MAID improvements

On August 26 of this year, Gayle Garlock had a medically assisted death at home, with his wife and two sons by his side. In so doing, he became one of almost 7,000 people in Canada to have taken advantage of MAID, legal in this country since June 17, 2016. He is also one of a much, much smaller number: people with dementia who have been able to use MAID to end their lives.

The competency requirements set out in the legislation have largely been interpreted to exclude people with dementia on the basis that, even if they had previously indicated they wanted a medically assisted death, their dementia prohibited them from being able to confirm that consent at the time of the desired death.

Canada’s legislation does not permit what are called advance requests (ARs), in which a person can set out their request for MAID when they are competent, with that request to carry through even if they later become incompetent.

Garlock’s doctor, Stefanie Green, who heads up the Canadian Association of MAID Assessors and Providers, initially refused to consider him for a medically assisted death, because of his dementia diagnosis. However, by mid-2019, when she reassessed him, she made a determination that:

“Gayle still knew what was going on around him and with him. He understood that he had dementia, that it had progressed. At that point, I really believed that Gayle both had capacity and was suffering intolerably.”

Capacity is fluid

On May 9, she approved his application for MAID. In July, Garlock was unable to recognize his wife for a brief period of time; nonetheless, Green believed he remained competent, noting that capacity is not as simple as a “flick of the switch,” but, rather, fluctuates and comes and goes.

In speaking about Garlock’s death, at which she provided the medical assistance, Green was careful to point out that her determination of his capacity to consent was not an expansion of the law but a “maturing of the understanding of what we’re doing.”

Is foreseeability necessary?

One of the other limiting aspects of Canada’s right to die legislation is that, to be eligible, the person seeking a medically assisted death must be facing a “natural, reasonably foreseeable death.”

For Jean Truchon and Nicole Gladu, two residents of Quebec who are severely impaired by degenerative illnesses but whose deaths are not reasonably foreseeable, this was not acceptable. They launched a challenge to the law and, on September 11th, Superior Court Judge Christine Baudouin agreed with them.

Judge Baudouin invalidated those sections of the law that require foreseeability for violating Sections 7 and 15 of the Canadian Charter of Rights and Freedoms; the right to life, liberty and security of the person and the right to equality under the law.

In commenting on the decision, McGill law professor Daniel Weinstock said:

“it has become a standard Canadian constitutional argument that having to live in conditions that one deems unacceptable is a violation of one’s right to a certain quality of life.”

In her decision, Judge Baudouin imposed a six-month delay to allow the government time to amend the Criminal Code, but she also provided a constitutional exemption so Truchon and Gladu could proceed with medically supported deaths.

Appeals and government action

It would not be surprising if this decision were to be appealed, which would put any government action on hold, potentially until the case is decided by the Supreme Court of Canada, Given the Court’s decision in Carter v Canada (Attorney General), the case that led to the right to die legislation, it seems likely Judge Baudouin’s decision would be upheld.

Perhaps the Supreme Court could add further clarity that would assist not just in situations where death lacks reasonable foreseeability but in situations such as Gayle Garlock’s and, even, encourage a change to the legislation that would allow individuals to prepare an advance request for MAID.

Justin Trudeau, responding to the Quebec decision while on the campaign trail earlier this fall, said that, if re-elected, he would bring in legislation to expand access to medical assistance in dying while also ensuring proper supports for palliative care so no one decides to end their life because they are not able to get the help they need.

Who’s to say whether this campaign promise will be high on Trudeau’s list of priorities as he forms a minority government. Much will depend on whether the Quebec case is appealed and who he appoints to both the health and justice portfolios.

It does seem that this legislation – so important but also so flawed in its initial iteration – will be rethought and expanded based on the lived experiences of people who want to have some control over when and how they die as well as by the courageous medical and legal/judicial professionals who challenge the law’s current limitations.

As Gayle Garlock’s doctor, Stefanie Green, said:

“The more we talk about the topic, the more comfortable we’ll be, the better our deaths will be, however we want to shape them.”

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