Maybe Bill C-7 Meets the Letter of the Law, but Does It Meet the Spirit?

The federal government has now introduced changes to its legislation on medical assistance in dying (MAiD) in response to the Truchon decision. The existing Criminal Code provisions, enacted after the Supreme Court of Canada’s decision in Carter, had been criticised on several grounds, particularly in requiring death to be “reasonably foreseeable” before someone is eligible for medical assistance in dying. The 2019 Quebec Superior Court decision in Truchon held that the foreseeability requirement in the Criminal Code and the parallel Quebec provision in that province’s End-of-Life Care Act are unconstitutional. The government’s Bill C-7 is in response to Truchon. (See my Slaw post on Truchon.) I suggest that while Bill C-7 satisfies the letter of Truchon, it does not satisfy the spirit. And this is because of its philosophical approach to medically assisted dying.

In Truchon, Justice Christine Baudouin had suspended the declaration of invalidity until March 11, 2020 and provided Jean Truchon and Nicole Gladu, the plaintiffs in the case, a constitutional exemption until the legislation is amended; she recently granted the government’s request to extend the deadline for four months to July 7th.

Bill C-7 does not address whether mature minors may make their own decisions, whether mental disorder alone can constitute a ground of eligibility and whether people can sign advance directives to apply if they later develop some form of dementia that means they are no longer competent to decide (on this last, see my Slaw post). (Bill C-7 does include provisions relating to mental illness and a form of “advance directives”, but is not intended to address these issues substantively.) The government commissioned research projects to review the state of knowledge on these issues, “given the clinical, legal, cultural, ethical, and historical context in Canada”, from the Council of Canadian Academies, which issued their three reports in December 2018. A parliamentary committee will review the law from the perspective of these issues this spring.

Bill C-7 amends the medical assistance in dying provisions of the Criminal Code, sections 241.1 to 241.4. These Criminal Code provisions set out a scheme by which a medical or nurse practitioner can assist someone with hastening their death, providing an exemption for the prohibition against assisting someone to commit suicide under section 241 of the Criminal Code. Under section 241(2), “No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) [“aids a person to die by suicide”] if they provide a person with medical assistance in dying in accordance with section 241.2.” Exemptions are also provided for someone who assists the medical practitioner (section 241(3)) and a pharmacist who fills a prescription written by a medical practitioner “in providing medical assistance in dying in accordance with section 241.2”, a person who helps someone else to self-administer a prescribed a substance under the scheme and various other medical professions (such as a psychologist or social worker) who provide information about medical assistance in dying.

Here I consider some of the more significant amendments in Bill C-7. In particular, Bill C-7 does repeal the “reasonable foreseeability” requirement, but also retains it. It creates two circumstances under which an individual might be eligible for MAiD, one in which their death is reasonably foreseeable and one in which it is not. One might think of these as two paths with both shared and distinctive requirements. Where someone’s death is not reasonably foreseeable, they must meet several requirements not necessary under the current scheme. I discuss this further below.

I also note that while whether mental illness alone is permitted as a ground of eligibility remains undecided, Bill C-7 makes the debate about this issue moot for now by providing that “a mental illness” is not “a serious and incurable illness, disease or disability” that is a necessary precondition to obtaining medical assistance in dying. (For a report advocating mental disorder not be excluded as a ground, see here; for concerns about allowing mental disorder as a sole basis, see here.) The inclusion in Bill C-7 excluding “mental illness” as an “illness, disease or disability” responds to an expectation by some commentators that if the reasonable foreseeable natural death requirement were repealed, eligibility on the basis of mental disorder would follow (see, for example, here). Although Quebec had announced, following Truchon, that MAiD would be available under Quebec’s legislation to persons “suffering severe, incurable mental illness”, the Health Minister later stated the government would consult further and see what the federal government did.

Under Bill C-7, there are two important changes where death is reasonably foreseeable. The first relates to consent. Currently, a person’s consent is required not only initially, but also immediately before assistance in dying is provided. This has led to situations in which people accept assistance earlier than they would like because they are afraid they will lose the capacity to consent later (for a particularly well-known case, see here). The law would now permit the person (who can consent initially) to enter into a written agreement with the medical/nurse practitioner providing assistance that they would receive the assistance even if they lost capacity later. A related change is that the current 10 day waiting period will no longer be applied between when the request is signed and the date when assistance is provided.

I return now to the two paths by which an individual may achieve assistance in dying pursuant to Bill C-7’s changes to the Criminal Code.

Section 241.2(1) of the current regime under the Criminal Code sets out the criteria to be satisfied for a person to receive medical assistance in dying, including that “they have a grievous and irremediable medical condition” (s.241.2(1)(c)). “Grievous and irremediable medical condition” is defined under section 241.2(2), which Bill C-7 would amend. Currently, “grievous and irremediable medical condition” requires all the following elements:

(a) [a person has] 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. (emphasis added)

Bill C-7 repeals the last requirement of “reasonably foreseeable”. However, as indicated above, this new path would be only one way by which a person could be eligible for medically assisted death: a second path retains the requirement. Furthermore, Bill C-7 adds a number of requirements for the new path not necessary when death is reasonably foreseeable.

Section 241.2(3) of the Criminal Code sets out the “safeguards” that require the person who will administer the medically assisted death to be satisfied of certain conditions. The first is that “the person meets all of the criteria set out in subsection (1)”. Those criteria include that “they have a grievous and irremediable medical condition”, the criteria for which currently includes that “their natural death has become reasonably foreseeable” (241.2 (2). Bill C-7 repeals that criterion.

Currently, section 241.2(3) requires the practitioner to confirm that criteria for eligibility are met and certain steps have been taken before providing the assistance. (These include ensuring the eligibility criteria have been satisfied and this has been confirmed by another independent practitioner, the request is in writing, the person is advised they can withdraw the request, make sure communication issues are addressed and others; currently the request must be witnessed by two witnesses, but Bill C-7 changes this to one witness.) Bill C-7 amends section 241.2(3) to apply only to a person whose natural death is reasonably foreseeable. Thus the steps identified in section 241.2(3) that the practitioner must take apply only to when death is reasonably foreseeable in the same way they do now.

In other words, nothing much changes if the death is reasonably foreseeable. One concern that has emerged is that the Minister of Justice suggested in comments that it refers to “a death that is expected ‘in the relatively near-term’ or ‘over a relatively short period of time.'” The inclusion of this requirement in the legislation originally was controversial because Carter did not seem to require it (see here, here and here, for example); nevertheless, it was included and doctors have interpreted the term differently as a result of an Ontario Superior Court decision that the term does not mean that death must be imminent (see A.B. v Canada (Attorney General), at para. 79; also see here). One doctor believes that the term encompasses 10 years. Unless the term is defined in the Criminal Code, therefore, it is unlikely the Minister of Justice’s musings, out of step with developments, will have an effect (except to make doctors wary of approving a death which is likely outside a short period of time, in itself a problem).

The process where death is not reasonably foreseeable is far different, however. Bill C-7 includes a new list of requirements about which the practitioner must be satisfied or must take when a person’s natural death is not reasonably foreseeable (this will be in section 241.2 (3.1) of the Criminal Code). It is this portion of Bill C-7 that is the response to Truchon: while technically responding to Truchon, it has ensured that persons benefiting from Truchon face a far more difficult path to obtaining MAiD. The additional requirements include, among others,

Critics have argued the amendments make legislation already somewhat confusing (“when is death reasonably foreseeable?”) even more so. A report in The Globe and Mail after the introduction of Bill C-7 identified a number of them. On the one hand, “the bill muddies the already somewhat ambiguous notion of what constitutes reasonably foreseeable death and could mean some people who are currently eligible for an assisted death would not be eligible in future” and the exclusion of mental illness as discriminatory and stigmatizing because it fails to acknowledge “mental illness is as serious as physical illness and that the suffering from it can be as excruciating as the suffering from physical illness.” On the other hand, there is criticism the Bill goes further than required by the Truchon decision and fails to address the conscientious objections of doctors adequately.

It can be argued that Bill C-7 is technically in conformity with the reasons in Truchon because medically-assisted dying no longer requires death be reasonably foreseeable. But is it in conformity with the spirit of Truchon? I suggest not and further, it is susceptible to challenge under the Charter. Both plaintiffs in Truchon, Jean Truchon and Nicole Gladu, suffered from grave and debilitating physical conditions, but they would not die naturally in the near future. Justice Baudouin held that the reasonable foreseeability requirement contravened both sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Since someone in the circumstance of Truchon or Gladu, that is, living with a debilitating illness, but not facing death in the near future or even in several years, cannot take advantage of the reasonably foreseeable path, they are forced to take the more difficult and complex “new” path. This new path requires medical/nurse practitioner co-ordination through the process, participation of an expert when that is not required now or under the revised reasonable foreseeability provisions, compulsion to discuss with the practitioners alternate options and a wait for three months after being assessed as eligible before receiving assistance.

To take just one of these additional requirements, the obligation to discuss other options, it is highly likely that people in these circumstances have not only considered but taken advantage of other options at different times in their lives. There is, of course, nothing wrong with considering them, but compulsion is a different matter. Furthermore, it is condescending to require the person to enter into an agreement with the medical/nurse practitioners involved that they have “given serious consideration” to these options. (The current law requires a person be “informed of the means that are available to relieve their suffering, including palliative care”, and this will continue for the option that does not require death to be reasonably foreseeable, but it is far more respectful of the individual’s understanding and experience of their own life.)

There is no template for assisted dying procedures (a brief summary illustrating how different regimes are can be found here and the academic research commissioned by the government provides some discussion of international experiences with the three areas they addressed [mature minors, mental disorders as the only reason for the request and advance directives]). Indeed, relatively speaking, only a small number of jurisdictions permit assisted dying. Most regimes begin with the premise that a person who wishes assistance in dying must make the case, although the most liberal regimes do not appear to require much of a case.

We should begin with the recognition that a person can choose to commit suicide. What they were not free to do before the enactment of Bill C-14 is to receive help in doing so, to make suicide easier and more effective because previously medical professionals who helped them would be breaking the law, as would anyone else. (Methods of hastening oncoming natural death, such as removing medications and nourishment, or removing “extraordinary methods”, with the patient’s consent — or that of the person speaking for them if they are unable to do so — are common [as may be an increased dose of medication, for example] but for some people, this is different from a deliberate act that kills the person. With the first, the person dies from their underlying condition; the second requires a deliberative act such as lethal injection and only this is considered MAiD.)

The import of the medical assistance in dying regimes is that people must obtain permission to die with medical help, thus limiting their right to die when they choose unless they want to risk more painful ways to die or risk not succeeding, perhaps ending up unable to function on their own. Without a regime that permits them to arrange for a later death past the time when they can commit suicide themselves, they must live beyond a point that seems worthwhile to them (this was the situation in the 1993 case of Rodriguez v. British Columbia (Attorney General); the Supreme Court of Canada rejected Rodriguez’s desire to have assistance in dying at the time of her own choosing. She did, in fact, subsequently receive assistance, although no one was charged).

What would happen if the presumption were in the other direction: we presume a person can have assistance unless there is a reason that counteracts that, such as the individual is being coerced? One of the main reasons we surround medical assistance in dying with a plethora of requirements is because we are afraid that people will be “persuaded” by unscrupulous relatives who no longer wish to care for them or who wish to benefit from the person’s estate. Certainly, this is an issue in other contexts, such as abuse by persons serving as personal attorneys for their relatives. We are afraid that people who consider themselves a “burden” on their children will choose to die. We are concerned people will choose to die because they are lonely. The various interests at play are reflected in the Preamble to Bill C-7:

Whereas Parliament recognizes the need to balance several interests and societal values, including the autonomy of persons who are eligible to receive medical assistance in dying, the protection of vulnerable persons from being induced to end their lives and the important public health issue that suicide represents[.]

Looking at the regime under Bill C-7, there are several aspects that do recognize that a person has the right to decide to die and should not have to suffer in doing so. The removal of a requirement for the one path that a natural death is reasonably foreseeable goes some way in this regard. It is important to require the request be voluntary and “was not made as a result of external pressure”. However, the requirement that “they have a grievous and irremediable medical condition” limits people’s own determination of whether they wish to live or not. It is a high standard (and is intended to be under the legislation). A person’s life must be painful and hard before they can choose to end it with help. They must be in “an advanced state of irreversible decline in capability”, experiencing “enduring physical or psychological suffering that is intolerable to them” with no acceptable relief available. Granted, there have been cases where this does not appear to have been the case (see here, for example), but this is what the Criminal Code appears to require.

The intent of Bill C-7 is clear: it is premised, perhaps even more than is MAiD more generally, on the view that people do not have the right to make a decision to die themselves, when it seems right for them. MAiD allows people a far different death than does suicide without help. Suicide without MAiD can be lonely, the effort can fail with terrible consequences, it is less likely to involve family or friends and if it is, those people will risk criminal charges. MAiD permits a person to plan their death and involve others (difficult though it may be for those others, although knowing their loved one can have a peaceful death may help).

A more flexible regime, beginning with the presumption that a person has the right to request MAiD on their terms, does not have to be a free for all. What would it look like? Some of the requirements under the Criminal Code address the issue of voluntariness and these should continue. But the requirement that they have a grievous and irremediable medical condition, as defined under the Criminal Code, meaning they must be suffering intolerably, before someone will grant them permission to die in a way that does not make their suffering worse, does not respect a person’s right of integrity over their own body and conditions under which they choose to live.

The amendments contemplated by Bill C-7 tell people who are suffering intolerably that if their death is not reasonably foreseeable, they must face a complex process in order to relieve that suffering with medical help. It is highly likely that anyone wishing MAID will be asked by their doctor whether they have considered other options and also highly likely they will have already tried them; to be required to go through a process under which they must accept others will determine whether they have “given serious consideration” to those options insults the individual’s own decision-making process.

Would there be challenges to a more liberal regime? Yes. From a practical perspective, there may be a challenge posed by the number of doctors prepared to help people die under a more relaxed system that relies more on the wishes of the individual than the criteria established by government. Yet the need for more doctors to participate is integral to the new path not requiring reasonable foreseeability of natural death. More significantly, there are cases in other jurisdictions that give one pause and in which the history of MAiD is different from Canada (see here and here, for example, about cases in Belgium, here about The Netherlands and here about Switzerland).

Which parts of the Criminal Code provisions would satisfy a more liberal access to MAiD, while still respecting the right of people to make their own decisions about death and protecting those who may be vulnerable to persuasion or even coercion? Section 241.2(1) requires eligibility for health services, the person is competent to make a decision about their health (I omit reference to being 18, which is currently required), “they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure” and they give “informed consent” after “being informed” of options for dealing with their suffering. In my view, all these requirements are compatible with a more liberal approach. Particularly important is that the request be voluntary and “not made as a result of external pressure”. This requires a possibly prolonged conversation between medical practitioner and the person seeking MAiD. Ideally, the person’s doctor will be familiar with the individual and circumstances; however, the decline in long-term relationships with family doctors and reliance on clinics makes this part of the process somewhat more difficult.

Where the person’s death is reasonably foreseeable, section 241.2(1) also requires the person “have a grievous and irremediable medical condition”, which is defined by section 241.2(2) as amended to repeal the reference to foreseeable death, which is reintroduced in section 241.2(3) as explained above: a reminder that it must be a “serious and incurable illness, disease or disability”, the person must be “in an advanced state of irreversible decline in capability”, the person must be experiencing “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable”.

Where the person’s death is not reasonably foreseeable, the person must nevertheless have a grievous and irremediable medical condition” defined as in section 241.2(2) as amended to repeal the reference to foreseeable death.

This is the portion of the Criminal Code that imposes a considerable onus on the individual to live a life beyond where they might choose. That an individual must live like this may make it easier for some doctors to accept MAiD (although others may not ask this of their patients) and perhaps provides a solace for a society that has mixed views — and fears — about MAiD, but it does not make it easier for the individual, nor does it reflect respect for how they choose to live their life or not live it. Without this requirement, the individual and practitioner can have a conversation (or more conversations than one) during which the person can explain why they want to die and why it is their choice. Should any reason do? Perhaps not: would one would feel satisfied with “my child is tired of me”, a reason that comes close to “persuasion”? But as with any medical treatment, a practitioner must decide, with the patient, what is appropriate. In the end the question is: To what extent should others decide for us? To force us to continue living a life we no longer wish to live? To force us to decide between continuing to live it and a lonely, possibly painful death at our own hand? To not let us act (with help) when we decide we have lived too long?

Regardless of whether a more liberal regime is feasible in today’s climate in Canada, we should not be surprised if the new requirements created for the circumstances when death is not reasonably foreseeable are subject to challenge as not meeting the justification for finding the existing foreseeability requirement for people otherwise meeting the requirements as they now exist.