Since our last response in January 2016, there has been a significant amount of research into the demand for medical assistance in dying (MAiD), and experience of the 13,000 Canadians who received their wish of an assisted death in Canada since legislation. However, there are also many people who would have otherwise wished for MAiD, but were excluded from the eligibility criteria until now. Amendments to the Criminal Code of Canada will pave the way for more Canadian adults to fulfill their wishes of a death with dignity, a cause that the overwhelming majority of Canadians support.
Eligibility Criteria
In the original bill C-8, many people would not qualify for MAiD, as those natural death was reasonably foreseeable were ineligible for an assisted death. This means that only people with terminal illnesses could have their wishes fulfilled in this way, and those who were living with advanced, irreversible illnesses but whose predicted natural death was undetermined were forced to continue living in a state of physical and psychological suffering. This represented a huge oversight for people living with chronic degenerative diseases such as ALS and MS, as it limited their end of life options. Repealing the reasonable foreseeability of natural death criterion is a win for human rights in Canada.
The proposed bill explicitly states that people with mental illness as their sole underlying condition are not eligible for an assisted death. This is a sticking point, and highly controversial for many experts and advocates. The BCHA shares the views of Dying with Dignity Canada that this issue requires greater debate and consideration, but that people with mental illness deserve to be included in this issue. In the Council of Canadian Academies report, lengthy and in-depth analysis proved that experts in this field could not agree on many levels, including if a desire to die while experiencing mental illness was a symptom, or well-thought out autonomous decision; the potential impact on suicide prevention strategies; and if there are moral obligations to offer a peaceful death versus non-interference when an individual has expressed their desire to die, at any means possible. Could this constitute a reasonably foreseeable death? The answer is unclear.
The BCHA supports the fact that any policy should be evidence-based, and uphold the autonomy of all capable adults. According to the Centre for Addiction and Mental Health (CAMH), there is currently insufficient evidence that mental illness as a sole underlying condition is an irremediable medical condition. During consultation for the updated criteria in 2020, the CAMH maintained their previous stance on the issue. However, we ultimately believe it falls upon free, informed, and capable adults, including those living with a mental illness, to decide what is best for themselves. We encourage our interested members to watch Dying with Dignity Canada’s webinar on this issue which can be found here.
Currently, access to an assisted death by mature minors (people under 19 who pass a capability to consent test) is not permitted under the current criteria. Much like the aforementioned report by the CCA, their report on mature minors—equally researched by a massive team of experts and hundreds of citations—does not reach a consensus, but offers many convincing arguments for expanding MAiD criteria to mature minors. The BCHA agrees with Dying with Dignity Canada, and supports measures to expand medically assisted death to mature minors. Mature minors already make important healthcare decisions for themselves, including treatments with potentially terminal side effects. There is no valid reason to deny a young person who has the capability to consent the choice to end their life on their own terms.
Safeguards
In submitting a Patient Request Record for Medical Assistance in Dying, patients previously had to have it signed by two independent witnesses. The updated policy allows for one independent witness, who may be a paid personal or health care worker. This seems like a minor change, but it reduces the burden on seriously ill people and may reduce their waiting period to receive their wish with the help of the people they see most often. Furthermore, it allows them to keep their decision to request an assisted death private if they have family and friends who may disagree with it.
The 10 day reflection period ‘safeguard’ was widely considered to be a cruel component of the law, forcing seriously ill people to suffer for even longer. Some also considered it patronizing, so its removal for cases in which death is reasonably foreseeable is a positive change. Unfortunately, for those whose death is not reasonably foreseeable, having a 90 day minimum period of request assessment is burdensome on individuals. However, the option that it may be shortened if loss of capability to consent is imminent, which is slightly better. We hope that in the next revision of this bill, this waiting period will be removed, just as it was for reasonably foreseeable deaths.
The BCHA supports the additional safeguard for cases where natural death is not reasonably foreseeable, which promotes informed decision-making. Patients must be informed and offered all available support (including mental health, counselling, disability support, and more) without delay, and offered consultations with relevant professionals. All people with disabilities deserve access to community support that promotes their flourishing as early as needed, and their provision should never be compromised by funding cuts. Claims that access to MAiD promotes the erasure of people with disabilities and downplays the necessity of community services are unfounded and ableist. Capable adults with disabilities are deserving of supports, including the choice to access a medically assisted death if they so choose.
Advance Directive / Waiver of Final Consent
Changes to this law will allow for an advance directive in some circumstances. This means that people whose death is reasonably foreseeable will be permitted to submit a legal document that allows them to receive an assisted death without providing informed consent. This offers people the option to receive palliative sedation, resist fighting the symptoms of their illness, or worry about their ability to provide final consent—all which would interfere with their wish to an assisted death. Now, this legal document can serve as a substitute.
Family and friends of loved ones who had requested MAiD expressed feelings of stress and anxiety over the criteria that immediately prior to the provision of MAiD medications, a person must give final consent. In many cases, this was impossible when a person’s suffering was so great that they required pain relief or sedatives which violated their ability to consent. This delayed their wish and caused unnecessary grief for families and loved ones. In many stages of the assessment process, including discussions with providers and immediately before the provision of MAiD, patients are repeatedly reminded that they can change their mind or reschedule at any time, without consequences, and it will not affect their eligibility. Removing the safeguard of mandatory final consent on the day actually promotes the patient’s free and informed choice by eliminating their fears that if they choose to postpone, their wish will not be fulfilled due to a change in mental status. Offering advance directives allows someone to be sure about their decision, and ensures they will receive their wish whenever they feel ready. It is important to note that the ability to give an advance directive for an assisted death is only applicable for cases where natural death is reasonably foreseeable. You can read an in-depth report by the Canadian Council of Academies on Advance Directives here
Other Measures
New, non-legislative measures emphasize governmental practices to monitor and report MAiD statistics. This may help decrease urban/rural barriers to an assisted death, and utilize new telemedicine infrastructure (from COVID-19) in MAiD assessments. The promise of enhancing disability support is a much-needed safeguard to promote the quality of life of people with disabilities and improve their autonomy, and informed choice of an assisted death.
Research suggests that for people and families seeking MAiD in Vancouver, the experience is overwhelmingly positive, and families found many unexpected benefits of an assisted death compared to natural death, including a greater sense of peace, closure and comfort. Everyone deserves peace in their end of life, and it is essential that legislation removes barriers preventing people from receiving their wish for an assisted death.