Canada court claims over top


During the next few weeks and months many arguments will be posited concerning David Seymour’s End of Life Choice Bill which Parliament has sent to the Justice Select Committee.

Arguments will be raised about the implications for those with disabilities, the efficacy of proposed “safeguards” for the vulnerable, the undermining of suicide-prevention efforts, the implications for the medical profession, the role of palliative care, the likelihood of a “slippery slope” — all versus the autonomy of the individual.

(The slippery slope argument may be put in two categories, both of which are cause for concern. First there is the “practical” slippery slope, which involves abuse of the law. As the Nathaniel Centre has pointed out, there is robust evidence from Belgium and the Netherlands that the law is being routinely violated; large numbers of cases are not reported and significant numbers of people are euthanised without giving their consent, as is required by the law. Secondly, there is a “logical” slippery slope, which is the expansion of the persons for whom and the situations in which assisted suicide or euthanasia is permitted. This has been the pattern in Europe.)

During the New Zealand Parliament’s first reading debate on the End of Life Choice Bill, much was made by Mr Seymour and National’s Chris Bishop of the ruling by Canada’s Supreme Court in Carter V Canada in 2015 that “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards”.

Mr Seymour described this as the conclusion of “one of the greatest courts in the world, having looked at all the evidence”. Mr Bishop likewise described the judgement as “an extensive canvassing of all the arguments for and against physician-assisted dying”.

Some a little closer to the action would take issue with such conclusions. In a 2016 paper in the Medical Law Review, Benny Chen and Dr Margaret Somerville from McGill University in Canada noted that the judge in a previous trial (which was ultimately appealed to the Supreme Court) did indeed do an analysis of assisted death laws, regulations, and practices in other jurisdictions, but this was “highly selective in favour of finding no slippery slopes, and purposely omitted or minimised contrary evidence”.

“The Supreme Court passively accepted the trial judge’s selective treatment of the evidence from other jurisdictions and rejected [the Crown’s] request to bring evidence to correct the trial judge’s findings of fact, with one exception: Belgian law professor and ethicist Professor Etienne Montero was allowed to testify as an expert witness for [the Crown] in the appeal proceedings. The Supreme Court engaged, however, in its own selective analysis of his evidence.”

The McGill University researchers stated that the Supreme Court’s “overarching finding seemed to be that any worrisome evidence regarding Belgium’s euthanasia regime was unique to Belgium and hence no inferences applicable to Canada could be drawn from it”.

But they also stated that “the Court’s position assume[d] a double standard in that positive or favourable aspects of assisted death regimes in foreign jurisdictions were inferable for Canada while negative or unfavourable aspects were not inferable, but it also overlooked the fact that many of Professor Montero’s observations had general applicability beyond Belgium”.

“At the very least, Professor Montero’s affidavit should have been appreciated for providing concrete evidence that even well-thought-out regulatory regimes will bring with them a degree of risk . . .,” the researchers continued.

“Given the clear relevance of Professor Montero’s affidavit, it is difficult to see how the Supreme Court could have unqualifiedly accepted the trial judge’s conclusion that ‘a permissive regime with properly designed and administered safeguards [is] capable of protecting vulnerable people from abuse and error’.”

So the notion that the Canadian Supreme Court ruling is the last word on the subject can be contested, and with some vigour.

Indeed, as Professor of Palliative Medicine Baroness Ilora Finlay told NZ Catholic last year, the End of Life Choice Bill is “deeply flawed”, without any proper safeguards. “It is all about process and form ticking, it doesn’t really have anything to protect patients,” she said.

It is to be hoped that many New Zealanders concerned for the common good will make their views known to the Justice Select Committee by February 20.

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Michael Otto

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