Assisted Dying: Alternatives to Arbitrary Minimum Age
The government has announced that they will hold further consultations on the question of the age of eligibility in the new legal framework for assistance in dying. For now, the proposed bill includes age 18 as a minimum age requirement.
The use of arbitrary age limits in many areas of public policy raises questions under the Convention on the Rights of the Child, which respects the evolving capacity of young people to participate in making decisions about their care. As pointed out in the CCRC submission to the parliamentary committee that studied assisted dying, this principle has been recognized in Canadian court rulings on health care, including recognition of the right of competent young people to decide to end treatment that may result in their death. CCRC Submission on Physician-assisted Drying.
Hopefully the consultation will be based on the Convention, which Canada has ratified, and focus on what criteria and process would be reasonable in the case of assisted dying, in place of the use of an arbitrary age limit. The CCRC will continue to be engaged on this matter, as part of its mandate to work for full implementation of the Convention on the Rights of the Child in Canada. A CCRC-sponsored symposium on the Best Interests of the Child in 2009 suggested a review of all age-based legislation to provide clear rationales based on the Convention on the Rights of the Child.
Child Rights and Physician Assistance in Death
The CCRC made a submission to the parliamentary committee that studied physician assisted death before introduction of a new law. Its recommendation that criteria be based on principles in the CRC rather than an arbitrary age criterion is reflected in the committee report. The committee recommended a two-stage legal process with the first stage applying to adults and then adding provisions for persons under age 18 after extensive consultation to determine criteria based on competency as a “mature minor.” Consultation with young people, as well as relevant experts, is recommended, in keeping with the CCRC’s focus on Article 12 of the Convention. The CCRC will continue to monitor the introduction and consideration of a new law, which needs to be completed by June. For copy of submission: CCRC Submission on Physician Assisted Death.
Posted on behalf of LeeAnn Chapman, CCRC board member and triage lawyer at The Hospital For Sick Children, Toronto
UN Convention of the Rights of the Child, Article 12
In an ideal world no child would ever suffer from a terminal disease. They would not endure intractable pain, nor face the indignity of losing control over one’s own body and mind; nor would their parents have to watch their child suffer, knowing death was inevitable.
Despite advances in health care, in particular palliative care and pain management, there are cases where suffering cannot be alleviated. Further, physical suffering alone is not the sole motive of those who seek an end to life. Loss of dignity and autonomy as one’s body succumbs to disease and injury, are most often stated as reasons alongside intractable pain, to control how and when the end comes. Losing control over bodily functions, the inability to communicate, and having to rely on family members and others for the most basic tasks of existing, all contribute to the underlying desire for physician-assisted death.
In 2015 the Supreme Court of Canada held that a law which prohibits a person from pursuing physician-assisted death “interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And, by leaving people …. to endure intolerable suffering, it impinges on their security of the person”(Carter v Canada, 2015).
As the Government of Canada responds to the Supreme Court of Canada’s decision in Carter v. Canada with new legislation, the question remains: Will the new law respect the rights of competent children and youth; or will the law deny them equal access to make decisions concerning their bodily integrity, such that they alone will be left to “endure intolerable suffering” when death is a certitude, without the right to seek physician-assisted dying? Such a decision would not only be cruel and unfair, but also in violation of Article 12 of the UN Convention on the Rights of the Child, as well as inconsistent with Canadian common law and the majority of provincial laws, which grant the right to make one’s own medical decisions based on capacity, not an arbitrary age maker.
In A.C. v. Manitoba (Director of Child and Family Services), a majority of the Supreme Court held that “The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views….” “ If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected (para. 87).”
Thus Canadian children and youth based on their capacity, not age, can request the removal of life-sustaining medical equipment such as ventilators, refuse artificial nutrition and hydration, and refuse life -saving treatments such as dialysis or chemotherapy even though that treatment may prolong their life. It is incoherent and unethical to acknowledge the right of capable children and youth to consent to end medical treatment which might result in their own death; but not extend to them the same right as adults, to assistance in ending their suffering from a “grievous and irredeemable dying”.
To deny the rights based on age alone is an unacceptable denial of equality according to the majority of Toronto high school students who attended a workshop on physician assisted- death in 2015 (Chapman, 2015). When asked to fill in a questionnaire on whether physician-assisted death should be available to competent adults only, or adults as well as youth, of those who supported the concept of physician-assisted death, 77.7% believed that it should be available to capable youth.
Furthermore, what about the right of children without capacity to hasten an end to intolerable suffering? In a study among parents whose children died of cancer 19% considered requesting a hastened death. One father of a five-year-old boy who died of cancer requested of his physician that if the child’s soft-tissue tumor ever threatened to choke his son to a “horrible, horrible” death, “Can we just get it over with quickly?” With laws that did not support such a request, not only did the father endure the loss of his child, but was denied the solace of knowing there was a possible exit if the suffering became intolerable (Dussel, et al, 2010). Canadian law as well as the UN Convention on the Rights of the Child, Article 3, requires that all decisions made for children must be in their best interests. Can one reasonably argue that it will never be in the best interest of a young child not to have the benefit of physician assistance to end prolonged suffering when the medical condition is terminal?
As in all discussions concerning physician assisted death, there are legitimate concerns about protecting the vulnerable, those who do not have capacity, and those who do not have the ability to express their wishes. The concerns about vulnerable populations is not age dependent, nor should concerns about adequate safeguards (as the Supreme Court has noted) justify denying the most basic rights to the citizens of a country, the right of bodily integrity and security of the person as it applies to ending an unwanted life, dominated by intolerable and hopeless suffering. It is important that the Supreme Court’s ruling that the suffering must be “grievous and irremediable” is respected and that all avenues of pain alleviation are offered, and that only those in a hopeless medical situation are offered assistance in dying as a relief from suffering. However, that desired relief should not be denied on the basis of age alone.
While the state has a legitimate interest in protecting those who are vulnerable, choosing an arbitrary age upon which to grant the right to assistance in ending the intolerable suffering of a prolonged dying, cannot stand up to scrutiny under the Charter or the UN Convention on the Rights of the Child.
NEWS RELEASE FROM PICTOU LANDING HEALTH CENTRE AND LAWYER PAUL CHAMP
IMMEDIATE RELEASE: April 4, 2013
In a landmark ruling for the rights of First Nations children, the Federal Court of Canada has found that Jordan’s Principle is binding on the Government of Canada, and ordered Aboriginal Affairs and Northern Development to reimburse the Pictou Landing Band for costs associated with caring for a disabled teen-ager living at home on the reserve. Jordan’s Principle is the child-first principle that requires governments to put jurisdictional disputes aside and ensure First Nations children receive the same level of care, support and services as Canadian children living off reserve.
Jeremy Meawasige is a severely disabled youth who lives with his mother Maurina Beadle on the Pictou Landing Band in Nova Scotia. Maurina provided for all of Jeremy’s care until she suffered a severe stroke in 2010 making it impossible for her to continue on her own. The Pictou Landing Band stepped in to provide the home care health experts said Jeremy needed to ensure he could stay at home and in his community. The Pictou Landing Band then asked the federal government to reimburse the costs for home care services to the level that Jeremy would have received from the provincial government if he lived off reserve. Aboriginal Affairs refused, and advised the Band and Jeremy’s mother that the only other option was placing Jeremy in an institution far away from his home at a cost to taxpayers that would exceed the in home care option. It made no sense.
The Pictou Landing Band and Maurina Beadle challenged the decision in Federal Court, invoking Jordan’s Principle, a concept that received unanimous support from the House of Commons in 2007. Jordan’s Principle was developed in response to a Manitoba case involving Jordan Anderson, a severely disabled First Nations child, who remained in hospital due to jurisdictional disputes between the federal and provincial governments over payment of home care services. Jordan and his family waited over two years for governments to resolve the dispute but sadly Jordan died at age 5 without ever having an opportunity to live in a family environment.
The Federal Court ruled in favour of Jeremy and his community, holding that the federal government must provide social or health services otherwise legally available to persons off reserve. The Court concluded, “The participating federal departments, particularly AANDC, have adopted Jordan’s Principle. In my view, they are now required by their adoption of Jordan’s Principle to fulfill this assumed obligation and adequately reimburse the PLBC for carrying out the terms of the funding agreements in accordance with Jordan’s Principle.”
The Court found there were strong parallels between Jeremy’s case and Jordan Anderson’s situation. The Court chastised the federal government for pushing the Band and Maurina to place Jeremy in a facility far away from the reserve: “Jeremy would be disconnected from his community and his culture. He, like sad little Jordan, would be institutionalized, removed from family and the only home he has known.”
Jeremy’s mother and the Pictou Landing Band community were overjoyed with the ruling as it is not only a big victory for Maurina Beadle, her son Jeremy and the Band, it also sets an important precedent to ensure all First Nations children across Canada are given equal access to essential government services. Maurina Beadle commented, “I’m overwhelmed with winning the Jordan’s Principle case, knowing the children will finally get the help that is much needed. I have a sense of inner peace knowing that there will be a change for the children across Canada.” Ms Beadle also praised Jordan’s family, adding, “I’m sure the Anderson Family will feel the same way as I do.”
For more information, please contact:
Philippa Pictou, Director, Pictou Landing Health Centre – 902-752-0085 Paul Champ, lawyer for Maurina Beadle and the Band – 613-816-2441 or 613-237-4740
For more information on Jordan’s Principle, go to: http://www.fncaringsociety.com/jordans-principle
Now that Omar Khadr is back in Canada, a reintegration plan should be the top priority. The first step is a full assessment of health and education needs, working with him to develop a plan that will allow him to develop his skills, and then implementing it.
Canada was the first country to ratify the Optional Protocol on Children and Armed Conflict in 2000. Under this agreement states agreed to prevent the involvement of children in armed conflict. When children have become involved. states agreed to remove them, find a home for them, and help them reintegrate into society.
There are good practices for the reintegration of children who have been involved in wars. Some have become leaders in their societies. Sometimes the damage requires a lot time to heal. Canada should do for this one person what many countries do for thousands of children whose stories are similar, but they do not make the headlines.