Safeguards are needed for those seeking Medical Assistance in Dying

It is not obvious that the current safeguards are working. There is a lot of remaining ambiguity around them, and annual rates of euthanasia went up by more than five times between 2016 and 2019. This follows similar trends in Belgium, where the further expansion of eligibility has been associated with dramatic increases in rates. Existing Canadian safeguards are, frankly, quite minimal, but they still play an important role in protecting some vulnerable people.

Unfortunately, fewer than 5 years later and before a scheduled statutory review, the government is already taking further steps to remove safeguards, upsetting the so-called balance that they created. The government’s new euthanasia bill was tabled in Parliament on February 27, and the government will likely try to pass it before the end of June. This bill eliminates two vital safeguards – the general practice of a ten day reflection period before a person is euthanized, and the requirement for two independent witnesses to confirm the person’s consent. These particular provisions are not in response to any court decision.

The goal of the ten day reflection period was to recognize the reality that someone who is suffering may go through periods of extreme agony or despair which are not representative of their overall experience or wishes. It is not consistent with the principle of autonomy to allow someone to make an irreversible decision without requiring some reasonable period of reflection. All of us who have accompanied people dealing with severe illnesses know the natural variations that can exist in a person’s response. An expressed desire to die may be a sustained and consistent intention, but it may also be a short-term cry for help – for better care, better management of pain, or more love and support from others.

When I did suicide prevention training in preparation for taking on a leadership role in my university residence, we were taught to treat every expressed desire for death as a cry for help and to look for ways to address the cause of the person’s suffering. With the legal change, things are now murkier – the desire for death by certain people is now met with suicide facilitation instead of suicide prevention. How do we decide which people should receive suicide facilitation and which people should receive suicide prevention?

These may be complicated issues, but there is one thing that should be quite clear – that one important way to try to distinguish between a sustained desire for death and a short-term cry for help is to protect the existing reflection period.

Some have argued that, despite the benefits, the reflection period may unnecessarily prolong the suffering of someone who is clear in his or her desire to die. But the reality is that the law already allows for the reflection period to be waived. It does not amount to an iron-clad rule. It is, rather, a standard that should apply in most cases but does not have to apply in every case.

The concrete implications of removing the reflection period is that someone could ask for and receive euthanasia all in the same day. If someone’s pain management is off for a brief period of time, they could quickly be moved from the beginning to the end of the process, without any engagement of independent witnesses or family members.

The existing requirement for two independent witnesses to confirm a person’s consent was also created with a clear purpose in mind. The vast majority of healthcare providers have good intentions and wish to studiously stay within the confines of the law. But the data from other jurisdictions shows that a small number of “envelope-pushing” healthcare providers can be over-represented in problematic cases. Safeguards that require the presence of independent witnesses might not be necessary in most cases, but the risk of lives be taken under improper circumstances in a minority of cases by a small number of activist euthanizers is real. Independent witnesses confirming consent can guard against this.

Let’s remember that the purpose of safeguards in general is to address exceptional cases. The reason we need law enforcement is not because most people are lawbreakers, but because some people are lawbreakers. The reason we have fire departments and expansive rules and protocols around fire prevention is not because most houses are on fire, but because some houses could catch fire. Advocating for safeguards is not rooted in a mistrust of healthcare professionals in general, but rather in a recognition that abuse can happen and can be deadly. It’s hard to believe that the presence of a couple independent witnesses could be seen as a serious impediment for someone who is clear in their desire to be euthanized.

Some people are pushing the envelope already. Doctor Ellen Wiebe euthanized Barry Hyman on June 29, 2018. She did so after entering the Jewish nursing home where he lived and closing his door, and without informing or consulting with nursing home staff. His primary caregivers had no idea what was happening. Perhaps Dr. Wiebe had good intentions, but someone sneaking into a nursing home and then asking us to trust her own notes as evidence of consent raises serious concerns. In this case there also seems to have been a real failure to consider the traumatic effects on other residents, in light of their backgrounds. As the CEO of the nursing home said following the incident: “Imagine the implications for our staff and our residents and their families. We have a lot of Holocaust survivors. To have a doctor sneak in and kill someone without telling anyone. They’re going to feel like they’re at risk when you learn someone was sneaking in and killing someone.”

We need to preserve the limited safeguards that currently exist, and it is wrong for the government to be trying to remove them.