Chapter 3: End of Life Issues

 

INTRODUCTION

Issues that arise at the end of life are among the most numerous and contentious in the bioethical literature. As the field of bioethics continues to bloom and the relentless march of technological advance continues, the scope and gravity of these issues will continue to grow apace. This chapter is an introduction to several of these issues from a Canadian perspective. Discussion will start with the definition of death, and the difficulties inherent in trying to define and identify the concept. A consideration of the persistent vegetative state will introduce the concept of futility and the way medical futility is managed in Canada. The topic of withholding and withdrawing care at the end of life will be introduced in relation to some of these things. The status of living wills and advance directives in Canada and the provinces will be considered in some detail.

The second half of this chapter will be devoted to discussion around the most contentious of themes in end of life ethics: the debates around physician assisted suicide and euthanasia. Several countries have informed the Canadian stance on these issues and an examination from a comparative perspective will begin the discussion. From here a more detailed discourse on withholding and withdrawing care at the end of life will be undertaken. Finally there will be, in turn, an examination of euthanasia and then physician assisted suicide; specifically the ethical considerations, the current policy and legislation, and a look at the legal precedents and significant Canadian cases that have shaped the debate and the regulations in Canada.

DEFINING DEATH

The end of life is not as easily understood as many would think. If the sheer volume of writing on this topic can be any sort of guide, it seems that ethicists (justifiably) make much more out of dissecting the issue and enumerating its constituent topics than the layperson or average health care professional do. This speaks to the fact that while all persons (patients, health care providers, ethicists, plumbers and politicians) have an indisputable notion that there is, conceptually, such a thing as death (the cessation of life) there remains great difficulty in capturing this concept in a useful, meaningful, and consistent way.1 Indeed, much turns on the concept of a precise and agreed upon definition of death. And herein lies the most slippery part of the issue of defining death. Moving beyond theory and into the everyday life and practical concerns of patients and health care providers, a definition of death must be precise, clearly understood, empirically verifiable. Furthermore, the criteria must be agreed upon, and consensually understood with consistency and reliability by persons, state, and law.

The formal issue of defining death and questioning traditional understandings traces its roots back to a threshold time when emerging medical technology forced the medical community to clarify this blurry line.2 Before the invention of ventilators, and before the development of resuscitative measures, when a person ceased to breathe or his heart stopped, he died. The grey zone between dying and being dead was played out in minutes or at best hours. That is, in the past, if someone were to stop breathing the rest of the body (circulation and brain function etc.) would also very soon stop, and that person would be undeniably dead. With the advent of ventilators in the Intensive Care Unit (ICU), and advanced resuscitative measures in the field and in the Emergency Room, persons could continue to breathe and be sustained by artificial means, and persons for whom cardiorespiratory status had ceased could have it restarted.  This expanded the grey zone between the state of dying and the state of death. Death could no longer be defined solely along cardio-respiratory status as these functions could be taken over by machines and cardiopulmonary resuscitation (CPR) techniques.  Another criterion was called for, and brain function was deemed the most legitimate candidate as that function standing between life and death.

An attempt to gain a sharper definition of death was begun in the US. An ad hoc committee at the Harvard School of Medicine in 1968 is commonly recognized as the first significant attempt to change this definition3—but it was certainly not the last time this concept was debated. The definition of death had now become a fluid concept, one open to debate, and there was no going back. This discussion will not delve deeply into this rich history but to note that the brain death definitions have received scrutiny and refinement over the years. It should be noted that the cardio-respiratory definitions were not abandoned, but rather the neurological determinants were viewed as “another window” through which to look in order to verify the status of death. In the US, The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research made this pronouncement in 1981 and the recommendations of the commission were that death be considered along either neurological criteria of total brain death or by the irreversible cessation of circulatory or respiratory function.4 These were, by and large, further adopted by the National Conference of Commissioners on Uniform State Laws in the creation of the Uniform Determination of Death Act (UDDA) in 1981.5 The UDDA was adopted by most states, and those that did not adopt it have legislation to much the same effect. That being said, despite adopting the UDDA considerable latitude is still taken in the US in interpreting the law and the definitions set out by the commission, and the actual determination of death still varies among states and among different hospitals.6 With a few refinements, the definitions of death and the legitimacy of neurological determinants (as well as the “irreversible” cardiorespiratory criteria) were again examined in 2008 and remain largely unchanged.7

Opening the question of defining death has led to significant variability in health care policy around the world. There is overwhelming consensus on the notion that death, as a concept, can be understood, and even that it can be defined. But all this notwithstanding, different countries and different regions within countries have used different means to formalize this definition and diagnosis. In theory it is almost universal to use a neurological determination and definition of death, but the particulars of this vary between, for instance, the UK which uses a brainstem definition of death, and the US and Canada which use whole brain criteria.6 Determination of death along neurological lines will forever be a significant part of the understanding of death in any country, but whether it should be the exclusive or paramount criterion has become debatable (see below), and the plasticity of the definition is reflected in different interpretations in different parts of the world.

Canada has inherited its understanding of the definition of death principally from American bioethics literature and law. But whereas the law has been made explicit and “uniform” in the US, it has not in Canada. In Canada there is no definitive legislation similar to the UDDA to guide or instruct the determination of death. Canadian legal experts, when pressed to formally define death, do so along lines similar to the UDDA. This can be seen in the criteria set out by the Law Reform Commission in 1981 when it recommended legislation that would actually formally recognize death as the cessation of neurological function, the prolonged cessation of respiratory or circulatory function, or when the latter was not possible (because of the institution of artificial ventilation or circulatory support), then “by any means recognized by the ordinary standards of current medical practice.”8 This recommendation for formal legislation was never carried out by parliament, and the legal standing of determining death lies with the determination by competent physicians. There are few exceptions to this legislative vacuum, one instance is found in Manitoba where death is legally defined by its vital statistics legislation which recognizes the cessation of brain function as the official marker of death.9

Many (but not all) of the provinces have specified a working definition of death within their transplantation acts (see Chapter 7 on Organ Donation) in order to define when it is legally permissible to proceed with organ procurement and facilitate organ donation. However, there is no legislation with national jurisdiction in organ donation, nor are there strictly congruent provincial definitions.10 Importantly, legislation covering organ donation does not define death but rather, again, accepts the medical opinion on the determination of death as being authoritative. In sum, no matter how the legal lore is queried, Canadian legal understanding of death relies heavily on death as defined by the medical expert or inasmuch as it is in keeping with best clinical practices. But within Canada (as within the US) considerable variation exists in the implementation of criteria to define brain death, with particular variation seen between individual hospitals.11, 12

This situation was considered unacceptable by health care workers, and that in turn was part of the impetus behind a very ambitious project that led to the creation of universal guidelines to be accepted and used throughout Canada. In 2007 the results of a forum dedicated to this task were published and they outline in very clear terminology the understanding of a “made in Canada” definition to ensure reliability and consistency between the provinces and regions.13 While the forum has chosen a new term, “Brain Arrest”, as the term of art for this concept, it relies on internationally accepted criteria for the determination of brain death that is, for the most part, a “whole brain” definition. This concept of “Brain Arrest” has proven somewhat prescient inasmuch as it is being emulated in principle by other notable institutions like the (US) President’s Council on Bioethics who, in 2008, adopted the notion of “total brain failure” along similar lines.7 This concept or definition requires: an identifiable aetiology, the absence of motor response, the absence of brainstem reflexes, the absence of respiratory effort and the absence of any confounding factors (such as profound hypothermia). The Canadian recommendations are consistent with similar task force recommendations in other countries inasmuch as they recognize the need for special criteria for neonates and children. They also recommend (but this is not legally required) the supplementation of a controversial brain death determination with a second opinion of another physician.13 Of course in spite of these guidelines, indeed, in light of these guidelines, there exists in Canada, as elsewhere, concern over the legitimacy of the adoption of the neurological determination of death; and, as elsewhere, the debate continues beyond the guidelines as to the best means by which to define it.1 The intricacies of the debate and the controversy are beyond the scope of this discussion, but it is, nevertheless, important to reiterate the fact that there is some fluidity of the interpretation of this concept, and to recognize that the Canadian guidelines will change with time. For now, individual health care regions and individual hospitals do have a legitimate concrete and reliable resource to turn to—and adhere to—in grappling with this definition and creating policy.

One issue that has pushed the necessity for a clear definition of death, and a reconsideration of the utility of the extant definition, is the emerging issue of Donation after Cardiac Death. This topic will be discussed in more detail in Chapter 7, but a brief introduction to it is timely at this juncture and germane to the topic of defining death. Donation after Cardiac Death (DCD) refers to the donation of vital organs after the death of a donor that is defined as a cardiocirculatory death. In this way we have retraced our way back to the definition of death that preceded the Harvard definition of 1968. Revisiting this definition was essential because using strict guidelines of neurological determination of death was responsible for restricting the number of potential organ donations. Waiting for strict neurological criteria to be met saw many organs go unused and this was repugnant to the wishes of potential donors and their families, medical professionals that now possessed the technology to transplant these organs and, of course, the potential recipients that missed opportunities for a better life. This was debated in the literature for some time before the US took bold steps to allow for the donation of organs after the withdrawal of treatment of terminally ill patients that then subsequently “died” of cardiocirculatory cessation. The criteria and specifics differ between states and between different hospitals but the spirit of this concept has taken hold and the US can boast an improvement in its organ procurement because of the work that came out of such endeavours as the National Congress for Donation After Cardiac Death. This congress convened in 2005 and was instrumental in asserting the propriety of DCD and setting up guidelines for its adoption.14

In 2005 a forum convened in Canada set about to accomplish the same thing for Canada and Canadian hospitals. A report endorsing DCD and the guidelines for implementing programs across Canada was published in the Canadian Medical Association Journal in 2006.10 (Sadly, still by 2008 the Canadian experience with this concept was lagging its American neighbour and has resulted in a continued shortfall of organs for Canadians.15) From the above discussion it can be seen that in the US (by the UDDA), the cardio-respiratory or neurological determinants of death could be applied and hence DCD more easily facilitated, but Canada had, strictly speaking only neurological determinants defined. One very important innovation that came from the Canadian DCD forum was the adoption of criteria that could be used to define donor eligibility. Neurological determinants of death were retained, but, where necessary, and specifically for the purposes of organ donation, death could also be defined by irreversible cessation of cardio-respiratory function10 (see Chapter 7 for more information on this topic). Just how broadly this determination of death criteria can be applied to other medical or legal situations has not been tested, but it seems that Canada became one step closer to adopting criteria that goes beyond simply neurological determination of death.

FUTILITY

Medical and technological innovation in the 50’s and 60’s in resuscitation and critical care imposed on health care providers the necessity to examine the notion of death and the definition of death. In one respect there was the enhanced capacity to save people who would have otherwise died, and the threshold between life and death was pushed further afield. However, there were limits to how much technology could do for people, and while ventilators and similar innovations could animate bodies with “life-like” breathing motions and sustain circulatory function through bodies that had suffered multi-organ failure, real questions loomed as to just how much these things represented the sustained life of the patient and to what extent they were merely preserving biological existence. This is a murky area that has very real epistemological barriers which, while philosophers and medical personnel and the courts will continue to assault these barriers, this text will not. Rather, this discussion will close in on some of the ways Canada has grappled with the issues in this realm.

Defining death, as was discussed above, is one issue cultivated in this grey zone between life and death. Another is the notion of futility: just when is it futile to continue with aggressive medical treatment? Or perhaps more importantly, how should health care providers and families of patients proceed in the face of futility, and equally vexing, who has decision making authority in these matters? Once more this text does not, and will not, concern itself with the speculation, the theory and the nuances of these issues but rather present some of the practical guidance that exists in this realm as well as the law and policy that has evolved along with the issue in Canada.

Within the concept of futility are the sub-categories of physiological, qualitative, and quantitative futility.16 Physiological futility is that situation in which the intervention in question has no chance of achieving its intended outcome in purely biological terms, for example, performing CPR on a patient whose heart is totally and completely irreparably damaged; there is just no chance of succeeding in cardiopulmonary resuscitation when there is no cardiopulmonary system to resuscitate.  Quantitative futility exists when an intervention is statistically unlikely to be successful. Different numbers are suggested in this regard such as a 1% or 5% chance of success. Qualitative futility exists when the intended intervention is unlikely to achieve acceptable improvement in quality of life. Quality herein is largely defined by the patient or the patient’s family, that is, an intervention is futile because it will not achieve or improve the patient’s quality of life up to a level that is or would be acceptable to the patient.

Physiologic futility is less likely to present real ethical issues; these are often technical questions that are answered by the medical team who has insight into the technical aspects of just what can possibly be achieved with different interventions in different scenarios.17 Difficulty and conflict often arise when there are differences of opinion about the latter two types of futility. Take for an example of quantitative futility, the case where a family demands an expensive (or invasive or intensive) treatment that has less than 1% chance of success and the physician (who must be a steward of society’s resources, and a patient advocate that prevents unnecessary and prolonged suffering) feels this is inappropriate. Or take for an example of qualitative futility, the case where the family of an ill patient and the treating medical team differ in their opinions about an acceptable quality of life (such as aggressively treating a patient with very advanced dementia).

In gaining an understanding of futility guidance in Canada a good place to start is with the robust policy statement entitled the Joint Statement on Resuscitative Interventions, an ambitious undertaking by a collaboration between the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association, the Catholic Health Association of Canada, and the Canadian Bar Association.18 This resource was released in 1995 and is instructive in many issues pertaining to end of life issues. It was intended as a guide that could be appealed to in situations that arise where treatment of futile circumstances is at issue. It recommends the creation of multidisciplinary committees to address issues in individual health care facilities—increasingly this role is being taken up by ethics committees as they have become more established and more prevalent since the creation of this document. It then goes on to outline core guidelines in developing policies surrounding CPR and DNR (Do Not (Attempt) Resuscitation) decisions. These guidelines include acknowledging advance directives, identifying substitute decision makers, and providing clear and relevant education to all parties, and more importantly, open and honest communication. This document is clear in identifying resuscitative measures as treatment options (and not necessarily the last item at the end of a treatment algorithm), and furthermore that resucitation was a treatment that could be critically evaluated as likely or unlikely to be successful in different situations. It is also one of the first documents that was explicit in listing occasions when CPR was not indicated, namely, when patients had rejected CPR in an advance directive, and when CPR was almost certainly not possible to provide benefit or be successful. So, in the Canadian context, it was one of the first formal documents to accommodate the notion of futility in the decision making process, and was clear in stating that there is no obligation for institutions or care providers to provide futile or non-beneficial treatment.

Documents such as these are of value in directing action in many complicated cases but the limits of this utility have been probed in exceedingly complicated scenarios. One such scenario is that of the Persistent Vegetative State (PVS), in which the authority of these guidelines is not unquestioned in Canada.19 The persistent vegetative state is a complicated neurological condition that seems to stand between life and neurologically determined death. It is this very complicated state that has been the impetus behind much debate on the above mentioned definitions of death. Canada and the rest of the world have watched the media coverage of significant American cases, and have also been witness to the considerable acrimony generated by these cases and misunderstanding of this state.20 The PVS, while horribly distressing for families and loved ones of the afflicted, is also distressing for ethicists, law makers, and policy makers. For this reason it is a useful point from which to embark on a discussion of the broader concept of medical futility because some of the seminal Canadian legal decisions regarding futility stem from the case of a child in a PVS.

While America has been the arena of some of the most heated debates on the status of and direction of care for PVS cases, 21 Canada has had a dearth of experience in the courts and the media for the same. The exception seems to be a 1997 case in Manitoba of a badly injured one-year- old child who was in a PVS since the age of 3 months after being badly abused by an unknown assailant. The case is that of Child and Family Services of Central Manitoba v. Lavallee.22 This was the first test of the Joint Statement in the realm of PVS issues and a decision was upheld in the Manitoba Court of Appeal that directly cited the spirit of the Joint Statement that there existed no obligation to perform CPR in such cases, even in the face of protestations from the family members of the patient in question. The judgment referred to the “Guiding Principles” in which it is stated that there is no obligation to provide futile care. Furthermore, in the case of a person that would certainly not benefit from CPR, this treatment should not even be offered, and best clinical judgement should be used in precisely how to communicate this with the patient or surrogate. Seemingly, this opened the door to withholding treatment without the express consent or assent of the patient or surrogate (the Statement is quick to repeatedly stress the importance of transparency and good communication). In this case the child was a ward of the Ministry of Child and Family Services of Manitoba and as such, the legitimacy of the immediate family’s protestations was deemed moot, but one of the significant ramifications of the ruling was in affirming the authority of the medical team in making decisions about futile care.

In Canada, as is the case elsewhere, futility issues are not so contentious in the theoretical realm with respect to the moral appropriateness and defensibility of withholding and withdrawing treatment when it is futile to do so. Rather, the issue becomes contentious chiefly on the more technical problem of just how to define the rules and shape policy and law that can be consistently turned to as a guide and applied in the courts of law. Much of the Canadian debate on this matter involves the unilateral withholding or withdrawing of care for patients.23 In addition to the above cited case, there exist two others where the unilateral decision to institute a DNR order was unilaterally made and challenged in a court of law:  Sawatzky v. Riverview Health Centre Inc. (Manitoba 1998) and Re London Health Sciences Centre v. K. (R.) (Ontario 1997).24, 25 The Sawatzky case involved an elderly man with Parkinson’s Disease and numerous other health problems. The treating physician unilaterally decided to place a DNR order and the wife protested. The judge issued an injunction to stop the DNR order, and the case was resolved before trial. Unfortunately no ruling was made on the legitimacy of the action of the physician. In the case of K, an elderly man was deemed unfit to benefit from resuscitation and a DNR was ordered, even after protest from the family. In this case the hospital went to court to establish immunity from punishment if the man subsequently went on to die. The court refused to grant such immunity, but unfortunately, again, the issue of the legal status of unilaterally withholding and withdrawing treatment was not established. In neither case was there a definitive ruling made that could be appealed to as a decisive precedent in managing the difficult scenario of just what to do when the medical team has determined that further aggressive treatment is futile and the patient’s family and loved ones disagree.

It is important to note that there are, seemingly, distinctions made in Canada about the status of withholding care as a plan of action.  The Lavallee case was important in defining this distinction as well. The ruling was precise in stipulating that the family of the young boy had no claim on preventing the DNR order, not just on the grounds that they were not the rightful substitute decision makers, but also on the grounds that no one was interfering with an actual treatment plan inasmuch as in this case it was not truly treatment but specifically non-treatment.

Scholars take issue with this technicality—this distinction between treatment and withholding treatment—as being legitimate representations of two different kinds of things. Some would argue that a treatment plan is an entity unto itself and whether that includes doing an act or actually choosing not to do it is really part of the same continuum. That is, some would argue, in contrast to the judgement, that a treatment can include certain positive interventions and even include the avoidance of other positive interventions.26 The corollary to this is that patients (or, as is more often the case in these situations, substitute decision makers) should be a part of the decision making. Even though many futility issues are rightly identified by the medical team, withholding or withdrawing treatment is in fact a decision to do something— even if it is to intentionally abstain from doing something—and the patient or family should be a part of charting the navigation of this course.

As the above cases illustrate, there is no clear cut legal precedent or instrument to serve as a beacon when controversy or dispute erupts. In the absence of clear and decisive case law precedents and specific legislation, Canadian health care providers are left to reach agreement with families and surrogate decision makers at these difficult times by using documents such as the Joint Statement and other Canadian Medical Association policy statements as their guide. One of these documents is a policy statement entitled the Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care, it was released shortly after the Sawatzky decision.27 This document reasserts the position that, to some extent, the physician has the right to withhold treatment that clearly will not achieve any medical objectives (physiologic futility) or will in fact be harmful to the patient in prolonging suffering. But, the issue of qualitative futility is still very much a grey zone in Canada, as is the attendant question of the jurisdiction of the patient (or decision maker) and the physician, and the boundary between these jurisdictions.

Unfortunately there exists a great disparity among hospitals and provinces as to the nature and specifics of their end of life policies especially when it comes to futility. Manitoba has been very proactive in shaping law and policy, perhaps owing to the Lavallee case and the attendant publicity. The province’s Law Reform Commission and the College of Physicians and Surgeons of Manitoba have tried to address the issue of futility (and have also tried to move away from the use of this word and concept) and establish robust policy.26 However, some provinces have no legislation and no cases as precedent. Taking this even further there seems to be no clear guidance offered by other influential nations on this front; the US has a number of cases involving care in futile situations but no concise national guidance on the matter. Similarly, British law has a complicated relationship with the issue inasmuch as there have been cases that recognize the authority of patients in directing their own care but also, as a nation the UK is more willing to appeal to economic forces in limits to care in futile situations than is the US or Canada.26

Nevertheless, there have been laudable attempts at shaping policy in individual hospitals and an encouragement to do so nationwide.28 As the above cases demonstrate, Canada remains with no definitive legislation in this realm but there is earnest desire to move away from defining the slippery concept of futility and toward a durable means of conflict resolution through policy statements like the Joint Statement on Resuscitative Interventions.18, 19, 23, 29 Principled means of conflict resolution is seen as a responsible and appropriate way to manage issues of futility when there is dispute. Consensus building with family members, patients and health care providers is the ideal sought, but when there is no resolution to the disagreement, there is consensus in Canada, as there is in most of the world, that the provision of care that is patently physiologically futile (treatment that simply cannot possibly work) or care that is in violation of the professional integrity of providers, does not have to be provided.29

In sum then, the route to take in navigating these issues seems to be as follows: if there is a request for life sustaining treatment that is incommensurate with the goals of care, or if there is a desire on behalf of the health care team to withhold or withdraw care that they see as futile, and if the case is one that is not clearly futile, then the ideal is to reach a decision through appropriate conflict resolution techniques. Failing that, there is an appeal to institutional or hospital policy and the policies of the Canadian Medical Association(such as the Joint Statement). Even though there is no clear guidance from precedent in this area, if all else fails in reaching agreement, legal resolution must be sought as the last resort, and it remains to be seen how future rulings might influence care at every level in these troubling and desperate situations.

ADVANCE DIRECTIVES

As technology progressed, the ability to keep people alive longer also progressed. The 60’s saw the emergence of CPR and more advanced resuscitative measures, and the technological advances that kept persons alive well beyond what was possible even 25 years earlier increased exponentially in the 70’s and 80’s. This change brought with it a growing necessity for the careful consideration of what options people wanted (or would want) should they find themselves in need of these measures. Where once there was no choice, there arose an evolving, ever growing, and more complicated menu of options being foisted upon patients and families, and the care providers of these patients and families. In the United States, where this technological know-how was blossoming faster than most other developing nations, so too were the ethical debates over how to wield these new tools. The US was a pioneer in formally addressing the need for advance directives and living wills in the spirit of respect for patient autonomy.30 In 1990 the Patient Self Determination Act was passed federally, and a significant component of it was the recognition of the rights of patients to participate in all aspects of their medical care, including the creation of living wills and advance directives, and the right to appoint proxy decision makers.31 (With respect to terminology living will and advance directive are often, as here, used interchangeably with the former being more popular in previous years and the latter more commonly used now.)

In 1991 the Canadian Medical Association also put forward its policy statement entitled Advance Directives for Resuscitation and Other Life-Saving or Sustaining Measures. 32 In this statement the CMA was clear in its suggestion that persons could, and should, conceive of their advance directives (AD) in two forms, a written directive and/or by designating a proxy. Canadian law and policy still reflects a deep respect for both of these forms of advance directive initiatives. This document also highlighted the need for physicians to be intimately involved in helping their patients create advance directives, to provide consultative insight, and to facilitate the implementation of the AD once created.

The issue, of course, did not rest with these much needed statements. While the notion of advance directives is very good in theory, in reality actually creating them, implementing them and creating policy and law to observe them, has proven very difficult indeed. So much so that peoples’ opinions on, and understanding of, advance directives is quite variable, as is the adoption and use of them.33 Some of the Canadian bioethical commentary and research through the 90’s echoed this confusion; while most Canadians believe in advance directives few had experience in creating them, and many hospitals had no means to recognize or implement them.34,35

The SUPPORT Study of 199536, a seminal US study, seemed to crystallize the many difficulties with the practicalities of improving patient physician communication and advance care planning at the end of life. It found that despite best intentions and interventions aimed at improving end of life care through such means as advance directives and care planning, people who had these mechanisms in place fared no better than those who did not; that advance directives and intensive end of life care planning did not seem to ease pain and suffering, or reduce needless and expensive aggressive interventions at the end of life. Many people after this questioned the utility of AD in delivering good patient care. Many felt that this breakdown in communication and collaboration between patients and health care providers would have implications for palliative and hospice care as well.37

It is the principle of respect for autonomy that drives the contemplation and creation of advance directives. There is no guarantee that advance directives will enhance beneficence and ensure non-maleficence, nor will they ensure the proper distribution of health care dollars.  No matter how well intentioned or complete the AD is, there is no certainty that they will direct health care providers and proxies toward an accurate realization of the medical care that the writer would have wanted. Instructional directives are notoriously insufficiently powered to manage every contingency, and the legitimacy authenticity and integrity of proxies can always be scrutinized. So, while most people like the idea of advance directives, there has been a growing despair in Canada and the US at how useful they truly are; leading some to the notion that they should be dispensed with completely.38

Others have adopted an opinion that recognizes the difficulties of creating useful durable advance directives, and yet recognition, also, of the necessity for such documents to preserve patient autonomy and respect: advance directives are not perfect, but they are still useful.39 It is this attitude that probably most closely reflects the Canadian sentiment. Debates will continue to rage in the bioethical literature about the legitimacy and usefulness of advance directives, but in the practical day to day world of peoples’ lives and their struggle with end of life issues, some practical solutions must be made and observed. Canada has struggled since the CMA statement of 1992, to reach unity and consensus as to how such practical solutions should be reflected in policy and law. The CMA, and the Canadian Nurses Association have been justly and appropriately noncommittal in that while they respect the value of AD and strenuously advocate for the acceptance of AD, they do not officially urge them on the public nor advocate for rigid legislation to make them mandatory.40 In Canada there is no Patient Self Determination Act, and no mandatory advance directive forms upon hospital admission as in some US jurisdictions like New York State.  Nonetheless, and despite having neither a national legislative tool, nor being required to do so, Canadians have not lost sight of the ideal notion of the living will and advance directives and they continue to make these tools a meaningful and respected part of their health care. In the early 90’s there was very little in the way of formal recognition of advance directives and almost no legislation. Much has changed since then.

In Canada the legislation that does exist on these matters is provincial. All ten provinces and two of the three territories (Nunavut being the exception) have specific legislation to deal with advance directives.41 The federal government has no legislation, but since 1995 has encouraged the provinces and territories to create legislation where it was lacking to deal with AD, and further encouraged provinces to accept AD created in other provinces. 42 In Canada there is still much emphasis on the two forms of advance directive: written directives (actual written directives and wishes about which treatments are acceptable and which are not and what to do in given sets of circumstances, etc.), and proxy directives (the designation of a surrogate decision maker that would reflect one’s wishes if he or she was to become incapable of making health care decisions). The provinces vary in their acceptance of both of these forms, with many provinces accepting only proxy directives in law, while in spirit they recognize the value of both. Throughout Canada there is universal recognition of the legal document the Durable (Enduring in some provinces) Power of Attorney. This is not the same as an advance directive per se, but can be one component of an AD. It is the legal document (often crafted with legal counsel) that gives a proxy the power to administer such things as one’s finances, or in the present case, health care, through a Medical Power of Attorney Agreement (Durable Power of Attorney for Health Care in some forms) when one becomes incompetent.

There is a different nomenclature in many of the provinces for AD and proxies, and different ages are recognized as being legally capable of creating such documents. Table 1 (below) compares these variables by province. Health Canada has endeavoured to keep abreast of the legislation and promote transparent and current knowledge dispersion through its informative website. The Glossary Project (2006) is one such endeavour that presents the state of advance directive legislation throughout the country and current literature on the issues. It is a comprehensive portrayal of attitudes trends and opinions of Canadians that is compiled from literature reviews and interviews of key informants in the fields of law, medicine and the laity.43

It is beyond the scope of this discourse to enter the fray of debate on precisely how to word an advance directive, let alone how to store it and update it. Most legal and medical authorities agree that it must be carefully considered and frequently reviewed and modified, with input from loved ones and primary health care providers. The utility of these documents is contingent upon careful revision to reflect the most current particulars in an individual’s life and perspective, as well as their current health trajectories. One very useful document that is sufficiently broad and adaptable yet manageable is the University of Toronto Joint Centre for Bioethics Living Will which was developed by Dr. Peter A. Singer.44 This gives a comprehensive overview of advance directives, how to create them, pertinent provincial legislation, templates, and follow-up instructions all with a Canadian perspective and with Canadian needs and culture in mind.

The debate on the utility and the correct implementation of advance directives is far from over in Canada, the US, and the world. As time moves on the method of creating and storing advance directives will change with such things as the Living Wills Registry in the US.45 These endeavours ensure the durability of these documents.  While no such registry as ambitious as this exists yet in Canada46, it is clear that irrespective of personal opinions and theoretical positions on AD, they are here to stay.

PHYSICIAN ASSISTED SUICIDE AND EUTHANASIA

A)     INTRODUCTION

End of life issues are the richest source of bioethical controversy. Within that rich ferment is a class of controversies that surround physician and medical professional involvement with the end of life process; that is the class of controversies that surround physician assisted suicide and euthanasia. These debates have been some of the most passionate and divisive among and between lay persons, medical professionals, governments and nations. Many end of life issues have surfaced as a result of advancing technology that has enabled the medical enterprise to alter or prolong people’s lives; that is, many issues have arisen over how far to push and whether to deploy the latest technological advances. Much of the discussion so far has been with the issues of process, how to ensure respect for autonomy through advance directives, what the procedures are for securing proxies, how the hospitals policies and procedures respond to futile interventions etc.

When we enter the realm of Physician Assisted Suicide (PAS) and Euthanasia we enter a new realm of bioethical concern: a realm in which the substantive principles that inform the process and policies has not been thoroughly worked out, empirically tested or agreed upon. That is, there is much credible, lucid, heated and sometimes acrimonious debate in this realm about the actual substantive concerns of the issue; precisely which bioethical principles and moral theories are relevant and just how they are to be applied. Moreover, this is not an area that springs from controversies in new technological advances. Pain and despair have always existed at the end of people’s lives, people have always confronted the issue of suicide and mercy killing, and the means of dying have always been at mankind’s disposal. These are not “tech” dependent issues; while technology has created other end of life issues, here, technology has often merely served to bring clarity to the probable future of pain and suffering of those afflicted with certain and incurable illnesses (e.g. metastatic cancer, or severe chromosomal disease in a newborn). Technology is not the cause of this issue, but it does contribute to this issue: technological advance has thrust us into an age when the end of life is not merely something that will happen as a course of nature, but, rather it will come about more often as the result of a process that is now a negotiated, deliberative, or even deliberate. But as personal, as negotiated, as autonomous as the end of one’s own life has become, PAS and euthanasia remain very much socio-political and cultural/ religious centered issues.

To gain a sharper understanding of the issues in this realm several factors must be considered. These issues have been with us throughout history, and the debates are not likely to soon end. Furthermore, there are legitimate appeals to the substantive principles of bioethics that drive these debates. Finally, when we recognize the location of the opinions and the temperament of the arguments to be in socio-politico-ethno centered realms, we must acknowledge that there can be no conclusive discourse on the state of these issues at any given time in any pluralistic society. These issues will likely not be definitively decided in Canada or elsewhere. It is for this reason that this section will diverge from the others in being less about existing firm and established guiding procedures policies and legislation, and more about the evolution of the debates, for if we have no clear policy to appeal to for direction, we can at least have historical perspective as a guide. Moreover, if we cannot see our way to a clear and decisive way forward with a robust normative ethics, an ironclad public policy backed by informed legislation in our own nation, we would do well to also look to the ways other nations have addressed the issues.

To that end, this section will begin with a brief look at the issues of PAS and euthanasia in other countries; a comparative view that has helped shape the Canadian perspective. It will then weave through the topics of withholding and withdrawing care, physician assisted suicide, and euthanasia and the relevant substantive debate that has shaped policy. Canadian policy can be briefly summarized: withholding and withdrawing care are not controversial and are, of course, legal; physician assisted suicide and euthanasia are illegal. Nevertheless, a more thorough understanding of the ethical debate behind these issues, and the public perception of these is what is needed for a truly compleat understanding of bioethics in Canada.

B)     COMPARATIVE ANALYSIS

Canada began as a largely Christian influenced nation and as such, issues of suicide and killing were traditionally dealt with on appeals to the highest authority then known, the pronouncements of the Bible. Times have changed. The perceived legitimacy and authority of religious decree has less influence on Canadians, and dogmatic adherence to scriptural pronouncements is no longer expected of citizens, or state. As a mosaic of cultures, Canadians have been influenced by wave after wave of non-Christian immigrants, and Canadians have had to contend with and reconcile not only Islamic and Jewish sentiments, but also to reconcile secular and non-religious sentiments that vie legitimately for a place in the shaping of the normative ethics of death and dying, and related issues.

Furthermore, and perhaps of unparalleled influence, is the fact that Canadians live in a digital age where the internet can offer up instant information and opinions. All the latest issues and stories are augmented by evermore pervasive 24-hour news channels. As a result, almost everyone has heard of Dr. Kevorkian and seen the Terry Schiavo case, and everyone has an opinion. Many Canadians know of the Death with Dignity Act in Oregon47 and the status of euthanasia in the Netherlands, and these serve to inform the understanding of the issues of both individuals and governments. The information age has globalised even controversial ethical issues.

While the information age can be in some ways intrusive, global input can also be welcome. An example of this can be found in the law and policy creation for new and controversial issues: in the absence of specific common law precedents in various issues, Canada has appealed to the laws of the United Kingdom and other Commonwealth countries. For example, regarding end of life ethics there is some consistency among Commonwealth countries;  in the United Kingdom, there are no controversies (in theory) with withholding and withdrawing care in appropriate circumstances, and there is legislation against PAS and euthanasia. Canada has followed the lead of these countries in legislating against PAS and any form of euthanasia. Australia was briefly the exception among the Commonwealth when, between 1995 and 1997, PAS and euthanasia were briefly granted legislative approval in the Northern Territory.48 Canada has also looked to the lead of other Eurozone countries. Most European countries, including France and Germany have adopted legislation consistent with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and adapt interpretations which eschew euthanasia and PAS.49

A notable exception to the universal legislative ban on PAS and euthanasia can be found in the Netherlands, and, more recently, Belgium and Switzerland. While the Dutch legal code forbade killing and assisted suicide, since the 1960’s prosecutors chose by and large not to pursue cases of physician assisted deaths. The choice not to prosecute was based on the magnitude and force of the arguments which physicians faced from their patients; arguments that the physicians could not reasonably be expected to ignore.48 In 2001 the Dutch legislature adopted the Termination of Life on Request and Assisted Suicide Act which permitted, under a very tightly regulated set of circumstances, the ability of patients to request PAS and euthanasia. The forging of these initiatives has not only been grist for the mill of debate, but has had practical influences on shaping Canadian attitudes.

The Swiss initiative has gone well beyond influencing speculation and debate and has impacted Canada more directly. In Switzerland the intentional killing of another is only found to be criminally punishable if the motive and intent are personal gain.50 This permitted the formation of Dignitas and EXIT, non-government and non-profit organizations that permit and facilitate PAS and euthanasia. In 2007 Eric MacDonald, a Canadian citizen, avoided charges when he accompanied his wife in her physician assisted suicide at Dignitas, she suffering the ravages of advanced multiple sclerosis.51 The very fact that the Royal Canadian Mounted Police would consider investigating this reinforces the notion that the PAS and euthanasia issue is truly being played out on a world stage. In this case the RCMP determined that no Canadian infraction of the Criminal Code had occurred.

Perhaps the most influential effects on Canadian perspectives derive from the end of life dramas played out in neighbouring United States. Every country has its “right to die” proponents, but few have galvanized world opinion and forced confrontation of the issues to the extent of Dr. Jack Kevorkian. Canadians were not immune to confronting the issues fostered by the actions of this man (some of these opinions are discussed below). It repays any common law based country to heed and acknowledge the proceedings of such controversial trials and hearings. It is on this basis that Canadian and American law are often closely matched and studied by each other, and Canadian legal proceedings and policy creation have been informed by American landmark cases. While, as discussed below, there has been no shortage of domestically cultivated controversial end of life cases, Canadians do well to study the current climate of US sentiment and the way the US legislation is evolving. In the US, despite two Supreme Court rulings upholding the ban on PAS in 1997 (Washington v. Glucksberg and Vacco v. Quill)52, the door remained open for states to challenge the ban and to enact legislation that permitted PAS. Both Oregon and Washington State have enacted legislation which permits closely regulated PAS based on an appeal to rights entrenched in the American Constitution that allow freedom and autonomy over all aspects of one’s health up to and including, in these instances, the time of one’s death. 53 Canadian ethicists and the general population continue to survey this situation and the analysis of these acts as the Canadian Charter of Rights and Freedoms (in the Canadian Constitution) is in many ways very similar to that of the neighbouring US Constitution.

It is interesting to note that in no country is there entrenched in law the embrace of PAS and euthanasia as a desirable process or one to be considered lightly. In all nations, irrespective of legislation, there exists a fundamental respect for human life and dignity. Suicide and euthanasia are not considered morally acceptable without just cause. It is recognition of particular exceptional and compelling circumstances that are addressed by legislation; the legislation in effect articulating the blanks in the moral admonition “it is wrong to kill yourself unless…” or “it is wrong to kill someone else unless…”. In the Netherlands, the exception to the moral rule is formulated on grounds of the compelling and compassionate urging of patients that could not reasonably be denied by any caring physician; the moral obligation to help a pleading patient trumping the general rule “do not kill”. In Switzerland the moral rule is circumvented by means of a careful examination of the intentions and fruits of the actions; one can euthanize or aid suicide as long as one’s own intentions are not being served and as long as the benefits are to the patient, not the facilitator of the act. In the US, the moral loophole is on the grounds of the primacy of autonomy; patients have a right to control their lives even up until the time of their deaths. The sanctity of human life is preserved in these legislative machinations; “first, do no harm”… but the patient is ultimately to decide the meaning of “harm”.

 

C)     PALLIATIVE CARE AND WITHHOLDING AND WITHDRAWING CARE

The foundation for any investigation into these issues should rightly begin with a consideration of withholding and withdrawing care. It is here where the least controversy exists and it is here that we are afforded the basis from which to make the logical moves to forward arguments for and against Physician Assisted Suicide (PAS) and Euthanasia. This is not the forum for the presentation of such arguments and this discourse will not elaborate on existing academic ethical debates or developing moral arguments; but it is, nevertheless, a good place to begin a survey of these end of life topics. It has been largely accepted by the bioethics literature that there is no moral difference between withholding and withdrawing care in the terminally ill, so these will be discussed together. Similarly, although there is much consideration and debate over the so-called Doctrine of the Double Effect (DDE), this is not an area of controversy in Canadian bioethics. By the DDE, a patient’s death may be expedited inadvertently (i.e., not explicitly intended) because of the administration of appropriate pain relief or sedation—there is no legislation prohibiting this, and it is a recognized aspect of palliative care. While textbooks make note of this issue largely as a teaching point, in the practical terms of end of life care in Canada it remains largely an academic issue but a non-contentious practice.

Many of the practical considerations of withholding and withdrawing care have been discussed above. Canada does not diverge from most Western countries in the substantive principles that pertain to the delivery of professional, principled and humane end of life care. Withholding or withdrawing care is done under an appeal to the principles of beneficence (that it actually is the best and most humane care possible to forego aggressive treatment), and non-maleficence (that it may be overly burdensome to embark on aggressive treatment modalities). This care is entrenched in the Canadian Medical Association Code of Ethics54 and (as seen above) in policy statements such as the Joint Statement on Resuscitative Interventions18 and the similar Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care.55 Good palliative care is recognized as an essential component of good patient care. Patients have the right to choose the care they want and the rights to choose where to die and whether to forego treatment.56 The universality of Canadian health care ensures that patients will be cared for in any of the provinces or territories. No physician can be prosecuted by law or impugned by his or her professional college for adhering to the tenets of good palliative care in compliance with the wishes of the patient or the patient’s proper surrogate (with a special nod to the issues of futility, outlined above).

Quality palliative care has been identified as an issue of primacy since a senate investigation and report in 1995,56 and strong initiatives and inducements for provinces to adopt these measures and establish the necessary programs has flowed from this recognition. A senate report in 2010 detailed several recommendations for improving delivery of palliative care in Canada. These recommendations included better integration of palliative care into the health care systems of each province (including the provision of health care workers for the dying, and better remuneration for their efforts), and strong leadership by federal and provincial governments. Although 90% of Canadians could benefit from palliative care, only 70% have access to it; this will only get worse as the population of Canada ages.57 Also in 2010, a parliamentary committee was struck to study the matter further.58

The procedure for withholding and withdrawing care in Canada follows the same decision making hierarchy outlined in Chapter 2: advance directives (for those who had, but have in the instance, lost capacity) are to be followed as closely as possible. The surrogate decision maker would weigh in where these left off and provide a “substituted judgement” where possible, or, if not possible, a decision would be reached which would endeavour to capture what would be in that patient’s “best interests”. When dealing with never competent patients, or with incompetent patients for whom there is no advance directive or no surrogate, this same “best interest” principle is employed. An important element to bear in mind is the unique case of a patient who has as his or her substitute decision maker a public guardian: in this instance a public guardian cannot authorize the withholding or withdrawing of therapy, they can only authorize positive interventions. For example, a public guardian cannot authorize the withdrawing of intensive care measures but can, ostensibly, authorize the move toward another form of care, such as palliative care which in turn may entail the withholding or withdrawal of care. (See Chapter 2 under Patient Surrogacy for more detail).

These subjects are fairly non-controversial. Autonomy over one’s life and the right to create AD or designate a substitute decision maker is not disputed. The non-controversial nature of these matters is located in the fact that these instruments are deployed at the very extremes, often the very ends of people’s lives. Substantially more controversial is the case of autonomy over one’s life when it is not necessarily at its natural end, but has nevertheless deteriorated to a point of continuing deplorable existence.

The extent to which one’s autonomy ought to be respected in end of life decision making was probed by the case of Nancy B, a Quebec woman who, suffering Guillain-Barre syndrome, found herself permanently bed ridden and ventilator dependent. Nancy B fought a long court battle to finally obtain the right to withdraw care (in this case the ventilator), and in so doing, ensure her death.59 Unlike the similar case in the US, that of Elizabeth Bouvia who fought for the right to refuse life sustaining therapy in the form of tube feeding60, Nancy B ultimately did have her ventilator withdrawn and subsequently died peacefully. This case established autonomy over one’s health care decisions as a principle of primacy. In this case, and cases like these, the line separating suicide, physician assisted suicide, and withholding and withdrawing care are made blurry. While the theorists will continue to debate the moral significance of these issues, and while the “court of public opinion” may weigh in on these issues, in practical terms it is of note that it is the court of law in Canada that has provided a foundation for principled behaviour by medical professionals and this has been reflected in policy statements and codified professional ethics.

D)     EUTHANASIA

For the purposes of the present discourse (and indeed as the issue is portrayed in most bioethical literature) the topic at hand is considered to be voluntary active euthanasia and will henceforth be referred to only as “euthanasia”. Passive euthanasia is an unfavourable (simply having the term euthanasia present is unpalatable to many) term for withholding and withdrawing care.61 Furthermore, only voluntary euthanasia and non-voluntary euthanasia are at issue. Non- voluntary euthanasia involves the euthanizing of incompetent persons or persons who cannot voice an opinion or state a choice. Voluntary, by comparison, means voluntarily requested by a competent individual. Involuntary euthanasia is the equivalent to murder or manslaughter; even in the countries with the most liberal euthanasia policies it is never permitted, by legal sanction, to kill another human being (in the name of good patient care) against their wishes.

Euthanasia is illegal in Canada. Euthanasia is similarly and unanimously condemned by the Canadian Medical Association and other professional medical bodies.62 Euthanasia is not legally practiced in any medical facility in Canada. Furthermore the Canadian position accords with most other countries on this topic, the notable exceptions of course being the aforementioned countries, Netherlands, Belgium and Switzerland. Nevertheless, challenges to this position have arisen in the law, in the public opinion, and the ongoing debate in the bioethics literature.

Canadians oppose euthanasia for various reasons. One of the most obvious, and the one that seems to have swayed the government when it has peered into the issue, is the fear of the slippery slope. The fear that policy enabling voluntary euthanasia will have no way of breaking the slide down the slippery slope to non-voluntary and even involuntary euthanasia. Fear seems to spring from the perceived European experience of the legislative sanction of PAS and euthanasia. The empirical foundation for these fears is dubious at best.63 In 1993, the Canadian Senate Committee heard testimony from several physicians, both pro and con, in regard to the acceptability of euthanasia and published a report entitled Of Life and Death. The Senate Committee also scrutinized case law and criminal law from many countries around the world—none of which swayed the committee closer to accepting arguments for euthanasia (or PAS) in Canada.56 The parliament of Canada, furthermore, found no compelling reason to change the legislation on euthanasia based on the findings of a more recent comprehensive review done in 2008.51

All theorizing aside, practicalities are probably what will continue to limit the institution of euthanasia in Canada. Euthanasia (at least, legally sanctioned euthanasia) and physician assisted suicide require, unsurprisingly, physician assistance. In the absence of a willing and able health care team, PAS and euthanasia are simply not possible. Attitudes of nursing and medical staff in Canada have never been warm to the idea of euthanasia. 64, 65 The source of this apprehension may be found in the express prohibition of euthanasia in the Criminal Code of Canada.66 But it is also, as mentioned above, seen as largely repugnant to the professional ethics of health care providers, and this is reflected in the condemnation of euthanasia in the professional codes of ethics of Canadian nurses and physicians.

There are cases in Canada that have challenged the professional and legal positions on this issue; cases that have captivated public attention and galvanized public opinion. The most controversial case in Canada was the case of Robert Latimer who, in 1993, killed his 12 year old severely disabled daughter, Tracy.67 She was afflicted with severe cerebral palsy that left her unable to walk, talk, or feed herself. She had numerous painful operations and it was Mr. Latimer’s contention that she lived in constant, unremitting pain. This story was followed closely by the media and the case polarized public opinion on the issue. Mr. Latimer’s very tortuous journey through the court system involved a trial and conviction at the provincial level in Saskatchewan. He was charged with first degree murder but convicted of second degree murder and sentenced to life imprisonment with no chance of parole for 10 years. This was upheld on appeal, but in a strange twist of legal events, he was ultimately granted a retrial after the Supreme Court of Canada found that the original Crown prosecutor was guilty of jury tampering. He was granted a re-trial in 1997 and was again found guilty of second degree murder, and this was again upheld by the appellate court and the Supreme Court of Canada.68

One of the important issues in the case, and one that has shaped the bioethical climate in Canada, and galvanized public opinion and sentiment, was the severity of the sentencing. Mr. Latimer was sentenced to the minimum sentence but this, nonetheless, meant 10 years imprisonment. Many ethicists and lay-persons felt this was cruel and unusual, given the circumstances. At the original decision of his second trial the judge surprised the nation when he agreed with the persuasive arguments of Mr. Latimer’s counsel that the 10 year minimum sentence was a cruel and unusual punishment. This judge meted out a sentence of 2 years less a day which was applauded by ethicists for the insight and understanding that was shown for a man, who they felt, clearly intended nothing more than a “mercy killing”. And yet, many advocacy groups for the rights of the disabled saw this as a much too lenient punishment. The case was appealed at the provincial level and the Crown upheld the verdict and went further by reinstituting the minimum sentence (life, with no eligibility of parole for 10 years). Significantly, the appellate court responded to accusations that this was cruel and inappropriate, with the counter that there was suitable mechanism to change these sentencing rules by changing the legislation. This sentiment was carried by the Supreme Court of Canada which again found Mr. Latimer guilty and that the punishment was not a violation of the Charter of Rights and Freedoms in its “cruelty”. This case forced Canadians to confront the issue of euthanasia and to confront the inadequacies of the Canadian Charter to deal with these issues to everyone’s satisfaction. Perhaps most importantly, it has called into question the fairness of mandatory sentencing and the incapacity (and inflexibility) to deal with “special” situations such as “mercy killing”. At this point in time, Canadian law has not definitively answered the question of how to address exceptional circumstances of moral and legal trespass at the end of life. Mr. Latimer was granted parole in February of 2008, and is seeking retrial.

A 1997 case involving Dr. Nancy Morrison of Halifax was the first case to confront physician involved euthanasia. Dr. Morrison administered a dose of nitroglycerin and then potassium chloride to her terminal cancer patient, Mr. Mills. The Nova Scotia provincial court refused to proceed to trial in the matter as the patient had been given good and timely palliative care up until the moment of his death, including large doses of narcotic for pain control. Dr. Morrison was motivated out of sympathy for Mr. Mills’ refractory pain and respiratory distress in spite of the delivery of all of the acceptable therapies. The judge reasoned in the pre-trial that any of the medications could have been responsible for his demise (in essence, relying on the “doctrine of the double effect”), and to speculate that the intervention Dr. Morrison provided was the sole contributor to his immediate death was unfounded.

These cases raise questions and challenges to the law, policy, and codes of ethics—but it is, nonetheless, clear that the practice of euthanasia remains categorically and formally prohibited in Canada.

E)      PHYSICIAN ASSISTED SUICIDE

Between the clearly permissible withholding and withdrawing and the clearly impermissible euthanasia, lies another topic that is much less clear. Physician Assisted Suicide is prohibited by law and public policy, and condemned by health professionals’ codes of ethics; but in the real world of lay persons and professionals alike, firm and unified opinions are not to be found. Section 241 of the Canadian Criminal Code specifically condemns assisted suicide.69 While Canada has followed most of the Western World in decriminalizing suicide itself, the same fears grip Canadian citizens (and parliaments) about the potential for a slippery slide toward euthanasia should PAS be made legal. And yet, it seems fears and legal sanctions have not firmly closed the door on the debate in Canada. Physicians around the world face tremendous stress in grappling with these issues, 70, 71 but Canadian physicians would be more open to PAS and euthanasia if these acts were legal.64, 72

A fountain of public opinion flowed from the landmark case of Sue Rodriquez in British Columbia in 1997 (see below). Canadians, laypersons and health care providers alike were forced to confront their opinions on this issue. By the turn of the millennium many countries saw a shift in public opinion about PAS.73 Canadians have retained favourable attitudes toward PAS over the last several years, up from 58% agreement in 199574 to 63% for terminally ill patients in 2003.75, 76 These “positive” attitudes have an outlet in organizations such as “Dying with Dignity”77 and the “Right to Die Society of Canada”.78 Both of these are Canadian organizations that are part of a larger global network, the “The World Federation of Right-to-Die Societies.”  These societies are active in lobbying parliament, advocating for concerned citizens, and providing resources and information (they do not provide services involving ending of life). There is an equally vocal counter-group in the form of the “Euthanasia Prevention Coalition” which has members from the community, members representing the disabled, and several scholars and physicians (many palliative care physicians strongly oppose PAS and euthanasia) that advocate for the continued censure of euthanasia and PAS.79

There have been several attempts at legislative change in the Canadian Parliament. In 1991 Members of Parliament (MP) Robert Wenman and Chris Axworthy introduced two separate bills to change the law regarding PAS and euthanasia, and to allow for physician participation. Both were dropped after debate in the House of Commons. Activist MP, Svend Robinson introduced private member bills no less than three times, in 1992, 1994, 1997 respectfully, and after debate they were unsuccessful in receiving passage.51 Introduction of these bills and the introduction of a bill by MP Ian Waddell in 1993 prompted Parliament to examine the issue in a special committee, the fruits of which resulted in the report mentioned above entitled Of Life and Death, which the committee hoped would put the issue to rest.56 This work and subsequent parliamentary research focused on the provision of quality palliative care and making this an initiative of the utmost importance in every province. Certainly Canada’s health care system has taken this to heart as provision of timely, effective, compassionate palliative care is viewed as an essential part of end of life care. But focus on good palliation has not supplanted a desire to reform legislation. MP Francine Lalonde introduced bills in 2005 and 2008 which were more elaborate and principled in their proposals and were intended to amend the criminal code to allow for assisted suicide in certain situations. While these bills received wider recognition, acceptance and debate, they too were ultimately defeated. Bill C-384, a private member bill introduced in May 2009 by Ms. Lalonde also proposed amending the Criminal Code to allow for PAS and euthanasia under certain circumstances, but it too was defeated in April 2010 in a vote of 228 to 59.80

A series of cases throughout the last 20 years have galvanized public opinion on the issue of PAS. The most compelling and famous case was that of Sue Rodriguez, a woman suffering from amyotrophic lateral sclerosis (ALS).  Ms. Rodriguez sought to have section 241 of the Criminal Code (which deals directly with aiding suicide) struck down on the grounds that it discriminates against the disabled and prohibits a terminally ill person from committing physician-assisted suicide.  She argued that her Charter rights to “life, liberty and security of the person” – which, in her view, included the right to control the method, timing, and circumstances of death – were denied by section 241. The case was argued in the British Columbia Supreme Court where ultimately the decision was made that Section 241 did not violate her rights. The BC Court of Appeal upheld the decision and stated that the issue should be decided not by the justice system but in parliament (as alluded to above, many attempts ensued). Ms. Rodriguez appealed to the Supreme Court of Canada and further argued that section 241 was inconsistent with the Charter of Rights and Freedoms. The majority of the court did find that Ms. Rodriguez’ rights may have been compromised but that this was justified. Writing for the majority, Justice Sopinka captured the ambient political and legal sentiment and noted that: respect for life is a fundamental principle upon which there is substantial consensus in Canadian society; the prohibition against assisted suicide reflects this consensus and is designed to protect the vulnerable who might be persuaded to commit suicide. To allow physician-assisted suicide, he observed, would erode the belief in the sanctity of human life and suggest that the state condones suicide. He then went on to cite the fear of a “slippery slope” in permitting such acts even for the terminally ill, and this justified his stance that trespasses on individuals rights (such as rights to die) were permitted on such grounds. The Supreme Court upheld the British Columbia appellate court decision in a narrow 5-4 opinion, thus denying Ms. Rodriguez the right to PAS. The dissenting opinions insisted that section 241 of the Criminal Code indeed denied persons of life liberty and security and furthermore that it created inequality between those who were able bodied and those who were not. 81 In 1994 she took her own life with the help of an anonymous physician. MP Svend Robinson (noted above) who campaigned on her behalf, was also present. The physician remains unknown and attempts to determine his or her identity were abandoned when the Attorney General of British Columbia declared that there would be no probability of conviction even if the case were to be brought to trial.82

A series of other cases have had less influence on popular opinion and the status of assisted suicide in Canada. A case in 2007 involved a British Columbia general practitioner who was convicted, sentenced, and his medical licence revoked, for prescribing a suffering 93 year old cardiac patient a lethal dose of medication at her request. The suicide attempt failed and although Dr. Sharma was found guilty he served no time in prison. In addition to physician assistant cases, there have been a significant number of cases of non-physician assisted suicide with various legal outcomes.83 In 2004 a Right to Die Society of Canada activist, Evelyn Marten was acquitted in her role (the distribution of literature on the issue) in the deaths of two people in 2002.51 In 2006 Marielle Houle was convicted and sentenced to 3 years parole in the assisted suicide of her son, a well-known playwright who was afflicted with Multiple Sclerosis. The Superior Court Judge acknowledged the fact that the chances of recidivism in this case were low and that the utility of incarceration would be negligible, and these things weighed favourably on the sentencing decision. Furthermore, the judge stated that changes to the legal standing of assisted suicide must be brought about not in the courts, but in the legislature.84

It becomes apparent, time and time again, that in cases of PAS and euthanasia, the justice system has been loath to any interpretation of the Charter which might impel any significant change to the criminal code; none of these cases have proven to be a sufficient challenge to the Charter and none have resulted in changes to the Criminal Code. For the most part, the justice system eschews substantive jurisprudence considerations as the legitimate force in changing law and policy in this realm, and instead has repeatedly called upon the government to exact change through legislative means. But where justice fears to tread, so too has the elected executive demonstrated reluctance. An exception may be found in the Quebec legislature which, in 2009, mandated the Select Committee on Dying with Dignity to consult the public in that province on the topic of “dying with dignity”. This consultation is still in progress but the Quebec bar has recommended that the Attorney General (AG) develop guidelines for the prosecution of cases of PAS and euthanasia, and, perhaps more boldly, that the AG may be able to define a restricted and clearly defined right to PAS and euthanasia in the province of Quebec that would not run afoul of the Criminal Code.80

The consensus opinion on these issues among Canadians is perhaps hopelessly divided, and the matter may too difficult to precisely resolve to everyone’s (or anyone’s) satisfaction. Despite ongoing concern in the public (from whom are heard vocal and impassioned arguments both for and against PAS), in policy, in professional codes and in legislation, PAS is not permitted in Canada. Instead, there has always been a very strong endorsement of good and accessible palliative care. It is well funded and well run palliative care programs that the government and the medical community turn to for answers and solutions to the problem of suffering at the end of life, and not to physician assisted suicide and euthanasia. And while this solution has indisputable merit and value, the issue of PAS and euthanasia in Canada and for Canadians will, nevertheless, certainly not be easily put to rest.

SUMMARY

End of life issues are the rich ferment of much of the bioethical literature. Issues such as the precise determination and definition of death have more than academic and theoretical import as they are relevant to the ways in which persons are cared for at the end of their lives. As technology advances the definition of death (and more importantly the ways and means by which we recognize death) has had to change. The acuity of this fact has impinged on issues such as organ donation, where legal and ethical challenges are faced with the emergence of cutting edge developments. Canada, like the rest of the world, has acknowledged the need for a formal definition and has derived criteria for recognizing death in neurological terms. This is specifically encompassed in the so called “Brain Arrest” concept; this is the made-in-Canada answer to how to recognize death for ethical and legal purposes. But Canada has also recognized the need for flexibility in the application of these criteria to certain situations such as determining death in children or determining when it is acceptable to retrieve organs for donation.

With increasing technological fluency also come questions about when to terminate treatment or abstain from initiating treatment in the face of futility. Issues like the persistent vegetative state garner news headlines but also galvanize legal and ethical positions on the appropriate use of medical care. Knowing where one stands culturally and legally in one’s region, and knowing precisely how to proceed in the face of such situations is challenging but necessary in the modern medical era. Canada has robust policy statements on when to declare futility and when it is appropriate to forego aggressive treatment. While these policies reinforce the notion that care providers are under no obligation to give medically futile treatment, they also firmly establish the primacy of consensus building and principled conflict resolution when differences of opinion arise in these difficult situations. Canada has had a number of legal cases that have arisen in just these situations, but none have provided enduring or broadly applicable precedents to guide care providers or policy makers through this difficult realm.

For health care providers and consumers alike, advance directives are an essential part of the ever growing menu of options for end of life care. Patient autonomy survives beyond the capacity to make contemporaneous decisions, and it does so in the form of advance directives and the designation of proxies. Much debate has been had over the importance of, the utility of, and the correct execution of these documents. It is a fluid controversy but being conversant in the legal and ethical position of one’s health care region is essential both for consumers and providers of health care. This is even more important when considering the topic of advance directives because of the interprovincial variation on the types of advance directives that are legally acceptable, and the means by which they can be conveyed.

The second half of this chapter provided an examination of the controversial end of life issues of physician assisted suicide and euthanasia. A brief comparative analysis shows Canada to be among the majority of western countries in its stance on these issues. Canadians have always been committed to the provision of quality palliative care in its cherished health care system. This includes recognition of the right to withdraw or forego lifesaving treatment in appropriate circumstances. Despite moderate interest in PAS and euthanasia and despite impassioned pleas and numerous attempts at legislative change, PAS and euthanasia remain illegal and condemned by the governing bodies of health care professionals. Several legal cases have challenged these positions, indicating this issue is far from definitively resolved.

 

Table 1: Recognized forms of advance directives, terms used, and legal ages by province and territory1

Jurisdiction Type of advance directive provided for in legislation Instructional directive2 Proxy directive Proxy3
Newfoundland and Labrador Instructional and proxy Advance Health Care Directive (*) Advance Health Care Directive Substitute decision maker (19)
Nova Scotia Proxy only ——- Authorization Guardian (19)
Prince Edward Island Instructional and proxy Advance Health Care Directive (17) Advance Health Care Directive Proxy (16)
New Brunswick Proxy only ——- Power of Attorney for Personal Care Attorney for personal care (19)
Quebec Proxy only ——- Mandate Mandatary[the maker of a Mandate is called the Mandator] (18)
Ontario Instructional and proxy Advance directive (16) Power of Attorney for Personal Care Attorney for personal care (16)
Manitoba Instructional and proxy Health Care Directive (*) Health Care Directive Proxy (18)
Saskatchewan Instructional and proxy Health Care Directive (16) Health Care Directive Proxy (18)
Alberta Instructional and proxy Personal Directive (18) Personal Directive Agent (18)
British Columbia Instructional and proxy Advance Directive (19) Representation Agreement Representative (19)
Yukon Proxy only ——- Advance Directive Proxy
Northwest Territories Instructional and proxy Personal directive Personal directive Agent

1 Sources: Dunbrack J, Advance care planning: the Glossary project. 2006. Available on the Health Canada website http://www.hc-sc.gc.ca/hcs-sss/pubs/palliat/2006-proj-glos/index-eng.php; Browne A, Sullivan B. Advance directives in Canada. Camb Q Health Ethics. Summer 2006;15(3):256-260; Dalhousie University Health Law Institute End of Life Project found at: http://as01.ucis.dal.ca/dhli/cmp_advdirectives_faq/default.cfm#A9.

2 Number in parentheses is the minimum age in years of the AD writer.

3Number in parentheses is the minimum age in years of the Proxy.

* Anyone who has capacity to make directives, usually considered to be age 16.

 

 

REFERENCES

1. Joffe AR. The neurological determination of death: what does it really mean? Issues Law Med. Fall 2007;23(2):119-140.

2. Giacomini M. A change of heart and a change of mind? Technology and the redefinition of death in 1968. Soc Sci Med. May 1997;44(10):1465-1482.

3. A definition of irreversible coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. JAMA. Aug 5 1968;205(6):337-340.

4. United States. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Defining death : a report on the medical, legal and ethical issues in the determination of death. Washington, D.C.: The Commission : For sale by the Supt. of Docs., U.S. G.P.O.; 1981.

5. National Conference of Commissioners on Uniform State Laws. Uniform Determination Of Death Act. In: National Conference of Commissioners on Uniform State Laws, ed1981.

6. Baron L, Shemie SD, Teitelbaum J, Doig CJ. Brief review: history, concept and controversies in the neurological determination of death. Can J Anaesth. Jun 2006;53(6):602-608.

7. The President’s Council on Bioethics. Controversies in the determination of death: A white paper by the President’s Council on Bioethics: The President’s Council on Bioethics; 2008.

8. Law Reform Commission of Canada’s  Criteria for the Determination of Death (1981)  as cited in Gilmour J. Chapter 11: Death, dying, and decision making about the end of life care. In: Downie JG, Caulfield TA, Flood CM, eds. Canadian health law and policy. 3rd ed. Toronto: LexisNexis Canada; 2007: p.465.

9. Manitoba Vital Statistics Act, C.C.S.M. 1987 c. V60, s. 2 states that: “For all purposes within the legislative competence of the Legislature of Manitoba the death of a person takes place at the time at which irreversible cessation of all that person’s brain function occurs”.

10. Shemie SD, Baker AJ, Knoll G, et al. National recommendations for donation after cardiocirculatory death in Canada: Donation after cardiocirculatory death in Canada. CMAJ. Oct 10 2006;175(8):S1.

11. Doig CJ, Young K, Teitelbaum J, Shemie SD. Brief survey: determining brain death in Canadian intensive care units. Can J Anaesth. Jun 2006;53(6):609-612.

12. Hornby K, Shemie SD, Teitelbaum J, Doig C. Variability in hospital-based brain death guidelines in Canada. Can J Anaesth. Jun 2006;53(6):613-619.

13. Shemie SD, Doig C, Dickens B, et al. Severe brain injury to neurological determination of death: Canadian forum recommendations. CMAJ. Mar 14 2006;174(6):S1-13.

14. Bernat JL, D’Alessandro AM, Port FK, et al. Report of a National Conference on Donation after cardiac death. Am J Transplant. Feb 2006;6(2):281-291.

15. Gill JS, Klarenbach S, Cole E, Shemie SD. Deceased organ donation in Canada: an opportunity to heal a fractured system. Am J Transplant. Aug 2008;8(8):1580-1587.

16. There are several ways to divide this concept up. This is as good as any for the purposes of this text, which is not an attempt at conveying a thourough understanding of the concept but rather, is a discussion of the Canadian answer to some of the problems that attach to the concept. Other authors would view this rendering either too complicated or simplistic and for the purposes of other discussions, defining these terms differently is credible and legitimate.

17. That being said, there are still contentious issues that arise in this arena. For example dealing with demanding patients who insist on having an antibiotic for their viral illness, while technically, it cannot possibly be of benefit, some patients simply cannot or will not believe this and make demands nonetheless, placing the doctor’s professional ethical duty to practice sound medicine in conflict with his or her duty to care and sympathise with an autonomous patient.

18. Joint statement on resuscitative interventions (update 1995). CMA policy summary. CMAJ. Dec 1 1995;153(11):1652A-1652F.

19. Weijer C. Cardiopulmonary resuscitation for patients in a persistent vegetative state: futile or acceptable? CMAJ. Feb 24 1998;158(4):491-493.

20. Racine E, Amaram R, Seidler M, Karczewska M, Illes J. Media coverage of the persistent vegetative state and end-of-life decision-making. Neurology. Sep 23 2008;71(13):1027-1032.

21. The American cases of Quinlan, Cruzan, Wanglie, Baby K, Schiavo etc have garnered global attention and have been instrumental in developing theory and practical approaches to patients in a PVS.

22. Child and Family Services of Central Manitoba v. Lavallee (14 Nov 1997)

23. Downie J. Unilateral withholding and withdrawal of potentially life-sustaining treatment: a violation of dignity under the law in Canada. J Palliat Care. Autumn 2004;20(3):143-149.

24. Sawatzky v. Riverview Health Centre Inc., 167 Dominion Law Reports (4th) 359, (Manitoba Court of Queen’s Bench 1998).

25. Re London Health Sciences Centre et al v. K.(R.) (Litigation Guardian of), Dominion Law Reports 724, (Ontario General Division Court 1997).

26. Gilmour J. Chapter 11: Death, dying, and decision making about the end of life care. In: Downie JG, Caulfield TA, Flood CM, eds. Canadian health law and policy. 3rd ed. Toronto: LexisNexis Canada; 2007:436-478.

27. Boards of Directors of the Canadian Healthcare Association the Canadian Medical Association the Canadian Nurses Association and the Catholic Health Association of Canada. Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care. 1999. http://policybase.cma.ca/dbtw-wpd/PolicyPDF/PD99-03.pdf. Accessed 28 February 2011.

28. Singer PA, Barker G, Bowman KW, et al. Hospital policy on appropriate use of life-sustaining treatment. University of Toronto Joint Centre for Bioethics/Critical Care Medicine Program Task Force. Crit Care Med. Jan 2001;29(1):187-191.

29. Weijer C, Singer PA, Dickens BM, Workman S. Bioethics for clinicians: 16. Dealing with demands for inappropriate treatment. CMAJ. Oct 6 1998;159(7):817-821.

30. The terms “Advance Directive” and “Living Will” can for all intents and purposes be used interchangeably howver the former seems to be gaining wider recognition in bioethical literature.

31. The Patient Self Determination Act is an ammendment to the Omnibus Budget Reconciliation Act (1990). Title IV Section 4206 and 4751.

32. Advance directives for resuscitation and other life-saving or sustaining measures. CMAJ. Mar 15 1992;146(6):1072A-B.

33. Salmond SW, David E. Attitudes toward advance directives and advance directive completion rates. Orthop Nurs. Mar-Apr 2005;24(2):117-127; quiz 128-119.

34. The Canadian Association of Critical Care Nurses established set of position statements to address advance directives and witholding and withdrawing care.They are published and they can be viewed on their website: http://www.caccn.ca/en/publications/position_statements/index.html

35. Singer PA, Robertson G, Roy DJ. Bioethics for clinicians: 6. Advance care planning. CMAJ. Dec 15 1996;155(12):1689-1692.

36. A controlled trial to improve care for seriously ill hospitalized patients. The study to understand prognoses and preferences for outcomes and risks of treatments (SUPPORT). The SUPPORT Principal Investigators. JAMA. Nov 22-29 1995;274(20):1591-1598.

37. Greipp ME. SUPPORT study results–implications for hospice care. Am J Hosp Palliat Care. May-Jun 1996;13(3):38-39, 41-35.

38. Fagerlin A, Schneider CE. Enough. The failure of the living will. Hastings Cent Rep. Mar-Apr 2004;34(2):30-42.

39. Collins LG, Parks SM, Winter L. The state of advance care planning: one decade after SUPPORT. Am J Hosp Palliat Care. Oct-Nov 2006;23(5):378-384.

40. Browne A, Sullivan B. Advance directives in Canada. Camb Q Healthc Ethics. Summer 2006;15(3):256-260.

41. Dunbrack J, Advance care planning: the Glossary project. 2006. This is a very ambitious and complete set of research on AD in the various provinces and territiories. It is available on the Health Canada website http://www.hc-sc.gc.ca/hcs-sss/pubs/palliat/2006-proj-glos/index-eng.php .

42. Dalhousie University Health Law Institute End of Life Project found at: http://as01.ucis.dal.ca/dhli/cmp_advdirectives_faq/default.cfm#A9.

43. Dunbrack J, Advance care planning: the Glossary project. 2006. This is a very ambitious and complete set of research on AD in the various provinces and territiories. It is available on the Health Canada website http://www.hc-sc.gc.ca/hcs-sss/pubs/palliat/2006-proj-glos/index-eng.php .

44. University of Toronto Joint Centre for Bioethics Living Will. Developed by Dr. Peter A. Singer. Can be downloaded at the Joint Centre website: http://www.jointcentreforbioethics.ca/tools/livingwill.shtml . There are several Living Will modules to chose from, all are comprehensive and reflect and inform about current legislation etc in one’s region.

45. Located at: http://www.uslivingwillregistry.com/

46. A notable exception is the Living Wills Registry (Canada) started in 1992 by Dr David Williams of Stratford Ontario. It can be accessed at http://www.livingwills.com/

47. Death with Dignity Act (ORS 127.800-995), enacted in 1994 was the first US act to permit Physician Assisted Suicide under tightly controlled circumstances.

48. Mendelson D, Jost TS. A comparative study of the law of palliative care and end-of-life treatment. J Law Med Ethics. Spring 2003;31(1):130-143.

49. European Convention on Human Rights and Fundamental Freedoms enacted Nov 4, 1950 in Rome.

50. Hearing with the Select Committee on the Assisted Dying for the Terminally Ill Bill, House of Lords Zurich, 3 February 2005. An account published by Prof. Dr. Christian Schwarzenegger and Sarah J. Summers (LLB) of the Zurich Faculty of Law.

51. Teidemann M, Valiquet D. Euthanasia and Assisted Suicide in Canada. Current Issue Review 91-9E: Parliamentary Information and Research Service of the Library of Parliament; 2008.

52. Vacco v. Quill, 521 U.S. 793 (1997) and Washington v. Glucksberg, 521 U.S. 702 (1997).

53. Death with Dignity Act (ORS 127.800-995), enacted in 1994 and the Washington Inititiative-1000 enacted in 2009.

54. Canadian Medical Association. Canadian Medical Association Code of Ethics. 2004. http://www.cma.ca/index.cfm/ci_id/53556/la_id/1.htm. Accessed 28 February 2011.

55. Joint Statement on Preventing and Resolving Ethical Conflicts Involving Health Care Providers and Persons Receiving Care. This joint statement was developed cooperatively and approved by the Boards of Directors of the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association and the Catholic Health Association of Canada in 1999. It can be viewed at this website: http://policybase.cma.ca/dbtw-wpd/PolicyPDF/PD99-03.pdf

56. The Special Senate Committee on Physician Assisted Suicide and Euthanasia. Of Life and Death – Final Report. 1995. http://www.parl.gc.ca/35/1/parlbus/commbus/senate/Com-e/euth-e/rep-e/lad-e.htm. Accessed 28 February 2011.

57. Carstairs S. Raising the Bar: A Roadmap for the Future of Palliative Care in Canada. 2010. http://sen.parl.gc.ca/scarstairs/PalliativeCare/Raising%20the%20Bar%20June%202010%20%282%29.pdf. Accessed 28 February 2011.

58. Parliamentary Committee on Palliative and Compassionate Care. 2010; http://www.pcpcc-cpspsc.ca/index_files/Page300.htm. Accessed 28 February 2011.

59. Nancy B. v. Hôtel-Dieu de Québec et al. (1992), 86 Dominion Law Reports (4th) 385 (Quebec Superior Court)

60. Bouvia v Superior Court, 179 Cal. App. 3d 1127, 1135-36, 225 Cal. Rptr. 297. (Ct. App. 1986), review denied (Cal. June 5, 1986).

61. At this point any scholarly discussion would be remiss not to mention James Rachels classic essay on this topic (Rachels J. Active and passive euthanasia. N Engl J Med. Jan 9 1975;292(2):78-80). His discussion will perhaps forever call into question the moral difference between active and passive killing. For all intents and purposes the present discourse will deal with active and passive euthanasia in a health care setting and take the more common interpretation of these terms without trying to obscure the issue or deny that controversy exists among scholars.

62. CMA Policy Statement: Euthanasia and Assisted Suicide (Updated 2007).

63. Downie J. The contested lessons of euthanasia in The Netherlands. Health Law J. 2000;8:119-139.

64. Lavery JV, Dickens BM, Boyle JM, Singer PA. Bioethics for clinicians: 11. Euthanasia and assisted suicide. CMAJ. May 15 1997;156(10):1405-1408.

65. Schwarz JK. Assisted dying and nursing practice. Image J Nurs Sch. 1999;31(4):367-373.

66. Section 14 of the Criminal Code of Canada states: No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

67. R. v. Latimer (1997) 1 S.C.R. 217

68. A complete timeline of this monumental case can be reviewed in either of the national news agency websites, the CBC (http://www.cbc.ca/news/background/latimer/) and The National Post (http://www.nationalpost.com/news/story.html?id=338942).

69. Section 241 States: Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide,whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

70. Georges JJ, The AM, Onwuteaka-Philipsen BD, van der Wal G. Dealing with requests for euthanasia: a qualitative study investigating the experience of general practitioners. J Med Ethics. Mar 2008;34(3):150-155.

71. Reagan P, Hurst R, Cook L, et al. Physician-assisted death: dying with dignity? Lancet Neurol. Oct 2003;2(10):637-643.

72. Kinsella TD, Verhoef MJ. Determinants of Canadian physicians’ opinions about legalized physician-assisted suicide: a national survey. Ann R Coll Physicians Surg Can. Jun 1999;32(4):211-215.

73. Johnstone, M Bioethics: A Nursing Perspective Edition: 5  Elsevier Health Sciences, 2008. p. 257.

74. Singer PA, Choudhry S, Armstrong J, Meslin EM, Lowy FH. Public opinion regarding end-of-life decisions: influence of prognosis, practice and process. Soc Sci Med. Dec 1995;41(11):1517-1521.

75. Tobin A. Terminal patients favour ending of life. Toronto Star June 8, 2007. http://www.thestar.com/article/222948

76. A series of surveys are reported on the Religious Tolerance website at http://www.religioustolerance.org/euthcan.htm.

77. Information can be found at their website http://www.dyingwithdignity.ca/who_are_we/movement.php

78. Info can be found at: http://www.righttodie.ca/

79. Their website can be accessed at: http://www.euthanasiaprevention.on.ca/

80. Nicol J, Teidemann M, Valiquet D. Euthanasian and Assisted Suicide in Canada. 2010. http://www2.parl.gc.ca/Content/LOP/ResearchPublications/2010-68-e.htm. Accessed 28 February 2011.

81. Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519.

82. Fisher J. Biomedical Ethics, a Canadian Focus. Don Mills, ON: Oxford University Press; 2009.

83. These cases can be reviewed in the comprehensive document: Tiedemann M, Valiquet D. Euthanasia and Assisted Suicide in Canada. Current Issue Review 91-9E. Parliamentary Information and Research Service of the Library of Parliament. July 2008.

84. R. c. Houle 2006. QCCS 319. Montreal QC.

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