On March 17, 2021, Bill C-7—An Act to amend the Criminal Code (medical assistance in dying)—received royal assent and is now law in Canada.
Christian Legal Fellowship (CLF) expressed concerns and recommendations for the Bill to the Standing Committee on Justice and Human Rights (House of Commons) and the Senate’s Standing Committee on Legal & Constitutional Affairs. CLF was joined by many others, including legal professionals, physicians, disability organizations, Indigenous communities, and religious leaders, who raised alarm about the dangers and discrimination that marginalized communities will face as a result of the Bill’s changes. Despite these efforts, the core legislation was not adjusted or tempered. In fact, various amendments proposed by the Senate expanded the legislation even further, raising additional concerns.
What has changed under Bill C-7?
A major change brought about by Bill C-7 is the removal of the requirement that a patient’s “natural death has become reasonably foreseeable” before they can access MAiD. Under the previous framework, individuals were only eligible for MAiD if, among other criteria, they had a “grievous and irremediable medical condition”. This required that:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.[1]
The above requirements of (a), (b), and (c) will remain. However, Bill C-7’s removal of the “reasonably foreseeable” death requirement in (d)[2]—which was intended to ensure that MAiD was only used to hasten death, rather than initiate it—means that many more cases may now meet the remaining three criteria of a “grievous and irremediable medical condition”, including non-life-threatening disabilities. Since the “intolerable suffering” requirement is subjective, and since patients may reject treatment (which can inevitably result in their health reaching “an advanced state of irreversible decline”), the removal of the “reasonably foreseeable” death requirement is extremely concerning.
The removal of this requirement also alters the fundamental nature and purpose of MAiD. MAiD was originally designed to address end-of-life suffering. Now, it will be offered as a response to suffering not only in death, but also in life, and more specifically, for disability-related suffering. The singling out of disability as the only kind of suffering that justifies the premature ending of a life raises profound human rights concerns – especially in the absence of meaningful supports and services that could greatly alleviate such suffering in some cases – as expressed by CLF and many others, including UN human rights experts.
Bill C-7 also removes other important safeguards, including, in some cases, a requirement of final, contemporaneous consent (discussed in more detail here).
MAID and mental illness
Not only does Bill C-7 open the MAiD regime to individuals who are neither dying nor on the “passage to death”—including those who might be struggling with a serious medical diagnosis or those who might be grappling with the social challenges associated with a disability—but it also opens the door for MAiD to be accessible in cases where a patient’s sole underlying condition is a mental illness. While Bill C-7 initially contained a provision that precluded this latter possibility, the Senate proposed an amendment to remove this protection. As a result, the Bill’s exclusion of “mental illness” from the definition of a “grievous and irremediable condition” will now expire in two years, i.e. on March 17, 2023.
What’s next?
Many groups, including CLF, expressed concern about the legalization of psychiatric euthanasia and warned of its long-term impact on those struggling with mental illness and on mental healthcare supports generally, including suicide prevention. Under Bill C-7, a mandatory independent review will occur in which experts will be asked to provide “recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.” This report is to be completed one year from Bill C-7 receiving Royal Assent, i.e. on March 17, 2022.
Bill C-7 also requires a joint committee of both Houses of Parliament to review “the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities”. The committee is to begin its review on April 16, 2021, thirty days after Bill C-7 received royal assent.
CLF looks forward to the opportunity to contribute to both of these reviews, further to its participation in the studies previously conducted by the Council of Canadian Academies.
Freedom of conscience for health care professionals
It is worth noting that a number of other amendments to the Bill were proposed, but ultimately rejected. One such amendment would have made it a crime to pressure or coerce a medical professional to participate in MAiD. This amendment was rejected, with some suggesting that it was unnecessary in light of s. 241.2(9) of the Criminal Code, which states that “nothing in this section compels an individual to provide or assist in providing medical assistance in dying.” However, s. 241.2(9) is not necessarily an injunctive provision – while it does not require forced participation, it also does not specifically guarantee that physicians will be protected from it.
Thus, regulatory bodies such as the College of Physicians and Surgeons of Ontario (CPSO) have not been prevented from requiring physician involvement in MAiD regimes by way of “effective referrals”. Under the CPSO’s policy, which was upheld by the Ontario Court of Appeal, physicians are not required to perform MAiD directly, but they may be obligated, in certain contexts, to take “positive action” to facilitate access to MAiD, such as by providing a patient with an “effective referral” to a willing and available physician. The CPSO is currently conducting a public consultation on this policy, presumably with a view to updating it, in light of the passage of Bill C-7.
CLF intends to participate in this and relayed process to highlight the ethical and legal concerns of compelling physicians to participate – directly or indirectly – in the medically-administered death of patients who are not dying.
CLF’s Executive Director Derek Ross recently joined the Culture at a Crossroads podcast to discuss Bill C-7, its future impact on Canadian law and medicine, and how the Church can meaningfully engage with these difficult issues. CLF will continue to advocate for protections for the vulnerable and marginalized.
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*Written by Garifalia (Lia) Milousis and Derek Ross
[1] Criminal Code at s. 241.2(2) (emphasis added).
[2] More specifically, Bill C-7 creates a two-track system, whereby the previous safeguards remain in place for an individual whose death is reasonably foreseeable, and there are additional safeguards that must be met if an individual’s death is not reasonably foreseeable (eg. a 90-day waiting period between the first assessment and the date of MAiD provision).