Introduction

Webcast archive: Details on the Truchon decision

This week, we have an analysis of the Truchon decision, and updates on the Lamb case & Daniel Pilote`s class action suit.

Webcast archive: Details on the Truchon decision

In this episode of Euthanasia & Disability, Amy Hasbrouck and Christian Debray discuss:

  • As promised, details of the Truchon decision
  • The trial in the Lamb case is postponed indefinitely
  • Plaintiffs suing Québec over nursing home conditions win class status

Please note that this text is only a script and that our webcast contains additional commentary.

AS PROMISED: DETAILS ON THE TRUCHON DECISION

  • This week we will try to explain the inexplicable by offering some more details on the Truchon-Gladu decision.  In the decision, issued on September 11, a Québec superior court ruled that the reasonably-foreseeable death (RFD) eligibility requirement in the federal medical assistance in dying (MAiD) law, and the “end-of-life” criterion in Québec’s euthanasia statute, violated sections 7, 15 and 1 of the charter of rights and freedoms.  Summarizing a 186-page, 770 paragraph decision in a few minutes won’t be easy, but we’ll do our best.  Please remember that we are not legal scholars, so you should take our opinions with a generous helping of salt.
  • Unlike in a jury trial, the Truchon case was heard and decided by a judge, who wrote up her decision in two sections; her findings of fact, and how she applied the facts to the different questions of law.

FINDINGS OF FACT

  • In this part of the decision, the court weighs the different versions of the facts given by the plaintiffs and defendants, then decides which version it believes. As a judge, her opinions and conclusions take on the weight of law.
  • The judge quotes at length from the doctors’ descriptions of the plaintiffs’ (M. Truchon and Mme Gladu) physical limitations and deterioration. She portrays both plaintiffs as people who have lived well “despite their disabilities” but are now confronted with “total dependence” and “unable” to live independently.  In other words, the judge confuses the plaintiffs’ physical abilities with the effects of social policy.
  • The court quotes medical professionals’ consensus that the plaintiffs are not subject to “external pressure” based on the narrowest possible definition of that term; coercion or undue influence exercised by one person against another.  The court could have defined “external pressure” to mean any influence from external factors that affect the decision-making process, such as the public policy that forced the plaintiffs into institutional care. But it didn’t.
  • Other “facts” about the plaintiffs:
    • They are not suicidal;
    • They have symptoms of depression, sadness and anxiety, but these are “entirely consistent” with their situation;
    • They are “prisoners” of their bodies.
  • The judge declared herself “touched” by the “dignity and modesty” of M. Truchon, and the “courage and determination” of Madame Gladu.  We can’t help but wonder if a court would use such terms to describe disability rights activists who were advocating for their rights without ending their lives.
  • The court’s examination of the legislative history of Bill C-14 is also an exercise in picking and choosing the pieces of the various reports that support the position the judge had already arrived at.  She quotes from the final report of the external panel on options for a legislative response to Carter v. Canada that “vulnerability, in and of itself, must not preclude the expression and recognition of an autonomous choice to pursue physician-assisted death.” However, she leaves out the part that says “a request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person’s suffering” and the bit about “enhancements to homecare could help alleviate some sources of vulnerability and suffering, potentially reducing some individuals’ desire to seek physician-assisted dying.”
  • The judge begins her description of how MAiD works in practice by saying that the only people who can understand it are doctors who practice euthanasia.  She dismisses as “theoretical” or “administrative” the opinions of all other witnesses who have studied AS/E.
    • The court rejects the possibility that anyone could be euthanized who did not have a long history with the medical establishment.
    • The judge talks about the requirement that the second doctor be independent of the first, neglecting to mention that Québec eliminated that requirement by order of the Health Minister in 2017 because there were too many cases of non-compliance with that safeguard.
    • In its description of the “crucial” meeting with the person making the request (alone or with their family) the court says nothing about raising the possibility of additional treatments, palliative care, suicide prevention, non-institutional care or any other alternatives to death.
    • The court does not talk about doctors engaging in a decision-making process.  The judge seems to take the approach: “is there any reason not to provide euthanasia?”
    • Her description of the administration of euthanasia process is idealized.  There is no discussion of last-minute jitters, adverse reactions to the drugs, delays or other complications, nor is assisted suicide even mentioned.
    • The court accepts the testimony of Dr. Naud that doctors spend “2 to 3 hours” on paperwork after the procedure, but doesn’t mention the errors, or the late and missing reports documented by Québec’s Commission on End-of-life Care.
    • Finally, the court simply ignores the 4% non-compliance rate described in Québec’s Commission on End-of-life care in its April, 2019 summary report, including 11 euthanasia of ineligible people, 55 violations of safeguards, and 134 cases that hadn’t been reviewed.
  • The court says that the question of “who is a vulnerable person” comes down to an individual evaluation of capacity, and that doctors know how to assess capacity.  The court responds to the issues raised by Dr. Scott Kim as to the problems with capacity assessments by discrediting him; saying Dr. Kim’s evidence is “insufficient or theoretical” and that he is unfamiliar with AS/E in Canada.
  • The court summarizes its findings of facts:
    • Medical assistance in dying as practiced in Canada is a strict and rigorous process that, in and of itself, has no obvious weakness;
    • The physicians involved are able to assess the ability of patients to consent and to detect ambivalence, mental disorders that affect the decision-making process, or cases of coercion or abuse;
    • The vulnerability of a person seeking medical assistance in dying must be assessed individually, according to their particular characteristics and not according to a reference group of “vulnerable persons;”
    • The physicians involved can distinguish a suicidal patient from a patient seeking medical assistance in dying;
    • There are important differences between suicide and physician-assisted dying, both in the traits of the people making the request and the reasons that motivate them;
    • Neither the data in Canada and Quebec, nor the foreign data, show any drift, slippage or even increased risk for vulnerable people when the imminent end of life is not a criterion for eligibility to medical aid in dying.

APPLYING THE FACTS TO THE LAW

  • The court starts with the question of whether the Carter decision creates a constitutional right to MAiD, except that’s not really the question the judge answers.  The judge ends up talking about whether the RFD eligibility criterion is supported by other legal decisions.  The court says the Carter decision didn’t limit access to MAiD to people at the end of life, but was meant to enable people to “avoid … a life of suffering.”
  • Next, the court looks at whether the RFD requirement violates plaintiffs’ rights under Section 7 of the charter; the rights to life, liberty and security of the person.
    • The judge reminds us that the Carter court said prohibiting assisted suicide infringed the plaintiffs right to life, in that it forced them to commit suicide while they were still able to, earlier than they might otherwise want to die.  The Truchon court decided that the RFD requirement had the same effect on people with disabilities by making them ineligible for MAiD.
    • The court agrees with the plaintiffs’ view that their liberty and security interests are also violated, because the RFD requirement “impinges on their freedom of choice and the exercise of their autonomy.”
  • As stated in Section 7, people cannot be deprived of these rights “except in accordance with the principles of fundamental justice.”
    • Restrictions cannot be arbitrary, overbroad, or disproportionate to the purpose. In other words, if the limitation of rights exists for a good reason, it does what it’s supposed to do, and has the minimum possible impact, then it’s OK.
    • In this case, the court finds that the RFD requirement goes so far beyond the objective of protecting vulnerable people that it has no “real connection to the objective.”
    • The court says the RFD requirement is disproportionate in that it forces plaintiffs “to continue their existence in suffering that is as intolerable as it is useless.”
    • “This requirement, therefore, creates a real obligation to live imposed by the state.”
  • The judge then looks at Section 1 of the charter to see if it limits plaintiffs’ Section 7 rights. Section 1 says charter rights are subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
    • The test to be applied is similar to the principles of fundamental justice test, and the court reaches the same conclusion.
    • The court accepts that the attorney general has met his burden of proving that the goal of protecting vulnerable people might be a “pressing and substantial” goal.
    • (At this point you might be wondering: what about the goals of affirming the value of the lives of disabled people and preventing suicides?  Well, the court disposed of those in its discussion of “principles of fundamental justice” by saying they were broad statements of societal values, rather than legislative goals, so they don’t count.)
    • The second part of the section 1 test asks if the means was “proportional” to the objective.  First, there must be a “rational connection” between the RFD criterion and protecting vulnerable people, which the court did allow. But the court found that, because it went beyond a “minimal impairment” of plaintiffs’ rights, the RFD criterion failed the Section 1 test.
  • Section 15 of the Charter guarantees equality rights by saying that everyone is equal under the law, but adds that the government can create laws, programs or activities with a goal of improving the situation of a disadvantaged group.
    • At paragraph 655, the court rejects the Attorney General’s position that the RFD requirement doesn’t create a distinction because it affects all non-dying people equally, but doesn’t really explain its reasons.
    • The court further states that the RFD criterion “does not take into account the specific situation, characteristics and actual needs of applicants in a way that respects their value as human beings,“ and “perpetuates prejudice and disadvantage for … people with physical disabilities,” because it assumes plaintiffs are incapable of making decisions about their lives.  Once again, the court confuses a lack of choice with an inability to make a choice.
  • The judge ruled that the Section 15 violation is not saved by section 1 by a process similar to that used for the Section 7 violation.
  • The court suspended the effect of its judgment for six months to allow Parliament and Québec’s National Assembly to bring their laws into compliance.  The judge said changing the law shouldn’t take long because all the possible legislative options were weighed when Bill C-14 was adopted. The court didn’t mention of the substantial delay caused by the federal election.
  • The court also allowed the plaintiffs an exemption from the suspension, meaning that they don’t have to wait to be euthanized.
  • The Attorney General has until October 11 to appeal the decision.

THE TRIAL IN THE LAMB CASE IS POSTPONED INDEFINITELY

  • The British Columbia Civil Liberties Association has announced that the trial in the Lamb case, which was scheduled to take place in November, has been adjourned. The constitutional challenge was filed in 2016.
  • The move comes six months after Dr. Madeline Li, a cancer psychiatrist who oversees MAID at a network of Toronto healthcare facilities, submitted testimony for the federal government stating that Julia Lamb’s death could be considered “reasonably foreseeable.”
    • Dr. Li cited the A.B. case, in which the Ontario Superior Court ruled that a “reasonably foreseeable” death does not have to be imminent or predicted within a specific time frame.
    • According to the Globe and Mail, guidelines published by the Canadian Association of MAID Assessors and Providers also “encouraged doctors and nurse practitioners to read the vague term broadly, with no specific measuring of how long a patient has left to live.”
  • Shortly after the adjournment was granted, the Quebec Superior Court ruled that the requirement that the person’s natural death had become “reasonably foreseeable” was unconstitutional and should be removed.
  • Upon hearing the news, Ms. Lamb said that the “shadow” which hung over her, and her fears of future pain and suffering, had been “lifted.” Though she has no immediate plans to die, she is “relieved” to know that she now has the option.
  • Ms. Lamb’s condition has reportedly worsened since the claim was filed. Yet she has also married, traveled, and volunteered while being “surrounded by supportive family and friends.” We are saddened by the inconsistency of Canadian society, which has allowed Ms. Lamb to thrive while presenting death as a reasonable response to discrimination, struggle and fear.

PLAINTIFFS SUING QUÉBEC OVER NURSING HOME CONDITIONS WIN CLASS STATUS

  • A year ago, we discussed a class-action lawsuit filed against Quebec health authorities over conditions in nursing homes. The named plaintiff, Daniel Pilote, is in his late 50s and has lived in long-term care for about five years because he doesn’t qualify for home-based assistance.
  • The lawsuit claims that conditions at the facilities violate residents’ rights under the law and the Charter. Some of the problems include:
    • Providing only one bath to residents per week;
    • Excessive use of physical restraints, and using antipsychotic drugs to sedate residents;
    • Not helping residents to use the toilet, and forcing them to wear diapers;
    • Not taking enough time to assist people who have trouble eating, and;
    • Waking residents in the middle of the night to perform personal care.
  • Before the suit could progress, the Quebec Superior Court had to decide whether the residents’ problems were similar enough, given their individual needs and the differences in policy and practice at the various institutions, for a small group to represent a class of residents whose complaints could be addressed together. Now that a decision has been made, the lawsuit can continue.
  • The text of the decision is available online in French.
  • This story was barely noticed by the media.  It occurred to us that, when presented with a disabled person who wants to die, Canadian society will bend over backwards to grant their wish and the media shout it from the rooftops. But when disabled people fight to improve the conditions under which they live, nobody seems to care.