The Canadian government just released its bill on
Medical Assistance in Dying, in response to the
Carter decision. The Government wisely decided that a criminal law prohibition should remain in place, but that in exceptional circumstances, medical acts that hasten a person's death are exempted from the criminal prohibition. The Bill is emphasizing the importance of balancing competing Charter rights: the right for some people in exceptional circumstances to obtain active medical support for a life ending intervention (justified under
Carter under the right to life, liberty and security of the person) and the right of those who are vulnerable and require our protection and full support, which--as
Dianne Pothier aptly demonstrates--is associated with the Right to Life and Security of the Person and the Right to Equality. The access criteria reflect an appropriate balance, which was missing from previous reports that nearly exclusively focused on 'access' and individual choice, that ignored how contextual factors contribute to vulnerability, and that ignored growing evidence of problems in open-ended access regimes. But some eligibility criteria are inevitably quite open to interpretation, which makes it all the more problematic that an assessment of competency and informed consent by two physicians is seen as sufficient to ensure compliance. I continue to support a prior review system as reflected in the V
ulnerable Person Standard, which is supported by a wide and inclusive coalition of patient and disability advocacy groups, health professional organizations, health care institutions and individuals with a wide variety of ideological and religious affiliations. Prior review should provide protection against possibly sloppy and/or overly zealous physicians, ensure proper vulnerability assessment; a greater level of accountability and consistency in interpretation. As mentioned in an earlier blog, a
proposal by David Baker and Gilbert Sharpe to use an existing federal review structure in the context of mental health should provide inspiration to the government to add prior review to its bill. Such a system can easily be implemented and can be flexible, fast, and adjusted to the circumstances of each case.
The eligibility criteria of the new Bill are reproduced below. They appear more or less in line with what I and others have argued, including in publications and op-eds mentioned or linked in earlier blog postings here. If implemented, they will result in a regime that is clearly more cautious than the open-ended Belgian and Dutch regimes.
The Bill wisely attempts to provide a more precise definition of what constitutes a grievous and irremediable medical condition. Even if the definition leaves room for ambiguity (i.e. when is death reasonably foreseeable), it is at least an honest attempt to do more than the Provincial Territorial Expert Advisory Group and the Joint Parliamentary Committee have recommended. They proposed to transform the vague 'parameters' the Supreme Court provided in Carter into 'criteria for access' without any further direction about what these parameters mean. The government has to be lauded for its attempt to provide guidance in this difficult area, and to make a much more serious attempt to provide a Charter-required balancing of rights. In addition, the announcement to implement a serious palliative care strategy is important. Such a strategy should be prioritized, so that no one in Canada feels the need to ask for a hastened death because of absence of good health care services and palliative care.
There will undoubtedly be significant pressure in the coming weeks, during the parliamentary debate, to expand the eligibility criteria, with all-too-easy arguments about how the government is not respecting the Charter rights of individuals who demand open access to MAID. With colleagues and others involved in the debate, I will continue to argue on the contrary that prior independent review by an independent agency or authority remains crucial and has to be added to this bill in order to offer meaningful protection, which the Charter also requires.
Eligibility criteria:
241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying.
Grievous and Irremediable:
2) A person has a grievous and irremediable medical condition if
(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.
