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Irreconcilable differences: author and reviewer come at end-of-life issues from entirely different places.

Dying Justice: A Case for Decriminalizing Euthanasia and Assisted Suicide in Canada Jocelyn Downie University of Toronto Press, 2004 201 pages, hardcover ISBN 0802037607

Abortion, assisted human reproduction, embryonic stem cell research, same sex marriage. All have been controversial issues among Canadians and legislators. All are issues that politicians prefer not to deal with because of the contentious ethical, legal and social questions involved. All are issues that politicians prefer to hand off to the courts if at all possible.

So what will be the next issues of this kind to perplex Canadians, Parliament and the courts? End-of-life issues--withholding or withdrawing life-sustaining treatment for dying persons, physician-assisted suicide and euthanasia--the central subjects of Dying Justice: A Case for Decriminalizing Euthanasia and Assisted Suicide in Canada by Jocelyn Downie, Director of the Health Law Institute at Dalhousie University.

I first encountered Professor Downie in 2001 when she made an impressive submission to the House of Commons Standing Committee on Health, urging better and more comprehensive regulation of assisted human reproduction. In Dying Justice, her stated goal is "to convince readers that voluntary assisted suicide and euthanasia should no longer be completely prohibited." She rests her case for a permissive regime with respect to voluntary assisted death primarily on the weight given to respect for autonomy (control over one's own life and body) by the common law and the Canadian Charter of Rights and Freedoms.

Downie's closely reasoned arguments and conclusions are impressive and persuasive--if one is prepared to approach end-of-life issues solely from a legal perspective, in particular a legal perspective heavily shaped by the Charter of Rights and Freedoms.

But as a democrat and former politician accustomed to making the wide range of values, perspectives, feelings, fears, hopes, opinions and circumstances of Canadians, in particular my constituents, the starting point for the consideration of any issue, I cannot accept the narrowness of the legal perspective employed by Downie or the conclusions that flow from it.

Instead I would advise Canadians to take a much broader approach and, while according due weight to the advice of legal counsel, give much greater weight to other personal, cultural, political, medical and spiritual factors in determining the best approach to end-of-life decisions.

Downie argues that the legal status of assisted death (her conceptualization of end-of-life care) in Canada requires clarification for several reasons: Unwanted treatment is sometimes given. There are inconsistencies in end-of-life treatment, non-treatment and pain control across the country. Healthcare providers are under the constant threat of legal liability. And changes to the law are being made on a case-by-case basis on the backs of individuals in extremity.

She defines "voluntary assisted suicide" as the act of intentionally killing oneself with the assistance of another, with "voluntary" meaning in accordance with the wishes expressed by a competent person or through a valid advance directive, and "euthanasia" defined as an act undertaken by one person with the motive of relieving another person's suffering in the knowledge that the act will end the life of that person.

In comparison with the present legal regime, Downie's proposed regime is less permissive with respect to withholding and withdrawal of potentially life-sustaining treatment and more permissive with respect to euthanasia and assisted suicide. She argues that a legislative regime permitting withholding and withdrawing potentially life-sustaining treatment, but prohibiting assisted suicide and voluntary euthanasia, violates the Canadian Charter of Rights and Freedoms. She does not explore the possibility that in not allowing such a regime, the Charter and its interpretation, rather than the legislative regime, may be what is flawed.

Downie expressly rejects the "slippery slope" argument that decriminalizing voluntary assisted suicide and euthanasia could lead to the termination of the lives of ill persons without knowledge of their wishes or without their consent. She states that "the development of the arguments for a permissive regime with respect to non-voluntary assisted death and voluntary assisted death for previously competent individuals ... must remain an enterprise for another time. Nothing in this book, however, should be taken to suggest that a permissive regime for such forms of assisted death could not be defended."

Empathy with the Dying

Dying Justice starts with 30 pages on "What The Law Is," and goes on to discuss at considerable length "What The Law Should Be." But real people in real life-and-death situations--especially dying persons--do not start or end there at all, nor should any truly humanitarian analysis of the laws or policies that should govern such situations.

Recently my 90-year-old father-in-law, who has never been seriously ill in his life, was told by a specialist that he has terminal bone cancer and not long to live. My wife, Sandra, and I drove him and his wife home from the doctor's appointment and he talked of many things--of the relief that getting a definitive diagnosis gave him, of the kind of care he would need in the days ahead, of his appreciation of family and friends, and of his faith in the providential care of God. Although he knows that I have been a law maker and public policy advocate by profession, not once did he ask me "what the law is" governing such situations, nor would I have had the temerity in that situation even to raise the subject.

When someone is dying, that person will listen best to someone who has demonstrated genuine understanding and empathy with what this individual is experiencing. "I don't care how much you know, until I know how much you care" is what such people often feel like saying to professionals offering expert but abstract solutions to real-life dilemmas. I am sure that Downie does care, but the fact that she offers no evidence that she has actually sat with the dying, cried or laughed with them, shared their fears and hopes, or wrestled personally with their doubts and questions, suggests to the reader that Dying Justice is an abstract, not empathetic, analysis.

Cultural Sensitivity

Dying Justice is addressed to the people of Canada, and Canada is a multicultural society. Yet the book's analysis is framed within the narrow context of a single culture--the culture of the Canadian legal academy whose world view is increasingly circumscribed by the Charter of Rights and Freedoms.

Where is the acknowledgement of Canada's cultural diversity in either the analysis or the conclusions? People of different ethnic origins, religious persuasions, economic circumstances and geographic locations look at end-of-life issues and concepts such as life-sustaining treatment, sanctity of life, human dignity, autonomy, the role of physicians and suicide quite differently differently, and from perspectives thousands of years older and infinitely more diverse than those contained in Canada's 25-year-old Charter.

My father-in-law is a Canadian of British extraction, a World War II veteran and a committed Christian who has spent most of his life in business in Western Canada. But his concept of the sanctity of life, autonomy and human dignity--values to which Downie attaches relative "weights" based solely on her interpretation of the common law and the Charter--is worlds away from that of an aboriginal friend of mine. My friend, facing illness and old age, expressed her desire to return to the shores of the lake in northern Alberta where she had been raised and, after the time-honoured custom of her people, to walk out on the ice in the dead of winter until she could walk no more. She was eventually persuaded not to do so by factors and influences quite different from those governing my father-in-law's end-of-life decisions--differences it would be difficult to capture in a law or public policy rooted solely in a legal perspective different again from either of theirs.

Democratic Consultation

In Dying Justice, Downie assiduously consults the common law and the Charter in arriving at her conclusions and prescriptions. But as long as Canada still professes to be a constitutional democracy, surely it is equally if not more important to consult the people themselves in framing or amending any law directly or indirectly affecting their welfare.

Downie makes no reference to having engaged in or taken into account any such democratic consultations, so perhaps it is appropriate for me to share my experience with one such public consultation on the subject of euthanasia and physician-assisted suicide, undertaken when I was still the member of Parliament for Calgary Southwest.

It took place in the spring of 1994, following the tragic death of Sue Rodriguez, the British Columbia woman suffering from a degenerative nerve disease who had taken her own life with the aid of an unidentified doctor after her attempts to gain court permission for a legally sanctioned physician-assisted suicide had been denied. I took the position that it was the duty of the state to affirm and preserve life rather than to sanction the taking of it even in exceptional circumstances. But as was my custom, I told my constituents that I was willing, if the issue came before the House, to vote their view if a clear consensus could be determined in the riding.

We then engaged in an extensive three-month dialogue and educational exercise that included distribution of flyer to every home in the riding containing information and pro and con arguments on the issue prepared by local interest groups; several town hall meetings covered by the media where the issue was debated from various perspectives and a "straw vote" taken at the end; a televised townhall meeting at which a panel that included myself discussed the pros and cons and invited constituents to vote on several options by telephone; and, finally, a scientific constituency-wide public opinion survey.

After all this, I concluded that there was a clear consensus among my constituents in favour of lifting the criminal code prohibition against assisted suicide if it could be replaced with strong safeguards to prevent abuses. There was not, however, a clear consensus on exactly what those safeguards should be, and when I showed the proposed list of safeguards to legal counsel the opinion was that the legislative measures required to implement them would be lengthy, complicated and of questionable enforceability.

In the end, the issue never did come before the House. But for me, the democratic consultation in which I engaged with my constituents brought to light perspectives, dynamics and tradeoffs that I would not have thought of or fully appreciated had I and my caucus colleagues worked out a legal and policy position in isolation from those whom it would directly affect.

This particular democratic consultation is relevant, not because it affirms either my views or Downie's (it does neither), but because it illustrates how talking directly with those potentially affected by a law brings additional considerations to the issue that neither the politician, the judge nor the academic may have fully appreciated or appropriately weighed.

Valuing the Medical or Psychiatric Perspective

The most important professionals engaged with dying persons are not the lawyer, judge or politician but rather the doctor and nurse. If allowed or called for, it is they who will be directly involved in withholding or withdrawing life-sustaining treatment. It is they who will be most actively involved in pain mitigation for the dying and in providing palliative care. If assisted suicide were to be permitted by Canadian law, in most situations it would be physicians who would be called upon to "assist" and to wrestle with any conflict of interest created by their prior commitments to heal and do no harm. And yet Dying Justice touches only peripherally on the medical perspective on end-of-life issues, and the author is completely silent on that most common and troubling medical condition characterizing dying persons--depression and its impact on decision-making capability.

Dr. Eric Chevlen, an American palliative care specialist, comments on this condition and the failures of judges and legislators to appreciate it in his review of Seduced by Death: Doctors, Patients and the Dutch Cure, by Dr. Herbert Hendin, Medical Director of the American Foundation for Suicide Prevention, which appeared in the May 1997 issue of First Things: The Journal of Religion, Culture and Public Life:
 A sick person who seeks suicide is fundamentally
 no different from a physically healthy one
 who does. The vast majority of such people are
 clinically depressed, although all too often their
 doctors fail to recognize it. (Fifty percent of
 suicides consult a doctor within a month before
 their death.) Many of those who seek assisted
 suicide are in a state of terror. They are mortally
 fearful of debility, dependence, or even death.
 Some are so afraid of death that they would
 rather die than live in such fear. Assisting in
 such suicide does not promote patient autonomy
 and dignity. Rather it reduces the patient to a
 victim of his fear and despair, and it guarantees
 that he will not work through his fear and find
 value in his life.

Recognizing the Spiritual Dimension

In Dying Justice, Downie makes no reference to the spiritual dimension of death and dying, the role of faith convictions in comforting the dying or in guiding end-of-life decisions, or to the role of spiritual counsellors in end-of-life situations. She states explicitly that "I will not discuss what the law should be in a moral sense, but rather what the law should be given the overarching legal regime within which that law will reside."

This is of course completely consistent with the increasingly narrow philosophical perspective of the courts on such issues. A justice of the B.C. Supreme Court (in the Sharpe pornography case) has declared that the "supremacy of God" reference in the Charter is "dead" unless "resurrected" by the Supreme Court of Canada. And former Chief Justice Antonio Lamer has declared (in the Rodriguez case) that Canada is a "secular society" in which the court is not obliged to be guided in any way by "theological considerations," despite the existence of Canada's deep and broad religious heritage, constitutional guarantees of freedom of conscience and religion to all Canadians, and polling data that demonstrate that the thorough secularity of our legal and political elites is not shared by the majority of Canadians.

Downie takes the utilitarian approach to ethics--an approach preferred by most secularists--that with respect to whether an act is right or wrong "it all depends" on the situation and whether the benefits outweigh the costs. But there are other prominent ethicists in Canada (such as McGill ethicist Dr. Margaret Somerville in her 2002 book, Death Talk: The Case Against Euthanasia and Physician Assisted Suicide) who take the deontological approach--an approach more consistent with religious perspectives--that there are certain acts that are "inherently wrong" regardless of the potential benefits.

In the recent hit movie Million Dollar Baby--where young boxer Maggie Fitzgerald (Hilary Swank) becomes totally paralyzed and seeks release through a lethal injection eventually provided by her trainer, Frankie Dunn (Clint Eastwood)--the priest whom Dunn consults is doctrinaire, unsympathetic and completely unhelpful. But this is a cruel and misleading caricature of the attitudes and role of most spiritual counsellors and comforters in real end-of-life situations. In any city in Canada there are priests, ministers and rabbis who have spent more time and emotional energy in attending to the needs of dying persons and their families than all the judges, lawyers and law professors in Canada put together. And to ignore their perspective and counsel completely in framing laws or public policy dealing with end-of-life issues is a mistake of major proportions.

Once again, the exclusively legalistic and secular perspective of Dying Justice is simply too narrow to embrace the reality that, for millions of Canadians, their convictions with respect to the withholding or withdrawal of life-sustaining treatment, suicide and euthanasia are rooted in faith perspectives, and that for many (not all) those convictions lead them to believe that taking a human life--your own or somebody else's--under any circumstances is inherently wrong. Even conceptualizing dying as "the end of life" is incongruous with the faith perspectives of those (myself among them) who regard physical death not as "the end of life" but as the transition to another life of a different kind.

Concluding Observations

Whether or not one agrees with Downie's analysis or conclusions in Dying Justice, the book is well worth reading, if only to see the conclusions that an exclusively legal and Charter-informed perspective leads to on end-of-life issues.

As stated earlier, those who take a broader approach to these end-of-life issues--one informed not only by legal considerations but also by empathy with the dying, cultural sensitivity, democratic consultations, the medical and psychiatric perspectives, the spiritual dimension and a deontological approach to ethics--will have much greater reservations than Downie and the courts about sanctioning assisted suicide and euthanasia as the appropriate solution for Canadians facing the end of life.

Notwithstanding these reservations, and how widespread they are among Canadians, there will be influential interests and individuals who will insist that the high priests of the Charter Church offer them their last rights--including the right to an assisted death. And if Prime Minister Paul Martin continues to accede to pressures to stack the Supreme Court with justices imbued with "liberal social values," the court will likely find the current criminal code prohibition against assisted suicide unconstitutional and Parliament will acquiesce just as it did in the case of same-sex marriage.

So what to do for those who are intensely interested in assisting Canadians to deal with end-of-life issues but who consider assisted suicide and euthanasia inherently wrong?

To serve Canadians and make an effective contribution to the resolution of end-of-life issues, we should not start at the same starting point as the legalists--with dry, unfeeling pronouncements of principles, ethics, arguments and legal proposals (important as these are). Rather, we should begin by strongly demonstrating through actions--such as strong support for palliative care that preserves autonomy and dignity as well as respect for life--our preparedness to provide Canadians facing the end of life with a better choice.

Dying Justice would have Canadians spend our end-of-life days in care situations where the principles and ethics advocated by Downie prevail, and where both assisted suicide and euthanasia sanctioned by law are considered acceptable and even preferable options by those responsible for our care. The better choice that those opposed to this option should offer Canadians is the opportunity to spend those end-of-life days in situations (home care, hospices, palliative care facilities) where, notwithstanding what the Charter may prescribe, those responsible for our care are committed to the non-lethal relief of suffering and the positive affirmation of life and its value, even in the valley of the shadow of death.

Preston Manning is a former Leader of the Official Opposition in the House of Commons. He is currently president and CEO of the Manning Centre for Building Democracy.
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Title Annotation:Dying Justice: A Case for Decriminalizing Euthanasia and Assisted Suicide in Canada
Author:Manning, Preston
Publication:Literary Review of Canada
Article Type:Book review
Date:Jan 1, 2006
Previous Article:Erratum.
Next Article:Dish with a Representation of the Sense of Hearing.

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