Here we offer out own critique of Canada’s proposed amendments to MAID.
BACKGROUND
Truchon and Gladu v. Canada (Attorney General) and Quebec (Attorney General)
In June 2017, two plaintiffs, challenged Quebec’s and Canada’s MAID legislation, claiming that it is too restrictive because it reserves ‘assisted dying’ for those who are terminally-ill /their death is ‘reasonably foreseeable,’ only. The first plaintiff, Jean Truchon had cerebral palsy (he has since received MAID) and the second, Nicole Gladu, has post-polio syndrome.
In September 2019, the Superior Court of Quebec ruled in favour of Truchon and Gladu, concluding that the restriction of MAID to those who were nearing the end of life only, to be unconstitutional.
This landmark ruling formed the prologue to Bill C-7 which seeks to relax Canada’s MAID law, in a number of ways.
ELIGIBILITY
Removal of terminal illness qualification
The major proposed change to MAID legislation is that a major qualification regarding eligibility has been removed, as a result of the Superior Court’s judgement.
Current legislation stipulates that in order to be eligible for MAID the applicant must have a ‘grievous and irremediable condition’ and that their death must be ‘reasonably foreseeable.’
However, Bill C-7 stipulates quite clearly that “Parliament considers that it is appropriate to no longer limit eligibility for medical assistance in dying to persons whose natural death is reasonably foreseeable and to provide additional safeguards for those persons whose natural death is not reasonably foreseeable.”
Therefore, the new proposed criteria for MAID is as follows:
The applicant must….
-be 18 years of age or older
-be eligible for health services funded by the federal government, or a province or territory
-be able to make health care decisions for themselves
-make a voluntary request for MAID that is not the result of external pressure
-give informed consent after they have received all of the information they need to make their decision, including their medical diagnosis, available forms of treatment, and available options to relieve suffering (including palliative care)
-have a “grievous and irremediable medical condition,” meaning that a person:
has a serious and incurable illness, disease or disability
is in an advanced state of decline in capabilities that cannot be reversed
experiences unbearable physical or physiological suffering from an illness, disease, disability or state of decline that cannot be relieved under conditions that the person considers acceptable
The removal of the criterion that death must be reasonably foreseeable is highly significant and would mean that Canada has one of the most controversial assisted dying regimes in the world, bringing it closer to Belgium’s model, which also allows euthanasia for people who are not terminally-ill.
The latest official biennial report from Belgium states that as a percentage of the number of deaths recorded in Belgium as a whole, in 2003, euthanasia accounted for 0.2 per cent of nationwide deaths and by 2017, this figure stood at 2.1% of all deaths. This represents a significant increase in cases, thanks to the wide interpretation of Belgium’s law, which means that a vast range of illnesses are approved in practice.
Should Bill C-7 become law, the potential range of different conditions which could be cited in order to qualify for MAID, is vast. Among them are adults with severe diabetes, Parkinson’s, the early stages of motor neurone disease, early dementia, liver disease and heart disease to name a few.
The loose wording of C-7 and the experience of jurisdictions such as Belgium which regularly allows euthanasia on the vague grounds of ‘multiple pathologies,’ suggests that such a scenario is a serious possibility.
Mental illness
Before Bill C-7 was presented to the Canadian Parliament a public debate was ongoing concerning whether MAID should be extended to those who are mentally-ill. The possibility of allowing people who were likely to lose capacity as a result of their illness, to make an advance request for MAID was also being discussed.
However, Bill C-7 does in fact state that in its summary that “persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying” making it clear that psychiatric illnesses are not covered under this new legislation.
However, the Bill also contains a crucial caveat which states in its preamble:
“Further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness in light of the inherent risks and complexity of the provision of medical assistance in dying in those circumstances;
“And whereas the law provides that a committee of Parliament will begin a review of the legislative provisions relating to medical assistance in dying and the state of palliative care in Canada in June 2020, which review may include issues of advance requests and requests where mental illness is the sole underlying medical condition.”
In other words, allowing MAID solely for psychiatric conditions has certainly not been ruled out.
SAFEGUARDS
While Bill C-7 appears to introduce tighter safeguards in order to better regulate MAID cases where the individual is not terminally-ill, it also loosens protections for those applicants who are expected to die in the near future.
i) Applicants whose deaths are not reasonably foreseeable
-the request for MAID must be made in writing, once they have been informed that they have a “grievous and irremediable condition” and it must signed by one independent witness [1]
-the applicant must be aware that they can withdraw their request at any time, in any manner
-two independent doctors or nurse practitioners [2] must assess the patient and confirm that all the eligibility requirements are met and one of them must have expertise in the medical condition which is at the root of the patient’s suffering
-the patient must be aware of all the avenues available to relieve their suffering including counselling services, palliative care and so on
-the patient and practitioners must have discussed these avenues and be satisfied that the applicant has seriously considered them
-the eligibility assessment must last a minimum of 90 days unless the applicant for MAID is expected to lose capacity before that time
-before MAID is administered the practitioner involved must give the patient the opportunity to rescind their request
There are a number of potential problems with the safeguards which have been devised for those applicants who are not terminally-ill and who wish to receive MAID.
For example, the caveat that the two practitioners who approve the request for MAID, must be ‘independent’ is widely open to interpretation.
Although the current law seems to safeguard one of the assessors by stating that they should not be mentored or supervised by the other, it is still possible for informal power dynamics to exist where two professionals both work, especially if one is a doctor and the other a nurse practitioner. The law emphasises that neither party should be connected to the other in a way which might ‘affect their objectivity’ but there is no reliable monitoring system in place to properly scrutinise whether this is the case or not. It is easy to see how two colleagues, highly sympathetic to MAID, might establish a professional understanding through which they regularly approve patients for lethal medication, with no real scrutiny of how truly ‘independent’ they are of each other.
Furthermore, the law states that one of the assessors must have ‘expertise’ in the patient’s underlying condition but does not elaborate on what this means. Does it mean for example, that they have trained for a minimum number of years in the relevant area of medicine? Or is it simply enough that, on occasion throughout their medical career, they have previously been involved with caring for patients with the underlying condition, from time to time? One may have gained reasonable experience in an area of medical practice but this doesn’t mean that they qualify as an ‘expert’ in that particular field.
The new safeguard to Canada’s MAID Law, contained in Bill C7 is the requirement that the applicant’s assessment must last a minimum of 90 days which is just over 3 months. This may seem like a lengthy period but in the context of receiving a potentially shattering diagnosis, such as MND or paraplegia following a serious accident, it is a relatively short period in which to make a life and death decision.
Coming to terms with a radical change to one’s everyday living is not a process which is likely to resolve in the space of 90 days and therefore leaves those people who are initially devastated by their condition, highly vulnerable to making a fatal decision in haste without having undergone counselling or explored available avenues to maximise quality of life.
ii) Applicants whose death is ‘reasonably foreseeable’
-the patient must make a written request for MAID but it only requires the signature of one independent witness and this witness is allowed to be a paid professional or healthcare worker involved in the care of the patient, providing they don’t administer the final injection
-the eligibility criteria must be approved by two independent practitioners
-the patient must be aware that they can withdraw their request for MAID at anytime
-patients no longer have to wait for a mandatory 10-day reflection period after making their request
-before the patient receives MAID they must be given an opportunity to withdraw consent and confirm consent, except if consent is given in advance
The safeguards outlined for those patients who are expected to die soon prompt a number of concerns.
First of all, the safeguard of needing a second independent witness to sign the patient’s application has been stripped away. Furthermore, this so-called independent witness is allowed to be involved with the care of the patient which on the one hand, one might argue allows them more insight into the patient’s background with the ability to spot signs of coercion but the alternative view, is that their close proximity to the patient risks clouding their professional judgement and diluting their objectivity. On top of this, the new law means that they will be the only witness involved in the application, with no other individual to vouch for their assessment.
It seems that the safeguard of a second independent witness has been eroded in order to ensure that the application for MAID can be executed as quickly as possible. But the balance between public safety and personal autonomy, appears to have been far too heavily weighed towards the latter principle, leaving those who are vulnerable to internal or external coercion at severe risk.
It is also alarming that patients are no longer obliged to wait ten days, to reflect on their decision, before MAID is provided. In other countries around the world which have legalised ‘assisted dying’ a prognosis of six-months is usually how ‘terminal-illness’ is defined.
Given that people who are told that they have six months or less to live, often defy their prognosis by months or years, it is alarming that patients could in theory receive MAID on the same day that they request it, without any space to think carefully about their decision and the fact that they might in fact be shortening their life considerably. Once again this also leaves them highly vulnerable to coercive forces either from a family member or from their own worries about being a burden to their loved ones or society.
The removal of this vital cooling-off period poses grave risks to seriously ill individuals, especially given the range of emotions one will feel following a terminal diagnosis.
iii) Waiver of final consent
In the instance where the applicant’s death is ‘reasonably foreseeable’ the new Bill permits the administration of MAID, even if the patient can no longer consent, providing that they understand when applying for MAID that they may no longer have capacity by the time it is administered. They must also make clear in writing that they understand this.
If the person still has capacity on the day that they are due to receive MAID they must be allowed the opportunity to rescind their request. The Bill also states that if they have lost capacity, their advance consent is null if they demonstrate through words or gestures that they no longer wish to receive MAID.
The potential problem with this amendment to Canada’s law, is that of course we have no way of telling, if the patient truly wishes to receive MAID by the time that it is administered, even if it was their wish only weeks before. Although there is some attempt to remedy this problem through the stipulation that gestures and words must be taken seriously, there is no guarantee that an act of involuntary euthanasia is really what is being performed.
CONCLUSION
Bill C7 is a controversial bill which removes vital protections for vulnerable people who are nearing the end of their life. It does not increase the accountability of doctors and nurses involved in the provision of MAID or ensure- given the expansion of eligbility-that those doctors approving chronically ill people for assisted death, are truly expert in the relevant area of medicine.
It also widens the scope of those eligible for ‘assisted dying’ considerably which may well result in significantly more MAID deaths across Canada once individuals who are not expected to die soon, are allowed to apply for assisted suicide and euthanasia.
Most controversially, it allows MAID to be administered to patients who can no longer consent at the time of administration.
[1] An ‘independent witness’ was first defined in Bill C-14 as: ‘Any person who is at least 18 years of age and who understands the nature of the request for medical assistance in dying may act as an independent witness, except if they
(a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death;
(b) are an owner or operator of any health care facility at which the person making the request is being treated or any facility in which that person resides;
(c) are directly involved in providing health care services to the person making the request; or
(d) directly provide personal care to the person making the request.
[2] Independence among medical and nurse practitioners is defined in Bill C-14 as:(a) are not a mentor to the other practitioner or responsible for supervising their work;
(b) do not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death, other than standard compensation for their services relating to the request; or
(c) do not know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.