vendredi 20 février 2015

Bill 52 (medical aid in dying) : letter to MPs

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.

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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