriate for a particular patient. Most refusals involved
patients with dementia, psychiatric illness, or who simply considered their
lives complete and wished to die.17
B2.4.6 Conflicts of conscience among health
care professionals are likely to be more prevalent in the absence of
a waiting/reflection period, particularly in the circumstances described by Joseph
Arvay and prevailing, at times, in the Levenseinde Kliniek: especially in
the case of children, adolescents and the mentally ill.
Physicians need not
be present at suicides
(: p. 41)
B2.5.1 The Experts recommend that physicians, nurse practitioners or others who
prescribe lethal medication should not be required to be present when the
patient ingests it: "The patient should have the right to choose who is
present at the time of their death."
B2.5.2 The Experts acknowledge that complications and adverse effects are more
likely in suicides, but state that an informed patient is entitled to take
the risks. Physicians, they say, should simply "provide instructions on how
B2.5.3 What the Experts left unclear is what should be done if the patient is
incapacitated but not killed by the medication.
B2.5.4 If the patient decides to take the medication without anyone else
present, it appears that the Experts' position is that, having made an
informed choice, the patient has made his bed and should (eventually) die in
it, or suffer until he is found.
B2.5.5 If family, friends or others are present, the Experts appear to assume
that they will have been instructed to call a physician, nurse practitioner,
etc. to kill the patient by lethal injection. One hopes that they will not
attempt to kill the patient themselves, since the Carter ruling provides no
immunity from prosecution for them, nor have the Experts suggested it.
B2.5.6 Conflicts of conscience may arise
among health care professionals who are expected to provide lethal
prescriptions for assisted suicide, but who consider it unethical or at
least imprudent to absent themselves when the drug is taken,
particularly in the case of patients who are mentally ill. In addition,
conflicts of conscience may be experienced by health care professionals
who are called upon to lethally inject a patient who has not been killed
by the prescribed medication, particularly if they have had no previous
involvement in the case.
Euthanasia & assisted suicide in
hospitals, hospices, retirement & nursing homes, etc. (:
B2.6.1 The Experts recommend that euthanasia and assisted
suicide should be provided, not only in health care institutions or
facilities, but "wherever patients live" if that is their wish. This may
include "a retirement facility, nursing home or hospice" and "hospitals,
long term care facilities and at home."18 The Experts offer these
only as examples,
not as an exhaustive list. "Wherever patients live" includes group
homes, assisted living facilities and any kind of residential care facility.
B2.6.2 The Experts exempt "conscientiously objecting
facilities" from this requirement, but the exemption will be available only
to a small minority of facilities, and even then it is not a total
exemption. (Appendix C1.)
B2.6.3 It will be difficult for health care professionals, care aides,
personal support workers etc. who do not want to be involved with euthanasia
and assisted suicide to find work anywhere in Canada where they can be sure
that they will not be required to be involved with the procedures, or at least
expected to stand by while patients or residents they know are
killed or helped to commit suicide.
caregivers may not be advised (p. 29)
B2.7.1 While no formal recommendation is made with respect to the involvement of
families and caregivers, the Experts note that families and caregivers may
be advised "if the patient is willing and agrees." This means that patients
may be killed or helped to commit suicide without the knowledge of their
families, which would seem to require at least some dissembling or duplicity
on the part of health care professionals involved.
B2.7.2 Conflicts of conscience are likely to
be more prevalent among health care professionals who are uncomfortable
lying or dissembling to families, and those who object to euthanasia who
are not directly involved will almost certainly consider participation
in deception to involve unacceptable complicity in killing, even if it
occurs after the fact.
1. Santi N.
"From Courtroom to Bedside - A
Discussion with Dr. Jeff Blackmer on the Implications of Carter v. Canada
and Physician-Assisted Death." UOJM Volume 5, Issue 1, May 2015
2. Provincial-Territorial Expert Advisory Group on
Physician-Assisted Dying, Final Report (30 November, 2015) (Hereinafter
"Report"), p. 29, completion of declaration before suffering is experienced.
Bentley v. Maplewood Seniors Care Society,
2014 BCSC 165 (Accessed 2016-01-02)
4. Report, p. 29. At p. 36 the
Report quotes a paragraph from Federation of Medical Regulatory
Authorities guidance that includes reference to the patient's right to "rescind"
a request. The Report refers at p. 7, 33 and 59 to an oversight system
that tracks outcomes, including "withdrawal" of requests.
5. Kirkey S.
"Terminally ill children as young as 12 should have euthanasia choice,
expert panel urges." National Post, 14
6. Supreme Court of Canada, 35591, Lee Carter, et al. v. Attorney General
of Canada, et al.(British Columbia) (Civil) (By Leave) Webcast of the
Hearing on 2014-10-15:
Oral submission of Joseph Arvay (hereinafter
"Arvay") 77:16 | 491:20 - 77:37 | 491:20 (Accessed 2015-10-28).
"Dutch mobile euthanasia units to make house calls. New scheme
called 'Life End' will respond to sick people whose own doctors
have refused to help them end their lives at home." The Guardian, 1 March 2012
8. Levenseinde Kliniek
9. Snijdewind MC, Willems D, Deliens L.
Onwuteaka-Philipsen BD, Chambaere K. "A Study of the First Year of the
End-of-Life Clinic for Physician-Assisted Dying in the Netherlands." JAMA
Intern Med 2015 Oct;175(10):1633-40. doi: 10.1001/jamainternmed.2015.3978
10. Lerner BH, Caplan AL. "Euthanasia in Belgium
and the Netherlands: On a Slippery Slope?" JAMA Intern Med.
2015 Oct;175(10):1640-1. doi: 10.1001/jamainternmed.2015.4086.
11. The JAMA Network Speciality Author Interviews,
with Marianne C. Snijdewind, MA;, author of A Study of the
First Year of the End-of-Life Clinic for Physician-Assisted
Dying in the Netherlands, and Barron H. Lerner, MD, PhD,
author of Euthanasia in Belgium and the Netherlands: On a
Slippery Slope?" (Accessed 2015-01-02).
12. Canadian Medical Association,
Principles-based Recommendations for
a Canadian Approach to Assisted Dying (2016) p. A2-3, A2-4
Arvay, 77:37 | 491:20 to 78:17 | 491:20
Steeds meer kankerpatiënten
bij Levenseindekliniek (More and more cancer patients at End of Life Clinic)
(23 July, 2015)
Oordeel van de Regionale
Toetsingscommissie Euthanasie (Judgement of the Regional Euthanasia Review
Commitee) (19 January, 2015)
"Euthanasia clinic reprimanded for
death of stroke victim."27 August, 2014.
"Pharmacists sometimes refuse to
give doctors euthanasia drugs." 16 April, 2014
18. Report, p. 41.