Trudo Lemmens shows how proposals to expand advance requests for medical assistance in dying (MAID) ignore the Supreme Court’s restraint reflected in the Carter decision and reverse constitutional and human rights norms.
While a federal Joint Parliamentary Committee on Medical Assistance in Dying is still supposed to be exploring whether offering MAID based on an advance request (AR) should be expanded, one of its members, Senator Wallin, already introduced a bill to do exactly that; and Quebec’s government also wants to do so before the summer recess. An expansion would further allow MAID based on a prior signed form, when the person is no longer capable to confirm consent. When allowing this in situations of advanced dementia, we will be faced with what has evoked outrage in the Netherlands: the surreptitious medicating of patients with dementia who no longer understand what is done to them, to facilitate ending their life; and potentially suppressing their physical resistance.
The Netherlands was the only jurisdiction that allows MAID under such circumstances, and its Supreme Court recently endorsed the practice. Belgium allows euthanasia based on advance requests, but only when patients have become permanently unconscious. Since Bill C-7’s adoption, MAID can be performed with an advance request in Canada when the person satisfied the law’s access criteria and was able to consent at the time of signing the form. MAID providers are prohibited from ignoring refusal or resistance “expressed by words, sounds, or gestures” but the law undermines this safeguard by allowing MAID providers to interpret these to be “involuntary”, “made in response to contact.” The law remains silent about surreptitiously medicating patients. MAID advocates now want to expand ARs for MAID to allow someone to stipulate the circumstances in which they want to have their life ended, with another person deciding that the time has come.
During committee hearings, Professor Jocelyn Downie framed my claim that contemporaneous consent was “arguably constitutionally required” as reflected in the emphasis on “clear consent” in Carter as “bizarre”. In a recent Impact Ethics commentary, she characterizes this argument as “misinformation” – a remarkable framing of a colleague’s interpretation of Supreme Court decisions.
Downie’s argument hinges on the truism that Carter does not explicitly prohibit ARs for MAID. Arguing that therefore you cannot make any claim about the Court’s view of its legality shows how some have turned an overall presumption against killing upside down. They start from the premise that health care providers ending life is beneficial practice and that any restriction needs to be unequivocally justified. This distorts the care the Court went to in Carter to ensure that its judgment not be taken more broadly than it was intended.
Of course, Carter does not explicitly prohibit advance requests since that was not before the Court. But the Court went out of its way to emphasize that “clear consent” was a vital component of allowing some form of MAID in the restricted circumstances where it needed to be allowed.
First, it explicitly restricted its decision to “the factual circumstances in this case” – a person with ALS able to confirm consent – and made “no pronouncement on other situations where [MAID] may be sought.”
Secondly, Carter stated that “euthanasia for … persons with psychiatric disorders” did “not fall within the parameters” of its ruling, an exclusion Downie ignores in her Impact Ethics commentary.
Thirdly, the Court acknowledged that safeguards, beyond those of normal medical practice, were key, thus undermining the argument that ARs for MAID are permissible because they resemble advance directives in medical practice. It should be noted, as the Council of Canadian Academies’ report on ARs for MAID does, that with MAID, a third party is given the power to allow an active invasion of bodily integrity, whereas an advance directive related to withholding life-saving treatment involves abstaining from bodily invasion. ARs for MAID therefore cross a line between clearly voluntary and involuntary MAID.
Finally, the Court emphasized that MAID had to be available for a “competent adult” who “clearly consents”, citing Justice Smith’s statement that it would only be ethical when causing death is “clearly consistent with the patient’s wishes and best interests”. The qualifiers “clearly” and “competent” are there for a reason. Dutch legal scholars have argued that their practice in the Netherlands violates the right to life under the European Convention on Human Rights, precisely because of the inherent ambiguity that surrounds the practice, which has been revealed also by other Dutch cases.
Instead of acknowledging that Carter confirmed the state’s strong obligation to protect life, and only carved out an exemption to a well-established prohibition, Downie now uses its narrow basis to justify expanding MAID, because, in her view, the Court didn’t explicitly prohibit it.
Promotors of expansive MAID ignore that preventing premature death remains a priority under constitutional and international human rights law. The fact that some may not get MAID when they want it is seen as of greater concern than the premature death of others, particularly those already stigmatized, discriminated against, and contextually vulnerable. This reflects a troubling, irrefutable utilitarian logic: when MAID becomes a solution to suffering, available on demand, it will always be prioritized, since it is 100% effective.
In 7 years, we have veered remarkably far from Carter, promoting MAID now when it may run counter to people’s current interests and desires. This constitutes in my view a direct violation of constitutional and human rights norms, including the International Convention on the Rights of Persons with Disabilities. At the very minimum, the Convention requires us to promote, not suppress, the expression of preference and involvement of persons with cognitive disability in decision making at the end of life.
Regardless of the various ways in which the Carter decision may be read, we should hope that the Committee and Parliament will take constitutional and international human rights concerns about advance requests for MAID seriously, and at least put a halt to further expansion of MAID in this very sensitive context.
Trudo Lemmens is Professor and Scholl Chair in Health Law and Policy in the Faculty of Law at the University of Toronto.