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.

Reflections from the 2012 MJLH Colloquium: the Impact of Criminalized Behaviour

Posted By Kaitlin Soye – Aug. 21, 2012

The 4th annual McGill Journal of Law and Health Colloquium was held March 10th at McGill Univeristy. The topic was Insight on INSITE: The Evolution of Canada’s Drug Treatment Policy. Featured speakers included lawyers, doctors, researchers, politicians, NGO workers and law enforcement. The event was both informative and engaging.

As the discussion progressed many issues emerged and academic discussion ensued. Two ideas emerged from the discussion that I found particularly interesting and insightful: the role of law enforcement in drug treatment policy and intersectionality of public support systems in drug treatment policy.

Our police officers are the people on the street who apply the law. These are the men and women who are asked to enforce our laws and interact directly with the people who are breaking them. Through discussions with an RCMP officer at the colloquium I learned how strained this interaction can be. A person who is abusing drugs and may be dealing with an addiction cannot be reduced to merely a person committing a crime. Addiction is a disease and can result in a person acting irrationally and dangerously. While it is the responsibility and duty of law enforcement to maintain safety while upholding the law, discretion may be needed. What I learned during our discussion is that police officers are not always trained in the social issues surrounding addiction.  As advocated by a colloquium participant from the RCMP, if police officers are taught about the special needs of a person with a drug addiction there can be more compassion, more effective and humane practises. This could lead to more positive and effective interactions between people with addictions and law enforcement. In law school, I have naïvely neglected to reflect on the role of police officers in the law. In the case of drug treatment policies, I see this as the perfect example of flexibility and interpretation in the law. This is a situation when the spirit of the law may be more important that the specific decree of the law.

Before the Colloquium, I had not considered the depth of intersectionality that exists surrounding drug treatment policies. There are so many actors and stakeholders. I have already discussed the role of the law enforcement, but other stakeholders include the politicians, prosecuting lawyers, community advocates, physicians, researchers, and many more. Almost all programs and policies implicated in drug treatment policies come from the same source. The government pays for our hospitals and doctors; it pays for police, prosecutors and judges. There is federal and provincial research funding and community outreach groups. On a purely economic level, it is not cost effective for these groups to be competing with each other. When these players can work together, funding can be used efficiently and the needs of citizens can be best met.

All interested parties share a common goal and have the best interest of health and safety of citizens. It is clear that incarceration is not going to be the solution to Canada’s drug problem. In the face of the Omnibus Crime Bill C-10 passed by the majority conservative government on March 12, 2012 mandatory minimum sentences may cause problems for our colleagues who work on drug treatment policies and with the people affected. Now is the time for concerned parties’ to work together to progress our policies and practises.

When looking at the intersection of law enforcement, rights and harm prevention the case of prostitution at the Ontario Court of Appeal (Canada (Attorney General) v. Bedford, 2012 ONCA 18) highlights many of the ideas expressed at the colloquium. In Canada, while prostitution was not found to be illegal, many of the activities surrounding it were. In this recent decision, the court found that legal prohibition of living off the avails of prostitution and keeping a “common bawdy house” were unconstitutional, while the prohibition of communication for the purpose of prostitution remained constitutional. These laws were challenged in the context of maintaining the safety and security of people engaged in the business of prostitution.

This ruling may increase the safety of people engaged in the sex trade by allowing them to conduct business in their private homes or to hire security. This extends the fundamental right granted to all Canadians security of the person (s. 7, Charter). The court found that laws compelling prostitutes to work in dangerous situations to be illogical, given that prostitution itself is legal. While the trade is often dangerous, people engaged in prostitution are owed the same standard of protection as any other citizen. A comparison could be made to people who use illegal drugs. Although, they have engaged in a risky activity, they have the same rights as all Canadians to safety and security. This safety could be better delivered to them through general availability of safe-injection sites to minimize harm, reduce violence, and give people better access to need health interventions.

This year’s colloquium was very timely with the INSITE decision being handed down from the Supreme Court of Canada in Fall 2011, this month with the passing of the Omnibus Crime Bill, and Bedford at the Ontario Court of Appeal. Hopefully, the conversations that stated at the colloquium will continue and will lead to progress and change as we engage in drafting and implementing Canada’s drug treatment policies.

Reflections on the 4th Annual MJLH Colloquium

Posted By Meara Conway – Mar. 28, 2012

The MJLH‘s 4th Student Colloquium entitled “Insight on Insite: The Evolution of Canada’s Drug Treatment Policy” held on March 10th featured lawyers, health providers, academics, politicians, community workers and law enforcement representatives. With the Supreme Court’s (SCC) recent landmark decision, and as stakeholders brace for the impact of Harper’s Omnibus Crime Bill on preexisting drug treatment strategies, the Colloquium was a timely survey of the complex economic, legal, social, and medical issues at the nexus of drug use harm reduction initiatives.

Kicking off the discussion was the Honourable Libby Davies. She spoke of Insite’s “recipe” for success: a combination of legal challenges, political mobilization and community organizing over more than a decade leading to Insite’s eventual acceptance. The criminalization of drugs and drug use in the DTES was increasingly recognized as an economic and social failure disproportionately targeting marginalized populations. Davies raised some of the class issues concerning drug treatment policies citing pervasive misconceptions that drug use predominantly impacts the poor. She attributed these misconceptions to the visibility of marginalized populations where addictions interact with poor access to treatment, increasingly limited social services and affordable housing, which in turn exacerbate drug use. While drug addiction is in fact a widespread affliction impacting all demographics, the visibility of such users makes them particularly vulnerable to criminalization and stigmatization. According to Davies, years of community organizing led to alliances between unlikely bedfellows (such as DTES and Vancouver West parents on projects like Grief to Action). This changed popular misconceptions about drug use and created momentum for mobilizing support for Insite within and beyond the DTES.

While much of the discussion revolved around harm reduction initiatives, Dr. Kathryn Gill, McGill Associate Professor of Psychiatry and Director of Research at the Addictions Unit of the McGill University Hospital Centre (MUHC), called for a broader approach to drug policies. Harm reduction measures, while important, are not enough. A truly effective drug policy must involve multiple avenues to address addiction, ultimately aimed at discontinuing drug use. Dr. Gill lamented the desperate lack of treatment available to drug users and called for additional resources to train professionals in the particular challenges of drug use and its intersection with social issues such as mental health and the neuro-cognitive challenges users face. Dr. Gill questioned why harm reduction methods dominate the debate around drug use. She argued that some harm reduction practices are harmful, and made a compelling case that the introduction of harm reduction measures should impose accompanying duties to improve access to treatment, and wider systems of care and service delivery.

Executive Director of the Canadian HIV/AIDS Legal Network, Richard Elliot, provided a comprehensive background to the Insite legal challenge. The Canadian HIV/AIDS Legal Network was granted intervening status and played a political and strategic role in the struggle to ensure Insite’s continued operation when the Conservative government, the RCMP and the CPA opposed granting a continued exemption. Elliot provided a sobering analysis of the SCC’s decision and expressed disappointment that the Court imposed inappropriate criteria for allowing the operation of safe injection sites. According to Elliot, the need to consider the impact of safe injection sites on crime rates and expressions of community support or opposition create the potential for problems going forward if valuable and life-saving services offered to marginalized populations are beholden to the preferences and clout of a powerful majority. Ultimately, the SCC’s decision was a timid one, and the unanimous Court lacked the courage to follow through with what were its apparent views at the outset of the judgment. On a more positive note, Elliot celebrated the affirmation that drug users enjoy section 7 protection, and the clear indication that courts will step in when governments exercise their criminal law power in a way that contributes to preventable death and disease.

The presentation made by University of Victoria law Professor Margot Young was a highlight. Professor Young briefly spoke about the shift in discourse of drug addiction as a choice to drug addiction as a disease. Sharing some of Mr. Elliot’s reservations about the legal ramifications of Insite, Professor Young pointed out that the legal outcome is perhaps not as significant as the political message sent by the decision. Insite may be regarded as establishing a right to safe injection sites, creating a political barrier to governments looking to stop the advance of safe injection sites. While the SCC may have given the narrowest possible judgment in favour of Insite, the popular political imagination may provide a powerful counterbalance to this diffident judgment. Professor Young also expressed uneasiness regarding a doctrinal feature of Insite. The Controlled Drugs and Substances Act (CDSA) is constitutional by virtue of the availability of a discretionary exemption that the Minister of Health may grant for “medical or scientific purpose” or in “the public interest” (see section 56 of the CDSA). This scheme ultimately leaves rights vulnerable to supplication to the Minister and trust that this discretionary power will be exercised in a constitutional way. That the very mechanism rendering legislation constitutional in this context risks being exercised unconstitutionally, should be cause for alarm and uneasiness.

Dr. Carole Morissette, a longtime family doctor working with injection drug users in Montreal participated in a feasibility study showing that the establishment of safe injection sites provides a host of benefits. This project mobilized significant local partners, including CACTUS Montreal, one of the first needle exchange programs in North America. Mr. Jean-Francois Mary, the director of community organization and communication at CACTUS Montreal, provided first-hand accounts of the daily challenges of users and tracked the historical arc of political and social attitudes towards safe injection sites in Montreal. Mr. Mary perceives the current atmosphere for drug users as relatively regressive, contending this period has been characterized by increased antagonism between visibly marginalized people and law enforcement. Mr. Mary cited the recent public shootings of mentally ill street people in Montreal as evidence of law enforcement’s lack of understanding of mental illness, and the need to reframe the debate.

Mr. Mary also speculated about the impact of the forthcoming Omibus Crime Bill. Decreasing crime rates in Montreal are being accompanied by a curious rise in feelings of insecurity, attributed in part by Mr Mary to flawed perceptions about social issues around drug use and itinerancy, and the dissonance caused when police presence is ramped up to address social ills. Not so long ago, local law enforcement and coalitions of street people, sex workers, and addicts negotiated areas within the city where moratoriums were initiated on the antagonism between these groups and law enforcement. This is no longer the case as law enforcement is cracking down — “la judicialisation” is again carrying the day. An increased law enforcement presence and lack of available social services for the homeless and mentally ill have led to increased clashes between disorganized and visibly marginalized groups, such as drug users and law enforcement ill-equipped to deal with the complex intersectionality of issues such as poverty, homelessness, mental illness, and drug use. According to Mr. Mary, while in the past judges have consistently refused to incarcerate these individuals, the Crime Bill will reduce the availability of flexible solutions for drug users, thereby further criminalizing marginalized groups, and creating delays in an already lethargic judicial system.

Mr. Luc Beaucage, an RCMP officer of over 40 years, echoed some of these concerns and bemoaned the lack of training young officers receive in dealing with issues of addiction, itinerancy and mental illness. Calling for policies that encourage exchange and cooperation between law enforcement, users, community organizers, and health providers, Mr. Beaucage provided an essential voice in the call to modernize Canada’s overly myopic drug treatment policieies.

Some concluding reflections

Perhaps it is true that the SCC coalesced behind Insite  in the narrowest possible way, retreating from what could have been a more stalwart safeguard against criminal policies that needlessly harm vulnerable populations. However, the panelists seem to agree that Insite was a momentous symbolic victory. In light of Insite, there is potential for mounting conflict in Canada’s drug treatment policies as widespread support for drug treatment and harm reduction initiatives deepen, and the federal government continues to look to law enforcement to address social ills. Finally and despite any inadequacies, Insite indicates that governments should think twice before undertaking social policies that fly in the face of medical evidence.

The MJLH Presents Its 3rd Annual Continuing Legal Education Forum

Posted By The MJLH | RDSM Team – Feb. 1, 2012

PUBLIC PRIVATE PARTNERSHIPS IN THE MODERNIZATION OF QUEBEC HEALTH CARE: THE ROLE OF THE LEGAL PRACTITIONER

March 21, 2012, 18h30-20h15 followed by a wine and cheese.

The McGill Journal of Law and Health (MJLH) invites you to its 3rd annual Continuing Legal Education Forum (CLEF) on the role of Public Private Partnerships (P3’s) in the modernization of Quebec’s healthcare system. The goal is to provide legal professionals, healthcare practitioners, and students with a better understanding of the legal aspects underlying Quebec’s P3 model.

In exploring this topic, the CLEF will, as a case study, focus on the Redevelopment Projects of both McGill University Health Center and the Centre Hospitalier de l’Université de Montréal (commonly referred to as the Super-Hospital projects). The CLEF will be moderated by Professor Alana Klein of McGill’s Faculty of Law and will be of a bilingual nature.

Speakers will include:

Andrew Ford – Partner with Frasken-Martinault with an extensive background in negotiating P3’s agreements, both here in Quebec and beyond, will speak from a practicing lawyer’s perspective on the many legal aspects of the P3’s process.

André Dufour – President of Groupe immobilier santé McGill at SNC-Lavalin, will speak on the legal opportunities, challenges, and interests that embody private industry interests in P3’s.

Eric Michaud – Director at Infrastructure Quebec, will situate the historic progression of P3’s in Quebec and elaborate on the role that this ministry plays in establishing an evolving legal framework.

For further details, please contact: manager.mjlh@mail.mcgill.ca

Admission is free to this event