On October 21, Derek Ross, CLF's Executive Director & General Counsel, was invited to appear before Parliament's Special Joint Committee on Medical Assistance in Dying.
The Committee is undertaking a "statutory review of the provisions of the Criminal Code relating to Medical Assistance in Dying and their application", including issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities. CLF previously filed a written brief with the Committee.
During his presentation, Derek shared CLF's concerns that "palliative care and disability supports were not accessible in hundreds of MAID cases thus far, according to Health Canada". He recommended that patients not just be "informed" of care options, but offered consultations with professionals who provide care to relieve their suffering, including palliative care. He also urged the Committee to reject any proposals to allow euthanasia for infants with disabilities. You can watch his intervention here (beginning at the 8:52 mark). You can also read his speaking notes, reproduced at the end of this article.
After his appearance, Derek followed up with a written response to one of the Committee’s questions about the rights of communities and institutions unable to provide MAID based on conscience. You can read his letter below:
The Committee issued an interim report on MAID for mental illness earlier this year; it is expected to issue its final report in 2023.
Speaking Notes for Special Joint Committee on Medical Assistance in Dying (AMAD)
Thank you for this opportunity. I am Derek Ross, Executive Director & General Counsel for Christian Legal Fellowship, a national organization of lawyers and an NGO in special consultative status with the United Nations. CLF intervened at all three levels of court in Carter.
The Carter case called for the legalization of MAID, but only for competent adults who are irremediably suffering, fully informed, non-ambivalent, clearly consenting, and free from coercion or duress, and only in the context of a carefully designed system imposing stringent limits that are scrupulously monitored and enforced.
It is important to review Canada’s compliance with that criteria, and how we can ensure the conditions necessary for a patient’s choices to truly be non-ambivalent, voluntary, and fully informed.
One such condition is that a patient should have meaningful access to quality services which can alleviate their suffering, such as palliative care. If a person wants to live but is accepting death because they lack basic supports, then they haven’t made a free choice at all.
The Criminal Code requires that all patients be “informed of the means that are available to relieve their suffering” before MAID. However, palliative care and disability supports were not accessible in hundreds of MAID cases thus far, according to Health Canada – and even where they were accessible, their adequacy and quality were unclear. A number of other concerns have emerged, which are set out in our brief, and which have been echoed by UN human rights experts.
Canadians must know such concerns are being investigated and addressed. It is not enough to simply report on safeguards; the government must, in the words of Carter, scrupulously enforce them.
Provision of MAID in circumstances where reasonable supports are lacking may also raise Charter concerns. As we explain in our brief, if the government were to offer death as the only accessible option for patients, while “failing to deliver health care in a reasonable manner”, it could be interfering with the right to life and security of the person protected by s 7 of the Charter. [Chaoulli, para 124].
Previous witnesses have raised concerns about inadequate resources and funding for palliative care, and a lack of public awareness about what it offers. It is crucial to address these concerns, especially in the pediatric context. The CCA Expert Working Group observed that “little is known about how mature minors make meaning of end of life care”. We need to know more about how specialized pediatric palliative care can be prioritized to better support youth.
Neither Carter nor Truchon required MAID for minors. They certainly did not require involuntary euthanasia for infants, no matter how severe their disability nor how short their predicted life span. We urge this Committee to reject any proposal in that regard. It would eliminate the requirement of consent – which infants cannot provide – and would infringe the Charter’s protection of the right to life and the right to the equal protection of the law without discrimination based on disability.
This is not to deny that Canadians of all ages who are suffering deserve better solutions. They do. In fact, it is because they do that we must prioritize disability supports and palliative care.
We recommend that all patients be not just “informed”, but offered consultations with professionals who provide care to relieve their suffering, including palliative care. We also endorse the observation that the Senate’s Standing Committee on Legal and Constitutional Affairs made last year that “The Government of Canada should create an oversight body or mechanism to ensure compliance with MAiD regulations and to oversee that appropriate accountability and medical care have been provided to all patients.”
I look forward to your questions. Thank you again for the opportunity to present today.
-Derek Ross, Executive Director & General Counsel, Christian Legal Fellowship