Five years after assisted dying was legalized in Canada, lawmakers are preparing to review the system that has permitted thousands of Canadians to choose the time and place of their deaths. Here are some of the thorny issues they’ll have to examine.
Five years after assisted dying was legalized in Canada, lawmakers are preparing to review the system that has permitted thousands of Canadians to choose the time and place of their deaths.
In 2016, Canada became one of a small number of countries to allow certain adults to request a doctor’s help in bringing about their own deaths. The federal government recently expanded access to the practice after the nation’s highest court ruled the original law was too narrow in scope.
A joint committee of MPs and senators begins its review of the law on May 17. It’s tasked with answering some heavy questions, such as whether mature minors should have access to medical assistance in dying (MAID) and whether patients should be allowed to make advance requests for the procedure before their suffering becomes intolerable.
“Medical assistance in dying is a complex and deeply personal matter for many Canadians and their families,” Justice Minister David Lametti’s office said in a statement.
“The five-year parliamentary review of the previous Bill C-14 will be an appropriate forum to examine a multitude of issues and questions.”
Here are some of the issues before the committee.
History of MAID
The Trudeau government legalized MAID after the Supreme Court ruled that parts of the Criminal Code outlawing assisted suicide violated the Charter of Rights and Freedoms.
Parliament passed a law allowing adults to obtain medically-assisted death if they had a “grievous and irremediable” medical condition and their death was “reasonably foreseeable.” In other words, those diagnosed with an incurable illness, disease or disability that caused unbearable mental or physical suffering could qualify — but only if they were close to dying.
Critics called the “foreseeable death” provision too restrictive. Quebec’s Superior Court struck it down in 2019.
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The government responded with Bill C-7, which passed in March 2021.
The new law granted Canadians experiencing intolerable suffering who are not near the natural end of their lives the right to seek MAID immediately.
Those whose suffering is caused solely by mental illness will gain access to MAID in March 2023.
Between 2016 and 2019, 13,946 people underwent a medically-assisted death in Canada, according to Health Canada. Most of them suffered from cancer-related illnesses (67 per cent), 10.8 per cent had respiratory illnesses, another 10.4 per cent had neurological conditions and 10.1 per cent were suffering from cardiovascular conditions.
The expansion of MAID to people suffering primarily from depression, schizophrenia, post-traumatic stress disorder and other mental illnesses left lawmakers with a number of unanswered questions.
For example — how can the doctors and nurse practitioners who assess patients’ suitability for MAID determine whether a psychiatric condition is irremediable?
Many psychiatric conditions can be treated with drugs or other therapies, or can improve if life conditions that contribute to poor mental health — such as poverty, loneliness or lack of housing — are addressed.
“There is simply not enough evidence available in the mental health field … to ascertain whether a particular individual has an irremediable mental illness,” the Centre for Addiction and Mental Health in Toronto stated in 2017.
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Dr. Sonu Gaind, physician chair of Humber River Hospital’s MAID team, said he fears MAID will be provided to people who could otherwise recover.
“It’s sacrificing marginalized people who have never had the autonomy to live with dignity to now choose death as a potential means of resolving their suffering,” said Gaind, who is also an associate professor of psychiatry at the University of Toronto.
“The safeguards we put in place need to be the strongest possible to minimize … the number of people who would be seeking MAID for things like social deprivation, where they actually could get relief through additional community or social supports.”
The Liberal government is assembling an expert panel to examine the mental health issue and recommend safeguards to protect vulnerable people. The panel is expected to provide recommendations by March 2022.
Jocelyn Downie, a Dalhousie University law professor who has studied MAID for decades, said the panel will need to decide what role psychiatrists should play in conducting MAID assessments.
Another unanswered question, Downie said, is whether patients suffering from mental illness should have to prove they’ve exhausted treatment options before they’re allowed access to MAID.
The original law required that patients who had been approved for assisted dying reconfirm their wishes right before the procedure.
Those patients taking strong painkillers or suffering from degenerative conditions feared losing the mental capacity necessary for late-stage consent — and that forced them to consider opting for assisted death early.
That’s what happened to Audrey Parker, a Nova Scotia woman with terminal breast cancer that spread to her brain. In a video released days after her assisted death in 2018, Parker said her fear of losing lucidity caused her to chose an earlier date for her death than she wanted.
Bill C-7 includes what advocates call “Audrey’s amendment.” It allows MAID recipients to waive the late-stage consent requirement.
“That advance consent form means that people don’t have to choose to leave early,” said Helen Long, CEO of Dying With Dignity, an advocacy group.
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But the current law still requires that MAID recipients be in a state of irreversible decline and experiencing intolerable suffering. Many advocates want patients to be allowed to request assisted death after a diagnosis but before their suffering becomes intolerable.
Long said that would allow people to describe a future state of suffering which, once reached, would clear a doctor to go ahead with the MAID procedure.
“It’s easy to think of a time when you might have some kind of a stroke or an aneurysm or even a catastrophic fall and not ever be able to again make your wishes known,” said Long.
“You make much better decisions when you’re not in a state of intolerable suffering,” Downie said. “So we want people having conversations and coming to an agreement with their clinician about a future provision of MAID.”
The age of consent is one of the most contentious issues in the right-to-die debate.
Currently, only people over the age of 18 can request MAID.
The Canadian Pediatric Society has pushed to exclude minors from MAID access, while others have argued age limits are arbitrary.
Long said the concept of the “mature minor” who can make decisions about medical treatment is well established in Canadian health care.
“This would just be that same process for medical assistance in dying — ensuring that a child with life-ending cancer, for example, is able to make the same choices that a 70-year-old may be able to make. Assuming they have the capacity, maturity and ability to do so,” she said.
A provincial-territorial advisory group recommended in 2015 that access to MAID be based on competence, not age. A previous parliamentary committee also endorsed access for competent mature minors, but only after a study of the moral, ethical and legal issues.
Downie said that if mature minors have the legal right to refuse life-saving treatments, they should have the right to choose assisted death.
“Clinicians can assess capacity for these very serious consequences,” she said. “And they would do it the exact same way that they would for a refusal of life-sustaining treatment.”