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Abilities Magazine
| September 29th, 2004 | |
The ForumCouncil Of Canadians With DisabilitiesSummer 1997. Issue 31: pp. 40-41 Forumby Jim Derksen Bill S-13, a Private Member�s Bill written by the Honourable Senator Sharon Carstairs, is subtitled: "An Act to amend the Criminal Code (Protection of Health Care Providers)." It may surprise some to know that people with disabilities are alarmed by this bill, since it has been put forward simply to protect health care providers from criminal liability by clarifying the law in regard to certain medical practices. In fact, the mover of the bill argues that the health care practices in question are already well accepted, and legal. In her letter to the Council of Canadians with Disabilities (February 26, 1997), Senator Carstairs writes: "The withholding and withdrawal of life-sustaining treatment at the request of a patient and the alleviation of pain is accepted by the Canadian Medical Association as good medical practice and, under Canadian common law jurisprudence, is legal." Senator Carstairs also writes that the bill is designed to protect "those health care providers who are hesitant to follow the wishes of a patient because they fear criminal liability..." In the same letter, Senator Carstairs proposes that her bill will provide persons with disabilities with more protection than they currently have under common law through the articulation of guidelines in Subsections 45.1 (1), (2), and (4). Why, then, are we not comforted by these assertions? Since our sensibilities and perceptions are, of necessity, informed by experience, our concerns in this matter are perhaps best understood in light of our unique history as people with disabilities. Most disturbing is our widespread, and often repeated, experience of denial, deprivation, exclusion and harm at the hands of people naming their motivation as compassion, and claiming to act in our best interests. In more concrete terms, this experience ranges in this century from our segregation in educational and residential institutional settings to the imposed sterilization of many throughout the world, to the outright killing of hundreds of thousands in Nazi Europe. We are very aware these murders were rationalized as kindness and called "euthanasia." We are disquieted that while the Holocaust in a general sense is known to most people, very few people are aware of its roots in the murders of persons with disabilities. Our common experience, as persons with disabilities, of hearing other people declare that they would rather be dead than living with our disabilities, has made us very aware of how many in Canada today are convinced that our quality of life is poor to the point of unbearable. We value our lives as others value theirs. Is it difficult to understand why people with disabilities might be apprehensive about the current promotion by medical bioethics of allocating scarce health care resources to those perceived to have better quality-of-life potential? We cannot help noticing that Subsection 45.1 (1) (a) of the proposed bill protects the health care provider who "administers medication in dosages that might shorten the life of a person, with the intention of alleviating or removing the physical pain of that person." This subsection operates without any protection for the patient, or any requirement that the patient be informed of the dangers of, consent to or request such medication. It simply protects the health care provider. This might not overly concern us if it were not for the general belief that our lives are of lesser value, compounded by the equally mistaken, but also common, belief that we experience agonizing pain because of our disabilities. Subsections 45.1 (3) (a) and (b) also operate in our "best interests" by requiring that the patient who requests the withdrawal or withholding of life-sustaining medical treatment be a competent person, capable of making a free and informed health care decision, who "is suffering from a life-threatening condition." Is it wise to use such a broad term as "life-threatening condition" to delimit the circumstances in which such a request could be acted upon? Many disabilities occur as a result of chronic conditions such as the muscular dystrophies or multiple scleroses which, often after many good years or decades of slow progression, can result in death. Would these disabling conditions be considered "life threatening" even in their early stages? In fact, Subsection 45.1 (3) (b) extends eligibility to request the withdrawal or withholding of life-sustaining medical treatment to persons who are "anticipating a life-threatening condition." Untreated pneumonia may well kill, and this is as true for people with disabilities as for others. A plain understanding of language would suggest that pneumonia itself is a "life-threatening condition." Since we already have the right to refuse medical treatment, why should we concern ourselves with such a broadly worded criterion? This is answered by the most frightening part of the bill, Subsection 45.1 (4), which redefines the "request" for withdrawing or withholding life-sustaining medical treatment. The request, in fact, may legally be made in writing by someone other than the person whose life is in question. This would represent a great danger to persons with disabilities, if the bill should be passed into law. Third parties who may make this life-terminating decision are: "(a) a proxy appointed under the laws of a province to make health care decisions on the person�s behalf, (b) if no proxy has been appointed, by the legal representative of the person, or (c) if there is no proxy and no legal representative, by the spouse, companion or relative who is most intimately associated with the person." This may seem reasonable to many, since the option would only be available when a person was not competent and had not, while competent, made a request in writing. But since this bill also defines "competence" as capacity to communicate the health care decisions to be made, this will likely not seem so reasonable to the many persons with communication disabilities who may not be able to articulate their decisions to everyone�s clear satisfaction. In addition, many people with disabilities (here we must recall the broadly worded criterion, "anticipating a life-threatening condition") are already determined under law not to be competent because of their disabilities. Public trustees, public guardians and other substitute decision makers, many of them government officials, are already legally appointed under provincial laws to make health care decisions on behalf of persons determined not to be competent. The spectre of persons today who express their desire to continue living, are overruled by their legally appointed proxies and thereby die because life-sustaining medical treatment is withheld or withdrawn would offend and horrify most persons in our society. Opinions may vary on the likelihood of such scenarios. Perhaps many people, without the experience of disability, are convinced that good will and, perhaps, values respecting self-determination and life prevail and prevent these shocking occurrences. People with disabilities, on the other hand, having experienced the dangers of compassion, and the entrenched, prevailing misperceptions concerning our quality of life, may well expect such scenarios. It must be remembered, the intent of this bill is not to change the morality of people; it is to protect health care providers from criminal liability in the withholding or withdrawing of life-sustaining medical treatment. In Senator Carstairs� letter, she twice tells us that her bill facilitates withdrawal or withholding of life-sustaining medical treatment for persons requesting it. What she doesn�t say is that Bill S-13 facilitates death for persons who have not requested it but have had it requested on their behalf, with or without their concurrence. The life of the person appears to depend on the moral behaviour of the persons empowered, in the bill, to request the life-terminating medical decision. Certainly, we would all like to think our legal representative, spouse, companion or relative most intimately associated with us would always act in our best interests and with knowledge of and respect for our wishes. The variation and frailty of human nature, however, have taught our society to value the protection of the law, as embodied in the Criminal Code. This bill effectively eliminates the Criminal Code protection, for certain classes of persons, from having their lives terminated through medical decisions. And Subsection 45.1 (6) hammers this home by giving the proposed new Criminal Code section paramountcy over any other provision of the act. Svend Robinson�s Private Member�s Bill in the House of Commons, Bill C-304: An Act to Amend the Criminal Code (Aiding Suicide), would have protected the qualified medical practitioner from criminal prosecution for assisting a terminally ill person to commit suicide. While this bill appears to differ from Senator Carstairs� Bill S-13, its effect was likely to have been very much the same. Morphine overdose, whether administered with the stated intention of alleviating pain, as in S-13, or in response to a request for assisted suicide, as in C-304, have the same result: death for the patient. Both bills would provide the physician with much responsibility and discretion but protect him or her from criminal liability. Mr. Robinson�s bill died on the order paper on March 6, 1997. At the time of this article�s writing, there is every reason to think that Senator Carstairs� Private Member�s Bill will share the same fate. These bills are a testing of the waters, a scouting mission to flush out the support and opposition for future legislation protecting doctors from criminal liability for deliberate actions resulting in the death of their patients. Our history as persons with disabilities tells us we have most to fear from such legislation. The lives we hold precious are threatened, and we must speak out in the debate that was begun. (Jim Derksen was one of a handful of visionaries behind the establishment of several grassroots disability organizations in the �70s, including the Council of Canadians with Disabilities (CCD). He was also one of the principal architects of Canada�s Independent Living movement. Lately, Jim has written much on euthanasia, assisted suicide and related topics as they affect persons with disabilities. He lives in Winnipeg, Manitoba.) SAM FILER�S STORY "I went into respiratory failure while in hospital in January of 1989. The doctors would not allow Toni into my room because they, in their mercy, didn�t want her to watch me die. We thank them for that. What we don�t thank them for is their reluctance to proffer to her, except under extreme duress, an alternative to my death. Six attending physicians encircled her, offering assurances that it would be inhuman not to let me die with dignity; that my care would become financially ruinous; that we had an infant at home to whom Toni owed her devotion; that there is, not could be, but is, no quality of life once ventilated; and that Toni had 10 minutes within which to make the decision." (Justice Sam Filer�s wife, Toni Silberman, insisted on the ventilator. Now, eight years later, Justice Filer continues to live a happy and full life, both personally and professionally.) COUNCIL OF CANADIANS WITH DISABILITIES 926-294 PORTAGE AVENUE WINNIPEG, MANITOBA R3C 0B9 TEL: (204) 947-0303 FAX: (204) 942-4625 E-MAIL: [email protected] WEBSITE: http://www.pcs.mb.ca/~ccd/
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