The next battleground in Canada’s euthanasia debate: advance directives

Bill C-14 revolutionized end-of-life care when it was enacted last summer, but it doesn’t permit people to leave what are known as “advance directives” (Photo: Brian Burger/Flickr, CC BY 2.0)

HALIFAX — Liana Brittain says each additional day with her husband would have been a precious gift, but a gap in Canada’s assisted-suicide law cut those short.

Bill C-14 revolutionized end-of-life care when it was enacted last summer, but it doesn’t permit people to leave what are known as “advance directives” — written instructions for assisted suicides, for a time when they are no longer able to ask for it.

When Brittain’s husband, Paul B. Couvrette, decided to end his life due to terminal lung cancer, it had to happen while he was still able to confirm he wanted a fatal injection.

“We would have had more time together had he had the opportunity to put … his witnessed, written directive, into play,” Brittain said in an interview at the International Conference on End of Life Law, Ethics, Policy and Practice in Halifax late last week.

Brittain has a photograph from Couvrette’s last day — he is smiling and quietly reading a letter of goodbye from a granddaughter in their seaside, retirement home in western P.E.I.

Brittain, 67, says the death that followed Couvrette’s last meal of seafood chowder and homemade biscuits was a calm and peaceful experience. But they would have appreciated carrying on a bit longer.

“I find it difficult to understand how people whose loved ones are in a coma or life support system are able to speak on their behalf when they’re no longer able, but when someone who has chosen an end of life … they cannot put an advanced directive in place,” said Brittain, who volunteers for Dying with Dignity.

Bill C-14 allows for medically assisted deaths when patients are over 18, have a serious and incurable illness or disability, are in an advanced state of irreversible decline, endure intolerable pain, and face a “reasonably foreseeable” death.

While Canadians like Brittain favour allowing advance directives, as did a special parliamentary committee that studied the issue, the Liberal government put off any decision.

It has appointed the Council of Canadian Academies to examine the issues, and that group has formed an expert panel gather submissions.

“That work is ongoing now,” said Joan Gilmour, director of the health law program at Osgoode Hall Law School in Toronto.

She says the existing Supreme Court of Canada case that led to the federal legislation is silent on these living wills and there’s currently no litigation on the topic.

Gilmour says advance directives are supported by the growing number of Canadians who face illnesses such as advanced dementia or strokes, and who want to make decisions about how they’ll die while they still can.

However, Hilary Young, an associate professor at the University of New Brunswick’s Faculty of Law, argued against the practice during a presentation at the conference, arranged by Dalhousie University’s Schulich School of Law.

It’s “one thing” to kill someone with the capacity to convey they wish to die, but something very different to end the life of someone who is no longer competent “and is not presently requesting it,” according to a written summary of her paper.

Young told delegates on Thursday that it’s often difficult to determine in advance when a point of intolerable suffering is reached by a patient who can no longer describe their pain.

There may be cases when a person with dementia who becomes mentally incompetent isn’t suffering, she suggested.

“It’s possible you may think something will make you suffer, when in fact it won’t,” she told the audience, speaking of patients who develop advanced dementia.

Dr. Kenneth Rockwood, who has treated Alzheimer patients for decades, says he has deep misgivings about advance directives, even while he understands how some wish for death due to extreme suffering.

“I worry it may not be the outcome they wish for,” he said. “They (people with dementia) may in their own mind believe their duty to their offspring is to leave them with some money.”

Liselotte Postma, a researcher in criminal law at Erasmus University in the Netherlands, said during the conference that while her country allows for written, advance directives they are scarcely ever used in cases of advanced dementia.

She described one high profile case where a 70-year-old woman facing dementia had left a written advance directive saying she wanted to die if she reached the state that she had to go into a nursing home.

After a doctor carried it out, public prosecutors ended up considering criminal charges against the physician, she said.

Postma concluded that the Dutch law is “complex and in need of assessment,” and has created a situation where many people complete advance directives, but doctors seldom agree to carry it out.

Nonetheless, Brittain says she thinks Canada should attempt to fashion a law that allows people to work out their advance consent. Most eventualities can be worked out, she says, if enough thought is given to the options ahead.

“We (she and Couvrette) went through a number of potential scenarios and we talked them through and we made decisions,” she said.