Important points coming to light in the “assisted suicide” trial in British Columbia. Also revealed is the Canadian government’s strong anti-assisted dying bias.
Posted by Eric MacDonald
The last shall be first. For three hours, according to the Farewell Foundation’s report,
Canada argued that Dr. Angell should not be allowed to give evidence and that her affidavit was a work of advocacy thinly disguised as evidence.
Dr. Angell is the former Editor-in-Chief of the New England Journal of Medicine (described by FF (Farewell Foundation) as “the world’s top medical journal”) who is herself an advocate of assisted dying. However, Dr. Angell’s testimony went ahead, and Justice Smith (who is trying the case) ruled that
… she would not disqualify Dr. Angell for want of her impartiality, after all it would be difficult to find people who do not have views—the issue is more about the reflection, consideration, and openness of the witness to change her views and that Dr. Angell had demonstrated those qualities.
What, after all, would “unbiased” evidence look like? Evidence is going to trend in some direction or other. Evidence which ended up being suspended between contrary affirmations would scarcely count as evidence at all. It would look much more like either not enough evidence or indecision. But the attempt to rule out witnesses who are expected to give testimony in favour of assisted dying looks very much like “want of impartiality,” and convicts Canada itself of being biased.
Another interesting witness for the plaintiffs was Dr. Helene Starks, an Associate Professor of bioethics at the University of Washington, who has done research into legal assisted dying in Oregon and Washington states. The study found that the people who chose assisted dying were those who place
… high value on independence and the desire to control the future. This suggests that perhaps the patients most likely to be interested in a hastened death are those who are adamant about being in control and remaining independent.
When asked by the judge whether the demographic showed any “outliers”, Professor Starks said that in her findings (in the words of the FF report), “there were no patients who did not fit the type who wanted to maintain control and independence.” This is important witness to the fact that there is no evidence of a slippery slope in these two American states which have legalised assisted suicide. Of course, it is important to bear in mind that assisted suicide in Oregon and Washington is limited to those who have a terminal prognosis of six months left to live. Still, the research is a strong indication that slippery slopes are not inevitable.
Canada tried to put Professor Margaret Battin (University of Utah) on the spot by bringing up the example of her husband, who, as the result of an accident is a quadriplegic, and still wishes to go on living. But Battin, rightly, made short work of that palpable non-sequitur by pointing out that it is about choice. It simply does not follow from the fact that some quadriplegics might choose to die that all must be assumed to find life no longer worth living. This was the argument of the Spaniard Ramon Sampedro, whose campaign to change Spanish law is chronicled in the film The Sea Inside, when confronted by a quadriplegic priest, who claimed that, by choosing to die, Sampedro was affirming the worthlessness of the lives of all quadriplegics. The Archbishop of Canterbury, in his speech to the House of Lords in opposition to Lord Joffe’s Assisted Dying for the Terminally Ill bill, did the selfsame thing, arguing that the disvalue that someone attributes to his life because of such-and-such circumstances would devalue the lives of everyone in those circumstances and put their lives at risk. This is simply a non-sequitur. It doesn’t follow. Each person lives their own life, and each life is unique. What one person might find bearable another may well find intolerable. This is affirmed in Professor Stark’s research, who found that only a certain type of person would seek assisted dying.
At the same time that witnesses for the plaintiffs showed that assisted dying does not necessarily lead to slippery slopes, witnesses for Canada and British Columbia were largely discredited. Dr. José Pereira, for instance, whose Oncology Today paper I have already referred to, was, as the FF report says, “strongly discredited.” I could have told them that. It is one of the most biased papers that I have read — not counting those by people like John Keown or Leon Kass. And while Pereira claims that he is not a practicing Catholic and his religious views do not inform his position, the fact that he speaks at symposia for clergy arranged by Priests for Life raises some warning flags about the reliability of this claim. He is, however, a palliative care physician, and has special interest in seeing that his discipline is not bypassed. Indeed, he considers it necessary that anyone asking for assistance to die should be required to be assessed (twice!) by a palliative care professional. There are three things to be said about this. First, the kinds of suffering that are in need of palliative care, and which palliative care cannot completely allay, are precisely the kinds of suffering and indignity that people who choose assisted dying want to avoid. Second, there is not necessarily a conflict between palliative care and assisted dying. Palliative care may take people part of the way, and assisted dying the rest. And, third, there are degenerative conditions which may render a person in need of 24/7 nursing care, which would not qualify for palliative care, and yet might well invoke a desire for assisted dying.
Another witness for Canada and British Columbia is the well-known opponent of assisted dying John Keown. John Keown, who is Rose F. Kennedy Professor of Christian Ethics at Georgetown University (a Jesuit institution), and former lecturer in Law and Ethics of Medicine at Cambridge University, has a blog entitled Theology and Ethics, and has been well-known as an opponent of assisted dying, and in particular the Dutch practice of euthanasia, for many years. Based on the views of Richard Fenigsen, Polish by birth, who practiced medicine in the Netherlands as a cardiologist for some years, and is an inveterate opponent of assisted dying in any form. Indeed, it is clear that his “evidence” is deeply questionable. Jocelyn Downie, for instance, a Canadian expert in the law and ethics of assisted dying, in her book Dying Justice: A Case for Decriminalizing Euthanasia and Assisted Suicide in Canada, points out that much of Fenigsen’s “evidence” for the widespread use or abuse of euthanasia in the Netherlands depends on an equivocation in the use of the word ‘euthanasia’. It was pointed out to Dr. Pereira in the court proceedings that he calls ‘involuntary euthanasia’ what would be more accurately called ‘non-voluntary euthanasia’. Fenigsen, according to Downie, stretches the word even further to
… include the withholding and withdrawal of potentially life-sustaining treatment and the provision of potentially life-shortening palliative treatment in the term. 
In other words, not to put too fine a point on it, Fenigsen distorts the meaning of words to suit his own argument. Keown argues, largely on the basis of Fenigsen’s assessment of euthanasia in Holland, that there is growing support for non-voluntary euthanasia in the Netherlands, but, as Downie says, “no empirical data support the claim that non-voluntary euthanasia is increasingly accepted.” (116)
According to the FF report on Days 6-8 of the court proceedings in British Columbia, in a telling exchange between Keown and lawyers for the plaintiffs, Keown argued that regulation of euthanasia laws do not work:
He said that the Netherlands provides evidence of a slippery slope and that the Dutch have extended the criteria for euthanasia from voluntary to non-voluntary and involuntary. He has written that Dutch citizens have to “make it clear, when competent, if they do not want to be given a lethal injection should they become incompetent.”
However, counsel for the plaintiffs tried “to convince Keown that his statement was false, and that he knew it to be false when he wrote it.” However, “Keown insisted that he accepted his source, Dr. Richard Fenigsen.” This is very telling indeed, given Fenigsen’s deliberate obfuscation of the issue by using a very idiosyncratic notion of euthanasia.
In this connexion it is worthwhile pointing out some deliberately misleading text in Margaret Somerville’s book Death Talk. Somerville says this (the quote is from Fenigsen):
… it is interesting to note the allegation that “a majority of the same [Dutch] public that proclaims support for voluntary euthanasia … also accepts involuntary active euthanasia — that is, denial of free choice and of the right to live.” This statement is very disturbing, and, indeed, many statements by its author have been challenged. Nevertheless, it merits consideration. The claim that ”involuntary active euthanasia” is regarded as acceptable might be reflected in Dutch practice to a much greater degree than has, in general, been believed. 
Now, note how shifty and questionable this is. In a footnote to the quote, which many people will not read, Somerville says this:
144Ibid. [Fenigsen, "A Case against Dutch Euthanasia"], 23 . The term “involuntary active euthanasia” is probably not intended (at least I hope not) to include euthanasia despite someone’s refusal of euthanasia. Rather, it probably intends to allow the possibility of euthanasia on those unable to consent or to refuse consent for themselves. 
However, since Somerville herself uses ‘involuntary active euthanasia’ later in her own text, without explanation, her own text must be taken as deliberately misleading, if not positively dishonest. Dr. Pereira uses ‘involuntary euthanasia’ in the same way, and it is just as misleading in that context.
Indeed, in general, it seems, the case against assisted dying cannot be made without playing fast and loose with the evidence or the terminology involved. It is important that this very common practice of opponents of assisted dying be noted. For instance, there is zero evidence that so-called “vulnerable” people will be put at risk by the legalisation of assisted dying, and yet this is often the main argument against assisted dying by those who make it. Alex Schadenburg continues to point to Terry Schaivo as an example of this, which is simple nonsense, because Terry Schaivo was a brain-dead woman who had been kept in a state of suspending animation for many years. But, also, there are “vulnerable” people, like Ramon Sampedro, who do not want the avenue of assisted dying closed off, yet this group is being used by opponents of assisted dying as examples of those who are most at risk, despite lack of any evidence that this is so. Indeed, given the fact that the so-called “vulnerable” are being invoked every time assisted dying is opposed, any law legalising assisted dying would have to be specially careful that people in this group are not being put at risk, and there is no obvious reason why this cannot be done.
However, as I have said before, and as I will say again, as I bring this report to a close, it is simply preposterous that people who are suffering so much that they wish they were dead should pay the price for the risks involved in legalisation, by being denied the right to die. If there are risks, then these risks must be controlled for, but people should not be made to suffer intolerably simply because it is argued that some people might be put at risk. That is what is happening now, and it is not only a bogus argument to start with, but it is not something that people must be forced to pay with their suffering for the supposed risks involved in legalising assisted dying.