Overcoming impediments to medically assisted dying: A signal for another approach?

By Juergen Dankwort.

The proposal to provide assistance with voluntary assisted dying (VAD) has grown significantly over the past two decades at an accelerating rate. Right-to-die movement societies and organizations now number over 80 from around the world, 58 of which are members of the World Federation of Right to Die Societies. However, most are also increasingly beset with formidable challenges opposing their advances that raise profound ethical, moral and legal considerations.

The prevalent approach towards VAD

A review of these assisted dying regimes show how they were set up through legislative acts often resulting from initial court challenges to an existing assisted dying prohibition within that country’s criminal code. They reveal a common paradigmatic model whereby the criminal act remained intact with amendments added establishing a legislated framework to allow a service under specifically designated conditions and exempting the providers from punishment.

Generally, the legal criterion for accessing such a medically-centred service requires a person to be suffering intolerably from an existing, irremediable condition defined within legislated parameters, establishing who may access them, best practices, where and when they can be done, and who may perform them.

While not alone, Canada’s often-vaunted medically assisted dying regime (also known as MAID), implemented in 2016, is exemplary of this development with attendant massive challenges facing it. Its formulation illustrates an attempt to balance a previously court-declared constitutional right to life, liberty and security of the person with a perceived societal harm resulting from a state-sanctioned service to assisted dying.

Such legislated regimes have since been challenged legally numerous times by persons refused access, while featuring alarming stories in the media when access was sought and granted. A backlash to VAD has gained recent traction.

Traditional assisted dying opponents, including the orthodox religious, some disability groups, and conservative politicians who often troll to their populist base, are joined by additional academics and some physicians, providing more legitimacy with compelling arguments at stopping any wider access to a state-initiated and financially-covered national health service.

Germany breaks tradition

In a remarkable judgment by the German Federal Constitutional Court in February 2020, regarding assisted suicide, a ground-breaking option for any country or jurisdiction contemplating the creation of an assisted dying regime was identified that may well avoid much of the controversy and many of the challenges faced by existing ones. It does so by revealing a pathway to set up the service based on an entirely different orientation and approach from the existing one that began decades earlier in Europe, and later largely copied by others.

The German Court’s ruling stated for the first time that matters of quality of life and degrees of suffering are wholly subjective and that governments should therefore not prescribe nor proscribe assisted dying access based on categories of populations defined by such individually-experienced life-determinants because such restrictions would violate entrenched principles regarding personal autonomy and the liberal foundation separating state and personhood in pluralist societies. A VAD regime built on this premise could then also avoid all expressed objection to assisted suicide, no longer based on those normative criteria.

A recent study out of Europe contrasting two ways of how assisted dying services function, detail the actual process deciding for whom and when the service may be administered and who can perform it. The legislated regime of Belgium – a model used for Canada’s – was compared with the process in Switzerland.

Importantly, no legislated system was erected in Switzerland that specifies through amendments or exceptions how, when, by, and for whom it may be done. It has remained unlawful for decades with the simple caveat if it is done to exploit another vulnerable person. Several salient differences were observed by the researchers that also reveal the challenges presently facing existing VAD regimes. The Swiss model featured:

  • less hierarchical structure in decision-making,
  • less institutionalized through legislation,
  • less subject to resulting cultural and political opposition,
  • unencumbered by delays to service based on lengthy court decisions regarding eligibility, best practice, who was authorized to perform the service,
  • more pliant as the normative decisions for service provision and administration could be determined by those immediately implicated on a case-by-case basis in line with changing health determinants.

While claims that Canada has become the wild west for assisted dying with catastrophic consequences is arguably exaggerated given its stringent access requirements, it is nevertheless exemplary of a heightened political drama resulting from the path it took historically that set it on its stormy course.

That begs the question if the many countries and jurisdictions now considering a VAD gateway might not consider taking a different route illustrated by the current Swiss way, recently given a legal foundation by its European neighbour.

Though convincing evidence is still lacking on how expanding assisted dying allegedly leads to a slippery slope of harming the most vulnerable, as reported by some right-to-die societies and as shown in studies, opposition and barriers to it will likely invite more impulsive, desperate suicides that may traumatize and endanger friends, family, and first responders.

 

Author:  Juergen Dankwort

Affiliations: Associate, University of West Virginia Research Center on Violence

Competing interests: Member, Right to Die Society of Canada; Supporter, World Federation of Right to Die Societies; Coordinator, Canada chapter, Exit International.

Declaration:

The author was not paid by any organization, group, government or individual in conducting research for and writing this article.

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