EUTHANASIA & ASSISTED SUICIDE:  The Person in Community

Note from CHN

While the following may seem dated, the arguments against assisted suicide and euthanasia continue to be a major social issue, making the reading of this presentation as important today, as it was when presented before the Senate in 1994.  Presenter, Dr. Robert C. Pankratz, is a founding member of The Compassionate Healthcare Network ( CHN).

Presenters include:

Dr. H. Robert C. Pankratz, President, Canadian Physicians for Life

Mr. Iain T. Benson, Legal Advisor, Canadian Physicians for Life

Dr. Jim Lane, Family Physician

Dr. Williard P. Johnston, Secretary-Treasurer, Canadian Physicians for Life


Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide

presentation by Canadian Physicians for Life, September 26, 1994

The Chairman: Our next witnesses are representatives of the Canadian Physicians for Life.

Dr. H. Robert C. Pankratz, President, Canadian Physicians for Life: Thank you for inviting us to appear before you, and for coming all this way to hear our representations.

Canadian Physicians for Life is a Canada-wide organization of physicians who are committed to maintaining respect for the dignity and inherent goodness of human life at all stages. CPL's membership encompasses all specialties and areas of practice, and includes academics as well as practitioners. Current membership is approximately 3,000.

Allow me to introduce myself and the other representatives with me today. I am a family physician from Clearbrook, British Columbia, President of Canadian Physicians for Life, and Assistant Director of the Palliative Care Program at Matsqui, Sumas, Abbotsford Hospital in Abbotsford. With me is Mr. Iain Benson, a lawyer, lecturer, and writer who practises in the area of constitutional and administrative law. He has also worked in the area of law and medicine. Dr. Jim Lane is a family practitioner from Port Coquitlam, and a prominent member of the British Columbia Medical Association and Canadian Medical Association. Dr. Will Johnston is a family practitioner from Vancouver, British Columbia.

We should like to start with a brief summary by Mr. Iain Benson.

Mr. Iain T. Benson, Legal Advisor, Canadian Physicians for Life: Thank you very much, senators. Our brief entitled "The Person in Community," starts off with two general statements which we believe are important for you to be aware of in the context of the current debate regarding euthanasia.

The first point is the nature of the ethical discussion that is currently framed within Canada; and we mention the writings of some philosophers on this point. The language of values, while it has a certain validity, has a high degree ambiguity.

We speak of values in two ways. There are personal values: You have your values; and I have mine. There are also "community" values or "fundamental" values which we do not really mean in a purely subjective sense.

Because of the ambiguous use of values language, it has been criticized by some writers as an obscuring language which confuses ethical discussion rather than enhances it. We point that out in our brief. There is obviously no time to go into it in any detail here, but I would commend that to you as you consider this very important issue in our society.

The second point relates to that with specific reference to medical and legal applications, and the lack of rigorous grounding in philosophy that occurs in those areas. Former Justice of the Supreme Court of Canada, the Honourable Mr. Justice Willard Estey, made the comment that we are looking to the judges of the Supreme Court to answer questions that they, in many cases, are simply not trained to deal with. Given that insecurity related to knowledge, you are discussing and debating an issue of fundamental philosophical and moral importance at a time when the structures in Canadian society may not be oriented very well to dealing with those points.

From those two general statements, we move to specific aspects concerning euthanasia, and I will mention those as categories before selecting a few key points I wish to bring to your attention. In the section of our brief dealing with the key points, first, we refer to the fact that a botched suicide does not provide a justification for allowing euthanasia. Often the very real traumatic situations regarding botched suicides are raised as a graphic example of the need to legalize euthanasia. In our submission that is an erroneous argument for reasons that I will go into later.

Second, there is the inability to control euthanasia if it is legalized. Senator Perrault read a passage from the House of Lords Select Committee where that was one of the key conclusions they reached.

We next considered ethics and the position of Sue Rodriguez. We also considered the general question of whether the wishes of the autonomous self should drive law reform.

We then looked at the importance of the distinction between withdrawing treatment on the one hand and euthanasia and assisted suicide on the other. It is most important to recognize that neither ethically nor in good medical practice is there a requirement to maintain extraordinary burdensome or unnecessary treatment. In fact, we would submit that some of the concern in the general populace that leads to a ready acceptance of euthanasia is in fact a misunderstanding based on a fear that people may be subjected to medical technology from which they cannot be freed. We think it is important for this committee to make a distinction between the proper framework of medical practice and an inappropriate use of medical technology

Penultimately, we consider the point that the legalization of euthanasia would conflict with the good of palliative care, and there we refer to the Netherlands experience and point out that, there, palliative care is virtually nonexistent.

We then touch on the point to do with the manipulation of language and improper questioning in polls.

As to my specific points, I would say that suicide requests, when they come, are almost always at an early stage of an illness. When fear is alleviated, the literature and much experience points out that requests for suicide almost always cease.

Later this week you will be hearing from Dr. David Kuhl, the head of St. Paul's Hospital Palliative Care Program. That is the unit in Canada most experienced with the terminal care of AIDS patients. Speaking with Dr. Kuhl at a medical ethical conference last week, he confirmed that, once fear is alleviated by proper palliative care, requests for suicide assistance cease. This is key because it shows that resort to assisted suicide or euthanasia is, in fact, due to a failure of proper care. I will argue later that it is due to a failure of an ethic of care and compassion of society as a whole.

Moving on to my next point, the Charter is premised on notions of fundamental rights and freedoms. Those are fundamental. They are shared. Our joint search is to articulate the grounding of fundamental notions in society in order to determine what ought to be the law. We judge our laws themselves against fundamental notions, not merely personal whims and wills.

In our brief, at page 16, we refer to a passage from Our Criminal Law, which was written by the Law Reform Commission of Canada. They stated:

. . . the criminal law is fundamentally a moral system. It may be crude, it may have faults, it may be rough and ready, but basically it is a system of applied morality and justice. It serves to underline those values necessary, or else important, to society. When acts occur that seriously transgress essential values, like the sanctity of life, society must speak out and reaffirm those values. This is the true role of criminal law.

The corresponding aspect of the law, as rooted in a moral system that recognizes the fundamental nature of certain things, is that the law sets out the limits of human action. Choice and choosing are good things, but what we chose is key whether the choices are valid or invalid, legal or illegal. In all sorts of areas, what a person wants may not be equal to what the law ought to allow. We must first evaluate the nature of the thing that people want.

The fact that at this time certain people seek euthanasia or assisted suicide must be evaluated on the basis of all the issues and not simply allowed just because some people seek it. We do not recognize that it is valid, generally, for us to take the law into our own hands.

The title of our brief, "The Person in Community," raises some key aspects. We are not without friends, neighbours, or family. If we are without them, we recognize that something is amiss. Robert Bellah and the other authors of the influential book Habits of the Heart have pointed out that our problems today are not just political; they are moral, and they have to do with the meaning of life.

The brief, as mentioned earlier, refers to the lack of necessary philosophical training in law and medicine in Canada. The fact of inadequate philosophy as it relates to criminal law has already been noted by the Law Reform Commission of Canada in 1976. Under the heading "Inadequate Philosophy," they stated that we have to learn just what we human beings really are.

I now want to go from these general principle statements to a, frankly, quite personal experience. You are hearing graphic stories on one side, and I am of the view that these are important for you to hear. A month ago I sat at the bedside of a very dear friend of mine who was 39 years old and dying of cancer. Two months before she died, she asked her husband to help her commit suicide. He refused. Three days before she died she had what can only be described as an extraordinary reconciliation with her family. This would not have happened had the suicide request been granted.

We would ask you to refuse the invitation to allow euthanasia or assisted suicide simply because it is better to endorse a holistic model of community rather than an isolated notion of the autonomous self. We are of the view that hope and meaning can be found in death through palliative care rather than the despair and alienation of bringing suicide into the story of what it is to be Canadian. We want you to endorse an ethic of caring, not an ethic of killing.

In short, Section 241 should not be changed. Any change that does occur must maintain the important symbolic restrictions which are one aspect of valid law. The law already allows for valid withdrawals of unnecessary, burdensome, or extraordinary treatment, as you know with case of Nancy B. and others. Thank you very much.

Dr. Pankratz: Dr. Lane would like to make a personal comment.

Dr. Jim Lane, Family Physician: Ladies and gentlemen, I am pleased to speak to the Senate hearing today on this very important topic of euthanasia and physician-assisted suicide.

I am a physician who has been involved as a leader of the medical profession over the last several years. I have been on the board and the executive of the British Columbia Medical Association for the last six years, and I have had the opportunity to be involved in the debate on euthanasia this past year in Montreal and the previous year in Calgary.

I am here today also as a family physician who has been in practise for the last 19 years, caring for patients from birth to natural death. I have had the opportunity and the privilege of caring for a large number of patients in the final weeks and days of their lives. As well, I have helped to care for their families throughout these stages.

I have been involved in self-education courses on the topic of palliative care and in giving talks to interns at the Royal Columbia Hospital on the proper use of medication for palliative care.

I am not here today representing the BCMA or the CMA. However, I do understand and appreciate many of the concerns that were expressed by the doctors in Calgary and in Montreal when they made their decision not to support euthanasia. I point out that these doctors, as was mentioned this morning, were small in number, but they are the leaders of the medical profession of our country. Some of the doctors who voted against it spoke to me and said they were not speaking against or in favour of euthanasia but were simply saying that they thought the CMA should stay neutral on the issue.

I am aware of what legislation would mean to my profession and the expectations that would be placed on my profession if legalization of this act occurs.

Although there has been increased media exposure on the issue of euthanasia, there still seems to be much confusion and misunderstanding over the definition of "euthanasia." For many people in the community euthanasia simply means preventing doctors from keeping them alive on respirators or some other way of performing heroic acts. Many do not understand that euthanasia is a deliberate act with the intent of killing the patient.

Despite this confusion in terminology, polls and surveys are being conducted regarding this issue. It is difficult to have an informed public debate when there is confusion over terminology. I appreciate that this Senate committee is trying to define and investigate this issue.

It is my hope that Members of Parliament will vote in the House of Commons only after they have studied all the facts and understand the enormous and far-reaching implications euthanasia would have on our society. As this is an ethical issue, it should not be determined by polls or by the press, with its power to sway opinions.

We, as doctors, are very privileged to have entrusted to us the concerns, the care, and the words of our patients. We realize how fragile this trust is, and how easily it can be undermined when we are not doing what is in the best interests of our patients. Euthanasia jeopardizes the doctor-patient trust relationship.

The Netherlands has demonstrated this lesson well. Elderly patients are afraid to go to their doctors or to hospitals for normal medical care. They are afraid of the system and what the implications are for their lives because of the acceptance of euthanasia in their country. Patients must know that doctors are there to help them, not hurt them.

Proponents of euthanasia say that controls and safeguards can be implemented. Again, the experience of the Netherlands has shown these to be unrealistic and difficult to monitor or enforce. The legal requirements in the Netherlands, such as consultation with another doctor and the need for persistent and enduring requests by the patients, were not generally followed. A study in the Netherlands demonstrated that 59 percent of patients requesting euthanasia were euthanized within 24 hours, and 11 per cent were euthanized within an hour. Is this really "persistent and enduring requests?"

I believe that every safeguard that could be created has weaknesses and is open to failure. We know that what doctors do and say to patients is done behind closed doors and is between the doctor and the patient. In the case of euthanasia, the only witness that could testify that safeguards were or were not followed would be dead. The other witness to the safeguards would be unlikely to testify against him or herself. Legislative safeguards of physician-assisted suicide protects the doctor against prosecution, not the patient or the public. I believe that it is my duty as a physician, and a duty of my profession, to tell the public how difficult it would be to monitor and police any safeguards.

An important point that I feel the public must be aware of is the economic conflict of interest that the medical profession is involved in when it comes to euthanasia. The BCMA is involved in negotiating for funds, and we are living under a capped budget. If we overrun this budget, the excess dollars come out of the pockets of the physicians of British Columbia. This pro-ration model is the same model used in most provinces in our country. If euthanasia were legalized and it could be demonstrated that euthanizing patients would save money for the system, then the medical profession would find itself in a conflict of interest between patient care and pro rationing.

The B.C. Royal Commission on Health Care and Cost has as its terms of reference the costs of health care and how to curtail these costs. The past Minister of Health of British Columbia stated that the most expensive time in a patient's life is the last months. Given that the Royal Commission recommended that euthanasia should be legalized, is it not logical to extrapolate, given their terms of reference, that their recommendation is based on cost containment?

If killing a patient is wise economically, you have a conflict of interest between good patient care and economic budgeting. Many feel that this would not happen, but a survey of students of economics at the Netherlands universities shows that the majority supported euthanasia being considered for economic reasons. I find this frightening.

Those in favour of assisted suicide emphasize an individual's right to control his or her right to die. However, the studies done by Dr. Kubler-Ross show that depression is one of the stages a person often goes through during the dying process. If euthanasia were practised at this stage, neither the patient nor the family would have the opportunity to work through the stages of dying to a peaceful acceptance of death.

The effect on others of an individual act of suicide must be considered, and the increased suicide risk in family members where suicide has occurred is a well-documented statistic.

I, along with most doctors, recognize the importance of educating doctors, patients and the public as to what palliative care can accomplish and the need to make this care available to all. If my profession can accomplish this task of education, much of the fear of pain and suffering can be eliminated, and patients should not feel the need to ask for euthanasia.

Britain, which is recognized as having one of the best hospice and palliative care programs in the world, had to reject euthanasia. The Netherlands, on the other hand, not known for its palliative care, has opted for euthanasia.

I will close with three comments that were made during the euthanasia debate at the CMA meetings in Calgary and in Montreal. I think they reflect the real concerns of myself and many of the doctors in this country.

First and foremost is the thought that our role is to be a healer, not a killer. We should not kill our patients.

Second, do we really want our patients to see us carrying a syringe down the hall and wonder if this is the lethal dose? My patients must know that when they see me coming down the hall to visit them at their bedside, it is to provide care, not to make my last visit to them.

Finally, it is vital that the healers of Canada should not be represented as the killers of Canada. I am proud that my national professional association, the Canadian Medical Association, has gone on record as opposing euthanasia. In doing so, it joins the British, the American, and the World Medical Association in opposing euthanasia.

I hope that my concern, and the concerns of many in my profession, will be heard by this Senate committee and the other political leaders in our country. It is my hope that our members of Parliament, in their deliberations, will do what is best for society as a whole, and that is to reject euthanasia. Thank you.

Dr. Pankratz: Dr. Will Johnston will complete our presentation.

Dr. Williard P. Johnston, Secretary-Treasurer, Canadian Physicians for Life : I should like to close our presentation by posing some questions to the committee.

It has seemed to those of us who have been studying this subject intensely for the past several months, and in some cases several years, that we must ask this question of those who so forcefully and articulately are requesting a change in the current prohibition against assisted suicide: If these activists knew that the freedom they so ardently desire for themselves and for some others would, after being changed into law, constitute a mortal danger to many more inarticulate, weak, and vulnerable patients, would they really want the freedom they are asking for? It is my feeling that they would not if they could be convinced of the danger to the larger community which their well-meaning request constitutes.

I would turn it around a little bit and ask these people whether the onus should not be on them to demonstrate to Canadians in general that their request that we remove the pillars of protection provided by the current law would not bring down the roof. There is no question that we have established the patient's right to refuse burdensome treatment.

We must see through the artificial distinction being made between assisted suicide and euthanasia, not because there are not some valid distinctions there, but because assisted suicide turns inevitably and inexorably into voluntary euthanasia by the exercise of Charter prohibitions against discrimination on the basis of handicap. At the moment, assisted suicide is promoted as an isolated or limited right. We have to see that it must be turned into voluntary euthanasia because there will always be those too weak to press the button, swallow the pills, or in some other way mechanically actuate their own deaths.

I am very much conscious, as a family physician who daily cares for vulnerable and elderly people, of my own shortcomings in providing adequate palliative care. I know how often my own shortcomings and the suffering of the patient that I am watching has led me to question whether I am right in potentially withholding an act which would end suffering immediately, so there is no sense of disbelief in my mind that this request has come before the Canadian public.

However, knowing my own weaknesses and recognizing the weaknesses I have seen around me in the practice of medicine, within hospitals, and within the health care system in Canada, I can simply say to those who would ask so eloquently for these freedoms that, on the ground, in the trenches where it matters, the first to die would be the weak and inarticulate, the defenceless, not the strong-willed, those possessed of unattractive situations or stories of particular hardship. It would be the ordinary people whose continued existence is resented by unsympathetic

I should like to make an appeal to our sense of community. What kind of community life do we want to live together in Canada? Can we set aside forcefully put requests for a very new freedom to be given to certain members of the medical profession and to certain people who are requesting suicide because we can see that there are some very real dangers in that request?

Thank you.

The Chairman: Does that complete your presentation?

Dr. Pankratz: Yes, thank you very much.

Senator Beaudoin: My question is directed to Mr. Benson. You obviously base your conclusion on the authority opinion of the Supreme Court as expressed by Mr. Justice Sopinka. You conclude that no possible euthanasia legislation could adequately protect human life, impairing it as little as possible so as to satisfy a necessary part of the test for constitutionality.

We have heard and considered many arguments. Senator Perrault referred this morning to the British House of Lords report, and of course we know what the situation in Holland is. We have also heard the famous argument of the slippery slope.

When you say that no possible euthanasia legislation could adequately protect human life, is that because, at the heart of the matter, you feel there would be shortcomings in the legislation, or is it based on the philosophy of great respect for human life?

The attorney for Sue Rodriguez makes a distinction between assisted suicide and euthanasia. You say that, theoretically speaking, it is possible, but in practice it is a form of euthanasia. What is your opinion on the question of legislation? Why do you say it is impossible? Is it impossible in pure theory, or should it not be possible in practice because it is too dangerous?

Mr. Benson: You make a tough case for me to answer. I am not exactly sure why it is difficult. It may be because one can step across the line. Professor John Finnes at Oxford called it "crossing the Rubicon" in an article you may have seen in the Law Quarterly Review. Once you say we can kill a person because of that person's autonomous wish, then the problem arises as to the person who cannot clearly formulate the autonomous wish but for whom all the other reasons are just as valid. They may be perceived as suffering, as having no hope of recovery, and they may meet all of the tests.

Dr. Johnston's point is that, once we say it can be the result of assistance, that someone can assist but not do the final act, then what about the person who cannot do the final act themselves? Will we not compassionately assist them?

The problem is that all these distinctions, once we cross the Rubicon, cease to have sufficient justification to resist the development. How often we hear the argument made that suicide itself is no longer illegal, and therefore we should have the right to have someone assist us with suicide.

By way of an interesting example, you see the creation not of the right to suicide, but of the liberty to commit suicide, and it is read as the right to commit suicide, and then it is the right to assisted suicide. There is a gradatum progression that occurs step by inexorable step.

I believe the Netherlands experience, where there are good safeguards in place, shows us that for some reason it does not serve to protect. I am afraid I cannot help you get to the heart of why, but they do not seem to protect.

Senator Beaudoin: Your reasoning as to what constitutes a right under the Charter of Rights is very interesting. Something may be not illegal but is not necessarily a right. In that sense, I think your distinction is certainly accurate. Thank you.

Senator Perrault: The presentation by the organization has been most interesting. Presumably, Madam Chair, this brief can be appended to the report.

The Chairman: We have not made that decision yet. None of the others has been appended.

Senator Perrault: Perhaps we should consider doing that, because these are very thoughtful briefs. I am not singling out one organization. I just think that it would be very useful for the public if this were appended.

We have had many submissions on the subject of palliative care. Some have suggested that there have been great advances in palliative care and that medical science is able to bring a reasonable degree of comfort to most people in their dying days. I would like to have your comment on that.

Palliative care is an alternative way of dealing with the problems of people facing terminal situations, but how available is palliative care? Here in Vancouver we have access to palliative care, but when you get to Fort St. John, Dawson Creek and some other isolated communities, taxpayers do not have proper access to palliative care.

If this is going to be a viable alternative, the moral alternative, then we have to ensure that people are able to access palliative care wherever they live in this province.

Dr. Pankratz: In terms of comfort measures that palliative care provides, it has been quite clearly stated in various expert testimony that 95 per cent of pain could be almost entirely relieved and the remaining pain brought down to within the limits of patient comfort.

I have certainly had cases where people have had severe pain that was not always immediately relieved. We consider a severe pain situation and palliative care to be temporary. We are always working on it at the time that it exists.

Sometimes it requires escalation in doses of drugs, and sometimes we have to change the techniques we use. However, in almost all cases the severe pain will be brought under control by modern techniques.

In some cases it is difficult, but even in those cases the physical measures are supplemented with psychological measures. Many people will choose to bear with pain knowing that you are with them and trying to relieve it. They will basically bide their time.

In terms of access and the actual provision of palliative care in this country, I can speak only for Abbotsford. Palliative care is available to the people of the Abbotsford region. However, it depends on the physician involved.

If the general practitioner does not have a bent toward or proper training in palliative care, it sometimes happens that the Palliative Care Committee is apprised of situations in which a physician will not give a referral to the program and is doing things that we consider inappropriate, and patients are suffering as a result. We try to engage in very gentle shoulder tapping.

We try to educate our fellow physicians. Perhaps 50 per cent of the physicians that I have daily contact with are inadequately informed as to the modern techniques and their patients are suffering as a result.

In terms of Dawson Creek or some point further north, I am sure that what happens depends entirely on the physicians involved. Dr. Johnston would also like to comment.

Dr. Johnston: In Vancouver, one would expect to have the most highly developed palliative care network in the province, both because of its size and because of the eminence in research and in tertiary patient care. As a primary care physician, I have difficulty finding adequate palliative care facilities for my needy patients.

I can assure you that we are in the early stages of developing the entire ethic of palliative care as a medical tradition in this city. One of my great hopes is that this committee will see, as one of the fruits of its labours, a marked stimulation of this.

Senator Perrault: Are medical schools instructing in the area of palliative care now? Have there been changes in the curriculum in our schools?

Dr. Johnston: We have to remember the time-lag between the training of physicians and the absorption into practice of new ideas. Even as we hold this discussion, medical schools lag behind in the provision of education. Palliative care was virtually nonexistent when I went through my education not too many years ago. Not only is there a terrible lack in the mechanical, physical care of patients during terminal illness and extreme pain, but the philosophical and ethical discussion vacuum goes on.

If we were to look at one aspect only, the use of the word "dignity", we would see that, in the hands of those who would propose euthanasia for this country, the concept of dignity has been shrunken to an impoverished notion of power over the timing of one's death. The ability to discuss dignity is something that is inherent in every person. Dignity is something that we owe each other as conditions of our existence, not something that we earn. We do not earn our own dignity. If you can subdivide dignity into different kinds of dignity, there is a most important type of dignity which is not earned, which is not an instrumental thing, it is an inherent thing.

The inability of the average medical student to hold that conversation has led to bankruptcy of the use of that word in the medical profession. The lack of a serious discussion of what words mean has led to a superficial use of that word in the public discourse. It is a terrible tragedy.

Senator Lavoie-Roux: I do not know if you attended the Montreal conference of the CMA. The vote taken by the Canadian Medical Association represents a small number of physicians. If my memory is correct, the vote was approximately 142 to 170. The margin of difference between the pros and cons was pretty narrow.

Is there a move in the medical profession towards more acceptance of euthanasia? Can we expect that, five or ten years from now, it could be the other way around?

Dr. Lane: There are two points. I do not remember the exact numbers either, but they were not very high. It was approximately 56 per cent to 44 per cent.

A large number of doctors came up to me after the vote and said that they did not vote against the motion because of that, but because they wanted to stay neutral. That was the option the Canadian Medical Association was putting forward, that they were going to stay in a neutral position and allow it to be a free vote. The vote was not to stay neutral, but to go ahead and make a strong statement against euthanasia. Those who voted were not necessarily voting in support of euthanasia; many were saying, by their vote, that they wanted to stay neutral. That bears witness.

They said they were the leaders of the country, and they were standing up and speaking for what they felt was really representative.

The other matter alluded to this morning was the Alberta poll of physicians which indicated that a percentage supported euthanasia.

Some people within my profession do not understand euthanasia, the definition of euthanasia, and they are guided by the popularity of the polls. There was also the proviso that safeguards would be in place, and some physicians made the assumption when they voted that there would be absolutely infallible safeguards. That is a major assumption to make.

When you know all the facts and you consider all the details, in fact, the number would go down.

Senator Lavoie-Roux: My concern relates to instances of euthanasia taking place without the knowledge of the medical association or of the profession. Have you ever tried to evaluate to what extent that is going on?

Later in the day we will hear from witnesses about back-alley assisted suicide. I am particularly thinking of the associations for AIDS patients. Although we may prefer to retain the status quo, but there may already be abuse. Even though people talk about it, we do not know the extent of this happening. Can you suggest any avenues we might explore?

Dr. Pankratz: Unfortunately, because it is illegal and there has not been any study that has asked the question, we do not know the extent of actual physician actions that are intended to bring about the death of patients. I do know of several cases that have hit the press.

For example, there were two cases in Lion's Gate Hospital in Vancouver several years ago, both involving a single physician who was reprimanded by the B.C. Medical Association. The actions of this physician in these instances were quite representative of what can happen. After a rather extensive operation, a patient was found to have cancer. He was sent to the intensive care unit. He was an elderly patient and he did not wake up from the anaesthetic. He was unconscious. As the patient continued to decline in the intensive care unit, the doctor elected to give massive doses of morphine and valium which were intended to bring about the death of the patient. That is the finding in the coroner's report. His diagnosis was that this patient was dying of septic shock anyway.

My attitude in that situation would be, fine, the patient is dying anyway, so we should talk it over with the family. We should get to know the patient's wishes and try to respect the wishes of the patient to the best of our abilities. We would then take the patient out of the intensive care setting and give them good comfort measures. If they are going to die anyway, that is fine. Strangely, we often find that, when you take away treatment, patients recover. We do not play God in that respect. We must be very careful.

In this case, at autopsy, no infection was found. The diagnosis of septic shock was erroneous. That is a very key point. In fact, there was no sign of cancer. He was told that he had an extensive problem, and it actually turned out not to be the case. They based a decision to kill a patient on an erroneous set of facts. In effect, the patient did not even enter into the proceedings.

That is something that concerns me, and I think that is what is actually going on. Such cases happen rarely, but they are probably more common than cases where the competent person asks for it.

Mr. Benson: As a lawyer, I would like to speak to an issue that seems to be lost here. I have read some very good accounts of the horrible situations regarding attempted suicides. I have read Russel Ogden's book and so forth. It seems to me that the argument that, from those accounts, we then go to the legalization of something, misses a hugely important issue which I tried to make the subject of my earlier comments.

The fact of a breach of law or a lack of accommodation of a practice in law does not mean that in order to "sanitize" it, to make it easier or to reduce the hardship, we change the law. We must conduct a rigorous examination of all aspects of the problem. With respect to suicide, when you leap from the autonomous self seeking to have a legalization of that act, you entirely miss the intermediate stage of the widespread encouragement and education for compassionate care in dying.

This is an absolute key point for your committee. Compassionate care in dying is the interstice between legalization and the harsh realities of the current practices.

Senator Keon: Our previous witness emphasized, through the Sue Rodriguez case, the proposed right of an individual to choose the time of his or her death. I want like you, collectively or individually, to address that issue.

It seems to me that the debate is raging on both sides of this issue. On one side of the equation we have the patient's rights, which have been verified, to refuse burdensome treatment. That sort of pushes the patient on the route to death by inanition, by easement of suffering through palliative care, something which we all admit is missing in some areas and which must be improved. It pushes the patient on the road to death by inanition, which some people with a terminal disease who have appeared before us object to most strenuously.

On the other side of the equation, if there is a right to choose one's time of death, there is the whole question of suicide; and then pushing the argument a little further, to assisted suicide; to doctor-assisted suicide; and to euthanasia. I am not trying to define these terms.

As a panel of medical-legal people would you address this issue of the right of patients to choose when they die.

Dr. Pankratz: Medical professionals have the option at the moment, with the consent of the patient, to occasionally extend life. That is not the same as saying we have the ability to shorten life or that we are engage in shortening life.

People now have an option of living longer. We have decided that, because we have an option of living longer, we should somehow be able to short-circuit the process. The logic escapes me.

Getting back to Sue, you mentioned that her choice to choose the time of her own death was seen by some as a right. The presentation you heard beforehand from Mr. Considine stated that her choice of death caused no one any harm. That remains to be seen, and I would seriously disagree.

She has a nine-year-old son who is mentioned in the book, the biography, called: Uncommon Will: The Death and Life of Sue Rodriguez. There is a description in the book of him pushing her in her wheelchair. When he pushes her quickly and the wheelchair starts bumping across the grass, she becomes upset with him, and tells him to stop. He, in a typically angry or mischievous nine-year-old way, refuses to stop. She, in her impotence at that moment, decides that she will commit suicide; her decision has been made.

When Cole comes to the realization that he participated in the death of his mother - and he will come to that realization whether it is now or 10 years from now when he reads a copy of the book - do you not think that will have a major impact on that child?

It has been shown that the suicide of a first degree relative remarkably increases the risk of suicide in a patient. Even just the death of a parent increases the risk of suicide. However, the suicide of a parent is much more complicated, because it not only increases the risk of suicide, it complicates his grief.

In our presentation we urge you to consider this in the context of community. I am looking at it only as it relates to one person removed from Sue. There may be many more consequences which I have no idea bout because I do not know her immediate friends and relations.

Dr. Johnston: To add to your question about choosing the time of death, that is currently not a right but rather a freedom which is allowed by the absence of any law which deals with suicide. For some people, in some circumstances, there is currently a freedom to choose the time of death.

However, our group has returned to the concept that the onus is on these people involved in the movement to set the juggernaut of state sanctions in motion in a direction which would take away important safeguards and to prove that this does not constitute a call for an irresponsible adventure.

The choosing of the time of death starts as what seems like a simple request for a freedom, and it is very touchingly and appealingly put. The onus remains on the people asking for that freedom to show that this is not, in reality, an irresponsible adventure. Once the machinery of the state is set in motion in that direction, it becomes far more than the exercise of a narrow freedom.

I would like to read into the record the circumstances surrounding Sue Rodriguez and the issue of palliative care, because this has a lot to do with the whole notion of motivation and choosing the time of death. This quote is from Lisa Hobbs Birnie's book Uncommon Will: The Death and Life of Sue Rodriguez. In the part I am about to quote, it was Sue Rodriguez' wish that Dr. Sandra Elder would speak with Hobbs Birnie and that Hobbs Birnie would write the book about Sue. This quote from Sue's therapist is as follows:

She had an aching soul and never had internal peace. She wouldn't let love in, and when you are starved for love, you sabotage any attempts people make to give it to you. There's a sort of attitude: love me, leave me alone. If you love, you can forgive and let go of the anger. I can say goodbye without a terrible resentment. But anger was Sue's foundation. Her identity was based on it.

We would submit that, as a foundation for an ethic of community in our society, anger makes poor material. All of this springs from such a simple request. We have to sympathize with that request and yet see the long-range implications of it.

Mr. Benson: For Dr. Keon's benefit, the precise question of the distinction between withdrawing treatment and euthanasia and assisted suicide is dealt with at pages 20 and 21 of our brief.

The British Journal of Medical Ethics discussed this point and said that there is a significant philosophical moral difference between killing and letting die. Dr. Keon's point was related to killing and letting die. The British have considered the medical ethics involved in this question, and some others that we quote in the paper, and have said that there is a significant moral distinction.

I am aware some witnesses who have appeared before you have said that there is no such distinction. I simply wished to point out there is good evidence in this regard. There is a debate on the issue.

Senator Desmarais: To be more precise about the vote at the meeting in Montreal of the Canadian Medical Association, motions having to do with euthanasia were carried 93 to 74, with 18 abstentions. The precise motion was that: the CMA declares its members should specifically exclude participation in euthanasia and physician-assisted suicide.

Dr. Lane: I think that is important. Those are the correct numbers, and I appreciate you sharing them with us. I do not represent the CMA, but I know the CMA will be making a presentation before you, and I am sure they will explain those figures to you.

Senator Lucier: My question is directed to Mr. Benson, but I appreciate that Dr. Johnston may want to add some detail as it relates to the background and philosophy of the matters he has dealt with.

Presently, suicide is legal, and people can commit suicide by themselves. What we are discussing here is whether they can be assisted in doing that. I believe you said, doctor, that only some people in some circumstances can commit suicide.

Dr. Johnston: I meant to say that those who are able-bodied who have formed the intent to carry through the action clearly have freedom to commit suicide. Any legal sanction which was present was removed because of the terrible treatment of relatives afterwards.

Senator Lucier: Do you feel that we should retain the present provisions covering suicide? Should people be permitted to commit suicide, let alone be assisted in suicide?

When discussing palliative care, you talked about doctors who really do not know a lot about it or do not want to deal with it, until they are gently tapped on the shoulder. I think that is a good indication of what happens in many cases where perhaps, not much care is available. I know that many people will not receive proper pain control when they most need it.

Are we putting too much emphasis on pain control when we discuss assisted suicide? We can disconnect the patient from life-support systems without the patient's knowledge. That is already being done every day. Patients receive overdoses of medicine that will eventually cause their death. Technically, we are already doing the things we are talking about. There is a very thin line between the two positions.

Are we spending too much time dealing with pain instead of the other rationales of people like Sue Rodriguez? I do not think it was the pain that caused Sue Rodriguez to choose suicide; I think it had more to do with the indignity of having to live the way she was living. I do not think the pain was a major factor. There are other reasons people may want to have assisted suicide other than pain; reasons that are probably more important than pain. I would appreciate some comments on that.

This is a very difficult issue for us or anyone to deal with. Nobody will be on the right side of the question. We will all be wrong sooner or later. With Sue Rodriguez suffering the indignation or the intense pain that she was going through, how would her living another week or another day or another hour have benefitted society, especially if she did not want to do that?

Dr. Pankratz: You have asked a lot of questions. I would like to start with the question of suicide being legal, so what is the difference in assisting someone in suicide.

I read the Rodriguez decision. Mr. Justice Sopinka's argument went along the lines of: Since suicide was seen to be a problem that had its solutions outside the law, and since incarceration of people who were suicidal or had attempted suicide only served to increase the risk of suicide, it was decriminalized. That was to help improve the situation and remove the problem of suicide. It was not to encourage suicide. It was in no way to legitimize suicide. It was to say that the law is not the place to deal with the person who has attempted suicide. A person who has spent time in jail would be able to speak more aptly to that, and I believe you will hear about that tomorrow.

Depression is the usual cause of suicide. About 95 per cent of known suicides are the result of mental illness, and we are not really sure about the other 5 per cent. It is not that we know the person was not mentally ill; it seems to be a symptom of mental illness, and that is why it was put over into the realm of medicine rather than remaining in the realm of law.

As to your other point about palliative care and giving overdoses of medication which can or will lead to somebody's death, there is a very big difference between giving medication that you know will lead to death, and giving a medication the purpose of which is to relieve pain. With palliative care, you usually escalate the dose of morphine slowly and in proportion to pain. Proper pain relief does not kill the patient.

On the rare occasion where you think you might be into the realm of doses where you are possibly hastening death, it is like any medical treatment where a treatment carries a risk of death. It is not a matter of administering medication that you know will hasten death. You are giving a medication which, theoretically, has the possibility of respiratory depression and death, and that is the same as operating on a person for appendicitis knowing that he carries the risk of dying on the table. You do not go into the operating theatre knowing that that patient is going to die on the table. In fact, most of the time they do not.

You will probably hear from palliative care experts who feel that good palliative care probably prolongs life. I think that is true in certain cases where a patient probably would have just wasted away and died because they could not eat because of the pain. Some patients have lived for 18 months after I told the, "It looks like you only have a few weeks to live."

More important than the pain, as you mentioned, is the issue of dignity and suffering. Why is it that Sue Rodriguez felt she was the subject of indignity when many patients with ALS have far more disabilities than she had? She was nowhere near death when she died. She was not in a situation where she needed to have total care. She could, in fact, eat what they called "a fine meal" before she died. She could have swallowed pills. She did not need assistance at the time she died. Why is it that that patient saw herself as living in such enormous indignity that she should die, while another patient was not inclined to think that way at all?

Palliative specialists will tell you that it is more a function of their pre-morbid personality, the way the person was before they were sick, than it is a function of the illness. It has nothing to do with dependency. It has nothing to do with their personality and their attitude. Psychotherapy can really help people move through that.

Sue Rodriguez chose not to avail herself of that. She said, "No, I don't want any help, thank you very much. My attitudes are mine, and I'm not going to let you tamper with them." That is her choice, and I am not knocking that. However, she then said, "I refuse to let you help me in the realm of psychotherapy, but I want you to help me in the realm of assisted suicide." She is trying to put us over a barrel by refusing treatment.

It is very similar to the case of a psychiatrist named Chabeau who was recently acquitted in Holland. He killed a 50-year-old depressed woman he had known for only two months. This woman said, "No, I refuse medications. No, I refuse psychotherapy. If you don't give me pills, I'm going to have a messy suicide." He said there was no option but to help her. He was acquitted in a court of law.

Dr. Johnston: I wish to speak to your particularly good point about the indignities which she declared herself to be suffering. One of the problems with this word, "dignity," as it is being used by those who ask for euthanasia and assisted suicide, is that it really becomes a state awarded by the patient to him or herself. The decision as to whether or not dignity is present is a subjective one.

The problem is, like any other subjective, self-awarded quality, it comes indistinguishable from other expressions of frustration and hopelessness and depression. The declaration, "I have no more dignity", because it is simply self-defined and self-awarded, has to be seen as just one more very important way of saying, "I'm depressed and frustrated and helpless."

If you accept that everyone has his or her own definition of "dignity", we will be lonely individualists. I do not think we should go on to give the same weight to that word in that setting.

Dr. Lane: There is a fine line when it comes to deciding what dosage of medication you should give the patient. It is the intent that is important. Will the doctor intend to administer a dosage that will actually kill the patient versus trying to provide care and comfort? That is a difficult question, and no one will know the answer except the doctor. That is why it is difficult to envisage legislative protection that would work. No one will know that doctor's intent.

To open the door and approve of this type of action, may mean that a doctor who is not experienced at palliative care would be more likely to go ahead and administer a higher dose than do anything which would increase his skills and knowledge in how to look after these patients.

With palliative care, it is a challenge to look after the total patient. Not only does pain have to be dealt with, all the issues of palliative care must be taken into account. It is society's duty as a whole to provide that, and to provide it in every jurisdiction possible. Palliative care need not be expensive. It has to be part of the education process which is available to the profession.

Mr. Benson: I should like to refer to my friend again who, at age 39, was dying of cancer. She was very angry and wanted to commit suicide two months before she died. Her husband refused to accept that as an alternative. Just days before her death, she went through an incredible reconciliation. You asked the question about how society would benefit from her living a few weeks longer. How she would have benefited from discovering human compassion might be the better question.

When she died, the Victoria hospice society issued a very strong statement. I do not know if you have had that put to you. This is not simply an individualistic issue; this is a fundamental human issue in our society. Without being "paternalistic" about it, which is a nasty word nowadays, parents teach children to distinguish between what is right and what is wrong; and the state, in some respects, upholds principles that are formative for our social wellbeing.

I would recommend that you read this book by Lisa Hobbs Birnie. Those aching questions are fundamental to this issue. We must not be misled by this autonomous self. The philosophers say that our society is filled with alienation and isolation. We need meaning, and we need compassion. "Compassion" means "to suffer with". We are all humans and, as such, we are intimately related to each other.

How would society have benefited from another week of Sue Rodriguez' life? No. How might she have benefited from a compassionate loving death, like my friend had?

The Chairman: You said today that we now recognize that withholding and withdrawing treatment are recognized under certain circumstances as proper medical procedures; and you appear to agree with that. A statement was made just a few minutes ago that research indicates that 90 or 95 per cent of people who request suicide are clinically depressed.

How do you reconcile this? Surely the same result occurs for people who ask you to stop treatment. How do you decide that these people are not clinically depressed when they do that, but when they ask for death they are clinically depressed?

Dr. Pankratz: To start with, to withdraw care does not always result in death. Withdrawal of care in terminal cases is done only in respect of care that is seen as excessively burdensome, care that the patient refuses. That is very different.

The Chairman: She has the right to refuse. We recognize that.

Dr. Pankratz: Yes. Obviously I would not assault a patient with unwanted care. This is their right. As a physician, this is what I believe all physicians should be doing. If, in fact, it comes to my attention that a physician is assaulting a patient with unwanted care, then I feel it part of my duty to be involved in a process that helps that situation come to a resolution.

That is a very different thing from actively assisting a death. You do not give care where it would burden a patient or where it would make their quality of life worse to have this treatment. That is respect for natural life. That is respect for a person's choice that their life reach a natural conclusion. If you then jump in with the decision that you can cut short the process, that is stepping over the line. Maybe it is a thin line, but it is a line that we must continue to draw. It is a very valid line.

The Chairman: You are talking about your position. I am talking about the mental capacity of people in these different situations.

Dr. Johnston: I think I understand something of what you are asking. It does seem that we want it both ways; that we will only describe those who want the option of suicide as "depressed". I think that underlying your perceptive question is perhaps a mistake about how we use the word "depression". I make the same mistake myself.

I would like to think that the description of someone as "depressed" is not a judgment. Medically speaking, it is not a statement of failure on the part of that person; and it is not a statement of a lack of moral fibre or an inadequacy of that patient. Rather, it is a description based on well-recognized medical indications of loss of sleep, early waking, loss of appetite, loss of ability to look forward to the future with hope.

If we remove the notion that it is a castigation of people to call them "depressed" that we reserve only for those who are requesting suicide, we can refocus our energies on love. It is love that we are missing, and that is what our society has to come to grips with. How are we best to offer love to those who declare themselves to be without hope, who declare themselves to be without meaningful existence, who feel a deep sense of bewilderment that comes with a loss of meaning. We can redirect the question to that.

The concept of depression stops being pejorative and starts being a description of how bad it can be to be weak, to feel ill, to feel as though one's existence is resented, or to feel as though all that made one able to contribute has been taken away so that all that can be meaningful therefore is one last act of the will. If we can move beyond that, we might be able to address your concern.

Mr. Benson: Earlier in the proceedings Dr. Keon expressed an interest in the same sort of point that you just made. Does the request have a pathological base? No physician would say to a clearly mentally incompetent patient, "I'm going to respect your request to withdraw treatment."

Your committee must look very carefully at the evidence and the medical research, or, perhaps, call for more research on this point, that is, whether there is a pathological component in the request for suicide. Insofar as we can establish, that request for suicide may be implicated in the nature of the illness. Then the role of medicine in relation to that is very important. There may, in fact, be a medical component to dealing with requests for suicide if they are rooted in a pathological condition.

The Chairman: Dr. Lane, earlier in your testimony you referred to a study done in the Netherlands with students of economics and a questionnaire. After you have completed your presentation, could you provide us with a citation for that for our own information? Thank you.

Thank you all very much for your presentation.

SOURCE CPL PANKRATZ et al.,

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