By passing bill legalizing assisted dying, UK Parliament is throwing baby out with bathwater **

Gold’s Legal Minute*GLM*

By Allan Gold, lawyer Montreal and elder law attorney

Vol. 15, #5 –November 30, 2024

OPENING

Dateline London Nov. 29, 2024: In a piece titled, “MPs back proposals to legalise assisted dying,” Becky Morton wrote: “In the first Commons vote on the issue in nearly a decade, MPs supported a bill which would allow terminally ill adults expected to die within six months to seek help to end their own life by 330 to 275, a majority of 55….The bill will now face many more months of debate and scrutiny by MPs and peers, who could choose to amend it, with the approval of both Houses of Parliament required before it becomes law….Current laws across the UK prevent people from asking for medical help to die.” 1

As a lawyer Montreal and elder law attorney, I’m at odds with this proposed bill. In my belief, this won’t work out as intended. Frankly speaking, it’s misguided and regrettable.

*****//*****

“I think those who have a terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution.” – Stephen Hawking 2

*****//*****

SPEAK UP, I MUST

Some people may ask, “Why comment on UK proposed legislation?” As a lawyer Montreal and elder law attorney, I respond, “If someone is making a mistake, you should alert that person so he/she can correct it. If someone is going off the straight and narrow, you need to warn him/her without delay. In this instance, I see Great Britain taking a wrong turn to the far side of right-living! Staying silent isn’t an option. 

To all those suffering, I have compassion and great empathy. To their family, I’m truly sorry.  To all those on the “yes” side,  I understand what you’re trying to address and who you’re trying to help. However, I disagree. I’m not alone. The vote wasn’t unanimous. Indeed, many MPs were NOT fully in agreement. A count of 330 for to 275 against  – a majority of 55 signifies that nearly half had a differing opinion.

To be succinct, I just don’t believe this is the best way to deal with this issue.  

CURRENT UK LAW

I understand where proponents are coming from. At present, UK law can be summarized as follows:

“Both euthanasia and assisted suicide are illegal under English law.

Assisted suicide. Assisted suicide is illegal under the terms of the Suicide Act (1961) and is punishable by up to 14 years’ imprisonment. Trying to kill yourself is not a criminal act.

Euthanasia. Depending on the circumstances, euthanasia is regarded as either manslaughter or murder. The maximum penalty is life imprisonment.” 3

But the object bill would constitute a sea change in UK law. It would allow mentally competent adults with fewer than six months to live to request and receive help to end their lives.

MAKING THE CASE

Permit me, to make the case against the bill.

Argument #1 – Unnecessary

An alteration of the law is not actually required. In certain circumstances, doctors can prescribe terminal sedation that might contribute to death over a number of days.

Argument #2 – Rights

Individual rights are important – but liberty is not unlimited. On our streets, we have stop signs, don’t we?

Argument #3 – Life Not Death

The idea of extending a ‘right’ to death is subversive. In part, this is due to the legal principle of ‘sanctity- of-life.’ “The doctrine has traditionally been characterised as the view that bodily human life is an intrinsic good, of irreducible value and that, as a consequence, it is always impermissible to kill an innocent human.” 4 For me, such is a critical guard rail of our law. Indeed, the State should be protecting life not death.

When it comes to “legalizing assisted dying,” being opposed is a ‘matter of principle.’ This ‘noun phrase’ means “a situation that requires something be done a certain way because one believes it is the only right way.” 5

Argument #4 – Dr. Death

With assisted dying, we shamefully make a physician a perpetrator. He/she carries out a harmful, illegal and/or immoral act. This poses an ethical dilemma for most, if not all. It bears repeating that doctors must act pursuant to the Hippocratic Oath which includes: “…I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm…” We all must accept that medical science can’t fix everything!

Argument #5 – Slippery Slope 

This UK change of law on assisted suicide is a step onto the “slippery slope” – that’s “a bad situation or habit that, after it has started, is likely to get very much worse” 6

I can make this statement because Canada has been there, done that.

MAID

Assisted dying – it’s “also known as medical assistance in dying (MAID) in Canada, is a legal process that allows a person to receive medical help to end their life.”

In the Canadian context, “Medical assistance in dying (MAID) is a process that allows someone who is found eligible to be able to receive assistance from a medical practitioner in ending their life. The federal Criminal Code of Canada permits this to take place only under very specific circumstances and rules. Anyone requesting this service must meet specific eligibility criteria to receive medical assistance in dying. Any medical practitioner who administers an assisted death to someone must satisfy certain safeguards first.

Only medical practitioners are permitted to conduct assessments and to provide medical assistance in dying. This can be a physician or a nurse practitioner, where provinces and territories allow.” 7

Long Winding Road 

Let’s review the Canadian experience on topic. Hereinafter is the encapsulated history.

“I’ll begin with the case of Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 ). A crucial issue was whether s. 241(b) of the Criminal Code infringes s. 7 of the Canadian Charter of Rights and Freedoms – the Charter (Part I of the Constitution Act, 1982). On Sept. 30, 1993, the Supreme Court of Canada rendered a judgment, denying a right to assisted suicide. (Sadly, slippery slope fears expressed in this case were warranted.) Next, I’ll refer to the controversial case of R v Latimer, [2001] 1 SCR 3. Robert Latimer was a Saskatchewan farmer convicted of murdering Tracy, his 12-year old daughter. She suffered from cerebral palsy which rendered her immobile and unable to speak, with the mental capacity of an infant. He claimed it to be a ‘mercy killing.’ In its decision, the Supreme Court ruled that the crime could not be justified through the defence of necessity. Robert Latimer served seven years in prison for killing his disabled daughter. On June 5, 2014, Quebec enacted the so-called “right-to-die” law. Bill 52, an Act respecting end-of-life care, passed in a free vote in the National Assembly by 94 votes to 22. Quebec thusly became the first Canadian province to legalize medically assisted death. In 2015 came the turning point in accepted law on point. Such was the case of Carter v Canada (AG), 2015 SCC 5. In the unanimous decision of Feb. 6, 2015, the Supreme Court struck down the provision in the Criminal Code, thereby giving Canadian adults who are MENTALLY COMPETENT and suffering intolerably and enduringly the right to a doctor’s assistance in dying. On May 30, 2016, the Canadian Parliament passed Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Its acronym is MAiD. Kindly note that MAiD commenced by covering terminal illnesses. In May 2017, Ontario’s Medical Assistance in Dying Statute Law Amendment Act, received Royal Assent and came into force. And then came the case of Truchon v Canada (AG), 2019 QCCS 3792. On Sept. 11, 2019, the Superior Court of Québec declared unconstitutional the “reasonable foreseeability of natural death” (RFND) eligibility criterion contained in the federal MAiD legislation, and the “end of life” eligibility criterion contained in Quebec’s Act Respecting End-of-Life Care. The Court ruled that the RFND criterion did violate section 7 of the Charter, which protects against deprivations of life, liberty and security of the person, and section 15 of the Charter, which guarantees the right to the equal protection and equal benefit of the law without discrimination. There was no appeal. On March 17, 2021, Parliament passed former Bill C-7 to revise eligibility criteria for obtaining MAiD and the process of assessment. The bill amended the Code provisions on MAiD by establishing a separate set of screening factors for individuals whose natural death is not reasonably foreseeable, etc. It must be noted that MAiD was set to allow, starting on March 17, 2023, anyone suffering from a mental illness, meeting eligibility criteria to be eligible for medical assistance in dying. However, on Feb. 2, 2023, the Liberal government introduced Bill C-39. Such was an Act to amend the Criminal Code (medical assistance in dying). This was relative to Subsection 1(2.‍1) of Section 6 of An Act to amend the Criminal Code (medical assistance in dying). It was to postpone said start date until March 17, 2024. In other words, this was to delay the expansion of MAiD to people suffering from a mental illness – read someone whose sole underlying condition is a mental disorder. And then on Feb. 10, 2023 Conservative MP Ed Fast (Abbotsford, BC) tabled (for first reading) Bill C-314. The Bill’s summary reads as follows. “This enactment amends the Criminal Code to provide that a mental disorder is not a grievous and irremediable medical condition for which a person could receive medical assistance in dying.

So there you have it. With MAiD, I believe that Canada is slipping and sliding down the proverbial ‘slippery slope.’ …While our Jurists, Parliamentarians & Legislators were well-intentioned, Canada has gone down the Carter rabbit hole. One thing led to another. Someone wanted a little more. Seemingly pushed into a box, highly-principled people had to go just a little farther. Of course, that encourages someone else. I’m left asking, “Are we there yet?” I must respond, “I don’t think so. Things will likely continue as nothing seems to be holding us back.” 8

UPDATE: “Under Canada’s current MAID law, people suffering solely from a mental illness who meet all the eligibility criteria and safeguards would have been eligible for MAID as of March 17, 2024.” But on February 1, 2024, the Canadian Government pulled back from the brink. Hon. Mark Holland, Minister of Health Canada announced:

“Significant progress has been made in supporting practitioners in assessing MAID eligibility in complex cases. However, after extensive consultations with key health system partners and provinces and territories, and the report of the Special Joint Committee, we have heard loud and clear that the health system is not yet ready for MAID where the sole underlying condition is mental illness. By introducing this legislation, we are going to ensure that our MAID system is measured, thoughtful and compassionate, while we work with partners to ensure future readiness.”9

*****//*****

“People should make end-of-life decisions in consultation with their physicians. Doctors must provide patients accurate information about illness, treatment options, available resources.”  – Allan Gold

*****//*****

JUST TO SAY 

Here’s a mini-action plan for patients facing challenges from terminal illness.

Step #1 – Speak with attending physician(s) about managing pain and other symptoms;

Step #2 – Seek out resources for people with a terminal illness;

Step #3 – Get legal advice and (a) Make a legally binding advance decision to refuse treatment (living will); (b) Execute a lasting power of attorney in the event of incapacity.

Step #4 – Talk about your illness with family and friends and make your wishes known;

Step #5 – Plan ahead for end of life care;

Step #6 – Arrange finances so as to cope financially;

Indeed, one or more of the foregoing is part of the individual solution.

*****//*****

“Every problem has a solution; it may sometimes just need another perspective.” ~Katherine Russell

*****//*****

CONCLUSION

Terminal patients face terrible challenges. In Great Britain, assisted dying is being offered up as the answer. However, the current bill isn’t the solution. This is an extremely complex situation. Just look at Canada after it took the plunge and legally speaking, is now more or less flailing. My message is clear – “Don’t repeat the mistake made by Canada.”

Instead of killing, I encourage UK MPs to vote for increased funding to establish more hospices and improve palliative care and make it more widely available. Simply put, it’s the right thing to do.

Oh, by the way, to the British people, I say “Bath grey water is still relatively clean – an unused tub is worse!”

Allan Gold, lawyer Montreal and elder law attorney

! Call to action: To every attorney in the field, I say, “Write a post/article. Let’s help seniors & their families become better informed about elder law Canada! And by the way, please send it along. I’d love to read it.”

NOTICE – CAUTION –DISCLAIMER. The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.

1. https://www.bbc.com/news/articles/ckgzkp79npgo

2. https://www.azquotes.com/quotes/topics/assisted-suicide.html) 

3. https://www.nhs.uk/conditions/euthanasia-and-assisted-suicide/
4. Kuhse, H. (1987). The Sanctity‐of‐life doctrine in medicine (p. 14). Oxford University Press.
5. https://www.merriam-webster.com/dictionary/a%20matter%20of%20principle
6. https://dictionary.cambridge.org/dictionary/english/slippery-slope#google_vignette)
7. https://www.canada.ca/en/health-canada/services/health-services-benefits/medical-assistance-dying.htm
8. Excerpt from Gold’s Legal Minute*GLM*By Allan Gold lawyer Montreal and elder law attorney Vol. 14, #3 – May 17, 2023
9. https://www.canada.ca/en/health-canada/news/2024/02/the-government-of-canada-introduces-legislation-to-delay-medical-assistance-in-dying-expansion-by-3-years.html

**© 2024– ALLAN GOLD – ALL RIGHTS RESERVED-TOUS LES DROITS SONT RÉSERVÉS Ed. 2024-11-30-001