Medical aid in dying: Court challenge

News Release

Living with Dignity, Physicians’ Alliance

MONTREAL, July 17, 2014 /CNW Telbec/ – As announced when Bill 52, An Act Respecting End-of-Life Care, was adopted, the citizen movement Living with Dignity (LWD) and the Physicians’ Alliance against Euthanasia (the Alliance), representing together over 650 physicians and 17,000 citizens, have today filed a lawsuit before the Superior Court of Quebec in the District of Montreal.

The lawsuit requests that the Court declare invalid all the provisions of An Act Respecting End-of-Life Care that deal with “medical aid in dying”, a euphemism used to describe euthanasia. This Act not only allows certain patients to demand that a physician provoke their death, but also grants physicians the right to cause the death of these patients by the administration of a lethal substance.

The Alliance and LWD are challenging the constitutionality of those provisions in the Act which are aimed at decriminalizing euthanasia under the euphemism “medical aid in dying”. Euthanasia constitutes a culpable homicide under the Criminal Code. It is a subject-matter which is at the core of the exclusive federal legislative power in relation to criminal law and Quebec therefore does not have the power to adopt these provisions.

In addition, the impugned provisions unjustifiably infringe the rights to life and to security of patients guaranteed by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. They further infringe the right to the safeguard of the dignity of the person, which is also protected by the Quebec Charter.

In view of the gravity of the situation and the urgent need to protect all vulnerable persons in Quebec, the Alliance and LWD request an accelerated management of the case in order to obtain a judgement before the expected coming into force of the Act on December 10, 2015.

Sources: The citizen network Living with Dignity and the Physicians’ Alliance against euthanasia .

Hearings on Quebec Bill 52: Physicians’ Alliance for Total Refusal of Euthanasia

Dr. Catherine Ferrier, Dr Serge Daneault, Dr François Primeau

Tuesday 24 September 2013 – Vol. 43 N° 37

Note: The following translation is the  product of a first run through “Google translate.”  In most cases it is  sufficient to identify statements of interest, but more careful translation is  required to properly understand the text.

Original Text

Caution: machine assisted translation

(version non révisée)
Unrevised version
 (Reprise à 10 h 57)
Le Président (M. Bergman) : À l’ordre, s’il vous plaît! Alors, on souhaite la bienvenue au Collectif de médecins du refus médical de l’euthanasie. Dre Ferrier, Dr Daneault et Dr Primeau, bienvenue. Vous avez 15 minutes pour faire votre présentation suivie d’un échange avec les membres de la commission. Alors, s’il vous plaît, donnez-nous vos noms et vos titres, et vous avez le prochain 15 minutes pour votre présentation. The Chairman (Mr. Bergman): Order, please! So, welcome you wish to Physicians’ Alliance for Total Refusal of Euthanasia. Dr. Ferrier, Dr. Daneault and Dr. Primeau, welcome. You have 15 minutes to make your presentation followed by a discussion with the members of the commission. So please, give us your name and your title, and you have the next 15 minutes for your presentation. .
Mme Ferrier (Catherine) : Vous m’entendez bien? Parce que ma voix ne porte pas beaucoup, je pense que… Alors, je vous remercie de nous avoir invités. Je m’appelle Catherine Ferrier, je suis médecin de famille et professeure adjointe de médecine familiale à l’Université McGill. Je travaille depuis 30 ans dans une clinique de gériatrie. Alors, je vois des gens qui commencent à perdre l’autonomie à cause d’une démence ou à cause d’une atteinte physique, c’est un moment très angoissant de la vie d’une personne. Et j’ai été témoin plusieurs fois devant les tribunaux pour des cas d’abus, des cas de chicane de famille autour du parent âgé, souvent motivé par l’argent, et je constate toujours la grande vulnérabilité de ces personnes. Mrs. Ferrier (Catherine): Can you hear me? Because my voice does not carry a lot, I think … So, thank you for inviting us. My name is Catherine Ferrier, I am a family physician and assistant professor of family medicine at McGill University. I worked for 30 years in a geriatric clinic. So I see people start to lose autonomy because of dementia or because of physical harm, it is a very scary time in a person’s life. And I have witnessed several times in court for abuse, cases of family feud around the aged, often motivated by money, and I still see the vulnerability of these people.

Full Translation

Over 500 physicians have signed up against Quebec euthanasia bill

The Physicians’ Alliance for the Total Refusal of Euthanasia, a Quebec organization, is comprised mainly of physicians whose focus of practice is on dying patients.  The group is adamantly opposed to euthanasia.  Over 500 physicians have identified themselves as supporting its Total Refusal of Euthanasia Declaration.  The Alliance has issued a news release denouncing the Quebec government’s new euthanasia bill.

Dr. Catherine Ferrier of the Montreal General Hospital is concerned that virtually all of her patients in the geriatric clinic would be eligible for euthanasia, and that the spectre of euthanasia would haunt “every interaction” with her patients were it to be legalized.  While she is doubtful about whether or not the euthanasia bill can be stopped, she said ” I am certainly never going to kill a patient.” [CJAD]

Dr. Gerald van Gurp, whose opposition to euthanasia is informed by developments in his homeland, the Netherlands, is a palliative care and emergency physician at Montreal’s Hotel Dieu Hospital.  He argues that most Quebeckers do not have access to quality palliative care, and that the solution to that problem is to provide access to high-quality palliative care, not euthanasia. [Montreal Gazette]

Dr. van Gurp said that he would not continue to provide home palliative care for terminally ill patients if the euthanasia bill passes.  “I’m not going there,” he said.

Speaking for the Alliance, Dr. Marc Beauchamp described the bill as “an enormous revolution in ethics and law.” [CBC News]

Physicians’ Alliance for Total Refusal of Euthanasia

Although euthansia and assisted suicide are criminal offences in Canada, and criminal law is under the jurisdiction of the federal government, the government of Quebec has announced that it will legalize assisted suicide and euthanasia provided by health care workers.  [National Post] The commission that recommended this step also recommended that objecting physicians be forced to facilitate the procedures by referral.

It appears that the provincial government will claim that assisted suicide and euthanasia are forms of medical treatment.  Since health care is under provincial and not federal jurisdiction, the province will likely argue that the prohibition of these services within the context of health care trespasses on provincial jurisdiction.  This was one of the claims of the BC Civil Liberties Association in Carter v. Canada, which it won.

The third legal argument advanced by the BC Civil Liberties Association in Carter was that “treatment and management of the physical and emotional suffering of a grievously and irremediably ill patient” are matters that fall within the “exclusive jurisdiction” of the provinicial government, which is constitutionally mandated to manage health care. Since (according to the plaintiff physician) physician-assisted suicide and voluntary euthanasia are “important component[s] of the provision of health care to grievously and irremediably ill patients,”the lawsuit asked that sections of the Criminal Code (a federal statute) that prevent the provision of this “health care” should be struck down as an unconstitutional interference in provincial jurisdiction, “to the extent that [they] prohibit physician-assisted dying.” See Legalizing therapeutic homicide and assisted suicide:A tour of Carter v. Canada

However, the claim was not adjudicated in Carter because it was not actually argued during the trial.

The province also has the constitutional authority to enforce and administer criminal law, so that it could, in theory, instruct prosecutors not to pursue charges against health care workers  who provide the procedures in accordance with government guidelines.  It could do this pending the outcome of litigation, and even if the criminal prohibition stands. This is the approach taken in England with respect to  assisted suicide, though the English guidelines indicate that health care workers must not be involved.

Should the provincial government refuse to prosecute health care workers who provide the services, it would be possible for the federal government to order the federal police force, the Royal Canadian Mounted Police, to investigate allegations, and to appoint and pay lawyers to act as prosecutors.  However, this would be especially contentious in Quebec, since the current government is ideologically committed to the separation of Quebec from Canada and the establishment of the province as an independent nation state.  Nationalist elements in Quebec would see that kind of federal intervention as not only a constitutional violation of provincial jurisdiction, but as violation of sovereignty.

Thus, divisions among health care workers on this issue may involve complexities and nuances not encountered elsewhere, and those who resolutely refuse to provide or facilitate assisted suicide and euthanasia may find their circumstances unusually challenging.  Nonetheless,  prominent Quebec physicians have formed The Physicians’ Alliance for Total Refusal of Euthanasia.  The Alliance is directly challenging the medical regulatory authority:

The Quebec College of Physicians does not have the legal or the moral authority to change one of the basic pillars of medicine, or to amend the code of medical ethics, without first conducting an extensive study and consultation with members of the profession. The mere passing of a resolution by the board of directors does not make physician-inflicted death an acceptable form of care.