Hollis Johnson and his wife, Lee Carter, stand outside the Supreme Court of Canada in Ottawa Feb. 6. The Supreme Court overturned a ban on physician-assisted suicide, unanimously reversing a decision it made in 1993 and giving Parliament a year to come up with a law on assisted suicide. CNS photo/Chris Wattie, Reuters

Let it be known: you don’t want to die

  • November 7, 2015

Death used to be a simple fact of life. As of the Supreme Court decision on assisted suicide last February, it is becoming a legal process.

The legal landscape around death is changing and exactly how much it changes will depend on whatever law Parliament passes to meet the Supreme Court’s Feb. 6, 2016 deadline to legislate, said Toronto family lawyer Valentine Lovekin.

In its Carter decision from earlier this year, the Supreme Court gave Parliament one year to come up with legislation on assisted suicide.

“The Supreme Court has said only that the existing law is indefensible by a Charter (of Rights and Freedoms) analysis,” Lovekin told The Catholic Register. “And the Supreme Court also said the same thing with abortion. The legislature, in the case of abortion, has failed to legislate since 1988.”

If Canada’s lawmakers once again back off the Supreme Court’s challenge to come up with a new, better law, the rules for doctors hastening patient death would be like those for other regulated medical procedures.

The Supreme Court ruling requires a person requesting assisted suicide be an adult capable of making a free choice. That means doctors would have to assess their patients’ decision-making capacity based on medical history and behaviour. Doctors may hesitate to rule their patients’ incapable given the danger that patients could haul the doctor before Ontario’s Consent and Capacity Board.

So what happens if you don’t want your doctor to lower the curtain on your last act? The easy answer is, don’t tell your doctor you don’t want to live any longer. But the easy answer is easy because it’s removed from reality. Wishing it was all over is a common thought, often expressed by people who know they are going to die and feel the process is taking too long. Who says you are an exception? Once you’ve lived through enough visits to enough doctors’ offices, spent enough days lying in bed, who knows what you might say?

Depression, fear of pain, pain itself and the fear that a long, lingering exit will eat up your estate, your family’s chances to move on or society’s resources in the medical system can push the terminally ill toward that cry for death now.

It can seem condescending to call such fears irrational or exaggerated, but they are fears based on subjective experience, not objective reality. Lovekin’s experience with families facing death is that they want to be there to help, that doctors can and will manage pain and that the obvious right, supported in Catholic teaching, of the patient to refuse burdensome, pointless medical interventions is respected.

The time to exercise control is not after you’ve been diagnosed with stage-four cancer, but years earlier when you can clearly and rationally plan your estate and appoint a power of attorney for personal care.

Lovekin is one of the few lawyers who will bring up the issue repeatedly with clients, urging them to come in, write a valid Will and at the same time set up a power of attorney for personal care. He understands people’s reluctance to deal with the issue.

“You have two problems. The first is ignorance and the second is avoidance,” said Lovekin. “And one is just as dangerous as the other.”

The lawyer likens the process to going to confession. It’s not necessarily something people want to do, but they are usually glad they did it.

“People come in to see me to do their estate planning and they leave saying, ‘Oh, I feel so much better now that’s been looked after,’ ” he said.

For most couples, setting up a power of attorney for personal care isn’t expensive — $750 or less.

“The reason for having a lawyer is to have somebody you can trust to speak to about an issue in complete confidence and have something that is drawn professionally,” Lovekin said.

Lovekin starts the process with a series of questions.

“What are their drug allergies? What are their food allergies or dietary restrictions and preferences? What are their environmental allergens or triggers? Are they an organ donor? Let’s have that discussion,” he said. “Are they a practising Catholic? Do they seek the Sacrament of the Sick?”

The questions touch on quality of life, faith, hopes and fears.

But a power of attorney for personal care is not a list of dos and don’ts to be handed off to the doctor. It’s not a living Will. That simply won’t work. Medicine is too complicated and the range of options always specific to the individual situation.

“The phrase in law that I find comes to my mind is ‘fettering the discretion’ — particularly of the caregiver,” said Lovekin. “We want to have a sense of control in our lives, but we’re not doctors. There is a question of judgment when it comes to the treatment of patients. You want to make sure that you don’t start limiting the proper discretion of a care provider.”

When Lovekin began drawing up powers of attorney for personal care with his clients, he thought of them in terms of appointing a trusted person to make decisions when clients could no longer express their own preferences. Over the years, however, he has changed his mind.

“The power of attorney for personal care isn’t an instrument whereby I delegate a person to make decisions for me. It’s a document where I make my own decisions and I delegate or I appoint the person who is going to enact the decisions that were made by me,” he said.

A power of attorney that specifically rules out physician-assisted death is now a necessity for Catholics, according to the London, Ont.-based Euthanasia Prevention Coalition. More than 1,800 people have purchased the Euthanasia Prevention Coalition’s Life-Protecting Power of Attorney for Personal Care kit for $25.

“We regularly receive calls from people who are concerned about the end-of-life decisions that are being made for their spouse or loved one,” writes Euthanasia Prevention Coalition executive director Alex Schadenberg on the coalition’s web site.

The Euthanasia Prevention Coalition’s power of attorney kit is designed with one purpose in mind — preventing euthanasia.

People need to think about what they believe and how important it is to them.

“Death is something that is absolutely a reality. There’s no escaping death,” said Lovekin. “So anybody who talks about the right to die is beginning with what I consider to be a somewhat ludicrous proposition. Who needs to have a right for something that’s inevitable? But the degree to which you manage that process is where you get into the weeds about where do I exercise my right to make a decision.”

The Supreme Court’s ruling on assisted death does not allow anyone to opt for physician-assisted suicide by means of a power of attorney for personal care, or for a substitute decision maker to make that call. Only the patient themself can request death. Patients must be judged capable of making a rational, informed decision and they can only ask for it after a diagnosis of a terminal illness.

The trouble with all that is that it reduces the decision to individual choice when death is experienced by families, friends and communities. Our lives are not something we own and may dispose of as we please. Life is something we participate in, and we owe our participation to everyone else with whom we share life.

“At the end of their efficient death (patients who choose euthanasia) may leave a trail of injured hearts behind them,” said Lovekind.

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