A landmark bill that has thrust debate around end-of-life care into the national political arena by legalizing medically assisted death in Quebec can withstand court challenges and even co-exist with provisions in the Criminal Code against assisted suicide and euthanasia, assert Quebec legal observers.
In a historic vote, after nearly five years of heart-wrenching deliberations across the province by a cross-party committee of the National Assembly that received 273 briefs and heard 32 experts as well as 239 individuals and organizations, about 80 per cent of Members of the National Assembly approved Bill 52, An Act Respecting End-of Life Care. Beyond providing guidelines to help patients who want to end their pain, the legislation sets protocols for doctors sedating suffering patients and aims to expand palliative care across the province.
With the passage of Bill 52, which will come into force within 18 months, once the province has established a commission on end-of-life care to oversee its implementation, Quebec becomes the first province and fourth jurisdiction in North America – after Oregon, Vermont, and Washington – to enact “dying with dignity” legislation or what the bill describes as “medical aid in dying.” Elsewhere, euthanasia is legal in the Netherlands, Belgium and Luxembourg. In Switzerland, a form of assisted suicide is legal.
“Bill 52 has brought to the forefront the discussion around euthanasia,” pointed out Dr. Louis Hugo Francescutti, president of the Canadian Medical Association, which is calling for a national palliative-care strategy to be developed. “It accelerates the discussion that has occurred in Quebec, and which must now happen in the rest of the country.”
Debate surrounding the controversial issue has begun. The Supreme Court of Canada is revisiting the issue in a civil claim challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia, 21 years after a divided court rejected the right to assisted suicide 5-4. In the meantime, Conservative MP Steven Fletcher has introduced two private member bills that would allow assisted suicide in some circumstances. In 2010, Parliament voted against legalizing assisted suicide by a wide majority.
Bill 52 conspicuously, and contentiously, avoids using the terms euthanasia or assisted suicide. By amending the Quebec Medical Act to allow doctors who have been given the consent of an end-of-life patient to administer a drug or substance to hasten or cause death, the Quebec government is asserting jurisdiction over euthanasia on the grounds that it is a medical act, and health falls under provincial jurisdiction. It is also a way of skirting s.241 of the Criminal Code, which makes it illegal to counsel, aid, or abet a person to commit suicide, a crime punishable by up to 14 years in prison.
“Bill 52 is exactly the framework that we proposed to place it within provincial jurisdiction,” noted Jean-Pierre Ménard, a lawyer specializing in medical issues who headed a panel of legal experts commissioned by the Quebec government to examine the legal feasibility of a comprehensive “dying with dignity” law. “It is essentially a health bill that touches on patient-doctor relations, the organization of health sector, and medical practices. The bill gives rights to, and provides a legal framework, for palliative care patients. Medical aid in dying is one of the many elements in the bill, and it is really part of the continuum of care.”
A ruling by the nation’s highest court that dealt with assisted human reproduction bolsters this line of reasoning, added Ménard. In 2010, in a 5-4 split decision in Reference re Assisted Human Reproduction Act, 2010 SCC 61,  3 S.C.R. 457, the Supreme Court upheld the right of provinces to regulate health care, including fertility clinics, but stated that Ottawa was within its jurisdiction in banning human cloning and regulating the payment of fees for gamete donation.
Ménard also maintains that the evolution of Quebec jurisprudence over the past 30 years and the introduction of the Charter of Rights and Freedoms has limited the reach of the Criminal Code. “The sanctity of human life has lost its intensity in lieu of self-determination, particularly in the context of end-of-life,” said Ménard. Besides, “current laws do not have a dissuasive effect and are difficult to apply. It is therefore illusory to believe that the most vulnerable are protected under Canadian laws.”
The Barreau du Québec, which considers Bill 52 to represent a major step forward for the dignity and self-determination of end-of-life patients, too believes that end-of-life care falls within the scope of provincial jurisdiction, said Johanne Brodeur, who this month completed her year-long mandate as batonnier. “Since we are talking about health matters and end-of-life care, this does not fall within the federal jurisdiction, and therefore does not come into contradiction with the Criminal Code,” added Brodeur.
But Michel Racicot, a retired Montreal lawyer who helped draft motions for the 640-strong Quebec-based Physician’s Alliance Against Euthanasia, a non-profit organization that intends to launch a suit against the Quebec government over Bill 52, disputes the notion that euthanasia and assisted suicide is part of the continuum of palliative care. Besides maintaining that the Quebec government has no power to “decriminalize” euthanasia, Racicot believes that the Quebec government misrepresented the notion of palliative care by including medical aid in dying, a phrase he says is a euphemism for euthanasia. “The bill completely changes the nature of the medical profession, so much so that it was obliged to amend the Medical Act to include this new so-called medical act,” said Racicot. “A doctor who decides not to provide medical aid in dying must refer the case to the executive director of the establishment, and the executive director must find someone to do it. So while Bill 52 says doctors have the right to refuse to provide the so-called medical aid in dying for reasons of conscience, there is not much freedom of conscience when one is obliged to participate in the criminal act.”
Some like ethicist Margaret Somerville believe that Bill 52 will inevitably create a slippery slope. The founding director of the McGill Centre for Medicine, Ethics and Law believes that once the “clear line of inflicting death” is crossed, it is unescapable that euthanasia will be extended to a much wider range of people initially included and that abuse will take place. Somerville points out that in Belgium and the Netherlands, where euthanasia has been legal for more than a decade, there has been a gradual loosening of restrictions. “This is a massive, radical change in the the practice of medicine and in our values, and I believe in the substatra of our civilization,” said Somerville. “Probably the most important value that we have is that we don’t intentionally kill each other. But if you are going to have laws like in Quebec, then it should not be doctors that carry this out. It should be some other specially trained group of people.”
There are signs that the slippery slope may already be under way even though Bill 52 is not in force. Under Bill 52, only patients of full age and sound mind who suffer from an incurable serious illness, suffer from an advanced state of irreversible decline in capability, and suffer from constant and unbearable physical or psychological pain that cannot be relieved in a “manner the person deems tolerable” can obtain medical aid in dying. Also, two physicians would have to approve the request for medical aid in dying, which would have to be made in writing. But in a blog post, Dr. Yves Robert of the Quebec College of Physicians, which supports the bill, wonders why patients who have been incompetent or unfit for a long time suffering from the same condition be deprived of the same right.
“That is a problem that remains,” acknowledged Danielle Chalifoux, a lawyer and nurse who was part of a 12-person task force established by the Barreau du Québec that published nearly four years ago a 184-page study on the legal issues surrounding assisted suicide and euthanasia. “The problem of what to do with incompetent people who are suffering intolerable pain is not broached by the law in the interest of protecting vulnerable people,” said Chalifoux, who supports Bill 52. “Once a person is incompetent, nobody can ask in their place for medical aid in dying. Some people find that that is a bit discriminatory because competent people have these rights while those who became incompetent do not even though they may suffering the exact same condition.”
The Canadian Medical Association, which does not support physician-assisted suicide because it is illegal, says that if the law in Canada is changed to allow euthanasia or physician-assisted dying, strict protocols and safeguards must be put in place to protect vulnerable individuals. “If society decides to go down this road, then you can rest assured that physicians will be extremely vigilant and making sure that the weakest members of our society are afforded the protection that they can’t give themselves,” said Dr. Francescutti. He’s also calling for provisions that would ensure that no matter what kind of legislation is passed, no physician should be forced to participate in euthanasia if it is against their beliefs. “Bill 52 has safeguards (for doctors) but it now just a bill that hasn’t stood the test of time yet. This is unchecked waters. This is new for everyone.”
This story was originally published in The Lawyers Weekly.