Eric Mathison summarizes the final report of the federal Special Joint Committee on Medical Assistance in Dying (MAiD) as it relates to disability.
No currently legal form of medical assistance in dying has received more attention than cases involving people with disabilities whose deaths are not reasonably foreseeable. When MAiD first became legal, the law included a “reasonably foreseeable natural death” condition. In 2021, however, new legislation took effect that removed proximity to death as a requirement. People now qualify who wouldn’t have before, including people with disabilities who are experiencing unbearable suffering and whose disability doesn’t directly affect how long they will live.
This change is ethically and legally justified. If two people are experiencing unbearable suffering, it doesn’t make sense to allow only the person who is going to die sooner to access MAiD. And, as the Superior Court of Québec ruled in Truchon, preventing people with disabilities whose deaths are not reasonably foreseeable from accessing MAiD is discriminatory.
However, increasing access to MAiD also increased the visibility of the many ways that Canada fails to provide adequate social support for people with disabilities.
This was the context into which the Special Joint Committee on Medical Assistance in Dying released its final Report in February 2023. The Committee covered other topics—including mental illness as the sole underlying medical condition, mature minors, and advance requests—but these concern changes to MAiD legislation that haven’t taken effect (and, in the case of the last two, might never). In contrast, MAiD for people with disabilities already happens. The Joint Committee made three recommendations specific to people with disabilities.
The first is “That the Government of Canada continue to support persons with disabilities by implementing measures to reduce poverty and ensure economic security.” This is a good recommendation regardless of MAiD. Canada’s lack of affordable housing has made life harder for many Canadians, including those with disabilities.
As the Report shows, however, poverty’s role in influencing the decision to pursue MAiD has sometimes been exaggerated. In April 2022, there was widespread media attention about a woman in Ontario who, according to news reports, had an assisted death after failing to get subsidized housing for a home that didn’t trigger her chemical sensitivities. This case was offered as a paradigmatic example of how MAiD access had become too permissive.
However, the Report quotes at length from a brief submitted by Dr. Chantel Perrot, who describes providing an assisted death to a woman with Multiple Chemical Sensitivities, likely the woman described in the news reports. In the brief, Dr. Perrot says that poverty wasn’t a factor in the woman’s MAiD decision. She quotes the patient as follows: “Even if I were to find a medically-safe, affordable home, I would still be isolated from the rest of the community. […] I made the only decision that I felt was available: I chose MAiD now.” In other words, in one of the most well-known cases about MAiD and poverty, poverty wasn’t a factor.
The second recommendation—recommendation 11 in the Report—calls on the Government of Canada to “explore potential amendments to the Criminal Code that would avoid stigmatizing persons with disabilities without restricting their access to MAID. Options considered should include replacing references to ‘disability’ in section 241.2(2) of the Criminal Code.”
To access MAiD, a person must have a “grievous and irremediable medical condition”. The Criminal Code says that a person must “have a serious and incurable illness, disease or disability” for their condition to be grievous and irremediable. The Committee is concerned that the use of “disability” in the law implies that having a disability is alone sufficient to qualify for MAiD, and thus stigmatizes people with disabilities who are not negatively affected by their disability.
The Committee’s recommendation addresses this, but, importantly, the recommendation says explicitly that MAiD access for people with disabilities should be preserved, even if their deaths are not reasonably foreseeable. In other words, the Committee recommends a change to the wording of the law, not its substance. Some people have proposed reinstating the “reasonably foreseeable” condition, but the Committee doesn’t endorse this.
Changing the language of the law without changing its substance might not be hard. For instance, instead of requiring “a serious and incurable illness, disease or disability”, the law could be amended to “a serious and incurable medical condition”, which would achieve the same end without restricting access.
If a change to language would address stigma without impacting access, then there’s a strong case for it. However, while the Report describes concerns regarding MAiD’s eligibility criteria and safeguards, it doesn’t reference anyone saying that the language of the law is the problem. All the criticisms concern the law’s substance, especially the removal of the reasonably foreseeable condition, which the Committee rejects. The recommendation is a good one, but it’s unlikely to satisfy critics of the law’s current permissiveness.
The final recommendation is for the Government of Canada to convene an expert panel to study and report on the needs of people with disabilities pertaining to MAiD. Accurate reporting on the diverse experiences and needs of people with disabilities can help correct mistakes made in the media and support the ethical provision of MaiD. Further, as MAiD access changes, so might the needs of people with disabilities. An expert panel could help provide a more complete picture.
The Committee’s recommendations reach the correct conclusion: there are many ways that Canada should do more for people with disabilities, but restricting access to MAiD isn’t one of them.
Eric Mathison is an assistant professor of philosophy at the University of Toronto Scarborough and a clinical ethicist. He writes about ethics on Substack.