The Walter Gordon Symposium is an annual conference co-hosted by the School of Public Policy and Governance and Massey College. In the lead up to the 2015 Walter Gordon Symposium, students, speakers, faculty, and community members are invited to share their reflections on the theme of ‘Confronting Complexity’ in Canadian society. This year’s conference will take place on March 25 and 26, 2015.
Governments and public institutions confront complexity daily. This is the reason behind much policy development (and failure) and, arguably, government itself: when market forces and isolated interventions cannot negotiate society’s “wicked problems”, it is the role of public institutions to determine the best course of action. The “best” does not refer to a silver bullet solution waiting to be discovered, but rather to a way forward that will lend equitable consideration to the interests and resource constraints of the parties involved, while preserving respect and dignity for both the community and the individual. Policy judgments are never final, apolitical, or simple.
The complexities of government responsibility came into sharp relief when I read the following headline earlier this month: “Supreme Court says yes to doctor-assisted suicide in specific cases.” I thought of the Sue Rodriguez case, and remembered Quebec tabling right-to-die legislation. Doesn’t health care fall under provincial jurisdiction? Does the government have to do what the Supreme Court says? I turned to Google, reading news stories, opinion pieces, and analysis, trying to grapple with the implications of this particular ten-word headline.
My response in this case is worth considering: no matter how complex the decision-makers’ task, the public will form opinions about the issue, the players, and the stakes through media coverage. What narrative will commentators create? What aspects of the story will the media highlight and which nuances will be lost in public discourse? However the Harper government chooses to proceed following the Supreme Court’s decision, it will have to navigate historical relations and determine the appropriate level of government involvement in professional practice, family life, and personal choice. And they will do it in a culture of fiscal and political transparency that — particularly in an election year — demands openness, accountability, and information in the form of a sound bite.
Physician-assisted suicide sits at the intersection of health care, medicine, self-determination, and civil liberties. The Supreme Court has ruled that competent adults with a “grievous and irremediable medical condition” may consent to a doctor’s help in dying, given specific conditions. The Justices unanimously found that respect for an individual’s choice of response to an unbearable, terminal medical condition is a matter of dignity and autonomy – and that a prohibition on doctor-assisted suicide therefore violates the Charter’s section 7 rights to life, liberty, and security of the person and section 15 equality rights of the physically disabled.
Various jurisdictions, including Quebec, Oregon, Belgium, the Netherlands, and Switzerland permit physician-assisted suicide or euthanasia (subject to certain restrictions), with other American states, including Colorado and California recently broaching the issue. Before the recent ruling, physician-assisted suicide in Canada carried a maximum sentence of 14 years in prison. The Supreme Court has now given the federal government 12 months to create new legislation.
By my estimate, the Harper government has three options: draft a new law regulating end-of-life care; do nothing and let the provinces create legislation; or invoke the notwithstanding clause, suspending the Supreme Court’s ruling for six months. Legislation, whether federal or deferred to the provinces, is in itself complex and will have to consider a broad cast of characters. The authority of the judiciary over the legislature is an important check on government power, but also an unelected influence over policymaking. Recent high profile divergences between the Supreme Court and the Harper government and majority public support for physician-assisted suicide constrains and informs the realm of possible government response, particularly as the 2015 federal election approaches.
Jurisdiction is also important when considering authority over health matters. While the Court has determined that both the federal and provincial governments could legitimately legislate on the issue of physician-assisted death, provinces will likely have to bear the bulk of fiscal and political costs of implementation. Finally, although perhaps most importantly, any action must appropriately navigate the tension of political power in both professional and personal decisions. The Court’s ruling allows professional regulatory bodies to determine the extent to which doctors must provide end-of-life services. The College of Physicians and Surgeons of Ontario have already begun drafting policy that will compel doctors to either participate or to refer the patient to a doctor willing to help. The Canadian Medical Association (CMA) has asked for more clarity on the extent of permissible doctor action.
This is where the media is crucial. Individual politicians, seriously ill patients and their families, advocacy and religious groups on both sides of the issue, and individual healthcare professionals all have strong views on this issue. How the media marshals evidence, presents the information, and distills these thoughts and opinions will ultimately determine how individuals deploy their biases, knowledge, and experience to interpret it.
Canadians are in much the same position as the federal government, as the Supreme Court ruling forces the taking of sides on an irreducible issue. Headlines such as “Who does the killing?”, articles on individuals volunteering to be the first patients to benefit from the new law, and political quarrels over the structure and extent of public consultation on the issue – all with more or less robust polls presented as evidence – indicates a healthy culture of media freedom and public debate. But it also distills a complex, nuanced issue into political stances, competing scientific claims, and appeals to emotion.
Policy-makers navigate complexity every day. Government must mediate between social wellbeing and scarce resources, and the task becomes even more complicated in a high-profile case with life and death consequences. In responding to the Supreme Court’s ruling on physician-assisted suicide, the Harper government has said it will not invoke the notwithstanding clause and will not seek an extension on the 12 month time frame given to act. In consultation with the public, experts, and relevant stakeholders, there will be new legislation by 2016, be it provincial or federal. With knock-on consequences for individual rights, medical practice, and the next elected government, careful consideration and deep public understanding of this issue is crucial. Media portrayals of the relevant positions will pose the most complex task of all for policymakers: confronting simplification.
Sarah Wilson is a 2015 Master of Public Policy candidate at the University of Toronto’s School of Public Policy and Governance. Her policy interests lie in social policy, affordable housing, and systems collaboration.