Following a Quebec Supreme Court ruling that the existing restrictions on medical assistance in dying in Canada are unconstitutional, the federal government is looking to expand the eligibility requirements.
In line with our position on medical assistance in dying, the BC Humanist Association has created the following guide to help you respond to the government's questionnaire that will inform the coming changes.
After each answer we've included our justifications. Feel free to adapt any of these comments into the "additional comment" sections as well (note there is a 500 character limit on comments). Where the BCHA has no official position, we've expressed it, but do express your own opinion.
The consultation closes Monday, January 27, 2020 at 11:59 PM PST.
C. Safeguards to protect against misuse or abuse of medical assistance in dying
1. Do you think the current safeguards would prevent abuse, pressure or other kinds of misuse of MAID after eligibility is broadened to people whose deaths are not reasonably foreseeable?
Since MAID was legalized in June 2016, there has been no evidence that the current safeguards have permitted any abuse or pressure. To our knowledge there is no peer reviewed research showing cause for concern, nor has there been widespread reporting of anecdotal concerns. If anything, we might consider that the current safeguards and requirements are too stringent. This excessively precautionary attitude is present in the framing of the following possible additional safeguards as the Government considers expanding eligibility.
2. The following list contains potential safeguards that are not currently in place in Canada, as well as potential revisions to some existing safeguards. These are safeguards that apply under the MAID laws of some other countries.
In your opinion, when a person is not at a point where their natural death has become reasonably foreseeable, how important is it to require the following safeguards for those who meet all other eligibility criteria for MAID?
2A. A different reflection period (currently a 10-day reflection period) between the submission of a person’s written request for MAID and receiving MAID.
Not important at all
We do not support mandatory waiting periods because they are necessarily arbitrary and do not reflect individual circumstances. The determination of whether the request for assistance is enduring should be part of the physician’s assessment process. We believe physicians are best positioned to assess the need for waiting periods and should do so on a case-by-case basis.
2B. MAID should be available only when the practitioner and the patient both agree that reasonable treatments and options to relieve the person’s suffering have been tried without significantly improving the person’s situation.
Not important at all
The patient is the ultimate arbiter of whether reasonable treatments and options have been tried. This proposal amounts to permitting the practitioner a veto over the patient’s right. While practitioner’s have a role in explaining possible treatments and options that may aid suffering, it’s up to the patient themselves to make the choice.
2C. A mandatory psychological or psychiatric assessment to evaluate the person’s capacity to consent to receiving MAID.
Not important at all
Physicians, who regularly judge a patient’s competency, are sufficiently qualified to attest to whether a patient is making a free, voluntary, and informed decision. Additional mandatory tests serve only to create further barriers to access and needlessly restrict patients’ rights. A specialized capacity assessment may be sought by either healthcare professional if they have any uncertainty about the patient’s capacity to provide informed consent.
2D. Making sure the person requesting MAID is aware of all the means available to potentially relieve their suffering, including health and social support services (for example counseling, disability support, palliative care).
Not important at all
Mandating that healthcare providers provide specific information to patients treats both the patient and their healthcare provider in a paternalistic way. It undermines the dignity of the patient by presuming a level of ignorance about their ultimate decision and it encroaches on the professional autonomy of healthcare providers who already have an ethical duty to ensure patients are able to make an informed decision. Adding such a restriction to the Criminal Code only creates an additional barrier to access that risks putting a chill on healthcare professional’s willingness to provide MAID.
2E. Mandatory consultation with an expert in the person’s medical condition and circumstances (for example a gerontologist, psychiatrist, or social worker), in addition to the already mandatory 2 medical assessments.
Not important at all
Similar to the previous two proposals, a mandatory review creates a significant barrier and puts into question the competency of healthcare providers. If either reviewing care provider deems it necessary to seek consult an additional effort, they may order that review. Mandating it in every case needlessly creates additional impediments to patients’ accessing their rights.
2F. Retrospective review of MAID cases by a committee to verify that the eligibility criteria and safeguards were satisfied and in place.
We do not support establishing independent panels to determine the legitimacy of an individual’s request prior to accessing a medically-assisted death. Such requests should remain between a patient and their physician. Therapeutic Abortion Committees in the 1970s and 80s showed that such panels severely restrict access and create large discrepancies in availability between jurisdictions across Canada. We have no reason to believe that mandatory assisted dying committees would result in a more just provision of services.
2G. Special training and tools to assist doctors and nurse practitioners to assess areas of potential vulnerability (for example mental health issues, or potential outside pressures or influences).
There is undoubtedly space for additional educational support for healthcare professionals to ensure patients are able to access their rights. Such requirements should be in the purview of Health Canada and provincial healthcare systems rather than the Criminal Code, however.
2H. An obligation for the physician and nurse practitioner to offer to discuss their patient’s situation with their family members or loved ones with the patient’s consent.
Not important at all
Choosing an assisted death is an immensely personal decision and belongs between a patient and their healthcare professionals. While some patients may appreciate an offer from a practitioner to speak to family members, for others it may be unwelcome and bring up disapproving relatives who might attempt to interfere with their free choice. We therefore oppose any legislated obligation that a patient or healthcare provider would have to consult with anyone besides their physician.
3. Do you have any other comments you want to share about possible safeguards for people are eligible for MAID, but not at the end of life?
As we, and many supporters of medical assistance in dying, noted during the passage of Bill C-14, restricting access to those whose “natural death is reasonably foreseeable” was in violation in the letter and spirit of the Supreme Court of Canada’s findings in the Carter decision. Unsurprisingly then, we saw the Superior Court of Québec strike down this restriction in the Truchon decision last September. We therefore urge the Government not to make the same mistakes again by needlessly restricting Canadian’s right to an assisted death. Our position since 2015 has been that the government should “allow assisted dying for all who choose it.”
When it comes to safeguards, we continue to advocate for reasonable safeguards that must not make access unjustly difficult. In particular, physicians and healthcare providers regularly assess patients’ competence to make life and death decisions. Their expertise can therefore be relied upon in the variety of unique and individual circumstances that may arise. Legislated restrictions and additional requirements undermine the dignity of both patients and their physicians.
D. Final consent and advance requests for MAID
1. Imagine that a person makes a request for MAID, is found to be eligible, and is awaiting the procedure. A few days before the procedure, the person loses the capacity to make health care decisions, and can not provide final consent immediately before the procedure. In your opinion, should a physician or nurse practitioner be allowed to provide MAID to a person in these circumstances?
We argued prior to the passage of Bill C-14 for the Government to permit patients to make advance requests. This is an entirely reasonable and widely supported change.
2. Imagine that a person is diagnosed with a medical illness that, over time, will affect their mind and take away their decision-making capacity, such as Alzheimer’s disease. The person prepares a document that says they consent to receive MAID if specific circumstances arise at a later date, after they no longer are able to consent.
In your opinion, should a physician or nurse practitioner be allowed to provide MAID to a person in this situation once the circumstances in their document have arisen and they otherwise meet the MAID criteria, even if they can no longer consent?
We have further argued that not only should that request be able to be made in the imminent future (ie while awaiting for a procedure) but through a document like a living will that envisages circumstances in the distant future.
3. Do you have any other comments you want to share about allowing MAID to be provided to a person who has an advance request but is not able to consent to MAID at the time of the procedure?
One of the fundamental injustices of Bill C-14 was preventing individuals from creating advance requests for MAID. Ethically there is little difference between making a decision at the time of the procedure and proactively when a patient is likely to lose competency. However, without providing for this option, countless individuals are forced to suffer needlessly.
E. Additional comments
1. Do you have any other comments you want to share that have not been covered in the discussion so far?
We applaud the government for taking these steps toward removing the unconstitutional restriction that a natural death must be reasonably foreseeable and considering the opportunity for advance requests for MAID. Nevertheless, we are still concerned that there are a number of categories left out from the opportunity to access MAID.
Specifically, given that regimes exist to ensure the rights of mature minors to access medical treatments, we maintain that mature minors should be able to access MAID. Anyone mature enough, regardless of age, to give an informed and voluntary consent should be free to choose a physician-assisted death. It is the right of a competent individual to determine whether they are ready to end their life. Similarly, people whose suffering is psychological or due to a mental illness also deserve the right to access MAID. Denying this right to these classes of individuals discriminates against their rights to equal protection of the law.
We continue to be concerned about access to MAID. Healthcare institutions that receive public funding should be required to allow MAID within the institution. Those that refuse should see their funding withdrawn. Similarly, we do not support so-called “conscientious objection” clauses that permit physicians and pharmacists to opt-out of doing their jobs because of their personal beliefs. Medical professionals have a responsibility to respect their patients’ autonomy and their dignity. Therefore, the right of an individual to receive a medically-assisted death outweighs any personal, ethical or religious objections of a medical professional.
Where allowances for conscientious objections are permitted, such allowances must be rare, unrelated to belief in a deity (or deities) or other supernatural entities, and applied in a manner that places first priority on the patient’s wishes. Objections should not interfere with or obstruct a patient’s right to medical assistance in dying. Physicians and pharmacists should be required to provide information about medically-assisted dying according to the established norms of informed consent law. Physicians who are not prepared to provide medically-assisted death and pharmacists who are not prepared to fill prescriptions for life-ending medication should be required to provide effective and timely referral. Patients in remote areas should be guaranteed equal access as those in major cities and should not be required to travel to obtain a medically-assisted death.
Finally, aggregate data collected on MAID has so far been inconsistent between health regions and provinces. The federal government has a role to play in improving and standardizing the collection of these data and in ensuring depersonalized data is publicly released.