Dr. David Amies: Is it right to forbid mature minors access to assisted dying?

In his latest post for the DWDC blog, Dr. David Amies examines the Council of Canadian Academies’ report on the possible implications of extending assisted dying access to mature minors. In this piece, he asks a difficult but necessary question: is it fair to allow an 80-year-old with terminal cancer to access assisted dying but deny a 17-year-old who has the same diagnosis and demonstrates the capacity to make medical decisions as an adult?

Canada’s law on medical assistance in dying (MAID) requires that applicants must be 18 years of age or older. It is worth noting, before discussing the reasons for this prohibition, that the number of children and adolescents who might contemplate MAID is fortunately very small.

Canadian Parliament, in passing the MAID law, undertook to dive deeper into issues surrounding assisted dying to determine whether any changes to the law should be enacted. Consequently, the federal government asked the Council of Canadian Academies (CCA) — a non-partisan think tank — to study the future of assisted dying in Canada. In its studies, the CCA examined three groups of Canadians who are generally excluded from accessing MAID: mature minors, people whose primary underlying medical condition is a mental illness, and individuals whose right to a peaceful death is out of reach because of the ban on advance requests for assisted dying.

The CCA has recently published its reports, which are long and very thoroughly researched. It is the report on MAID for minors that I wish to address in this piece. Please note, the CCA was told not to make recommendations and it has not done so.

Included in the CCA’s report on minors is the following sentence, “In Canada, people under the age of 18 are not eligible for MAID, which raises the following question: Since an adult who suffers intolerably from a grievous and irremediable medical condition, and who is in a state of irreversible, advanced decline, can request and receive MAID, is there a reason to exclude a minor with the same grievous and irremediable medical condition from accessing MAID?”

Ban for mature minors is ‘arbitrary and illogical’

In many jurisdictions across Canada, mature minors already have the right to make important decisions regarding their care. There are circumstances under which mature minors can consent to or refuse serious medical treatment. Is it fair to allow an 80-year-old with terminal cancer the choice of a peaceful death but deny a 17-year-old who has been given the same prognosis and who demonstrates as clear a capacity to make the decision as an adult does?

• Learn more: Dr. David Amies: The next frontier for assisted dying in Canada

The very concept of full legal age is imprecise and subject to many constraints and conditions and therefore the provision concerning minors’ access to MAID in Canada’s law is arbitrary and illogical. The CCA report acknowledges that there is no magic age at which a person can be deemed to be fully capable of managing his or affairs, and it makes it clear that all cases have to be judged on their merits.

The CCA conducted its research in an admirably thorough manner. It cites hundreds of references, it engaged expert opinion drawn both from Canadian and international sources and it examined in detail the practice of MAID regarding minors in the only two countries that allow it: Belgium and the Netherlands. It also grappled with much confusing terminology: children, adolescents, youth, adults, minors and mature minors and concluded that all of these terms were vague with no universally agreed-upon meaning and they represent a spectrum. The panel assembled by the CCA to consider the matter suggested that “mature minors” belong to a group that is in need of “heightened protection” when compared with adults and is thought of as vulnerable. It acknowledges that MAID provision for “vulnerable” groups is an emotionally and philosophically charged issue. Hence, when writing laws for such persons, a delicate balance has to be struck between keeping them safe from harm and exploitation and respecting their rights to decide for themselves what is in their best interests.

Culturally and historically parents and families have had the right to determine how the young should act within the limits of their autonomy. In turn the young have generally had to depend upon families for their protection and economic security. The notion that mature minors should be allowed to opt for MAID, for example, strikes a blow to the very heart of this position.  Many persons have to grapple with assisted dying as an idea in general. How much greater is their struggle when applying it to those previously considered too young to possess autonomy?

Canada has come lately to the idea of MAID, let alone its application to minors and it might be helpful to consider the international experience. Belgium and the Netherlands now have 16 years’ experience. Nearly 56,000 persons have undergone assisted dying in the Netherlands during that time, of whom about a dozen have been minors. In Belgium, there have been three cases involving minors since 2014. Of these 15 or so cases, the majority have involved those with cases of end-stage cancer.

Challenging issue for health professionals

Medical personnel who are caring for these young people are faced with additional considerations where assisted dying is concerned. There is the added poignancy of deliberately bringing the life of a teenager to an end — consideration of their unfilled potential and youth, for example. It is one thing to help an old person escape from great suffering occasioned by incurable disease but somehow providing the same escape to one who is on the threshold of adulthood is a much harder concept. Being convinced that the sick teenager is acting free from bias and influence from third parties, and is fully aware of the consequences of the request, is likewise more difficult. Framing law that takes into account such considerations is not an easy task.

Dr. David Amies

My own view is that it is illogical and cruel to deny the mercy of MAID to a very sick person purely on the grounds of age. I would like to see Canada’s law amended to permit MAID for minors, while at the same time acknowledging the additional safeguards involved in ensuring that the request is made free of external influence and in full understanding of the consequences of the request.

This piece has attempted to summarize the main points in the arguments for and against allowing MAID for minors — a complex issue. Those who want more would do well to study the summary provided by the CCA. That the members of the panel assembled by the CCA took their task very seriously is very evident and we should be pleased and reassured that we can benefit from their expertise. I hope to be able to comment on the CCA reports on the use of advance request as triggers for MAID and its application to those suffering from purely mental illness, who are presently excluded from the provisions of the law.

Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWDC’s Clinicians Advisory Council.