Dear members
of parliament,
You will eventually be asked to vote on the adoption of Bill 52 (An Act respecting end-of-life care). So that you can make a free and informed choice of conscience, it seems to me important to emphasize the predictable legal consequences following the adoption of the bill.
You will eventually be asked to vote on the adoption of Bill 52 (An Act respecting end-of-life care). So that you can make a free and informed choice of conscience, it seems to me important to emphasize the predictable legal consequences following the adoption of the bill.
The aim of this letter is not to criticize the bill or to examine its
ethical or legal foundations, but to remind you the eminent moral and political
responsibility that you will have to endorse. Responsibility in ethics means,
as Max Weber pointed out, that every person is responsible for the predictable
and foreseeable consequences of his actions.
The bill provides a claim right to voluntary medical euthanasia at the
end of life (or "medical aid in dying") exclusively for adults
capable of giving consent to care excluding, therefore, the minors and the
incompetent adults. This safeguard was inserted into the bill to protect the
vulnerable. This intent is commendable and should be welcomed. Nevertheless, in
our constitutional democracy the legislature does not have all the powers and
cannot legislate in disregard for Canadian and Quebec charters of rights and
freedoms which "set limits to the legislature". Therefore, any
legislation must respect the rights and freedoms guaranteed by the charters.
Yet in his brief of September 2013, the Quebec Commission on Human
Rights concluded that the inaccessibility to medical euthanasia at the end of
life for minors and incompetent adults may violate their rights and freedoms
guaranteed by the Quebec Charter in a way that cannot be justify under section
9.1 of the Charter. If the legal analysis of the Commission is right (which is
predictable but uncertain), the bill, which must conform to the charters, cannot
legalize the voluntary medical euthanasia without legalizing at the same time,
by respect for the rights and freedoms guaranteed by the Charter, the
non-voluntary medical euthanasia of incompetent adults and minors. Appalled by
this conclusion, the former Minister of health of the liberal party, Yves
Bolduc, opposed in conscience to these results on October 4th, 2013 during the
particular consultations on the bill and recommended not to pass this law.
If you vote in favor of the bill legalizing the voluntary medical
euthanasia then you must be aware that it is likely that certain paragraphs of
the article of the bill, which limits the right to medical aid in dying to
capable adults and assured persons, be declared unconstitutional by the courts
thereby causing unwanted openness to non-voluntary medical euthanasia of
incompetent adults and minors. Therefore, if you vote in favor of the bill and
this article is declared unconstitutional then you will be responsible for the
legalization of voluntary euthanasia and non-voluntary euthanasia and Quebec
citizens will be entitled to conclude that you approve and morally endorse the
legalization of both voluntary euthanasia and non-voluntary euthanasia.
However, if the article of the bill is not declared unconstitutional by
the courts, it is still likely that the legalization of non-voluntary
euthanasia of incompetent adults and minors will proceeds by a future
legislative amendment. Unfortunately, there is a link between the state of
Quebec's public finances and the legalization of euthanasia for certain
categories of vulnerable people. Indeed, according to Jean-Louis Baudouin, a
former judge of the Court of Appeal of Quebec,
"the explosion of health care costs and the resulting economic pressure may favor euthanasia programs for certain categories of people more vulnerable, whose preservation compromises the finances of the state"(our translation).
A large part of
this explosion of health care costs will come from the ageing population of
Quebec. According to Ménard 2005 report on the sustainability of the health
care system, the ageing of Quebec’s population is "the third fastest of
industrialized countries after Japan and Italy". The report adds :
"The age groups called to grow most quickly are the ones for which the use of social services and health cares is the highest. The resources per capita dedicated to the elderly aged 65 or more are about 3.7 times higher than the average of age groups. For people aged 85 or more, it is 7.7 times more per capita than the average population. The concentration of health care and social services spending at the end of life is particularly obvious for the services mainly offered to the elderly in loss of autonomy (...) which costs drastically increase from age 70"(our translation).
Some commentators argue that there is a wide consensus in favor of
voluntary euthanasia at the end of life. On the contrary, the Supreme Court of
Canada in Rodriguez decision (1993) and the Court of Appeal of British Columbia
in Carter decision (2013) are of the opinion that such consensus does not
exist. But assuming that there is a real and genuine consensus in favor of
voluntary medical euthanasia, it is reasonable to argue without fear of being
wrong that such a consensus does not exist for non-voluntary medical
euthanasia. Furthermore, the famous jurist and liberal philosopher Ronald
Dworkin reminds us of the importance not to blindly adhere to an apparent moral
consensus. In our law, all human beings including the elderly in loss of
autonomy and those who are not conscious and self-aware, have an intrinsic
right to life which flows from human dignity. Yet this human dignity is,
according to the article 1 of the bill, one of the two ethical and legal
principles on which rests the ethical and legal legitimacy of the medical aid
in dying. Liberal philosopher Martha Nussbaum recalls the importance of
protecting the sanctity of human life of all human beings :
"The Nazis, we know, were great naturalists and animal lovers. What they appear to have lacked was a sense of the sanctity of human life".
To conclude, I cannot overemphasize the eminent moral responsibility you
will be asked to assume for the predictable consequences ensuing from the
adoption of bill 52. I trust your judgment and I appeal to your conscience and
moral sense. I also urge all political parties to allow their members to vote
freely according to their conscience without regard to party lines.
Eric Folot
Lawyer and bioethicist
These are all reliable sources :
1) The abuse :
In its report of August 25 2009, the Human Rights Committee of the
United Nations denounces the extent of euthanasia and assisted suicide in the
Netherlands and highlights the gap that exist between the reality and the
safeguards provided by the law of 2002 which decriminalized voluntary
euthanasia :
"The Committee remains concerned at the extent of euthanasia and assisted suicides in the State party. Under the law on the Termination of Life on Request and Assisted Suicide, although a second physician must give an opinion, a physician can terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension".
Source : United Nations, Human rights
committee, Considerations of reports submitted by states parties under article
40 of the covenant : concluding observations of the human rights committee,
ninety-sixth session, Netherlands, 25 august 2009, par.7 (CCPR/C/NLD/CO/4).
2) Link between the economy (finance) and the legalization of euthanasia
:
According to Jean-Louis Baudouin, a former judge of the Court of Appeal
of Quebec,
"the explosion of health care costs and the resulting economic
pressure may favor euthanasia programs for certain categories of people more
vulnerable, whose preservation compromises the finances of the state"(our
translation).
A large part of this explosion of health care costs will come
from the ageing population of Quebec. According to Ménard 2005 report on the
sustainability of the health care system, the ageing of Quebec’s population is
"the third fastest of industrialized countries after Japan and
Italy". The report adds :
"The age groups called to grow most quickly are the ones for which the use of social services and health cares is the highest. The resources per capita dedicated to the elderly aged 65 or more are about 3.7 times higher than the average of age groups. For people aged 85 or more, it is 7.7 times more per capita than the average population. The concentration of health care and social services spending at the end of life is particularly obvious for the services mainly offered to the elderly in loss of autonomy (...) which costs drastically increase from age 70"(our translation).
Robert Evans, a professor of economics at the University of British
Columbia, recognizes that non-voluntary euthanasia would be a way to improve
the country's finances, but believe that it would NOT BE THE BEST WAY:
"I would not suggest that the best way to improve the fiscal situation of Canada is to introduce a non-voluntary program of euthanasia for people over the age of 70".
Source : Senate of Canada, Special Senate
Committee on Aging , IMPLICATIONS OF AN AGING SOCIETY IN CANADA, Testimony of
Mr. Robert Evans, December 10 2007, p.2: 34, online: http://www.parl.gc.ca/Content/SEN/Committee/392/agei/02eva-e.htm?Language=E&Parl=39&Ses=2&comm_id=600
In its predictions and foreseeable scenarios for the years 2007 to 2036,
the "Development, Concepts and Doctrine Center" (DCDC) of the
Ministry of Defence of the United Kingdom stresses that euthanasia of the
elderly could become the political instrument to serve the young to reduce the economic
burden of care for the elderly. I quote:
« Declining youth populations in Western societies could become increasingly dissatisfied with their economically burdensome ‘baby-boomer’ elders, among whom much of societies’ wealth would be concentrated. Resentful at a generation whose values appear to be out of step with tightening resource constraints, the young might seek a return to an order provided by more conservative values and structures. This could lead to a civic renaissance, with strict penalties for those failing to fulfil their social obligations. IT MIGHT ALSO OPEN THE WAY TO POLICIES WHICH PERMIT EUTHANASIA AS A MEANS TO REDUCE THE BURDEN OF CARE FOR THE ELDERLY ».
Source : United Kingdom, Ministry of
Defence, Development, Concepts and Doctrine Center, The DCDC Global
Strategic Trends Programme : 2007-2036, 3d ed., 2007 à la p.79, en ligne : http://www.cuttingthroughthematrix.com/articles/strat_trends_23jan07.pdf
See also:
Japan is considering euthanasia as a solution to the economic burden
posed by population aging on society.
See the following article : Annabel Claix , "A Japanese minister
asks its citizens to die , and quickly" (January 22 2013), online : http://www.ibtimes.com/japans-finance-minister-suggests-elderly-should-die-quickly-ease-health-care-burdens-1031418
Already in 1958, Glanville Williams , who was vice-president of the
"Voluntary Euthanasia Society" and regarded as "Britain's
foremost scholar of criminal law", stated :
"Kamisar expresses distress at a concluding remark in my book in which I advert to the possibility of old people becoming an overwhelming burden on mankind. I share his feeling that there are profoundly disturbing possibilities here ; and if I had been merely a propagandist, intent upon securing agreement for a specific measure of law reform, I should have done wisely to have omitted all reference to this subject. Since, however, I am merely an academic writer, trying to bring such intelligence as I have to bear on moral and social issues, I deemed the topic too important and threatening to leave without a word".
Source : Glanville Williams, «
"Mercy- Killing" Legislation - A Rejoinder » (1958) 43 (1) Minn. L.
Rev. 1 p.11 .
Eric Folot
Lawyer and bioethicist
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