End-of-life: Q&A with Tracey Bailey

From Quebec, which is debating end-of-life legislation, to the Supreme Court of Canada, which has decided to revisit its 20-year-old decision against physician-assisted suicide, to Belgium, where the country’s government has decided to allow terminally ill children under the age of 12 to choose when die, the end-of-life debate has become a hot-button issue. And as with most hot-button issues, there are those who are firmly in favour, those who are staunchly opposed, and others who are trying to find their paths through what they see as a tricky grey area.

On Sunday, Feb. 23, National Magazine will be live-streaming a panel discussion on the topic from the Canadian Bar Association’s mid-winter meeting in Ottawa. Ahead of that panel, we asked a legal ethicist to explore some of the issues at stake.

Tracey Bailey is an associate adjunct professor with the John Dossetor Health Ethics Centre at the University of Alberta, is the former executive director of the Health Law Institute in the university’s Faculty of Law, and currently practises health law in the public sector. She graciously took time out from a beach vacation this week for an email Q&A. The following has been edited for length.

National:  What’s behind this sudden surge of interest and litigation in end-of-life matters?

TB: Interest in end-of-life decision making is not new, but recent developments in the area of physician-assisted death, such as the BCSC decision in the Carter case, the recent decision of the SCC to hear the appeal in Carter, the SCC's comments in Bedford regarding the ability of trial judges to depart from binding decisions in certain circumstances, and the imminent passage of Bill 52 in Quebec, all contribute to the timeliness of public discourse on this topic. As well, the SCC's recent decision in Cuthbertson v. Rasoulli has contributed to this discussion, as the SCC, in interpreting Ontario's legislation on consent and substitute decision-making as it relates to withdrawal of life support, left more questions unanswered than clarified.

N: Is it ethical to ask doctors, through legislation or otherwise, to take a patient’s life?

TB: Physicians are educated to offer treatments that may provide healing, or comfort where healing is not possible. Many treatments offered, however, have the potential to cause harm. They are ethically and professionally justifiable when there is the potential for benefit, and this benefit, weighed against the harm, is acceptable to the individual. Palliative care, in particular, aims to provide comfort and relief from symptoms of pain or distress at the end of life. However, even excellent palliative care cannot always relieve symptoms. As well, only 30 per cent of Canadians currently have access to palliative care services.

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Where physicians believe that treatment to hasten death is an acceptable alternative for patients, and are willing to offer it, it is plausible that the offering of such treatment could be provided in keeping with the oath and aim of the medical profession. Physicians should not feel compelled to do so against their conscience. The only duty that should be required in such a context should be the obligation to let patients know that this is an option that some physicians are able and willing to provide.

N: Is it ethical to oblige a terminally ill patient who wants to die, to live?

TB: The answer to this question is complex as it arguably relates to the beliefs and obligations of others, beyond those of the terminally ill individual. If a terminally ill patient wishes to die, and is able and willing to take measures towards this end, there is nothing at law that would prevent them from doing so. But what if they wish to do so but are physically unable to without assistance? … While autonomy of the individual is an ethical value that carries great weight in our North American society, it is not the only value of significance. What of protection of the vulnerable? What about family or community ethics and values? Are there good reasons to place limits on the wishes of the individual? While there is some arguable benefit to assisting such individuals, what are the costs? The answer to this question will arguably be different, depending on one's values, beliefs and experiences.

N: What does the passing of right-to-die legislation say about the ethics of the society that allows it? Is it progressive or regressive, compassionate or dispassionate – or can you draw that kind of black/white distinction?

TB: … While there are many issues that much of society could agree upon as clear-cut, often the thoughtful answer takes into account the exceptions – those situations when we would say “it depends” – and provides thoughtful consideration of the factors that we believe would make a difference to the answer. Perhaps a society that would sanction the killing of individuals is a regressive one; perhaps it is a progressive one. Hopefully, the thoughtful answer rests in questions about the circumstances. Just as the ethical principle of double effect originated in philosophical exceptions to the general law of “do not kill” – and justified killing in self-defence assuming the force was reasonable – surely there may be other intentional deaths that may be ethically justifiable depending upon the circumstances. … As a thoughtful society, wanting to facilitate autonomous decision-making while protecting the vulnerable, hopefully we can discuss this as a community where all values can be taken into account in reaching a sound basis forward.

N: Is there something you wish people in this debate would ask that they never do, a question you particularly would like to answer?

TB: ... While decisions at the bedside should be focused on the wishes, values and beliefs of the individual, along with what is medically indicated and the resources reasonably available, resource allocation (must be) an essential focus of society's discourse around this topic. Our public health care system, where access is based upon need rather than the ability to pay … cannot and should not be focused on individual rights alone. With the Rasouli decision in mind, is it a positive move forward that individuals can demand … the right to remain on life support indefinitely in an ICU? While there should be means to challenge the opinion of physicians that it is in the best interests of a patient to be withdrawn from life support, and such means should be easily accessible for individuals, the indirect creation of such a right is arguably a disservice to other individuals who need access to health care in the same system that will now support the unfettered treatment of an individual based upon his or her wishes alone, regardless of medical benefit. …