As Canada's assisted dying law nears its one-year anniversary, Dr. David Amies reflects on areas where the legislation succeeds, where it fails and what its future might hold in the months and years to come.
Almost exactly one year ago, the federal government of Canada passed its medical assistance in dying (MAID) bill, thereby allowing certain persons to obtain help from their doctors to end their lives. The bill also included provisions that protect assessors and providers from prosecution.
The new law disappointed many activists because it was seen as too restrictive, but in spite of that, approximately 1,500 individuals across the country have availed themselves of its provisions, choosing to end their own lives with medical assistance because they were in intolerable suffering as a result of an illness that had no useful, acceptable or available treatment.
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The 13 provincial and territorial governments have introduced local regulations to govern the procedure in their jurisdictions — some rather more speedily than others. Activists on both sides of the question have raised objections that are going through the glacial legal process and that may well end in another Supreme Court challenge. The federal government obliged itself to review the new law within a set time and that process is underway.
Successes and drawbacks
The first good thing is that the law exists, warts and all! It provides a way out of intolerable situations for those who seek it. Another excellent point is that it allows nurse practitioners, as well as physicians, to assess patients and to carry out MAID. This provision is essential in the many parts of Canada where suitable and willing physicians just may not be available, like the territories, for example. The third welcome point is the commitment to undergo mandatory independent reviews of the legislation's eligibility criteria. Another is that the the law does not oblige health professionals to be part of MAID if their consciences or personal ethics forbid that.
In spite of the new law being generally beneficial, it does contain a few questionable provisions, which have caused dismay to some members of the public and advocates.
The law is somewhat restrictive. It requires persons seeking MAID to be facing a ‘reasonably foreseeable’ death from their disease. Additionally, it does not allow persons whose distress is brought about by intolerable and uncontrolled psychiatric illness to qualify, and it is not applicable to mature minors. Lastly, the law does not allow the use of advance directives. Thus, a person in the very earliest stages of dementia cannot frame an advance directive in a manner that would trigger MAID once their disease had reached a certain stage. It requires persons applying for assisted death to be suffering from ‘a serious and irremediable condition’ not amenable to treatment acceptable to them.
The notorious ‘reasonably foreseeable’ clause has provoked the greatest furor because it is so vague. It is not a medical term, and even lawyers are unable to define it sensibly. Is death likely within 180 days (i.e., six months) considered reasonably foreseeable? If so, how about death within 181 days, 190 days and so on? The healthcare community finds precision with prognosis one of its most difficult tasks. It is also uncomfortable about those persons suffering greatly from certain neurological conditions whose life expectancy may be one, two, five or more years, and so, perhaps, not reasonably foreseeable within the probable meaning of the law. Because no one can confidently say what ‘reasonably foreseeable’ means, must this unfortunate class of sufferers remain imprisoned indefinitely by their disease and treated separately from those who are allowed to seek the law’s remedies?
Consider the plight of legal ‘minors.’ You are 17-and-a-half years old. You have widespread bone cancer for which there is no cure. You are in great pain and the treatment you have received has made you feel very sick. You fully understand your plight. You are ineligible for MAID simply because you have not reached the arbitrary age of 18 years. Does that make sense? Is it logical?
Consider those whose illness is primarily psychiatric. Such persons may have undergone drug therapy, talking therapies, electro-convulsive shock treatment and more. They may have obtained no benefit from any of these modalities and continue to be plagued by grave psychic pain and angst. They face many more years of distress. They are suffering intolerably, but do not qualify for MAID because the law requires that to do so, the underlying disease must be physical. Is this fair, reasonable or sensible? Has it been framed in this way through the misconception that someone with mental illness is not competent to make decisions concerning their fate?
Presently, an advanced directive is not an adequate trigger for MAID. The law requires that those dying with the aid of a healthcare practitioner must be fully, mentally competent and in a position to withdraw from the procedure until the very last minute. The medical team is ready; the drugs are almost at the point of being administered; and the patients must be asked whether they wish to go ahead. They can have a last-minute change of heart. How can a person with dementia or another competence-eroding condition remain in control in this way? Hence, as matters stand today, MAID triggered by advanced directives is not possible.
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Candidates for assisted death must be suffering from a ‘grievous and irremediable’ condition that is ‘not amenable to acceptable treatment.’ This requirement is imprecise. A person may have a cancer that is causing great distress. He or she may have gone through surgery, radiotherapy and several rounds of chemotherapy. When offered a new and experimental drug purported to prolong life for a few more months, such a patient may refuse it and the medical team can maintain that he or she does not qualify for assisted death, having declined a possible therapy. Who is right is this situation: the sufferer or the team?
Other issues have also arisen in the implementation of MAID. Some publicly funded healthcare institutions have declared that they will not permit MAID to take place on their premises. This stance has led to the distressing sight of very ill persons having to look for an alternative location in which to spend their very last few days. Faith-based institutions have been the main transgressors in this regard, maintaining that their premises are somehow quarantined by virtue of the beliefs of their proprietors.
Some healthcare professionals have also refused to provide referrals for their patients on conscience grounds, claiming that to do so is equivalent to carrying out the procedure. A Christian alliance of doctors in Ontario is currently engaged in a court case on this very point. Provincial and territorial governments are slowly setting up telephone information lines for the benefit of all interested citizens. In this case, all an objecting physician or nurse practitioner has to do, if unwilling even to discuss the matter, is simply to supply potential applicants with the phone number, which should hardly trouble even the most tender conscience!
(However, it is important to note that a telephone information line will not be of use to those who cannot speak either English or French or to those who are unable to communicate readily by reason of infirmity. Their doctors, taking refuge behind their consciences, would be in danger of abandoning the most vulnerable in such circumstances.)
To conclude, the federal government has asked the Canadian Council of Academies (CCA) to look into the matter of widening the scope of the law to include mature minors, patients with psychiatric diseases and those seeking to use advance directives. The CCA must report by the end of next year. It is, therefore, possible that the law may be amended after that.
Whatever eventuates, Canadians should be pleased by the knowledge that their country has joined the ranks of those that allow health practitioners to end lives that have become intolerable by virtue of incurable and insufferable diseases for those persons who desire such an end to their lives. As far as can be determined by survey, more than three quarters of the population consider this to be reasonable, right and proper.
Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWD Canada's Physicians Advisory Council.