The Future of MAID in Canada

When Bill C-14 received Royal Assent on June 17, 2016 Medical Assistance in Dying (MAID) became law in Canada. But the debate over the limits of MAID are far from over.

Bill C-14 includes a number of review mechanisms. The entire scheme is subject to a 5-year review, with a report to be submitted with recommendations.

Specific portions of the Bill are subject to a shorter-term review, for “requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.” These issues were inadequately resolved at the time that the law was needed to come into effect. The reviews must be initiated within 180 days after receiving royal assent, and must produce a report no later than 2 years after the review is initiated.

The existing scheme is already being constitutionally challenged in British Columbia. Within 10 days of the new law being passed, Julia Lamb filed a constitutional challenge. The main problem with the legislation has been the reasonable foreseeable death requirement for the definition of a grievous and irremediable medical condition,

241.2(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

…

(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

The rationale for this provision was to strike what the government found to be an appropriate balance between the autonomy of individuals and the interests of society and vulnerable persons in need of protection,

The criterion of reasonable foreseeability of death is intended to require a temporal but flexible connection between the person’s overall medical circumstances and their anticipated death. As some medical conditions may cause individuals to irreversibly decline and suffer for a long period of time before dying, the eligibility criteria do not impose any specific requirements in terms of prognosis or proximity to death (e.g., a six month prognosis as the U.S. states’ medical assistance in dying laws require). The medical condition that is causing the intolerable suffering does not need to be the cause of the reasonably foreseeable death either. In other words, eligibility is not limited to those who are dying from a fatal disease. Eligibility needs to be assessed on a case-by-case basis, with flexibility to reflect the uniqueness of each person’s circumstances, but with limits that require a natural death to be foreseeable in a period of time that is not too remote…

Rather than adopt an American rule with strict temporal controls, the reasonably foreseeable test is intended to also intended to encompass degenerative diseases with less predictable courses, and where the dying process can last much longer. The term is also intended to be more flexible than Quebec’s requirement that MAID be provided “at the end of life.”

Unfortunately for Ms. Lamb, she suffers from spinal muscular atrophy. She could live for years or even decades in excruciating pain.

The focus of the application is that Carter was more about the intolerable nature of the suffering than the reasonably foreseeable death. It is the forced suffering, without a legally available remedy, which violates the Charter. The Lamb application provides a list of conditions which could result in this type of suffering without necessarily meeting the reasonably foreseeable criteria:

a. Spinal muscular atrophy;
b. Multiple sclerosis;
c. Spinal stenosis;
d. Locked-in syndrome;
e. Severe conversion disorder;
f. Traumatic spinal injury;
g. Parkinson’s disease; and
h. Huntingdon’s disease

The government’s response to the claim, relies heavily on an interpretation of Carter that limited its validity to those “in a state of advanced weakening capacities with no chance of improvement,” and specifically to the facts in that case.

The government details the carefully tailored response in Bill C-14, and highlight the objectives of the s. 241.2 criteria of supporting suicide prevention and discouraging suicide. The provision does not provide a general right to medically assisted death due to suffering, nor does Carter provide for such a right. Of course, an alternative argument that the legislation can be saved under s. 1 is also detailed in the response.

Aside from these challenges, the implementation of MAID will invariably fall on the provinces. In Ontario, the Law Commission of Ontario has commissioned a number of interdisciplary papers related to end of life decision-making, some of which touch on MAID.

Dr. Arne Stinchcombe et al. examine the notion of a “good death” in the LGBT community, including the need for “having control, maintaining a sense of community, feeling safe and having the freedom to express their sexuality.” Dr. Mary Chiu et al. explore issues of frailty, chronic illnesses and dementia. An example of how this can overlap with MAID is the criteria they present for palliative care that death is expected within six months. The authors note that this determination can be impossible to make in the case of certain chronic illnesses and dementia. Dr. Donna Wilson and Stephen Birch looked at the coordination, communication and capacity for end of life care, and found that such care is often fit into existing models rather than used as an overarching paradigm. Part of the shift to holistic care would call for advance care planning. How this would fit into MAID is still something to be determined.

The remaining LCO papers under development include a review of informed consent, balancing various interests, methods for assessing capacity, and integrating religious and cultural supports. The provision of end of life care is incredibly complex, and the introduction of MAID into the mix means there will be many more challenges to come.

We will be exploring these issues above at a panel tomorrow at the 12th Annual National Forum: Administrative Law & Practice.