Watchdog calls for 'compassionate' parole as prison system adopts new assisted death policy
Report shows many requests from terminally ill inmates for special parole are rejected
The federal prison watchdog is urging more "compassionate" parole options and a ban on medically assisted death behind bars as Canada's prison system manages an increasingly sick, mentally ill and elderly inmate population.
Correctional Investigator Ivan Zinger said new guidelines brought in on November 29, 2017 allow the prison system to act as a "facilitator or enabler" of death, breaching the system's legal and ethical obligations.
In a Feb. 12, 2018 letter to acting Correctional Service Canada Commissioner Anne Kelly, Zinger condemned the new policy, insisting that terminally ill inmates should be given conditional release on "humanitarian and compassionate" grounds.
"Practically and perceptually, I simply can not imagine a scenario where it would be considered acceptable to allow an external provider to carry out a MAID (medical assistance in death) procedure in a federal penitentiary," he wrote in the letter, obtained by CBC News through an access to information request to his office.
"I do not see how such a decision could be publicly defended by the service or minister, on any ground."
Under the CSC's new directives, an assisted death is to be carried out in a community hospital or other facility — but the procedure can take place in a penitentiary regional hospital or treatment centre in exceptional circumstances and at the request of the inmate.
CSC told CBC News it has received eight requests related to MAID and, to date, three inmates have been approved for medically-assisted death — though not all three have completed the procedure. Two of the inmates were already living in the community.
In his letter, Zinger said the first documented case of a federal inmate receiving MAID occurred recently, with two correctional officers helping to escort the inmate to the hospital where the procedure took place.
He said he believes the parole system needs to be changed to accelerate requests from dying inmates, while the federal government should consider legislative reform to include medical parole. Most terminally ill inmates don't pose a danger to public safety, he said — and if there is a risk, it can be managed.
"If it serves no public safety purpose, if it's costly and if it is an affront to human dignity, you should probably change the system to make it more responsive," he told CBC News.
A prisoner's 'right to die'
Medical assistance in death was legalized in Canada in 2016, leaving advocates, health professionals, lawyers and academics dealing with a range of ethical questions, including a prisoner's right to die.
Zinger said assisted deaths should occur only outside correctional facilities and should be performed by registered health care providers operating outside of the prison system. A prohibition on assisted dying within prisons, he said, would protect the integrity of the system now and in the future, when eligibility for assisted death could expand to those suffering from acute psychiatric illnesses.
The prison ombudsman's concerns come on the heels of a special report from CSC on deaths in prison.
It found 254 inmates died of natural causes over the last seven years, and that cancer, heart attacks and respiratory illness were the leading causes of death. Half of those who died while incarcerated also had a mental health disorder.
Most were white, and serving life or indeterminate sentences for homicide or other violent or repeat offences.
Among the offenders who died in prison, 88 had applied for "parole by exception," which allows for release into the community on compassionate grounds.
They were denied, deemed ineligible or died before a hearing or decision in their cases. Three who were granted parole found no available bed in the community, according to the report.
Offenders who were successful in obtaining a parole by exception for palliative care reasons and died in the community were not included in the report.
Catherine Latimer, executive director of the John Howard Society of Canada, said the bureaucracy needs to speed up the process and ease restrictions to allow dying inmates to spend their final days in the community. While palliative care is offered in prison, she said family members have limited access and health workers are "cautious" when it comes to administering pain medication in prisons.
She said some have described it as a "horrifying experience."
"It's totally unnecessary and lacks compassion and humanity," Latimer said. "It's better that people die in community-based palliative care centres rather than the institution. They're not designed for it."
Inmates also should have the right to obtain a humane physician-assisted death in a timely manner, if that's what they want, she said.
According to the CSC research report, there were 132 non-natural deaths in prisons over the seven-year period studied. The report noted that while the number of deaths by suicide in prison has been declining, the number of overdose deaths — increasingly caused by the opioid Fentanyl — is on the rise.
Adelina Iftene, a prison law expert at Dalhousie University, said the existing prison and parole system was designed for a younger, healthier demographic and is not equipped to manage old and dying offenders. Conditions for compassionate release are too stringent and should not apply to people who are dying, she said.
Because care for chronic and terminal illness is "extremely inadequate," she said she worries a growing number of inmates will choose assisted death as a "way out" to escape pain.
Assisted death default
"I don't really think we can talk about meaningful, voluntary consent when somebody's giving it from behind prison walls without the option of choosing palliative care," she said.
Iftene, who worries assisted death could become the "default" option for offenders, said she believes CSC policies and parole provisions will end up being tested in court through a legal challenge on constitutional grounds.
CSC spokeswoman Stephanie Stevenson said offenders are provided with end-of-life health care, including palliative services that aim to help them live their remaining time in dignity and with measures to alleviate suffering. Palliative care in the institution includes assistance from volunteers, clergy and palliative care specialists from the community, while nurses are available 24 hours a day in a CSC regional hospital, she said.
Dale Huxtable said her brother David was given his fatal cancer diagnosis in an Ontario prison about one month before his death, after more than a year of excruciating pain.
The family tried to get him out on parole before his death so he could die surrounded by loved ones, but he was only allowed to go to a hospice the day before he died in 2012.
"This was deeply saddening as we would have loved to have more quality time with him before he passed away," Huxtable said.
She is now circulating a petition urging the Liberal government to improve conditions for inmates with chronic or terminal illnesses.