Bill 52 follows European, not U.S. models for end of life, unbearable suffering criteria
By Janet Davison, CBC News Posted: Feb 17, 2014 5:00 AM ET
Should Quebec’s national assembly pass — as early as this week — the proposed legislation to allow medical aid in dying, it will be setting in place a law that appears to take much of its key inspiration from Europe.
While a small number of North American jurisdictions, such as the U.S. states of Washington, Oregon and Vermont, have laws allowing physician-assisted suicide, Quebec’s proposed Bill 52 follows Europe’s lead in particular by extending the law’s reach to those experiencing “unbearable suffering,” but who may not be within months of dying, which is the U.S. criterion.
A Quebec legislative committee on “dying with dignity” visited Europe, and made many references in its 2012 report to experiences, particularly in Belgium and the Netherlands, where there have been laws like this for more than a decade.
That report recommended that doctors be allowed to help terminally ill patients die, in exceptional circumstances and with prescribed safeguards, if that is what they wish.
Bill 52, which passed second reading in the Quebec legislature in October by a vote of 84-26, looks “very much to have been inspired by similar legislation in Europe, especially in the Netherlands and Belgium and Luxembourg, who have more or less the same end-of-life laws in place,” says Wayne Sumner, an emeritus professor of philosophy at the University of Toronto.
“What makes [Bill 52] more similar is that, first of all, it legalizes both physician-assisted suicide and voluntary euthanasia.”
The difference between those two actions, Sumner says, lies in what the physician and patient do. In a physician-assisted suicide, the patient takes the final step of self-administering the fatal medication; in voluntary euthanasia, the doctor administers it, perhaps via injection or an IV, at the patient’s direct request.
In Oregon, Washington and Vermont, only physician-assisted suicide is legal, not euthanasia.
Veronique Hivon, Quebec’s minister for social services and youth protection, has been leading the Bill 52 initiative, which would allow medical aid in dying. (Jacques Boissinot/Canadian Press)
The other significant similarity between Bill 52 and the European laws lies, Sumner suggests, in the main indicator for requesting medical aid in dying: “an incurable disease, an incurable illness, which is causing unbearable suffering.”
“The patient must be experiencing suffering which he or she regards as intolerable or unbearable and can’t be relieved by any other means which the patient finds acceptable,” Sumner says.
Different criteria in U.S.
“In the U.S. cases, the criterion is quite different. There’s no requirement of patient suffering. The only requirement is that the patient have a terminal illness, an incurable and terminal illness, where terminal means that death is expected within six months.”
Bill 52 underwent a review, and during that process an amendment was added that Sumner says moves the proposed legislation a little closer to the American model.
The amendment to section 26 of the bill says that a patient must “be at the end of life,” along with five other criteria, to obtain medical aid in dying.
‘It’s left open and vague.’– Wayne Sumner
The proposed Quebec bill, however, doesn’t offer any further definition of what “at the end of life” means, a situation that sets up the potential for legal debate.
“It’s left vague and open,” says Sumner. “There’s no similar provision in the European cases, which makes euthanasia available to patients who otherwise satisfy the conditions, but who might have actually a long time to live and who just decide that their quality of life isn’t worthwhile.”
In Belgium last year, that country’s law was the focus of renewed debate when twin 45-year-old brothers who were deaf and going blind sought help from a doctor to end their lives. Critics have argued that the existing legislation didn’t cover their circumstances.
In a news release from the Canadian Medical Association Journal, Jocelyn Downie, a professor in the faculty of law and medicine atDalhousie University in Halifax, describes that “end of life” amendment to Quebec’s Bill 52 as “significant.”
Whether it is significant enough to influence other jurisdictions and the Supreme Court of Canada, however, may be a different story. In 1993, the Supreme Court narrowly (5-4) imposed a ban on physician-assisted deaths in the case involving a B.C. woman, Sue Rodriguez. In 2010, theHouse of Commons also voted down, by a wide margin, a proposal to allow for assisted deaths.
Last month, however, the Supreme Court decided to re-open the issue, on an appeal from another B.C. case. And most observers believe it would almost certainly take up the Quebec bill, too, at some point, should it be passed.
Who’s at end of life?
In the same release from the CMAJ, Dr. Catherine Ferrier, a geriatric physician and president of the Physicians’ Alliance for Total Refusal of Euthanasia, says that this new amendment is not specific enough because it does not spell out what it means to be at the end of life.
“Half my geriatric patients could be considered at the end of life. I understand it’s difficult to define, but it’s a central axis of the whole bill and it’s a weakness that they have not defined it,” Ferrier says.
“This bill is written by people who don’t understand medicine. Under the current criteria anyone could ask for euthanasia.”
‘They’re very clear it’s competent adults only.’– Udo Schuklenk
If the law passes in Quebec, Sumner expects it would be subject to a lot of interpretation on the question of what “at the end of life” means.
He lays out a scenario that might be possible in the Netherlands or Belgium, but might not in Quebec, involving a person who has had a catastrophic accident and became a quadriplegic.
In the example he gives, this person lives with the condition for a few years, and then decides he just doesn’t want to carry on any longer.
“In the Netherlands, if they were to request euthanasia, that request could well be granted on the ground that they are finding the suffering attended by their condition, which is incurable, to be intolerable or unbearable. But … under any reasonable definition, they’re not at the end of life,” says Sumner.
“How that would go in Quebec remains an open question. There may be cases like that that Bill 52 is intended to prevent.”
Udo Schuklenk, a philosophy professor who holds the Ontario research chair in bioethics at Queen’s University in Kingston, Ont., suspects that this “at the end of life” addition could also be meant to exclude people with clinical depressions.
If so, he suggests, that move would be “in sync very much with the majority of Canadians who, in opinion poll after opinion poll, support assistance in dying but really only for terminally ill patients.”
Not for children
If there are similarities between Quebec’s Bill 52 and the European laws, there are also differences.
Last week, Belgian lawmakers voted overwhelmingly to extend the country’s euthanasia law to children under 18, something that is not part of the Bill 52 proposal. It says a patient must be “of full age and capable of giving consent to care.”
The electronic voting board shows the result of the vote on Feb. 13, 2014, by members of Belgium’s federal parliament on a bill on child euthanasia (Yves Logghe/Associated Press)
“They’re very clear it’s competent adults only” who would be able to call on the law, says Schuklenk.
The Belgian law empowers children with terminal ailments and who are in great pain to ask to be put to death by their doctor if their parents agree and a psychiatrist or psychologist certifies they are conscious of what their choice signifies.
It had wide public support, but was opposed by some pediatricians and the country’s Roman Catholic clergy.
The Belgian vote, Sumner says, brings that country’s law “more or less in line” with the law passed in the Netherlands in 2002, which extended the law to children as young as 12.
To Sumner, there’s no surprise in Quebec taking inspiration from Belgium or the Netherlands.
“You would normally expect Quebec to look to France, but France has not legalized any form of medical aid in dying,” he says.
“Belgium is closely related … the next closest francophone or semi-francophone country in Europe and the only one that has a law on which they could model Bill 52.”