Sally Bean summarizes the recent expert report on Medical Assistance in Dying in Canada and suggests that a legislative amendment is unlikely until compelling evidence exists or a common law ruling requires it.
On December 12, 2018, the Council of Canadian Academies issued its much anticipated report on Medical Assistance in Dying in Canada (MAiD). The report is described as a “synthesis of knowledge” that addresses three specific issues related to MAiD: requests by mature minors, advance requests, and requests where a mental disorder is the sole underlying medical condition. The reports can be read independently based on topic areas or comprehensively.
As described in the report summary, the Council is an independent, not-for-profit organization that supports science-based, expert assessments to inform public policy development in Canada. The Council assembled a panel of forty-three experts who were tasked with collecting and evaluating evidence relevant to the three areas. As is the norm with Council of Canadian Academies reports, the panel did not make recommendations to the report sponsor. General questions and topic specific questions were disseminated in a call for input to help inform expert panel deliberations. Call for input submissions were shared with panel members for consideration.
Overall, I felt the report was comprehensive and will help advance the policy discussion in Canada. The report deftly scoped out the questions that require further consideration and also highlighted areas in which there was a lack of expert consensus. I have outlined key summary points from each of the topic reports.
While there is no universally recognized definition of a mature minor in Canada, generally speaking, a mature minoris a person under the age of 18 or 19 (age of majority varies among the provinces and territories) who possesses the capacity to understand and appreciate the nature and consequences of a decision. The Supreme Court of Canada recognizes the common law (i.e. judge-made law) mature minor doctrine which means that the healthcare decision-making capacity of minors is determined by both age and maturity level. The report reviewed in meticulous detail applicable legislation and common law rulings relevant to healthcare decision-making for mature minors in Canada related to refusal of life-saving treatments. However, the report recognized the limitations in terms of application to the MAiD context because a minor would be requesting a life-ending treatment.
Vulnerability is a term that is often invoked when considering MAiD for persons who might be exploited often due to a complex interplay of reasons. Notably, the report said, “Vulnerability includes two aspects that must be considered together: protection from exploitation and protection from exclusion.” This conveys two potentially competing concepts, i.e. protecting minors from making irreversible high-stakes decisions while not constraining options to end suffering due to their chronological age.
This report also thoroughly detailed relevant terminology, concepts, legislation and common law pertaining to informed consent, advance requests, substitute decision-making, and other important concepts such as precedent autonomy. Importantly, this report considered evidence from four international jurisdictions in which euthanasia advance directives are permitted. Each of these jurisdictions has implemented a range of safeguards to protect vulnerable people. Additionally, I particularly liked that the section identified three practical scenarios in which advance requests may arise: advance requests made when patient is eligible for MAiD, advance requests made after diagnosis but before eligible for MAiD, and advance requests made before diagnosis. Each of these scenarios poses different issues that warrant unique consideration.
The topic report dealing with mental disorders was peppered with language indicating that an expert panel consensus could not be reached on many fundamental points, which is indicative of its contentiousness. One key difficulty is determining if a mental disorder can satisfy the “serious and incurable” eligibility criteria for MAiD that is part of the grievous and irremediable definition in the legislation. In particular, there is uncertainty of how an individual’s mental disorder may change over time. Additionally, the reasonably foreseeable natural death requirement in the legislation for MAiD eligibility often functionally excludes individuals with a mental disorder as the sole underlying medical condition. Similar to the balancing that occurs in the mature minor vulnerability discussion, individuals for which a mental disorder is the sole underlying medical condition must be protected from exploitation but also not unfairly excluded.
In conclusion, one overarching thread that ran through all three topics was an emphasis on the dearth of available evidence. Both the Supreme Court of Canada’s Carter ruling and Criminal Code provisions were seemingly informed by evidence from international jurisdictions as well as changing public opinions in Canada. Therefore, the absence of substantial evidence to inform the three topic areas potentially signals that a legislative amendment is unlikely until compelling evidence exists or a common law ruling requires it.