Canada must learn lessons from Belgium on assisted dying

By Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition

Trudo Lemmens

I had the opportunity recently to attend a presentation by Trudo Lemmens a Professor and Scholl Chair in Health Law and Policy at the University of Toronto, who spoke about the lessons Canadians need to learn from Belgium’s euthanasia law.

Prof. Lemmens posted an opinion piece January 29 in the Montreal Gazette under the headline “Canada must learn lessons from Belgium on assisted dying: Expanding our current MAID law in haste is fraught with risks.”

He wrote

The same week our federal government launched public consultations on proposed revisions to our Medical Assistance in Dying (MAID) law, criminal proceedings started in Belgium against three physicians for their role in the death of Tine Nys. Diagnosed in 2010 at age 37 with Asperger’s, Nys received MAID under Belgium’s liberal euthanasia regime. 

Regardless of the trial’s outcome*, the case highlights the challenges of allowing MAID for persons with chronic physical, developmental and mental disabilities not being close to their natural death. Belgium and the Netherlands are the only jurisdictions that allow this. Now we might be heading on the same path in response to the recent Truchon decision by the Superior Court of Quebec, which declared the “reasonable foreseeable death” criterion of MAID unconstitutional.

Lemmens tells the story of Alan Nichols to show how Canada already has a problem with the use of its euthanasia law.

One can think here of 61-year Alan Nichols, who died with MAID in June 2019. The RCMP brought him to hospital because he was confused and suicidal. Deemed capable to consent to MAID shortly after admission, the B.C. man received it one month later. 

His family learned only four days before that his life would be ended. He had a cognitive disability and profound hearing loss, which hindered communication. Nichols’s family begged to halt the procedure to get time to set up better social and health care supports. To no avail. 

If we already see questionable applications with our albeit-vague concept of “reasonable foreseeable death,” what happens when MAID becomes by law a matter of whether we live at all rather than a matter of controlling our manner of dying?

[For more about the case, see “Physically healthy man died by euthanasia in BC”]

Lemmens explains the problem with expanding euthanasia to people who are not otherwise dying. He writes:

Legalizing MAID outside the end-of-life context explicitly confirms the ableist presumption that people with chronic disabilities may be better off dead. It opens up MAID for a host of developmental and mental health conditions, characterized by often vague diagnostic criteria and challenging predictions of treatment success. 

Autism, profound grief, schizophrenia, depression, bi-polar disorder, PTSD and anxiety have all been accepted as a basis for MAID in Belgium and the Netherlands. True, these conditions often create immense suffering; but evidence shows that with support and quality care, most learn how to cope and obtain a good quality of life. We cannot predict who does not. 

In the absence of a more objective end-of-life criterion, “unbearable suffering” will become the litmus test for determining whether someone gets MAID. But suffering is shaped by the legal, social, familial and health care context around us, and by health care providers’ perceptions of the quality of a life with disabilities. 

Moving outside of the end-of-life context creates additional concerns about capacity to consent to MAID. With many forms of mental illness, the desire to die is a component of the illness we need to address, not a carefully weighed autonomous choice.

Lemmens concludes by urging the government to examine the experience with euthanasia in the Netherlands and Belgium and then to enhance protections. He states:

Rather than radically expand our current MAID law in haste, and surrender to the court’s short timeline, the government should discuss with Parliament the complex evidence from the two jurisdictions that have taken this path. And Quebec should do the same at the National Assembly with its version of the law. 

We should also assess problems with our current MAID regime and strengthen safeguards for all, including persons with disabilities. This should include a more precise, objective end-of-life-style criterion. If it has doubts about the constitutionality of safeguards, government should submit a stronger law for reference to the Supreme Court. 

When drafting policies involving life and death, we should err on the side of life, not on the side of its termination.

*They were acquitted.

Editor’s note. This appeared on Mr. Schadenberg’s blog and is reposted with permission.