{"id":4467,"date":"2019-09-27T12:47:12","date_gmt":"2019-09-27T12:47:12","guid":{"rendered":"https:\/\/tvndy.ca\/?p=4467"},"modified":"2019-10-02T12:57:00","modified_gmt":"2019-10-02T12:57:00","slug":"webcast-archive-details-on-the-truchon-decision","status":"publish","type":"post","link":"https:\/\/tvndy.ca\/en\/2019\/09\/webcast-archive-details-on-the-truchon-decision\/","title":{"rendered":"Webcast archive: Details on the Truchon decision"},"content":{"rendered":"<p><iframe loading=\"lazy\" width=\"1180\" height=\"664\" src=\"https:\/\/www.youtube.com\/embed\/LE8qlpFlw7Y?feature=oembed\" frameborder=\"0\" allow=\"accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture\" allowfullscreen><\/iframe><\/p>\n<p>In this episode of\u00a0<em>Euthanasia &amp; Disability<\/em>, Amy Hasbrouck and Christian Debray discuss:<\/p>\n<ul>\n<li>As promised, details of the Truchon decision<\/li>\n<li>The trial in the Lamb case is postponed indefinitely<\/li>\n<li>Plaintiffs suing Qu\u00e9bec over nursing home conditions win class status<\/li>\n<\/ul>\n<p>Please note that this text is only a script and that our webcast contains additional commentary.<\/p>\n<p><strong>AS PROMISED: DETAILS ON THE\u00a0TRUCHON DECISION<\/strong><\/p>\n<ul style=\"font-weight: 400;\">\n<li>This week we will try to explain the inexplicable by offering some more details on the\u00a0Truchon-Gladu decision.\u00a0 In the decision, issued on September 11, a Qu\u00e9bec superior court ruled that the reasonably-foreseeable death (RFD) eligibility requirement in the federal medical assistance in dying (MAiD) law, and the \u201cend-of-life\u201d criterion in Qu\u00e9bec\u2019s euthanasia statute, violated sections 7, 15 and 1 of the charter of rights and freedoms.\u00a0 Summarizing a 186-page, 770 paragraph decision in a few minutes won\u2019t be easy, but we\u2019ll do our best.\u00a0 Please remember that we are not legal scholars, so you should take our opinions with a generous helping of salt.<\/li>\n<li>Unlike in a jury trial, the\u00a0Truchon 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.<\/li>\n<\/ul>\n<p><strong>FINDINGS OF FACT<\/strong><\/p>\n<ul style=\"font-weight: 400;\">\n<li>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.<\/li>\n<li>The judge quotes at length from the doctors\u2019 descriptions of the plaintiffs\u2019 (M. Truchon and Mme Gladu) physical limitations and deterioration. She portrays both plaintiffs as people who have lived well \u201cdespite their disabilities\u201d but are now confronted with \u201ctotal dependence\u201d and \u201cunable\u201d to live independently.\u00a0 In other words, the judge confuses the plaintiffs\u2019 physical abilities with the effects of social policy.<\/li>\n<li>The court quotes medical professionals\u2019 consensus that the plaintiffs are not subject to \u201cexternal pressure\u201d based on the narrowest possible definition of that term; coercion or undue influence exercised by one person against another.\u00a0 The court could have defined \u201cexternal pressure\u201d 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\u2019t.<\/li>\n<li>Other \u201cfacts\u201d about the plaintiffs:\n<ul>\n<li>They are not suicidal;<\/li>\n<li>They have symptoms of depression, sadness and anxiety, but these are \u201centirely consistent\u201d with their situation;<\/li>\n<li>They are \u201cprisoners\u201d of their bodies.<\/li>\n<\/ul>\n<\/li>\n<li>The judge declared herself \u201ctouched\u201d by the \u201cdignity and modesty\u201d of M. Truchon, and the \u201ccourage and determination\u201d of Madame Gladu.\u00a0 We can\u2019t 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.<\/li>\n<li>The court\u2019s 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.\u00a0 She quotes from the\u00a0<a href=\"https:\/\/www.justice.gc.ca\/eng\/rp-pr\/other-autre\/pad-amm\/pad.pdf\">final report<\/a>\u00a0of the external panel on options for a legislative response to Carter v. Canada that \u201cvulnerability, in and of itself, must not preclude the expression and recognition of an autonomous choice to pursue physician-assisted death.\u201d However, she leaves out the part that says \u201ca request for physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person\u2019s suffering\u201d and the bit about \u201cenhancements to homecare could help alleviate some sources of vulnerability and suffering, potentially reducing some individuals\u2019 desire to seek physician-assisted dying.\u201d<\/li>\n<li>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.\u00a0 She dismisses as \u201ctheoretical\u201d or \u201cadministrative\u201d the opinions of all other witnesses who have studied AS\/E.\n<ul>\n<li>The court rejects the possibility that anyone could be euthanized who did not have a long history with the medical establishment.<\/li>\n<li>The judge talks about the requirement that the second doctor be independent of the first, neglecting to mention that Qu\u00e9bec eliminated that requirement by order of the Health Minister in 2017 because there were too many cases of non-compliance with that safeguard.<\/li>\n<li>In its description of the \u201ccrucial\u201d 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.<\/li>\n<li>The court does not talk about doctors engaging in a decision-making process.\u00a0 The judge seems to take the approach: \u201cis there any reason\u00a0not to provide euthanasia?\u201d<\/li>\n<li>Her description of the administration of euthanasia process is idealized.\u00a0 There is no discussion of last-minute jitters, adverse reactions to the drugs, delays or other complications, nor is assisted suicide even mentioned.<\/li>\n<li>The court accepts the testimony of Dr. Naud that doctors spend \u201c2 to 3 hours\u201d on paperwork after the procedure, but doesn\u2019t mention the errors, or the late and missing reports documented by Qu\u00e9bec\u2019s Commission on End-of-life Care.<\/li>\n<li>Finally, the court simply ignores the 4% non-compliance rate described in Qu\u00e9bec\u2019s Commission on End-of-life care in its April, 2019\u00a0<a href=\"https:\/\/tvndy.ca\/en\/2019\/04\/webcast-archive-the-summary-report-on-end-of-life-care-in-quebec\/\">summary report<\/a>, including 11 euthanasia of ineligible people, 55 violations of safeguards, and 134 cases that hadn\u2019t been reviewed.<\/li>\n<\/ul>\n<\/li>\n<li>The court says that the question of \u201cwho is a vulnerable person\u201d comes down to an individual evaluation of capacity, and that doctors know how to assess capacity.\u00a0 The court responds to the issues raised by\u00a0<a href=\"https:\/\/tvndy.ca\/en\/2018\/02\/webcast-archive-capacity-and-undue-influence-part-3\/\">Dr. Scott Kim<\/a>\u00a0as to the problems with capacity assessments by discrediting him; saying Dr. Kim\u2019s evidence is \u201cinsufficient or theoretical\u201d and that he is unfamiliar with AS\/E in Canada.<\/li>\n<li>The court summarizes its findings of facts:\n<ul>\n<li>Medical assistance in dying as practiced in Canada is a strict and rigorous process that, in and of itself, has no obvious weakness;<\/li>\n<li>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;<\/li>\n<li>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 &#8220;vulnerable persons;&#8221;<\/li>\n<li>The physicians involved can distinguish a suicidal patient from a patient seeking medical assistance in dying;<\/li>\n<li>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;<\/li>\n<li>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.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p><strong>APPLYING THE FACTS TO THE LAW<\/strong><\/p>\n<ul style=\"font-weight: 400;\">\n<li>The court starts with the question of whether the\u00a0Carter decision creates a constitutional right to MAiD, except that\u2019s not really the question the judge answers.\u00a0 The judge ends up talking about whether the RFD eligibility criterion is supported by other legal decisions.\u00a0 The court says the Carter decision didn\u2019t limit access to MAiD to people at the end of life, but was meant to enable people to \u201cavoid \u2026 a life of suffering.\u201d<\/li>\n<li>Next, the court looks at whether the RFD requirement violates plaintiffs\u2019 rights under Section 7 of the charter; the rights to life, liberty and security of the person.\n<ul>\n<li>The judge reminds us that the\u00a0Carter 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.\u00a0 The Truchon court decided that the RFD requirement had the same effect on people with disabilities by making them ineligible for MAiD.<\/li>\n<li>The court agrees with the plaintiffs\u2019 view that their liberty and security interests are also violated, because the RFD requirement \u201cimpinges on their freedom of choice and the exercise of their autonomy.\u201d<\/li>\n<\/ul>\n<\/li>\n<li>As stated in Section 7, people cannot be deprived of these rights\u00a0\u201cexcept in accordance with the principles of fundamental justice.\u201d\n<ul>\n<li>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\u2019s supposed to do, and has the minimum possible impact, then it\u2019s OK.<\/li>\n<li>In this case, the court finds that the RFD requirement goes so far beyond the objective of protecting vulnerable people that it has no \u201creal connection to the objective.\u201d<\/li>\n<li>The court says the RFD requirement is disproportionate in that it forces plaintiffs \u201cto continue their existence in suffering that is as intolerable as it is useless.\u201d<\/li>\n<li>\u201cThis requirement, therefore, creates a real obligation to live imposed by the state.\u201d<\/li>\n<\/ul>\n<\/li>\n<li>The judge then looks at Section 1 of the charter to see if it limits plaintiffs\u2019 Section 7 rights. Section 1\u00a0says charter rights are subject \u201conly to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\u201d\n<ul>\n<li>The test to be applied is similar to the principles of fundamental justice test, and the court reaches the same conclusion.<\/li>\n<li>The court accepts that the attorney general has met his burden of proving that the goal of protecting vulnerable people might be a \u201cpressing and substantial\u201d goal.<\/li>\n<li>(At this point you might be wondering: what about the goals of affirming the value of the lives of disabled people and preventing suicides?\u00a0 Well, the court disposed of those in its discussion of \u201cprinciples of fundamental justice\u201d by saying they were broad statements of societal values, rather than legislative goals, so they don\u2019t count.)<\/li>\n<li>The second part of the section 1 test asks if the means was \u201cproportional\u201d to the objective.\u00a0 First, there must be a \u201crational connection\u201d between the RFD criterion and protecting vulnerable people, which the court did allow. But the court found that, because it went beyond a \u201cminimal impairment\u201d of plaintiffs\u2019 rights, the RFD criterion failed the Section 1 test.<\/li>\n<\/ul>\n<\/li>\n<li>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.\n<ul>\n<li>At paragraph 655, the court rejects the Attorney General\u2019s position that the RFD requirement doesn\u2019t create a distinction because it affects all non-dying people equally, but doesn\u2019t really explain its reasons.<\/li>\n<li>The court further states that the RFD criterion \u201cdoes not take into account the specific situation, characteristics and actual needs of applicants in a way that respects their value as human beings,\u201c and \u201cperpetuates prejudice and disadvantage for &#8230; people with physical disabilities,\u201d because it assumes plaintiffs are incapable of making decisions about their lives.\u00a0 Once again, the court confuses a lack of choice with an inability to make a choice.<\/li>\n<\/ul>\n<\/li>\n<li>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.<\/li>\n<li>The court suspended the effect of its judgment for six months to allow Parliament and Qu\u00e9bec\u2019s National Assembly to bring their laws into compliance.\u00a0 The judge said changing the law shouldn\u2019t take long because all the possible legislative options were weighed when Bill C-14 was adopted. The court didn\u2019t mention of the substantial delay caused by the federal election.<\/li>\n<li>The court also allowed the plaintiffs an exemption from the suspension, meaning that they don\u2019t have to wait to be euthanized.<\/li>\n<li>The Attorney General has until October 11 to appeal the decision.<\/li>\n<\/ul>\n<p><strong>THE TRIAL IN THE\u00a0LAMB CASE IS POSTPONED INDEFINITELY<\/strong><\/p>\n<ul style=\"font-weight: 400;\">\n<li>The British Columbia Civil Liberties Association has announced that the trial in the\u00a0Lamb case, which was scheduled to take place in November,<a href=\"https:\/\/www.theglobeandmail.com\/canada\/article-bc-woman-challenging-reasonably-foreseeable-clause-in-maid-law\/?fbclid=IwAR0-2BsvrUoacdatMVogjVG3kPwUAk2dfQc38HvEaZYxH59SX-lTR4uEMyM\">\u00a0has been adjourned<\/a>. The constitutional challenge was filed in 2016.<\/li>\n<li>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\u2019s death could be considered \u201creasonably foreseeable.\u201d\n<ul>\n<li>Dr. Li cited<a href=\"https:\/\/tvndy.ca\/en\/2017\/06\/webcast-archive-ontario-superior-court-ruling\/\">\u00a0the A.B. case<\/a>, in which the Ontario Superior Court ruled that a \u201creasonably foreseeable\u201d death does not have to be imminent or predicted within a specific time frame.<\/li>\n<li>According to the\u00a0Globe and Mail, guidelines published by the Canadian Association of MAID Assessors and Providers also \u201cencouraged doctors and nurse practitioners to read the vague term broadly, with no specific measuring of how long a patient has left to live.\u201d<\/li>\n<\/ul>\n<\/li>\n<li>Shortly after the adjournment was granted, the Quebec Superior Court ruled that the requirement that the person&#8217;s natural death had become\u00a0<a href=\"https:\/\/tvndy.ca\/en\/2019\/09\/webcast-archive-quebec-court-decides-truchon-gladu-case\/\">\u201creasonably foreseeable\u201d\u00a0<\/a>was unconstitutional and should be removed.<\/li>\n<li>Upon hearing the news, Ms. Lamb said that the \u201cshadow\u201d which hung over her, and her fears of future pain and suffering, had been \u201clifted.\u201d Though she has no immediate plans to die, she is \u201crelieved\u201d to know that she now has the option.<\/li>\n<li>Ms. Lamb\u2019s condition has reportedly worsened since the claim was filed. Yet she has also married, traveled, and volunteered while being \u201csurrounded by supportive family and friends.\u201d 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.<\/li>\n<\/ul>\n<p><strong>PLAINTIFFS SUING QU\u00c9BEC OVER NURSING HOME CONDITIONS WIN CLASS STATUS<\/strong><\/p>\n<ul style=\"font-weight: 400;\">\n<li>A year ago, we discussed a class-action<a href=\"https:\/\/tvndy.ca\/en\/2018\/09\/webcast-archive-long-term-care-in-quebec\/\">\u00a0lawsuit<\/a>\u00a0filed 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\u2019t qualify for home-based assistance.<\/li>\n<li>The lawsuit claims that conditions at the facilities violate residents\u2019 rights under the law and the Charter. Some of the problems include:\n<ul>\n<li>Providing only one bath to residents per week;<\/li>\n<li>Excessive use of physical restraints, and using antipsychotic drugs to sedate residents;<\/li>\n<li>Not helping residents to use the toilet, and forcing them to wear diapers;<\/li>\n<li>Not taking enough time to assist people who have trouble eating, and;<\/li>\n<li>Waking residents in the middle of the night to perform personal care.<\/li>\n<\/ul>\n<\/li>\n<li>Before the suit could progress, the Quebec Superior Court had to decide whether the residents\u2019 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.<a href=\"https:\/\/www.journaldemontreal.com\/2019\/09\/23\/une-action-collective-de-pres-de-500-millions--contre-les-chsld\">\u00a0Now that a decision has been made<\/a>, the lawsuit can continue.<\/li>\n<li>The text of the decision<a href=\"https:\/\/soquij.qc.ca\/decisions\/fr\/51630472-1.doc\">\u00a0is available online<\/a>\u00a0in French.<\/li>\n<li>This story was barely noticed by the media.\u00a0 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.<\/li>\n<\/ul>\n   ","protected":false},"excerpt":{"rendered":"<div class=\"entry-summary\">\n<div class=\"entry-summary\">\nThis week, we have an analysis of the Truchon decision, and updates on the Lamb case &amp; Daniel Pilote`s class action suit.\n<\/div>\n<div class=\"link-more\"><a href=\"https:\/\/tvndy.ca\/en\/2019\/09\/webcast-archive-details-on-the-truchon-decision\/\" class=\"more-link\">Continue reading<span class=\"screen-reader-text\"> &ldquo;Webcast archive: Details on the Truchon decision&rdquo;<\/span>&hellip;<\/a><\/div>\n<\/div>\n<div class=\"link-more\"><a href=\"https:\/\/tvndy.ca\/en\/2019\/09\/webcast-archive-details-on-the-truchon-decision\/\" class=\"more-link\">Continue reading<span class=\"screen-reader-text\"> &ldquo;Webcast archive: Details on the Truchon decision&rdquo;<\/span>&hellip;<\/a><\/div>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[92],"tags":[590,121,583,589,588,53,594,582,118],"class_list":["post-4467","post","type-post","status-publish","format-standard","hentry","category-webcast-archive","tag-daniel-pilote-en","tag-euthanasia-disability","tag-gladu-en","tag-lamb-en","tag-madeline-li","tag-quebec-en","tag-scott-kim-en","tag-truchon-en","tag-webcast","entry"],"_links":{"self":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/4467","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/comments?post=4467"}],"version-history":[{"count":3,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/4467\/revisions"}],"predecessor-version":[{"id":4472,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/posts\/4467\/revisions\/4472"}],"wp:attachment":[{"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/media?parent=4467"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/categories?post=4467"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/tvndy.ca\/en\/wp-json\/wp\/v2\/tags?post=4467"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}