A brief history of Medical Assistance in Dying
- In the early 1990s Sue Rodriguez first brought the question of her right to die with dignity to the courts, arguing that Section 241(b) of the Criminal Code, which prohibited assisted suicide, was constitutionally invalid. In a 5-4 vote, the Supreme Court ruled that the law did not violate the Charter. Rodriguez, who herself was living with ALS, was assisted by an anonymous doctor in February 1994 to end her life. Canadian society has been engaged in the discussion of medical assistance in dying ever since.
- In February 2015 the Supreme Court of Canada ruled unanimously in Carter v. Canada that parts of the Criminal Code would need to change to satisfy the Canadian Charter of Rights and Freedoms. The parts that prohibited medical assistance in dying would no longer be valid. The Supreme Court gave the government until June 6, 2016 to create a new law.
- In June 2016 the Parliament of Canada passed Bill C-14 to allow eligible Canadian adults to request medical assistance in dying.
- On September 11, 2019 the Superior Court of QC ruled in Truchon c. Procureur general du Canada that the reasonable foreseeability of natural death requirement under the 2016 iteration of medically-assisted death was unconstitutional because it contravened Section 15 of the Canadian Charter of Rights and Freedoms. This is really significant. Justice Beaudouin upheld the idea that if Medical Assistance in Dying is to be available to Canadians it must be equally available to ALL Canadians, no matter their race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Medical Assistance in Dying must be available with respect for the wishes of a person to end their suffering, whether or not their physical condition has them at the end of their life. Anything less than this represents paternalistic legislation designed by the government to ‘protect’ certain classes of Canadians from accessing their rights.
- Justice Beaudouin said, “Medical aid in dying is the answer to the recognition of the right to autonomy and not a complex regulatory measure aimed at countering the ills that afflict our society.”
- The governments of Québec and Canada chose not to appeal the decision of Justice Beaudouin.
- On October 5, 2020 the Minister of Justice and Attorney General of Canada introduced Bill C-7 An Act to amend the Criminal Code (medical assistance in dying) in Parliament, which proposes changes to Canada’s laws on medical assistance in dying to conform with the ruling in Québec.
What Bill C-7 actually does:
- Addresses the guidance outlined by both the Supreme Court in 2015 and the Québec case in 2019 by creating a secondary framework for those whose death is not reasonably foreseeable. To qualify under this framework, a person still has to be suffering under a grievous and irremediable condition and they have to have discussed with their healthcare provider the means available to relieve their suffering. It also enshrines a 90-day period between the beginning of the process and its conclusion, which provides ample time for reconsideration.
- Introduces the notion of advanced care directives with significant safeguards so that a person may confirm their consent to receive Medical Assistance in Dying on a certain date, given that they expect to lose the ability to consent by that time.
- Introduces filing obligations for various health care professionals’ obligations through the process.
Bill C-7 is currently working its way through the House of Commons. It was tabled on February 24, 2020 and re-tabled in October after the House of Commons reset its agenda this fall. I have spent the last year preparing for this debate, knowing that it would require great reflection. Discussing death is hard and deeply uncomfortable. There are strong, personal, political, and partisan arguments driving this complex national conversation. I have spoken both to those in favour and to those who oppose the legislation. I have listened to organizations who argue that this bill undermines the status of members of the disability community. I have spoken to individuals who are seeking Medical Assistance in Dying. I have spoken to individuals who are waiting for this legislation to pass so they can end their own suffering. I have reflected on the decisions of the courts. I have heard concerns from those who feel that this legislation abdicates our responsibility to provide comprehensive public health and support systems for those living with illnesses and disabilities.
Justice Beaudouin wrote in her judgement that the laws in place had deprived the two plaintiffs of the right to have “a dignified and serene death.” The government lawyers at that time argued that it was necessary to protect vulnerable people who are suffering from serious ailments but who are not fatally ill from using the law as a way to die by suicide. The judge rejected that argument. She said, “What the plaintiffs are really looking for is that the law recognizes equally the suffering, the dignity and, ultimately, the autonomy of people who, like them, are affected by serious and irremediable health problems, without any hierarchy, whether death is near or not.” By choosing not to appeal this decision, the QC and the federal governments accepted that their arguments didn’t hold up under scrutiny.
There are those who worry that vulnerable people will be forced to choose MAiD because of social deprivation or poverty. To them, I say you have my unwavering support for the tools and resources all Canadians need to live with dignity: a guaranteed liveable income, national pharmacare, a national housing strategy that recognizes housing as a human right, national accessibility standards, national standards for mental health care, and national standards for long term care. These are important conversations, but they are unrelated to the rights-based question at hand. All Canadians, no matter their economic status, have an equal right to end their suffering. There are safeguards in this legislation as well as safeguards in our medical and legal systems.
My colleague Paul Manly (Green MP for Nanaimo-Ladysmith) tabled an amendment to Bill C-7 to address concerns of those living with disabilities. His amendment will ensure that the Minister of Health consults with the Minister Responsible for the Status of Persons with Disabilities. The preamble of Bill C-7 already refers to the UN Convention on the Rights of Persons with Disabilities and affirms the inherent and equal value of every life, taking a human-rights based approach to disability inclusion. Paul’s amendment reinforces this by adding language to the criminal code.
I will be voting for Bill C-7 out of respect for the individual Canadians who wish to end their lives with dignity in the face of irremediable suffering. I echo the words of Nicole Gladu, one of the plaintiffs from the 2019 QC case:
“It’s up to people … like us to decide if we prefer the quality of life to the quantity of life.”
But what about…?
Given the complexity of this policy conversation and its literal life-and-death consequences, this bill has some very vocal opposition. I’d like to explore some of the criticisms of the bill I have heard from those who want the bill defeated:
Q: What about someone who has recently acquired a disability? Given time, most will find joy in life again, but depression is not uncommon as this group of individuals experience the grief associated with giving up certain goals and activities. Will they use this legislation to end their lives rather than overcoming their depression?
My reflection: Medical Assistance in Dying is reserved for people whose condition is grievous and irremediable. As defined in the FAQ, having a disability is only one of many conditions that need to be met. Immediately following an accident, or in the aftermath of a sudden illness, a person’s condition is changing and evolving for a period of time. They will not meet the conditions required to initiate MAiD.
Q: What about the fact that many people living with disabilities do not have adequate inclusion in the workforce? Many are living in poverty on government social assistance programs. What if they want to end their lives because they are suffering financially?
My reflection: The economic conditions facing people living with a disability are deplorable. We absolutely must initiate a guaranteed liveable income (or universal basic income) that enables Canadians to live with dignity. We need to implement national accessibility standards to enhance inclusion in all sectors, including employment. We also have to respect—as the QC courts have done and as the federal government is doing with this legislation—the full rights of persons living with grievous and irremediable suffering to fully access medical services available, whether or not they have a disability and whether or not they live in poverty. To decide that someone’s socioeconomic status means they can’t make autonomous decisions about their access to health services is unacceptable.
Q: What about those who might be coerced by family or caregivers to access MAiD?
My reflection: The concept of medical consent is clearly understood by the courts, and it is required multiple times in this legislation. This legislation goes even further to define informed consent (see above) as having received all the information needed to make your decision, including medical diagnosis, available forms of treatment, and available options to relieve suffering, including palliative care. To coerce someone into MAiD would require multiple care providers to operate not just negligently, but maliciously. It’s still a criminal offence to provide MAiD outside the parameters of this legislation.
Q: What about those who will fall through the cracks? Even one life ended abruptly is too many.
My reflection: No system is perfect. No human being is perfect. I cannot make promises about every individual case to come. I remain satisfied that there are ample safeguards in this legislation to ensure that informed consent has been obtained and confirmed by multiple health care providers. The medical practitioners involved will report on the cases that come through. There will be court cases navigating this complex situation for years to come. We cannot let the fear of what might happen prevent us from passing legislation that recognizes the inherent right to die with dignity.