Physician-Assisted Suicide: A Recap of the MJLH’s 2013 Colloquium

Posted By Laura Crestohl – Feb. 28, 2013

Part 1 of the colloquium recap will focus on the morning panel presentations, while Part 2 will cover the afternoon debate between McGill Professors Weinstock and Sommerville titled “Is legalizing physician-suicide a good idea?”.

The McGill Journal of Law and Health held its annual colloquium on February 2nd, on the topic of physician-assisted suicide. The colloquium began with a panel featuring Grace Pastine, of the British Columbia Civil Liberties Association (BCCLA), who represented Gloria Taylor in a recent case in BC, Dr. Manuel Borod from the McGill University Health Centre (MUHC), Suzanne Philips-Nootens from the Faculty of Law at the University of Sherbrooke and Alex Schadenberg, executive director of the Euthanasia Prevention Coalition.

The panel started with McGill graduate student Keith Lenton giving a short introduction as to the law on physician-assisted suicide as it now stands in Canada. Lenton mentioned important moments in the continuing development of this area such as:

  • Rodriguez v British Columbia (Attorney General): a 1993 Supreme Court case in which Sue Rodriguez, suffering from amyotrophic lateral sclerosis (ALS), challenged the criminal code provision prohibiting physician-assisted suicide. She claimed the provision was an infringement on her Charter rights to life, liberty and security of the person (s 7), and equality (s 15). The court ruled against her in a 5-4 split decision.
  • Carter v Attorney General of Canada: A BC case being appealed to the Supreme Court wherein the BC Supreme Court (BCSC) and Court of Appeal (BCCA) granted Gloria Taylor a constitutional exemption so she could die with dignity, while the government could change the law to conform with the Charter.
  • Quebec’s Dying with Dignity Report by the Menard Committee: released in January 2013, the report recommends that the government reassess its position on end-of-life care and recognize a right to medical aide to dying.

 

Why Now? — The Gloria Taylor Case

The first panelist, Grace Pastine of the BCCLA, spoke of her experience representing Gloria Taylor, a BC resident who suffered from ALS  who fought for the right to physician-assisted suicide. Pastine said that she felt the time was right to bring the subject back to the courts for various reasons, including:

  • the availability of more social science evidence  from other jurisdictions who had legalized physician-assisted suicide (such as Oregon and Belgium);
  • the public opinion on the subject, which she felt had changed since the Rodriguez case;
  • the development of Charter jurisprudence and new  legal principles such as fundamental justice and gross disproportionality.

The BCSC and the BCCA both ruled that the provision prohibiting physician-assisted suicide was unconstitutional. Justice Smith of the BCSC found that the harm the provision caused was grossly disproportionate to the safety it was supposed to protect.

 

Where’s the Slippery Slope?

The subsequent panelists’ sessions focused on providing definitions of words commonly used around assisted suicide, and attempting to clarify and distinguish them from one another.

The second speaker, Suzanne Philips-Nootens, a leading medical ethicist, discussed the findings of the Dying with Dignity Report while also discussing international developments. You can find out more about her research here.

She placed emphasis on the fact that the Dying with Dignity report especially highlighted the importance of prioritizing palliative care and advance directives.

Philips-Nootens spoke about the “slippery slope” associated with physician-assisted suicide that has already presented itself in countries like the Netherlands and Belgium, where physician-assisted suicide has been legalized. Philips-Nootens argued that In those countries, assisted suicide is becoming available in cases  where :

  • people are not terminally ill, but rather “tired of living”
  • the request is occurring too soon
  • people develop disabilities
  • there is no immediate risk of dying

Euthanasia and Palliative Sedation–Are They Different?

Dr. Manuel Borod from the McGill University Health Centre (MUHC) began his session by defining “palliative care” from the WHO definition, which

  • sees dying as a normal process
  • neither hastens nor postpones death


Borod distinguished the term “euthanasia” from other terminology associated with end-of-life care. First, he emphasized that withholding or withdrawing treatment are not synonymous with “euthanasia.” He also highlighted the vagueness of the term “near death,” which could signify different conditions depending on the patient.

Another term he discussed was “palliative sedation,” which deliberately induces and maintains a patient’s sedative state in end-of-life care. 95% of the specialists in Quebec support palliative sedation as end-of-life care, but they have split opinion on whether palliative sedation itself qualifies as euthanasia.

Borod concluded his talk by arguing for having input from people who are directly affected by issues of assisted suicide, rather than healthy people, stating that most patients prefer to be kept alive.  Finally, we are “talking about the wrong issue” by focusing on assisted suicide, when we should ask: “why do we keep people alive?”

Alex Schadenberg from the Euthanasia Prevention Coalition wanted to clearly differentiate the terms “sedation” and “euthanasia”. He stated his point with an anecdote of drinking a lot of scotch with a friend in Scotland, leading to a state he described as “sedated.” “But we were not euthanized that night,” he added.

He also emphasized the act of “killing” in euthanasia, by stating that most euthanasia today is now conducted by legal injection. He also stated that it is a “modern fallacy” to believe that there is no difference between “killing a person” and “letting a person die.”

Schadenberg spent most of his talk discussing euthanasia in Belgium, alleging the existence of assisted suicide that were administered by unsupervised nurses. He warned that Quebec is most likely to follow suit, since it is using the same definitions for terms such as “assisted suicide.”


For the first time, the online team recorded the symposium on social media by live-tweeting the event. A collection of all the tweets from the day can be found on Storify. Visit the Journal’s Facebook page to see photos from the event.

The Implications of Mabior for people living with HIV, Part 3

Posted By Rosel Kim – Feb. 18, 2013

In R v. Mabior, the Court imposed a heavy evidentiary burden on the accused with HIV for avoiding criminal liability: low viral load and condom use. Part 1 of the blog series summarized the judgment; part 2 of the blog series explored how the case may deter people from getting tested and knowing their HIV status.  This evidentiary requirement may pose difficulties to people living with HIV, rather than clarity. Part 3 of the series discusses the inherent evidentiary difficulty in proving condom use for the accused.

THE “HE SAID, SHE SAID” PROBLEM IN PROVING CONDOM USE 

Typically, no witnesses other than the accused (living with HIV) or the complainant (the partner) could testify on the issue of condom use. When the testimonies vary between the complainant and the accused, courts will often favour the complainant’s version of the testimony.

For example, in R c. D.C. D.C. disclosed to her doctor that there was a condom used but it broke, after an initial encounter. The trial judge did not trust D.C.’s testimony about the existence of condom use, and inferred from her doctor’s records that D.C. must have lied about condom use, and instead believed her ex-partner’s testimony about there being no condom use. The court’s ability to summon D.C.’s private consultation with her physician as incriminating evidence against her raises serious concern about a patient’s relationship with the health provider.

Even though the Supreme Court eventually acquitted D.C.’s case, it did not change the evidentiary burden of proving condom use. This means that a court still has the ability to access confidential documents like a doctor’s records in a criminalization case to use it against the person living with HIV. This violation of confidentiality of the patient’s records could further deter PLHs from discussing their health concerns or seeking out treatment, since their private consultations with a doctor may be used against them later in court.

This post is a part of a longer essay submitted for the seminar “Issues in Human Rights” at McGill Faculty of Law and is republished with the instructor’s permission.

REFERENCES:

R v Mabior, 2012 SCC 47.

R c D.C., 2008 QCCQ 629.

R v D.C., 2012 SCC 48.

The Controversy Over NHS Reform

Posted By William Stephenson – Feb. 11, 2013

 

The UK’s Health and Social Care Act, which will come into force in April this year, has been the center of controversy in England. The Act is the greatest restructuring of the English National Health Service (NHS) since the service’s inception. Some see it as a much needed reform to keep the system functional; others see it as a brash privatization measure that will sound the death knell of the public healthcare system in England. But what is really at the heart of the controversy?

Here are some of the issues:

 

1. CLINICAL COMMISSIONING

Clinical commissioning aims to put general practitioners in charge of allocating funds as members of clinical commissioning groups. The goal is to put decision-making in the hands of physicians who, in theory, are better placed to know their resource needs than the regionally based trusts which currently make those decisions.

Opponents of the plan argue that doctors will not have the time or the inclination to essentially become managers. Many also fear that this change will lead to a fragmented and inconsistent healthcare system.

 

2. COMPETITIVE ALTERNATIVES

The Act also aims to provide patients with more choices by giving them access to alternative private providers and by fostering competition within the system. These providers will need to be licensed before being able to deliver care.

Opponents see this as a dangerous opening that could eventually lead to a partially – or even all-out – private healthcare system.

 

3. IN ADDITION, THE NHS IN ENGLAND IS BEING ASKED TO MEET THE NICHOLSON CHALLENGE, WHICH INVOLVES CUTTING £ 20 BILLION FROM ITS BUDGET – ABOUT 25% – BY 2015.

These changes will apply only to the NHS in England and not the rest of the UK.

Many have questioned the extent of the changes and the time frame for their implementation. The UK already has one of the most efficient public healthcare systems in the world, as the following statistics suggest:

  • Healthcare spending as a percentage of GDP:

8.4% in the UK           10% in Canada

  • Percentage of total healthcare spending funded by the government:

87.4% in the UK         70.4% in Canada

  • Per capita government spending on healthcare:

$ 2434 in the UK        $ 2585 in Canada

  • Per capita spending on healthcare from all sources:

$ 2784 in the UK        $ 3672 in Canada

 

Furthermore, the NHS is the largest employer in the UK.

“Why fix what is not broken?” the thinking among opponents of the Act seems to go. However, with an aging population and the global economy on a knife edge, the UK undoubtedly has to find new efficiencies in the NHS in England sooner or later.

With all this in mind, we can only wait and see what the Health and Social Care Act’s true impact will be.

 

All statistics taken from most recently available WHO data. See: http://apps.who.int/whosis/data/ 

Patents and the Life Sciences: Where are we going?

Posted By Laura Crestohl – Feb. 2, 2013

 

On Monday January 14th, 2013, the Centre for Intellectual Property Policy at McGill hosted a lecture with Patent Agent Dr. S. Serge Shahinian, titled “The evolution of patenting in the life sciences: Where have we come from and where are we going?”. During the lecture, Dr. Shahinian explained how patents are currently being applied in the realm of the life sciences and the possible health law repercussions this practice can have. The cases mentioned involved companies attempting to patent, and therefore gain an exclusive market over, scientific innovations including medical treatment methods and diagnostic tools. Shahinian explained the policy concerns from this practice, including the possibility of excluding people from receiving the highest quality of care because of high prices.

WHAT DOES THE FUTURE HOLD?

According to Dr. Shahinian, it remains to be seen what the role of the courts will be in determining what is patentable. Currently, the court decides if the subject of a potential patent fits the definition of “invention” found in the Patent Act:

any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.

However, it is still unclear to what degree the courts will, and should, include public policy considerations, such as the cost of manufacturing medication and the availability of treatment to those in need, when making these far-reaching decisions.

CASES OF NOTE INCLUDE:

  •  Tennessee Eastman Co. v. Commissioner of Patents, a 1974 case, in which the appellant sought to patent a surgical method for bonding wounds together using glues instead of stitches. The Supreme Court denied the patent, however, claiming the process was not a new innovation, and that a method of treatment itself is not patentable in Canada.
  • In Janssen Inc. v. Mylan Pharmaceuticals ULC (2010 FC 1123), the Federal Court found that an optimum dosing regime for an Alzheimer’s medication was not patentable since it was a method of treatment and still required doctors to use their professional skill and judgment when prescribing the medication.
  • In Mayo Collaborative Services v. Prometheus Laboratories, Inc(566 U.S. ___ 2012), the Supreme Court of the United States ruled that a new method of calibrating the dosage of a drug was not patentable because assessing the proper dosage and possible reactions of the drug was simply a “natural law” and thus not an innovation.
  • Association for Molecular Pathology v. Myriad Genetics(ongoing) concerns the patentability of modified genes used to diagnose breast cancer. The Supreme Court of the United States will decide on the issues of whether isolated DNA is patentable.