Parliamentary Committee recommends expanding assisted death for children with “decision-making capacity”, for adults with mental illness, and by advance requests
February 22, 2023
On February 15, 2023, the AMAD Committee, Parliament’s Special Joint Committee on Medical Assistance in Dying (MAID), released its final report.[1] This report recommends allowing MAID for children “deemed to have the requisite decision-making capacity”, even, it seems, where the child’s parent(s) or guardian(s) may object. The report also supports expanding MAID for adults whose sole underlying medical condition is a mental disorder (MAID MD-SUMC or MAID for sole mental illness). Finally, the report recommends expanding MAID for incapacitated patients who make an “advance request”.
Christian Legal Fellowship (CLF) has strongly opposed these expansions of MAID for reasons outlined in its brief[2] and background paper[3] which were submitted to the AMAD Committee on May 9, 2022. CLF has also echoed the concerns of many others about expanding MAID, especially in light of existing socioeconomic barriers and inadequate access to healthcare and supports.
CLF Executive Director and General Counsel, Derek Ross, comments:
The more we expand assisted death, the more we normalize death as an appropriate “solution” to all kinds of suffering. And if death becomes a more accessible option than life-affirming treatment and support, we have failed to uphold the inherent equality and dignity of our fellow citizens.
Our laws should affirm, without exception, that every life is equally worthy of unremitting support. Instead, we are carving out more and more exceptions to the law’s basic protections – protections that were designed to maintain that every person’s life has meaning and value, and therefore should never be ended prematurely.
Providing assisted death for youth would mean that, for the first time in Canada, we would remove the protection of the Criminal Code’s ban on “consensual” homicide for children – and we would be removing it only for children with disabilities.
In addition to assuming the inherent risks of such a regime, the law would be sending a profoundly discriminatory message – one that is especially susceptible to internalization by the very children impacted by it. The harmful message is this: while most lives are worth living and deserving of absolute affirmation, no matter what, there are some lives – the lives of persons with certain disabilities – that the state is prepared to help end.
We must soundly reject this message.
The AMAD Committee’s Recommendations
The AMAD Committee was established pursuant to Bill C-7,[4] to conduct “a comprehensive review of 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”.
As previously reported, the AMAD Committee released its interim report on MAID for sole mental illness on June 22, 2022.[5] CLF’s Derek Ross then appeared before the Committee on October 21, 2022 (see his opening statement and letter to the Committee, here).
In its final report, the AMAD Committee made 23 recommendations to Parliament.[6] These recommendations include consulting with Indigenous communities, facilitating collaboration between various medical groups, identifying ways to improve access to palliative and end-of-life care, and supporting persons with disabilities by implementing poverty-reduction and economic security measures.
The Committee also specifically recommended that the Government of Canada convene an expert panel to study and report on the needs of persons with disabilities in the context of MAID, similar to the Expert Panel on MAID and Mental Illness.[7]
Concerningly, however, the parliamentary Committee has recommended expanding MAID in three new areas.
Expanding MAID for “mature minors”
The AMAD Committee has recommended adding children “deemed to have the requisite decision-making capacity upon assessment” to the MAID eligibility criteria,[8] but limiting access to those “whose natural death is reasonably foreseeable”. Canada’s law previously included the “reasonably foreseeable” restriction for all adults as well, but it was removed after the government refused to appeal a Quebec Superior Court decision which deemed it unconstitutional.[9]
Moreover, the Committee recommended that the Government “establish a requirement that, where appropriate, the parents or guardians of a mature minor be consulted in the course of the assessment process for MAID, but that the will of a minor who is found to have the requisite decision-making capacity ultimately take priority.”[10] Thus, if the Committee’s recommendations are adopted, parents may not always be consulted, and even where they are, their objections could ultimately be overridden by the child’s wishes.
The Committee recommended that the Government undertake consultations with minors on the topic of MAID,[11] and fund research into the views and experiences of minors with respect to MAID,[12] both within 5 years of the tabling of the final report (i.e. before February 15, 2028).
Here, the Committee mentioned CLF’s evidence from October 2022, which expressed concern about the lack of information about how minors view end of life care.[13] However, the Committee did not recommend that consultations take place before expanding MAID for mature minors. Regarding CLF and others’ evidence as to the lack of pediatric palliative care in Canada,[14] the Committee opined that “even excellent palliative care may not always be sufficient to alleviate a minor’s suffering.”[15]
Ultimately, the Committee recommended to extend MAID for mature minors, finding that “eligibility for MAID should not be denied on the basis of age alone.”[16]
Expanding MAID for sole mental illness
The AMAD Committee has taken a position in favour of MAID MD-SUMC:
While the committee respects that some witnesses do not think that individuals whose sole underlying medical condition is a mental disorder should be eligible for MAID, the committee believes that such individuals should have access to MAID, provided that they meet the eligibility requirements.[17]
In light of the Government’s recent decision to delay eligibility for MAID MD-SUMC for one year until March 2024 (which still needs to be approved by the Senate) the Committee has recommended that it should be re-established 5 months prior to the coming into force of eligibility for MAID MD-SUMC, in order to “verify the degree of preparedness attained for a safe and adequate application of MAID” in this context, and make its “final recommendation” to the House and the Senate.[18]
Expanding MAID for advance requests
The AMAD Committee has also recommended amending the Criminal Code to allow for advance requests, “following a diagnosis of a serious and incurable medical condition disease, or disorder leading to incapacity.”[19]
Dissenting Report
Conservative Senators and Members of Parliament who served on the Committee have issued a dissenting report.[20] This report raises a number of objections to the recommendations made by the majority of the Committee.
MAID for sole mental disorder
With regards to MAID MD-SUMC, the dissenting members reiterated their concerns from their Dissenting Interim Report, including the difficulty in predicting irremediability in MD-SUMC cases, as well as inherent risks to vulnerable persons.[21]
They further noted that there is no evidence to suggest that rescheduling the expansion of MAID for sole mental illness will resolve these concerns.
MAID for mature minors
The dissenting members “do not support MAID for mature minors at this time” given the “significant knowledge gaps” respecting mature minors and MAID reported by the Council of Canadian Academies[22] as well as issues around mature minors’ decision-making capacity.[23] The report further highlights the “practical challenges” of assessing mature minors’ capacity and/or psychological maturity.[24]
The dissenting members have called for further study and consultation prior to considering expanding MAID in this context, as well as “clear evidence and a general professional consensus that [this practice] can be implemented safely”, which they have found is currently lacking.[25]
Advance requests for MAID
The dissenting report was split on the issue of advance requests.
Those against cited Carter for the notion that consent must necessarily be contemporaneous with a request for MAID.[26] They noted data showing that approximately 20% of patients have withdrawn their request for MAID immediately before the provision of MAID,[27] a point CLF emphasized in its submissions. They also highlighted witness testimony attesting to the practical difficulties of interpreting and applying advance requests, as well as the importance of ensuring informed consent to MAID.[28]
The member in favour of advance requests found that “a large majority” of the population stands in favour of advance requests, noting the report of Quebec’s Special Commission which unanimously recommended allowing advance requests.[29]
Protecting persons with disabilities
The dissenting report highlighted the “disturbing trend” of persons with disabilities applying for MAID who are motivated by socio-economic suffering, and therefore supported the Committee’s recommendation that the Government provide better support and access to care for persons living with disabilities.
The dissenting report states: “No Canadian should feel that MAID is their only option because they are unable to receive the care and support that they need and deserve.”[30]
The members have recommended that the Government convene an expert panel to review the adequacy of existing MAID safeguards, given that the Committee did not undertake this task, and in light of witness testimony particularly from the disability rights community stating the need to strengthen safeguards.[31]
CLF’s Next Steps
CLF remains committed to advocate for the interests of marginalized and vulnerable Canadians. CLF will be making further submissions to Parliament on this issue, as lawmakers determine how to respond to the AMAD Committee’s recommendations. You can read more about CLF’s work here.
References
[1] House of Commons, Special Joint Committee on Medical Assistance in Dying, “Medical Assistance in Dying in Canada: Choices for Canadians”, 1st Sess, 44th Parl (February 2023), online: <https://www.parl.ca/Content/Committee/441/AMAD/Reports/RP12234766/amadrp02/amadrp02-e.pdf> [AMAD Committee Final Report].
[2] Christian Legal Fellowship, “Brief of the Christian Legal Fellowship to The Standing Senate Committee on Legal and Constitutional Affairs regarding Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)” (18 November 2020), online: <https://sencanada.ca/content/sen/committee/432/LCJC/Briefs/ChristianLegalFellowship_e.pdf> [CLF Brief to AMAD].
[3] Christian Legal Fellowship, “Background paper of the Christian Legal Fellowship (CLF) in connection with CLF’s brief to The Special Joint Committee on Medical Assistance in Dying regarding A comprehensive review of 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” (9 May 2022), online: ≤https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/62796875c67afb653d0db906/1652123765948/CLF+brief+to+Special+Joint+Committee+on+Medical+Assistance+in+Dying+2022.05.09.pdf≥ [CLF Background Paper to AMAD].
[4] Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021 (assented to 17 March 2021) (Bill C-7), online: <https://www.parl.ca/DocumentViewer/en/43-2/bill/C-7/royal-assent>.
[5] House of Commons, Special Joint Committee on Medical Assistance in Dying, “Medical Assistance in Dying and Mental Disorder as the Sole Underlying Condition: An Interim Report”, 1st Sess, 44th Parl (June 2022), online: <https://parl.ca/Content/Committee/441/AMAD/Reports/RP11896958/amadrp01/amadrp01-e.pdf> [AMAD Committee Interim Report].
[6] AMAD Committee Final Report, supra note 1, at 5–9.
[7] Ibid, Recommendation 12.
[8] Ibid, Recommendation 16.
[9] Ibid, Recommendation 17. In 2021, Canada’s MAID law was revised by Bill C-7, supra note 2, to allow MAID for people whose natural death is not “reasonably foreseeable”. This was done in response to the Superior Court of Quebec’s decision in Truchon c Procureur général du Canada, 2019 QCCS 3792, which held the ‘reasonably foreseeable natural death’ requirement to be unconstitutional. As a result, there are now two “tracks” for MAID applications, as the AMAD Committee explains at page 1 of its Final Report: “[…] ‘track one’ for people whose natural death is reasonably foreseeable, and ‘track two’ for people whose natural death is not reasonably foreseeable. There is no waiting period for people who apply under track one. People who apply under track two have a 90-day waiting period, which can be waived if someone is going to imminently lose capacity to consent to MAID.”
[10] Ibid, Recommendation 19, emphasis added.
[11] Ibid, Recommendation 14.
[12] Ibid, Recommendation 15.
[13] Ibid at 55, note 123.
[14] Ibid at 58, note 132.
[15] Ibid at 58, citing witness testimony evidence before the AMAD Committee.
[16] Ibid at 61.
[17] Ibid at 53.
[18] Ibid, Recommendation 13.
[19] Ibid, Recommendation 21.
[20] Ibid, starting at 105: “The Liberal Government’s Failures Respecting Medical Assistance in Dying: A Call for Caution Against Repeating Past Mistakes: Special Joint Committee on Medical Assistance in Dying: Dissenting Report”.
[21] Ibid at 106.
[22] Ibid at 107, citing Council of Canadian Academies, The State of Knowledge on Medical Assistance in Dying for Mature Minors, at 153–54, online: <https://cca-reports.ca/wp-content/uploads/2018/12/The-State-of-Knowledge-on-Medical-Assistance-in-Dying-for-Mature-Minors.pdf> [CCA Report on MAID for Mature Minors].
[23] Ibid at 108, citing CCA Report on MAID for Mature Minors, supra note 26 at 68; and witness testimony evidence before the AMAD Committee.
[24] Ibid, citing CCA Report on MAID for Mature Minors, supra note 26 at 81; and witness testimony evidence before the AMAD Committee.
[25] Ibid at 108–109.
[26] Ibid at 109, citing Carter v Canada, 2015 SCC 5 at paras 4, 127, 147; and witness testimony evidence before the AMAD Committee.
[27] Ibid at 109, citing Health Canada, First Annual Report on Medical Assistance in Dying in Canada 2019, at 39; Health Canada, Second Annual Report on Medical Assistance in Dying in Canada 2020, at 33; Health Canada, Third Annual Report on Medical Assistance in Dying in Canada 2021, at 43.
[28] Ibid at 110, citing witness testimony evidence before the AMAD Committee.
[29] Ibid at 111, citing National Assembly of Quebec, Select Committee on the Evolution of the Act respecting end-of-life care, Report of the Select Committee on the Evolution of the Act respecting end-of-life care, Recommendation 1 (December 2021).
[30] Ibid at 113.
[31] Ibid.