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Assisted suicide legislation disappointing: advocate

Catharine Schiller has one word for the assisted death legislation tabled Thursday: disappointing. Schiller, a lawyer, nurse and assistant professor in UNBC's School of Nursing, said her feelings echoed that of another lawyer she heard on the topic.
Catharine Schiller, is a lawyer, nurse and assistant professor in UNBC's School of Nursing, who has some concerns about the recently-tabled assisted-death legislation.

Catharine Schiller has one word for the assisted death legislation tabled Thursday: disappointing.

Schiller, a lawyer, nurse and assistant professor in UNBC's School of Nursing, said her feelings echoed that of another lawyer she heard on the topic.

"He felt like the word that needed to be stamped on the front page of it on big bold red was incomplete," said Schiller.

"That to me really captures how I felt about it."

Here's a breakdown of the holes Schiller found in the bill, and a few areas she finds encouraging:

Rural and remote communities

Schiller combed the ruling with rural and remote regions in mind.

"I think we've made some strides," she said, praising the move to include nurse practitioners as well as physicians to carry out assisted deaths.

They, as well as registered nurses, often lead health care in these communities and having language to reflect that matters, she said.

"Even that very name change form physican-assisted in dying to medical assistance in dying indicates a broader acceptance of the role that practitioners other than physicians might be able to play in this particular context."

But that inclusion is not a certainty.

Conservative deputy justice critic Michael Cooper has said he is opposed to including nurses in the mix.

"I thought that perspective really doesn't appreciate the reality of rural and remote settings where they may have access to an nurse practitioner but a physician is very far away," said Schiller.

"If that's an indication of what the opposition is, we may be in trouble."

There were clear gaps in the Liberal legislation for northerners, she said, pointing to a requirement that two practitioners approve the procedure and insufficient language around conscientious objection.

While consulting two physicians or nurse practitioners may be a reasonable safeguard, Schiller said it will create barriers in some communities.

"My concern is how do we actually implement that in a rural and remote setting because in many of these communities you're very lucky to have one practitioner so how do you get to a second one?"

That is further complicated if that one practitioner voices a conscientious objection against participating in a person's legal choice. Under Quebec's law, that medical professional would be legally obliged to refer their patient.

Not so, under this legislation.

If a physician does not refer, then the people are left to find someone who is comfortable with assisting death in cases of intolerable pain.

In a city like Vancouver, a second and third option might be right down the road, but not so in the north.

"That might mean a lot of travel, a lot of picking up the phone and calling and people in this stage of their illness have other things to worry about and they're suffering and to make it so darn inconvenient for them to access a service they're legally entitled to have just because of where they live."

But, Shiller said the language leaves some flexibility because it doesn't demand the assessment be done in person.

"That leaves the door option for the possibility for an option like tele-medicine for individuals who can't travel to a health care provider."

Advanced directives

When a patient gets a diagnosis, they should be allowed to determine ahead of time under what condition they want to die, Schiller argued.

That concept of advanced directives was addressed by a special parliamentary committee, which recommended it be permitted "after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable."

Schiller sees the failure to include that advice from the panel as a lost opportunity.

"We're allowed to put advanced directors into place for multiple other medical decision making and we accept that and people I think really thought that was going to be extended to assisted dying," she said.

"I really felt like there was some missed opportunity to put some clarity into this assisted dying concept and assisted dying framework."

Mature minors

The bill places a mandatory minimum age requirement of 18 years and doesn't allow for "mature minors," a designation a special parliamentary committee recommended be included within three years of the bill.

Schiller said that report - Medical Assistance in Dying: A Patient-Centred Approach - had a better approach.

Mature minors is a tricky issue, she acknowledged, but said it's important to note it deals with teens very close to the age cut-off.

"So for example if you have somebody who's 17-and-a-half and they're in intolerable pain and they say I want to die, what magically happens in those six months before they turn 18 that makes them suddenly able to make that decision?"

The age of majority is not consistent across Canada, said Schiller. In B.C., it's 19 years, yet the federal legislation for assisted death makes it 18.

"Eighteen feels a little arbitrary," she said.

Terminal illnesses

The language, without using the word terminal, manages to still invoke that reality as a requirement for those who wish to die legally.

"The Supreme Court did not limit assisted dying to terminal cases and the language of the draft bill appears to do that because they say the natural death has to be 'reasonably foreseeable.'"

What does foreseeable mean, Schiller asked. Five years? Ten years?

"We're expecting clinical practitioners to interpret that language," she said.

"And if lawyers can't even come to a decent consensus on what the legal language means, how do we expect clinical practitioners to do that?"

Even Kay Carter - whose case was part of the landmark unanimous Supreme Court ruling in February 2015 - wouldn't have been approved under this bill Schiller said. It's a criticism the British Columbia Civil Liberties Association, a plaintiff in the case, has also voiced.

"She had spinal stenosis which is very painful and very debilitating but it's not actually terminal," Schiller said. "If the Supreme Court legalized this in her name and she wouldn't have even qualified, then we've got a disconnect."

Invites legal challenges

The government should have asked the Supreme Court to preemptively rule whether the draft bill is constitutionally valid, Schiller said.

As it stands, Schiller believes it will face legal challenges. That approach will do nothing to address the problems in the legislation for most Canadians and instead rule on specific cases.

"It's going to be up to individual citizens to bring those challenges to court and that's very inefficient, it's very costly, it's very time-consuming and you end up getting rulings on particular fact scenarios as opposed to a more general understanding of how this law could stand up."

Before the bill makes it to law, it must go to committee for further study, then House for a vote and finally pass Senate.