IRPP Provides Interpretations for Canadian MAiD Legislation
May 9, 2018
BY Emily Amirkhani
On March 1st, 2018, the Institute for Research on Public Policy (IRPP) released its report titled Interpreting Canada’s Medical Assistance in Dying Legislation (the Report). The Report aims to clarify the current confusion surrounding the application of the criminal law related to medical assistance in dying (MAiD), in particular to help explain the eligibility criteria to both patients and medical practitioners.
MAiD was legalized in the landmark 2015 Supreme Court of Canada decision Carter v Canada (Attorney General) (Carter). The Court in that case held the previous criminal prohibition on assisted dying to be unconstitutional on the basis that it contravened patients’ rights to life, liberty and security of the person pursuant to section 7 of the Canadian Charter of Rights and Freedoms.
In response to the Carter decision, the Federal Government amended the Criminal Code of Canada in 2016 to permit MAiD under certain strict circumstances. With that amendment came a list of criteria a patient must meet to be eligible for MAiD, including that the patient must “have a grievous and irremediable medical condition.”
Section 241.2(2) of the Criminal Code states that a person has a “grievous and irremediable medical condition” only if:
- they have a serious and incurable illness, disease or disability;
- they are in an advanced state of irreversible decline in capability;
- that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
- their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time they have remaining.
The interpretation of this criteria has caused some confusion and uncertainty for medical practitioners and patients alike. Consequently, the Report attempts to elucidate 6 key phrases in the criteria by using tools of statutory interpretation to recommend interpretations for key concepts in the legislation. We summarize these in context below.
Serious and incurable condition— The Report states that a condition which is “incurable” is one which, in the health care provider’s professional opinion, cannot be cured by a means acceptable to the patient. In justifying this subjective interpretation, the Report highlights that every person has the right to refuse any treatment. It also cites Carter, where the Supreme Court stated “[i]rremediable…does not require the patient to undertake treatments that are not acceptable to the individual.” Further, the Report notes that the Minister of Health and Senior Counsel of the Department of Justice have explicitly adopted this interpretation.
Irreversible decline in capability— The Report states that this criterion is to be assessed by a health care provider in relation to the patient’s prior capabilities, and that it applies to rapid, gradual, ongoing, or stabilized declines in physical or cognitive capabilities. Absent any specification to narrow the type of capability intended in this requirement, the Report finds that this broad interpretation is justified.
Suffering that is intolerable to them — The Report defines “intolerable to them” as “extreme, in the opinion of the patient.” It is the patient’s opinion of their mental and physical suffering as extreme that is relevant, not a third-party notion of what is or is not extreme. The Report states that this interpretation is more logical than the literal meaning of “intolerable” because otherwise this timing would increase the unexpected loss of capacity to consent resulting in ineligibility for MAiD, and would require patients to endure an additional 10 days of suffering, which by definition is intolerable.
Reasonably foreseeable natural death — The Report states that temporal proximity and a predictable cause of death are both independently sufficient for this criterion to be met, but that neither is necessary. Where either temporal proximity or a predictable cause of death exists, the natural death of the patient will be reasonably foreseeable. A patient need not have a fatal disease, be terminally ill or “at the end of life”.
The Report references a 2017 Ontario Supreme Court decision, AB v Canada (Attorney General), in interpreting this phrase. In that case, an elderly patient suffering from an incurable and irreversible inflammatory condition sought a declaration that she was eligible for MAiD. Two doctors had agreed that she met the criteria, but a third did not believe that her natural death was reasonably foreseeable. As a result of the third doctor’s opinion, the first doctor withdrew his support, and the patient was unable to access a medically assisted death. The court declined to adjudicate on her general eligibility for MAiD but did use the opportunity to provide interpretation of this phrase. The court stated that, for natural death to be “reasonably foreseeable,” it need not be imminent, and that a prognosis on lifespan is unnecessary. Similarly, while the cause of death must be natural, it does not need to be connected to a particular illness. That is, the patient need not be dying from a terminal condition. In the end, the court declared that the plaintiff’s natural death was reasonably foreseeable based on this interpretation.
The Report canvasses several government statements about the legislation on this point, noting some apparent confusion and internal inconsistencies, but ultimately concludes that: “we can reconcile them with the legislation and the one available court decision by concluding that either the when (“in a period of time that is not too remote”) or the how (a predictable cause of death) is enough to establish that reasonable foreseeability exists.
Safeguards were also introduced in the MAiD legislation. One such safeguard requires that the patient provide informed consent both when initially requesting the procedure, and immediately before the procedure is performed. Another requires there to be ten full days between the initial request for MAiD, and the day it is actually provided. An exception exists, however, where the health care practitioners believe that the patient’s loss of capacity to provide consent is “imminent.” In that case, a shorter waiting period is permitted, as the practitioners see fit.
Imminent loss of capacity to provide informed consent — The Report states that there is an “imminent” loss of capacity to provide informed consent when the loss is “caused by the underlying condition alone or in concert with other natural conditions; or when the patient is at risk of permanent loss of capacity to consent to MAiD while under sedation or other medication required to alleviate suffering.” Including loss of capacity due to sedation or other medication in this interpretation seeks to address the inappropriate situation in which a patient might be forced to refuse ethically and medically appropriate medication to manage their pain and symptoms in order to ensure they have decision making capacity at the end of the 10-day waiting period.
A question remains about the eligibility of patients whose sole underlying condition is a mental illness. The MAiD legislation does not reference mental illness, but some health authorities have made statements that these patients are not eligible for MAiD. The Council of Canadian Academies, at the request of the Federal Government, has assembled an expert panel to review this issue, but has not yet released its report.
Exclusion of mental illness —The Report states that individuals suffering mental illness who meet all eligibility criteria are eligible for MAiD, even if mental illness is their sole underlying medical condition. The Report discusses some examples of Parliamentary intention to both include or exclude patients with only mental illness, but ultimately concludes that patients whose sole medical condition is one of mental illness are not excluded from accessing MAiD. The Report points to the provisions of the Criminal Code to note that these patients are not explicitly excluded by the law. It also relies on statements made by the Federal Minister of Justice that the legislators intended to include patients suffering only mental illness, as long as they meet all eligibility criteria.
The Report calls on specific government agencies and other authorities to reflect the proposed interpretations in official documents relevant to their respective fields. It also calls on the Federal Minister of Justice and Attorney General to make a public statement on the accuracy of the Report’s interpretations with the intention of the legislature. The Report also invites government, regulatory and non-government organizations generally to “adopt, endorse and/or disseminate the proposed interpretations.”