CCA releases long-awaited reports about expanding euthanasia in Canada
In 2016, the federal government asked the Council of Canadian Academies (CCA) to undertake independent reviews on whether euthanasia should be allowed in three new contexts: advance requests, requests by mature minors, and requests where mental illness is the sole underlying medical condition. CLF participated in the CCA’s consultation and submitted a detailed legal brief, urging the CCA to consider vulnerable patients and broader societal concerns in its review. The CCA released their three reports on December 12, 2018 (linked below), following their tabling in Parliament.
The reports stop short of making any formal recommendations – instead, their stated purpose is to “inform conversation among Canadians and between Canadians and decision makers about the issues of MAID as it relates to the three topic areas discussed.”
CLF Executive Director Derek Ross comments:
“All three reports identify knowledge and information gaps, highlight the need for further research, and reflect a lack of consensus on the appropriateness of allowing euthanasia in the areas under review. This, combined with concerns about risks and adequate safeguards, sends a strong message that euthanasia should not be further expanded in Canada.”
The CCA’s Findings
The CCA assembled three Expert Panel Working Groups to focus on each of the topic areas. Members of the Working Groups had mixed, and at times, conflicting, views about permitting MAID in their respective areas of study.
Requests where mental disorder is the sole underlying condition
The Working Group on mental disorders noted that their report was “not a consensus-based report”; they concluded that “whether to expand, prohibit, or make no changes to the law” on this issue was “a contentious subject on which there are differing opinions.”
The Working Group did acknowledge, however, several concerns related to euthanasia for patients with mental disorders, including the fact a desire to die could itself be a symptom of their condition:
Suicidal ideation is a common symptom of some mental disorders, and some mental disorders can distort a person’s thoughts and emotions, leading to a desire to die, hopelessness, and a negative view of the future, even when a person retains decision-making capacity. It may be difficult for a clinician to distinguish between a capable person who is making an autonomous decision for MAID and a person whose pathological desire to die is a symptom of their mental disorder that impairs their decision-making.
Under Canada’s current law, a patient seeking euthanasia must experience “intolerable suffering”, which is largely subjective (i.e. determined by the patient). The Working Group noted that no other country allows euthanasia for mental disorders based on the patient’s personal assessment of their conditions. Thus, if Canada were to allow the practice based on its current criteria, “it could become the most permissive jurisdiction in the world with respect to how relief of suffering is evaluated.”
Although there were fundamental issues on which the Working Group disagreed, they concurred on the need for more research to better understand “the implications for individuals with mental disorders, healthcare practitioners, and society of permitting more or continuing to limit MAID” in this context. Ultimately, however, the Working Group concluded that the “issue requires ethical judgment by policy-makers.”
Mature Minors
On the issue of mature minors, the CCA Working Group acknowledged that “there are many gaps in knowledge that make it difficult to arrive at definitive answers” and concluded that “any deliberation on whether to permit MAID for currently excluded groups would benefit from greater engagement with Canadian society, especially those groups most likely to be affected.” It recognized, however, that “the view that minors are in need of heightened protection is a widely shared concern.”
Among the concerns noted was the risk that some terminally ill minors might “feel pressure to request MAID as a means of protecting their families from continued financial and/or emotional distress”, particularly children with added vulnerabilities such as those who are disabled and/or living in the child welfare system. Another concern was that “allowing mature minors to request MAID might also normalize suicide among young people, especially those who struggle with mental disorders and may be considered vulnerable.” Both of these concerns were emphasized in CLF’s submissions.
However, the report noted that “part of protecting potentially vulnerable patients is to ensure that they are listened to.” Thus, “[I]t has been argued that, rather than denying healthcare choices to groups frequently labelled as vulnerable, society must provide the accommodations to ensure that everyone is protected not only from exploitation, but also from being ignored and excluded.”
Advance requests
With respect to advance requests for euthanasia, the Working Group observed that allowing the practice could “provide comfort and relieve anxiety and distress at end of life” but also “raises the possibility that a person might receive MAID against their wishes”. The latter was a concern stressed in CLF’s submissions.
The Working Group noted that this possible risk is “influenced by systemic and societal pressures”, and that “no safeguard can remove a risk entirely”. The main issue for the Working Group was “the uncertainty faced by those responsible for following the [advance] request when it comes to gauging when or whether the patient desires an assisted death.”
Again, the Working Group acknowledged a lack of consensus and called for further research:
Consensus on which situations, if any, are suitable for allowing [advanced requests] for MAID is unlikely given the differences in how people weigh various factors and interpret evidence; situations with less uncertainty, however, are likely to find greater agreement […] the inferences drawn in this report remain limited by significant knowledge gaps. This highlights the importance of further research on end-of-life practices in Canada and worldwide”.
CLF’s contribution: a call to protect vulnerable Canadians
CLF’s overarching concern in its submissions to the CCA related to the adverse impact that expanding euthanasia would have on vulnerable populations, such as:
Patients who do not wish to receive/be pressured to receive euthanasia;
Persons whose sense of dignity and access to “equal concern, respect and consideration” are susceptible to socially constructed conceptions;
Patients whose sole or primary underlying condition is a mental illness;
Children; and
Patients who are incapable of providing contemporaneous consent.
CLF urged the CCA to consider the rights and interests of such patients, as well as the broader societal implications of determining that some lives are not worth living.
CLF’s submission to the CCA was acknowledged in all three reports, and CLF was cited as one of the groups expressing concern that “if MAID were extended to mature minors, it would incite major concerns about their vulnerability and society’s obligation to protect them.”
Two papers presented at CLF’s 2017 Academic Symposium, subsequently published in the Supreme Court Law Review, volume 85 (guest edited by CLF staff), were also cited. Professor Trudo Lemmen’s article, Charter Scrutiny of Canada’s MAiD Law and the Shifting Belgian and Dutch Euthanasia Landscape, which highlights some of the concerns related to the practice of euthanasia in Belgium and the Netherlands, was referenced throughout the report on advance directives. Professor Jonas Beaudry’s article, The Way Forward for Medical Aid in Dying: Protecting Deliberative Autonomy is Not Enough, was cited in the report on mental disorders, in support of the notion that some patients may appear to be ‘autonomous’ but are forced into a choice (euthanasia) they do not truly wish to make because of inadequate social, cultural, and economic support.
Next steps
The Minister of Justice and the Minister of Health have issued a joint statement, indicating that “it will be important to take the time necessary to consider the evidence presented in the CCA’s reports.”
CLF will continue to monitor future developments and advocate for both the protection of vulnerable patients and affirmation of the inherent value of every person’s life.
Further reading
CLF’s Submission regarding the legal and social impact of expanding MAID to mature minors, where mental illness is the sole underlying medical condition and by advance directive.
CCA’s Summary of Reports
CCA’s Full Report (MAID for Mature Minors)
CCA’s Full Report (Advance Requests for MAID)
CCA’s Full Report (MAID Where a Mental Disorder is the Sole Underlying Medical Condition)
To view CLF's extensive consultation submissions on Assisted Suicide and Euthanasia, as well as other consultation areas, click here.