Proposed MAiD law is not the compassionate response to suffering that Canada needs
Summary and Analysis of Bill C-7
“MAiD was initially presented as an exceptional mechanism, to be employed only to hasten an already-imminent death, in order to prevent suffering in the final stages of the dying process. However, in less than four years since its legalization in Canada, it has been expanded far beyond this limited role.”
Earlier this week, the federal government introduced Bill C-7, a proposed new law which, if passed, will significantly expand access to euthanasia in Canada. These changes are being introduced less than four years after euthanasia/physician assisted suicide (now collectively referred to as “medical assistance in dying”, or “MAiD”) were first legalized.
Among other changes, Bill C-7 would allow euthanasia to be performed without a patient’s explicit consent at the time of the procedure in certain circumstances.[1]
Ending a patient’s life, without absolute certainty of their consent at the moment of termination, should never be permitted by law.
In Carter, the Supreme Court of Canada unequivocally stated – on three occasions – that MAiD should be performed only where a patient “clearly consents to the termination of life”.[2] The intentional inclusion of the words “clearly” (indicating a need for positive confirmation, without any doubt as to a person’s wishes) and “consents” (present tense, in the ‘here and now‘) are significant, and must be heeded.[3]
According to its preamble, Bill C-7 is a response to the Superior Court of Quebec’s decision in Truchon. However, just like Carter, Truchon did not require the law to be changed to allow euthanasia by advance request. In fact, the Quebec Superior Court went out of its way to emphasize that the question of advance requests was not at issue in the case before it, and therefore would not be addressed in its judgment.[4]
The issue of advance requests was carefully studied by an Expert Panel Working Group of the Council of Canadian Academies in 2018, who were commissioned by the federal government to undertake an independent review of the matter. In their final report, the Expert Panel expressed a number of concerns with allowing euthanasia for patients who have lost decision-making capacity, and noted a lack of consensus amongst experts as well as “significant knowledge gaps” requiring further research.[5] Of paramount concern was “the possibility that a person might receive MAID against their wishes” and that “no safeguard can remove a risk entirely” (p 174).
This latter point is a crucial one – there will always be risks of wrongful deaths in any euthanasia regime, no matter how many ‘safeguards’ are in place. As the Quebec Superior Court acknowledged in Truchon: “Clearly, no system other than total and absolute prohibition will ever be able to prevent every error” (para 623).
The possibility of euthanizing an incapacitated patient against their wishes is a grave – and real – concern. In Truchon, the data reviewed by the Quebec Court confirmed that individuals do change their mind, even after submitting a written request for MAiD. In fact, from December 10, 2015 to March 31, 2018, at least 167 written requests for MAiD were subsequently withdrawn by patients because they had changed their mind, and an additional 5 patients did not proceed with MAiD because they decided to pursue other treatment options; combined, this constituted almost 7% of all MAiD requests in Quebec during that period (para 214 of the decision). The latest report from Quebec reveals that this number may even be slightly higher, closer to 8%.[6]
To summarize: the data available in Canada suggests that at least 7% of patients who make a formal, written request for MAiD subsequently change their mind (at least 323 patients in Quebec alone, thus far[7]).
The same data from Quebec reveals that 7-12% of patients who request MAiD subsequently cease to be eligible (primarily because they lose mental capacity).[8] These are the patients who would now be eligible to receive MAiD by advance request, provided they meet the new requirements of Bill C-7.
Are we willing to accept that 7% of those patients may be euthanized against their wishes?
Applying the data’s projected percentage (conservatively 7% of 7%, or .0049%) to the total number of MAiD deaths in Canada reported thus far (6,749, though that number is significantly under-reported[9]), this would suggest that every year, eleven patients may be euthanized who do not actually want to be.
Eleven innocent deaths every year is far too many. Even if these calculations and data are inaccurate, a lower figure would still represent too many deaths. Wouldn’t one innocent death be one too many?
Instant access to euthanasia?
These same concerns also apply to Bill C-7’s proposed removal of the law’s 10-day waiting period; currently, patients must generally wait at least 10 days between requesting MAiD and receiving it, but this is to be removed by Bill C-7 (at least for patients whose death is ‘reasonably foreseeable’).
Without this provision, there is no mandatory period of reflection ensuring time for patients to consider other options or explore other treatments. Someone could feasibly request and receive MAiD on the same day.
What would this mean for the 323 patients in Quebec – and many others like them across Canada – who changed their mind after they made their written request for MAiD? If they could have accessed MAiD the very day they requested it, would they have been able to reflect further and pursue other options?
Bill C-7’s removal of other safeguards is also concerning. One such change is that a request for MAiD will no longer require two independent witnesses. Only one will suffice, removing the important safeguard of having two independent witnesses corroborate that a patient is not being coerced or pressured to seek MAiD (this is the reason the law requires two independent witnesses to the signing of a testator’s will, for example[10]). It is troubling that the law would now be more concerned with ensuring the validity of a document distributing a patient’s wealth than it is with a direction to terminate their own life.
“Reinventing” MAiD
Perhaps the most drastic change introduced in Bill C-7, however, is the provision of MAiD to non-dying patients (this is a direct response to Truchon).
As Professor Catherine Frazee has observed, this fundamentally reinvents MAiD “so that it is no longer an alternative to a painful death, but for some, instead, an alternative to a painful life” – the law’s resulting effect is to “embrace uncritically the notion that suffering associated with disability is a burden greater than death and that termination of such a life is a ‘benefit’ worthy of protection in law.”
MAiD was initially presented as an exceptional mechanism, to be employed only to hasten an already-imminent death, in order to prevent suffering in the final stages of the dying process. However, in less than four years since its legalization in Canada, it has been expanded far beyond this limited role.
With Bill C-7, MAiD would be expanded even further, provided to Canadians who are not even approaching death (and whose conditions will not cause or hasten their death), but who are experiencing suffering which they find intolerable and who no longer wish to live. It appears that they would not be required to undergo any symptom management or other treatment if they do not wish to, before being eligible for MAiD, even if it could alleviate their suffering.[11] They would not even be expected to participate in a consultation with relevant professionals whose care could relieve their suffering; under Bill C-7, they need only be “offered” such a consultation before receiving government-supported assistance in their death.[12]
In R v Latimer, the Supreme Court emphasized that “Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition” (para 41).
This foundational principle will be severely undermined with Bill C-7. If it passes, the law will accept that terminating a life is an appropriate response to the non-life-threatening suffering produced by even a medically manageable condition, at least in certain conditions.
What message will this send? How might it impact everyone living with a disability or illness when the state affirms that terminating the life of the bearer of their particular condition is an appropriate solution to their suffering?
What message is sent to our institutions and broader culture about the necessity (or futility) of life-saving or affirming treatments for those who bear such conditions – especially when those treatments are deemed expensive or burdensome?
The need to respect life
In its preamble, Bill C-7 purports to affirm “the inherent and equal value of every person’s life and the importance of taking a human rights-based approach to disability inclusion”. However, a law truly committed to these principles must ensure that all lives will be deeply valued, and must never be viewed as lacking dignity or less worthy of support. As I discussed in a recent article for Policy Options:
“[U]pholding the equal and inherent value of all people is not only about protecting patients from being pushed toward MAiD because they feel devalued, but to emphasize society’s positive support for those who choose to live with an illness or disability […] The law needs to guard against disapprobation of one’s choice to live with dignity – and to condemn any effort that might undercut social or medical support for that choice – by prohibiting the state from ever endorsing the view that disability related suffering in life is a fate worse than death.”
The law must protect patients not just from social pressure to choose death, but from facing discrimination or prejudice in their decision to choose life. Providing MAiD as a general solution to a wide range of sufferings in life (and not just as a natural death is approaching) undercuts this core objective.
Bill C-7’s expansion of MAiD to non-dying patients, removal of important safeguards, and allowance of advance requests in certain contexts must all be rejected. Instead, the government ought to focus on how to better honour Bill C-7’s statement that “Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and recognizes its obligations under it, including in respect of the right to life.”
This should include responding to the very troubling observations of Ms. Catalina Devandas-Aguilar, the United Nations Special Rapporteur on the rights of persons with disabilities, whose End of Mission Statement last year observed “significant shortcomings” in the way our governments “respect, protect and fulfill the rights of persons with disabilities”. Specifically, Ms. Devandas-Aguilar noted a lack of protocol to “demonstrate that persons with disabilities have been provided with viable alternatives when eligible for assistive dying”, and also described receiving “worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities.”
The government must respond to these concerns immediately, and prioritize efforts to provide Canadians with medical assistance in living before rushing to expand, and remove safeguards around, medical assistance in dying.
Authored by Derek Ross (LL.B., LL.M.), CLF Executive Director and General Counsel. Special thanks to Vivian Clemence, Sarah Mix-Ross and Ruth Ross for their helpful review.
Christian Legal Fellowship participated as a public interest intervener at all levels of court in Carter as well as at the Quebec Superior Court in Truchon.
[1] Specifically, Bill C-7 removes the requirement that a patient “give express consent to receive medical assistance in dying” immediately before the procedure if they have lost “the capacity to consent” and previously (no restriction on how far previously) entered into an agreement with the medical/nurse practitioner to perform MAiD. Other conditions must be met, such as that “the person does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration”; however, this does not include “involuntary words, sounds or gestures made in response to contact”. This raises a serious concern about how a medical practitioner is to distinguish between these two categories of communication, or if it is even possible to make such a distinction in all cases.
[2] Carter v Canada (Attorney General), 2015 SCC 5 at paras 4, 127, 147 (emphasis added).
[3] This language was cited by the unanimous British Columbia Court of Appeal in finding that an Alzheimer’s patient should not be deprived of ‘nourishments and liquids’, as directed in a prior request, because her present conduct indicated otherwise: “It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada (Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the ‘clear consent’ of the patient. (Para. 127.)” Bentley v Maplewood Seniors Care Society, 2015 BCCA 91 at para 18. See further discussion in CLF’s report, “Euthanasia and physician-assisted suicide in the case of mature minors, advance requests, and mental illness: legal, ethical, cultural, and clinical considerations” (submitted to the Council of Canadian Academies, 16 October 2017).
[4] The Quebec Superior Court stated the following at para 16: “Although the debate over the decriminalization of medical assistance in dying in Canada has already taken place, it is evident that this final act still prompts concern in many and continues to raise questions that remain unanswered, such as, should minors or persons who are incapable be allowed access to medical assistance in dying and should such assistance be permitted on the basis of medical instructions given ahead of time? These matters, which are undoubtedly extremely important, are not at issue in this case. The Court must solely determine the constitutional validity of the legislative requirements of reasonably foreseeable natural death and of being at the end of life, as set out in the Criminal Code and the Act respecting end-of-life care, respectively. This is therefore the only question that it will answer.” (Truchon c Procureur général du Canada, 2019 QCCS 3792, emphasis added).
[5] The Expert Panel Working Group’s report summary concluded: “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”.
[6] Of the 1,937 requests for MAiD reported by Quebec’s commission on end-of-life care in its fourth annual report (covering April 1, 2018 to March 31, 2019), 127 requests were withdrawn by the patient, and an additional 24 patients preferred other treatment options. Combined, this represents 7.8% of MAiD requests during this period: “Le rapport annuel d’activités de la Commission sur les soins de fin de vie du 1er avril 2018 au 31 mars 2019", Commission sur les soins de fin de vie, October 2, 2019, 1003-20191002, available online.
[7] According to the Quebec Commission’s April 2019 report (covering December 10, 2015 to March 31, 2018), 167 patients withdrew their request or changed their mind after requesting MAiD and an additional 5 patients preferred another treatment option (p 61). According to its October 2019 report (covering April 1, 2018 to March 31, 2019), 127 patients withdrew their request for MAiD and an additional 24 patients preferred other treatment options (p 25).
[8] According to the Quebec commission’s April 2019 report, 191 patients no longer met eligibility criteria subsequent to their initial request, representing 7.8% of all MAiD requests from December 10, 2015 to March 31, 2018 (p 56, note 67; p 61). Of these ineligibility cases, 95% were due to the patient losing capacity to consent (p 62). According to the Quebec commission’s subsequent October 2019 report (covering April 1, 2018 to March 31, 2019), 246 patients no longer met eligibility criteria subsequent to their initial request, representing 12.7% of all MAiD requests during that period.
[9] As CLF previously reported: “These numbers are only current to October 31, 2018. The actual number of MAID deaths to date is likely much higher; even the 6,700 figure represents an ‘under-reporting’, according to the federal government, because at the time it was reported, ‘approximately 7 months of Quebec's MAID data [was] unavailable’. Considering that there were 2,614 medically assisted deaths in Canada in the last 10-month period reported on (January 1-October 31, 2018), the total number to date, based on a similar projection, could be well over 11,000 - and that is before the regime is expanded to apply to those whose deaths are not ‘reasonably foreseeable’. In fact, the number is likely even higher, since the number of MAID deaths has continued to increase significantly each year since it was first introduced.”
[10] See, e.g., Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 4 (1)(b), which states that a will is not valid unless the “testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time.” An exception is made for holograph wills, i.e. those made “wholly by [a testator’s] own handwriting or signature” (s. 6).
[11] Under the current MAiD law, the definition of intolerable suffering (one of the thresholds to be eligible for MAiD) is that it “cannot be relieved under conditions that they [the person requesting MAiD] consider acceptable”: Criminal Code of Canada, s. 241.2(2)(c).
[12] See proposed new ss. 241.2(3.1)(g) in Bill C-7.