Difficult choices

It did not take Canadians long to embrace medical assistance in dying (MAID). Legislation permitting MAID in certain situations was passed in June 2016 and, since then, approximately 13,000 people have taken advantage of the change in law. The three most common situations in which people seek and receive MAID, in order of frequency, are cancer, neurological conditions and cardiovascular/respiratory conditions.

However, many of us thought from the beginning that the legislation was too narrow. A Quebec court decision in the fall of 2019 seemed to agree when it found that limiting MAID to situations where death was “reasonably foreseeable” discriminated against people whose health conditions were intolerable with no hope of improvement, but whose deaths were not reasonably foreseeable.

The government held a very time-limited online public consultation on possible changes to the legislation in which more than 300,000 Canadians participated: more than in any other online consultation the government has ever held.

According to Justice Minister David Lametti, the survey results indicated that the majority of respondents wanted to see expanded access to MAID:

“There does seem to be a clear tendency that Canadians are largely in agreement that we ought to expand the possibility for medical assistance in dying beyond the end of life scenario.”

Small, small steps

On February 24th, Lametti introduced Bill C-7 to the House of Commons. If passed, it will amend the Criminal Code to slightly broaden access to MAID, but it certainly does not go as far as many advocates for end of life choice would like it to.

Here are some of the key elements of the Bill:

  • It repeals the requirement that death be “reasonably foreseeable” before someone can access MAID
  • It permits MAID where death is reasonably foreseeable and the person has asked and been approved for medical assistance to die, but has since lost the capacity to consent
  • It repeals the 10-day reflection period
  • It does not allow MAID where the sole underlying condition is mental illness, which is not considered to be a serious and incurable illness, disease or disability
  • It does not allow people to prepare advance directives that would permit MAID later when they no longer have the capacity to consent

The repeal of the reasonable foreseeability factor is a direct response to the Quebec court decision finding that requirement to be discriminatory. Under Bill C-7, the person must be experiencing intolerable suffering and be in an advanced state of decline due to an incurable condition.

The permission for MAID in situations where the person has been approved but has since lost capacity is a nod to Audrey Parker, the Halifax woman who made the decision to access a medically assisted death earlier than she needed to because she feared losing her capacity to consent if she waited any longer.

In speaking to that provision, Lametti said it should prevent people from opting to end their lives sooner than they need to because of a fear they may lose capacity:

“No one should be faced with such an impossible choice.”

Unnecessary roadblocks?

The legislation introduces two different sets of safeguards; a shortened one for people whose death is foreseeable and a longer one for those whose death is not. One of the safeguard conditions for people whose death is not foreseeable is that they must be informed of available means to alleviate their suffering, including counselling, mental health and disability support services and palliative care services. In those situations, the eligibility assessment must take at least 90 days, and the person has numerous opportunities to change their mind and opt out of a medically assisted death.

John Cowan, Chair of the Dying with Dignity Board of Directors, noted that new safeguards are not needed:

“We caution the government against adding unnecessary roadblocks in the law that, instead of protecting vulnerable people, unfairly restrict access to medical assistance in dying. The government should heed the words of Justice Baudoiuin [Truchon v Canada], who concluded that the existing safeguards are sufficient to protect vulnerable people who can’t consent to MAID or simply don’t want to avail themselves of it.”

What’s left?

The government is required, under the terms of the existing legislation, to conduct a review beginning in June 2020. At this point, other important issues will be examined, including whether MAID should be made available to people who have signed advance directives and to mature minors. No doubt, the issue of psychiatric conditions will also come up for discussion at that point.

I appreciate that each of these issues is complex and nuanced. Certainly legislation must protect the vulnerable from possible manipulation by those who may not have their best interests at heart.

However, I believe I should have autonomy over the timing and circumstances of my death. I have prepared and signed an advance directive, because I don’t want to be forced to remain alive just because later I lose my competency to consent to a medically assisted death. This should be a value we protect under the law just as we want the law to protect people who do not want to access a medically assisted death.

I also believe that, with proper regulation, people whose sole underlying condition is mental illness, as well as mature minors, should be able to have medical assistance in dying, if that is their choice.

The government could and should have addressed these issues in Bill C-7 rather than limiting itself as it did.

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