What happens when making people dead gets messy?
by Paul Russell
The recently released first report on the operation of Quebec's euthanasia & assisted suicide law should make everyone stop and think.
Three times the expected number of deaths with 8% (n.21) non-compliance with the law.
People could argue that the numbers themselves (262 deaths in seven months) as compared with what some people, including the Quebec Health Minister, expected, (100 deaths in the first year) is simply a matter of the inexactitude of a 'best guess'.
At a distance it is difficult to confirm, but the '100 in the first year' prophesy by Barrette may also have been a number thrown around during the debate on the enabling legislation and possibly with the addition of 'only'. The debate seems always to be about 'only'.
At this stage it is more the 8% non-compliance that should scare us.
Remember: this is for the first seven months of the operation of a new law when you would expect that everyone - everyone - would be exceedingly careful to comply.
18 of the 21 cases that failed to meet the legal regulations were situations where the independence of the second confirming doctor was at question.
The Minister's response? He is considering 'making some adjustments' to 'ease the obligation of seeking a second opinion' from an independent doctor.
I guess that's one response to non-compliance: change the rules so that compliance is easier, reducing the likelihood that the annual reporting would cause headaches for the Minister and his government. This is dangerous thinking.
The problem of independence of a second doctor was raised both in the debate in Quebec and in the nation's capital, Ottawa. Canada has many remote communities (probably similar in number to Australia) where getting an independent second opinion may be difficult.
That's a very real structural problem. But the answer should not be to somehow put people living in these remote communities at risk because, ultimately, isn't this precisely why the 'safeguard' of two doctors is required?
The Globe and Mail reports that, 'Of the remaining three cases, two were instances in which assisted death was administered without proving the patient was at the end of life. In one case, it wasn’t proven that the patient was facing a serious and incurable illness, as required under the law.'
These cases are potentially far more serious. They point to incremental extension by flouting the law. Of note, some of the other 18 cases may also be compromised in a similar way because the idea of a 'second and independent doctor' is to try to avoid rubber stamping. If said second doctors had simply taken the word of the primary doctor about all sorts of matters in relation to the patient, then it is possible that any number of supposed 'safeguards' were not properly dealt with.
The Globe and Mail said that all 21 non-compliant cases would be referred to the Quebec College of Physicians. It will be very interesting to see what comes of all of this.
So, what does a breach of the law mean?
The bill under debate in South Australia at the moment has a number of references to exemption from liability under the laws of the state - in particular the criminal code provisions against homicide.
Expressed in the negative, here is but one example:
'Nothing in this Act renders lawful voluntary euthanasia administered other than in accordance with this Act.' Death with Dignity Bill 2016, Section 5 (6).
So, if a euthanasia act is 'administered' outside of the prescriptions in this Act the extant laws apply - including the laws on homicide.
Technically, therefore, a breach of the law should be referred to the Public Prosecutor.
But what if the breach is only minor? It seems likely that the Quebec Health Minister sees the lack of independence of the second doctor in that light. But the independence 'safeguard' was put there for a purpose - as part of a suite of supposed 'safeguards' designed to protect citizens. The euthanasia law defines the exceptions. Anything else is subject to the criminal code.
Looking at the other three cases: in two, there was no proof that the person was 'at-the-end-of-life' and one where there was no proof of a 'serious and incurable illness'.
The debate rhetoric on both euthanasia and assisted suicide bills is always framed around: 'only'. Only for end of life; only for 'serious and incurable illness'. Like it or not, these three cases - if not also in some or all of the other 18 non-compliant cases - should be treated as possible homicides and police investigations should be instigated. The reality is that euthanasia is never simply about the 'only'; it is ever about 'only and...' or 'not only, but also...'.
Will serious charges be laid? I don't think so. It will be argued that, while 'proof' was not recorded, that the two people concerned were 'at-the-end-of-life' and that the third did, in fact, have a 'serious and incurable illness'. In the absence of proof to the contrary, unless there's a family member who is crying 'foul', the testimony of the doctors concerned will likely hold sway.
While this may be a just outcome (it may be true), what it says to doctors is that the boundaries are pourous.
Even if there were a police investigation and even if charges were brought against these doctors one can reasonably expect that either the charge would be of a lower order (not homicide) or that any penalty applied will be extremely lenient.
Why? Because in the absence of proof of malicious intent, it will be claimed that the person concerned was suffering terribly, that they were perhaps close to arriving at a point where they might be properly be eligible under the law and that the actions of the doctors was 'compassionate'. (Remember: the case law reaching back to 1973 in Holland provided a legal defence to euthanasia on the grounds of 'force majeure' or 'Legal Necessity' in otherwords, where it was said that nothing else could be done.)
For the law to have any potency; for the safeguards to have any meaning, charges need to be laid and any other pecuniary penalties attached to the law and any penalty available to the Quebec College of Physicians need to be applied with full force.
I'm not holding my breath.
Trouble is that, once we accept the principle that some lives should be excised from the protection of the law and that doctors can kill their patients, all that's left is a discussion about who qualifies - and that's a moving target.