MAiD in Canada - where are we now?
By Amanda Steger
Canadians take pride in the fact that they live in a country where they are free to express themselves in a plethora of ways. Freedom of speech, expression, sexual orientation, religion, the list could go on; the autonomy placed in the hands of Canadians is rather impressive, compared to other countries. And despite some flaws and inefficiencies, Canada’s healthcare system is quite good, and if nothing else, it’s largely free – excluding certain medications, paid services, etc. However, up until recently there was one major flaw and inconsistency involving Canadians’ autonomy and Canada’s healthcare system: the ability to choose when to die.
In February of 2015, the Supreme Court of Canada weighted in on that issue, in the landmark Carter Case (Carter). The SCC read down the Criminal Code, as they found its blanket prohibition on physician assisted dying violated the Canadian Charter of Rights and Freedoms. They put a stay on their decision so that regulators would have the opportunity to draft appropriate laws and guidelines. Fourteen months later, Bill C-14 was passed, to respond to the Carter decision and formally legalize assisted dying. While C-14 has opened the doors to autonomy for many, there have since been a handful of Charter challenges that question the constitutionality of C-14. The following will analyze what it means to have the right to die with medical assistance, the impacts on Canadians to date, and the nature of the arguments that the new law is still too restrictive.
In Canada, there are two ways that Medical Assistance in Dying (MAiD) may be provided. First, a medical doctor or nurse practitioner may, at a person’s request, administer a substance that causes their death (Dying With Dignity). This was formally known as euthanasia. Second, a medical or nurse practitioner may prescribe or provide a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. This was formally known as assisted suicide.
In order to receive MAiD, C-14 laid out a list of criteria, all of which must be satisfied for a person to qualify (Dying With Dignity). Among others, they must give informed consent to receive MAID after having been informed of the means that are available to relieve their suffering, including palliative care. The applicant must also have a grievous and irremediable condition, as defined by Section 241.2 of the Criminal Code.
In order to have a “grievous and irremediable condition,” a person must satisfy another list of criteria (Dying With Dignity). The definition requires the person to have a serious and incurable illness, disease, or disability, and their natural death has become reasonably foreseeable. There are also procedural safeguards set in place by C-14, including a 10-day waiting period between the day of the request and the day MAiD is provided, and the requirement to reconfirm consent.
Shortly after C-14 was enacted in 2016, the legal team from Carter launched a new Charter challenge. The plaintiffs argued that C-14 violates section 7 of the Charter, which protect the rights to life, liberty, and security of the person. They also argued C-14 violates section 15, which protects equality rights, because the bill discriminates against people who are disabled and who seek MAiD due to experiencing intolerable suffering but whose deaths are not considered to be reasonably foreseeable.
At the heart of these legal challenges is the concern that C-14 did not achieve its intended goal of properly balancing respecting autonomy, addressing suffering, and protecting the vulnerable. This raises ethical issues and has left people suffering due to not meeting the eligibility criteria. Some find other ways to end their lives such as voluntarily stopping eating and drinking, or going to Switzerland to receive MAiD. Some continue to live in suffering.
One of the criteria that Canada is considering changing is whether to permit eligible people to give an advance request (AR). An AR for MAiD is a request, created by a capable person, in advance of a loss of decision-making capacity, which is intended to be acted upon under circumstances outlined in the request after the person has lost decisional capacity. AR would allow patients who are eligible but know they are losing capacity to no longer worry that if they lose capacity they will also lose the right to access MAiD (the current legislation requires them to have capacity to consent just before MAiD is administered).
The Federal Government commissioned the Council of Canadian Academies to perform an independent review of C-14 and released their final report in December 2018 (CCA). This report included a working group on AR that studied changing societal norms around end-of-life care and the desire for control over end of life circumstances. They found that some of the potential impacts of AR for MAiD concern supporting individual autonomy. A potential positive impact of AR is the relief of suffering simply by knowing that AR exists, whether or not people choose to use it. The group found risks accompanying the use of AR for MAiD, notably safeguards for MAiD might not remove all risks of unintentionally providing MAiD to someone who doesn’t want it. However, the benefits of personal autonomy suggest that the risk is an acceptable one which people should be permitted to shoulder.
The journey to legalizing MAiD in Canada has been long, and although the team can look back on the hurdles that have been overcome, it is also necessary to keep moving forward. It is important to recognize that there are healthcare topics, like resource allocation and drug planning, that are difficult; but even more important is the recognition that everyone is going to die. There is an intimacy about MAiD and dying that other healthcare topics don’t have. It would be an incredible achievement for the legislature, healthcare system, and Canadian citizens, to recognize what it would be like to support autonomy for dying in a caring society in Canada.
The material in this post was gathered from Dying With Dignity, a presentation by Jocelyn Downie at the Schulich School of Law, and a presentation by Jennifer Gibson at the Schulich School of Law.
