Law prof criticizes Bill C-7 medical assistance in dying for impact to physicians’ standard of care

Proposed amendments breach rights to life, equal protection of people with disabilities: Lemmens

Law prof criticizes Bill C-7 medical assistance in dying for impact to physicians’ standard of care
Trudo Lemmens is a professor at the University of Toronto Faculty of Law.

The proposed amendments to Canada’s medical assistance in dying legislation single out people with disabilities with privileged access to a medically-hastened death, thus depriving them of the safeguards against premature death afforded to other Canadians, says a law professor.

Trudo Lemmens, professor at the University of Toronto Faculty of Law and expert witness for the Attorney General of Canada in Truchon c. Procureur général du Canada, 2019 QCCS 3792, said that Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) transforms the life-ending procedure into a “broader therapy for suffering for people with disabilities,” accessible on the basis of consent and otherwise vague and subjective criteria, regardless of whether such individuals have years or even decades of life remaining.

Lemmens, who is also Scholl chair in health law and policy at the University of Toronto’s law school and a member of the Council of Canadian Academies Expert Panel on Medical Assistance in Dying, said that the proposed amendments would introduce “a radical procedure with a most serious irreversible harm,” namely death, without requiring the physician to agree that all other medical options for relief of suffering have been exhausted.

“The law has traditionally recognized the unique skills and knowledge physicians have, and the fiduciary relation between physicians and patients,” Lemmens said to Canadian Lawyer. “This brings with it special duties and obligations.”

The contemplated amendments will undermine the role of medical professionals, who pursuant to the concept of self-regulation are best placed to establish the proper medical standards, and will reduce them to service providers, Lemmens said. The change will likewise undermine physicians’ traditional obligation to adhere to evidence-informed standards of medical practice, he added.

“We pat ourselves on the back for being a human-rights respecting country, but Bill C-7 has been pushed through without proper consultation with those who are said to be the beneficiaries of this law (people with disabilities), and with provisions that violate their right to life and right to equal protection under the law,” Lemmens said.

Lemmens also lamented the lack of consultation with Indigenous communities and the lack of research on how these amendments may affect racialized communities. These communities may be particularly impacted by the broader access to medical assistance in dying, he said.

“It is difficult to find a more blatant example of a law that is being pushed through as an alleged ‘benefit’ for some Charter-protected groups, while the members of those groups massively tell the legislator that removal of an existing safeguard against premature death is discriminatory, stigmatizing, and will ultimately be fatal for some,” Lemmens said.

Two rapporteurs and one independent expert on human rights from the United Nations have cautioned Canada regarding the proposed legislation, which appears to breach international human rights norms and to adhere to the ableist presumption that living with disability or chronic illness amounts to a life less worth living. If passed, Canada will be the first country to make such a life-ending procedure a first-line treatment on demand.

Lemmens co-wrote an article titled “How Bill C-7 will sacrifice the medical profession’s Standard of Care” alongside Mary Shariff and Leonie Herx, which was published in Policy Options. The article criticized the proposed legislation, as drafted, as introducing a “stunning reversal” of the legal and medical concept of the standard of care and as misapplying the doctrine of informed consent.

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