The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium's Euthanasia Regime for the Canadian Post-Carter Era

in Catherine Regis, Lara Khoury & Robert Kouri, eds., Les Grands Conflits en Droit de la Santé [Key Conflicts in Health Law] (Cowensville: Yvon Blais, 2016) 261-317.

29 Pages Posted: 26 Feb 2016 Last revised: 2 Jun 2017

Trudo Lemmens

University of Toronto - Faculty of Law

Date Written: February 18, 2016

Abstract

With the Carter case, the Canadian Supreme Court invalidated Canada’s criminal law provisions prohibiting Physician Assisted Dying (PAD), but it gave the federal and provincial legislators an opportunity to create a regulatory structure around the practice aimed at protecting people who are vulnerable. An influential Provincial Territorial Advisory Group immediately recommended the introduction of a regime that would be more lenient and open-ended than Belgium’s, which is currently arguably the most liberal regime. This chapter shows why the federal parliament can and should respond by introducing an exceptional regime, based on the criminal law, that allows PAD only in narrow circumstances, under strict conditions, and with appropriate prior review. The strong pressure to create a Belgian-style regime makes it crucially important to understand what is happening in real life in a system that combines open-ended access criteria with a reliance on competency and informed consent assessment by individual physicians, and only limited post-factum reporting and evaluation. Following an overview of the key features of the Belgian system, the chapter discusses key evidence and relevant case reports to highlight some of the problematic features of this system. The author concludes with a call for the introduction of an exceptional regime, situated within the criminal law, which combines rigorous review and prior authorization with post-factum reporting.

Keywords: Euthanasia; Physician Assisted Dying; End of LIfe; Life, Liberty and Security of the Person; Vulnerability; Charter of Rights and Freedoms; Human Rights; Mental Health; Competency; Informed Consent

Suggested Citation

Lemmens, Trudo, The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium's Euthanasia Regime for the Canadian Post-Carter Era (February 18, 2016). in Catherine Regis, Lara Khoury & Robert Kouri, eds., Les Grands Conflits en Droit de la Santé [Key Conflicts in Health Law] (Cowensville: Yvon Blais, 2016) 261-317.. Available at SSRN: https://ssrn.com/abstract=2734543

Trudo Lemmens (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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