Dr. David Amies: Key takeaways from Ottawa's second interim report on assisted dying in Canada

On October 6, the federal government released its second interim report on medical assistance in dying in Canada. The report provides a clearer picture of how assisted dying was implemented across the country in the first year after the passage of Bill C-14. In this blog post, Dr. David Amies takes a closer look at the report's findings and outlines possibilities for the future of assisted dying in Canada.

June 17, 2017 marked the first anniversary of the introduction of Canada’s medical assistance in dying (MAID) law. The federal government has recently released its second interim report on the procedure, which provides interesting information on its implementation across the country. It breaks down the numbers, the sex and the ages of those receiving MAID, as well as the common underlying medical conditions causing people to seek it. This blog post seeks to draw attention to the main features of the report’s findings.

Commentary on key findings

The total number of people who have sought and received relief from suffering via the agency of MAID between December 12, 2015 and June 30, 2017 is 2,149, which equates to 1,432 per year. Hardly surprisingly is that most of those were between the ages of 56 and 90 years. However, people in all age ranges from 18+ years to 90+ years were represented. The numbers of men and women receiving MAID were very similar.

The underlying medical conditions that prompted the requests were as follows: 60 per cent were cancer related, 20 per cent had neurodegenerative diseases like multiple sclerosis and ALS, 12 per cent had heart and lung conditions, and the remaining eight per cent were classified as miscellaneous. The average age of all applicants was 73 years. (All of the numbers in this paragraph have been rounded off for the sake of intelligibility.)

Health Canada notes that deaths through MAID represent 0.9 per cent of all deaths occurring in the country from any cause. To put that number into context, take a city like Lethbridge, AB, which has a population of 100,000 people. You could expect four people to receive MAID every year. That same city would experience just over 700 deaths from all causes in any one year.

These numbers should reassure those that feared a tsunami of deaths would occur once assisted dying legislation was enacted. The incidence of MAID requests is increasing slowly with the passage of time, but a few more years must elapse before a steady state is reached. So far, Canada’s numbers are running below those in other jurisdictions where MAID is legal.

Both the average age at which MAID takes place and that cancer is the most common reason is unsurprising. Increasing age is one of the main factors in the causation of neoplastic disease. Cancer is at its most lethal in patients in the sixth and seventh decades of life. Later on, its lethality declines. Neurodegenerative diseases generally begin earlier than cancer. Unfortunately, many of them progress slowly and impose their greatest handicap after a couple of decades, by which time victims have suffered long enough and are likely to seek relief. So far, there are no cures for this group of afflictions.

Dr. David Amies

The report provides intriguing information about the frequency of the procedure across the country. Most striking is that 312 cases have taken place in British Columbia, which has a population of 4.8 million, while just 362 have occurred in Ontario, which has a population of 14.2 million. Thus, Ontario, whose population is almost three times larger than B.C.’s, has provided a mere 50 more cases than its much smaller cousin on the West Coast. The report does not attempt to explain this discrepancy.

So far, there have been only five cases where the patient self-administered the lethal drugs. Countrywide, the great majority of cases take place either in hospital or in the patient’s home. Canada is the only jurisdiction in the world that allows nurse practitioners to assess patients and to provide MAID. In Alberta and B.C., seven to eight per cent of cases have been managed by nurse practitioners, while in Ontario, two per cent have been.

It is expected that reporting requirements for MAID will be formalized for all provinces and territories during 2018. A uniform system is obviously advisable because it will provide useful information for planners and healthcare providers. One would hope that availability of the service would be much the same in all parts of Canada, and where it is not, such reports would highlight regional differences.

The future of the law

The law that was introduced in June 2016 mandated that there would be reviews of the eligibility criteria and possible amendment by the end of 2018. Several months ago, the government asked the Council of Canadian Academies (CCA) to examine three provisions of the current law: its applicability to those under legal age of majority, to those suffering from purely psychiatric diseases and to the question of allowing advance requests to serve as a trigger for MAID. The CCA is working on all three and must report their findings by late 2018. It has not been asked to make recommendations.

Dying With Dignity Canada strongly supports allowing individuals diagnosed with a grievous and irremediable condition the option to make advance requests for assisted dying. It also believes that individuals with treatment-resistant mental illness should not be excluded outright from access simply because their suffering is psychiatric at its root. The organization has worked very hard to assemble a large dossier of 746 stories from patients, their families and healthcare providers for the enlightenment of the CCA. Unfortunately, the government did not ask for consideration of the contentious ‘reasonably foreseeable’ clause because this provision was not included in the Supreme Court's Carter decision in February 2015.

DWDC's Rachel Phan and Kelsey Nash preparing hard copies of our official submission to the CCA.

As matters stand at present, a patient applying for a medically assisted death must have intolerable suffering that is beyond acceptable treatment and their natural death must be ‘reasonably foreseeable.’ This clause that was inserted by those who drafted the legislation has caused tremendous confusion. In order to qualify, a person also must be 18 years or older and eligible for medical care in Canada, and they must be of sound mind and not under the influence of a third party.

All of these requirements are easily checked in most cases, but what does 'reasonably foreseeable' mean? Healthcare practitioners who embark on the provision of MAID realize that they are going to end another person’s life, prematurely. They know that under certain conditions they can do so lawfully and not face unpleasant legal consequences. They know, too, that if they act outside the provisions of the law, they can face prosecution for unlawful killing. It is hardly surprising that they wish to stay on the right side. And yet, the law talks of reasonably foreseeable! Practically, healthcare practitioners have interpreted the pesky clause to mean that applicants face imminent death, certainly one likely to occur within a few weeks. Fortunately, useful light has been thrown upon this conundrum by a ruling in a recent case.

AB, a 77-year-old woman who had been suffering from osteoarthritis and was in very severe pain that was resistant to heavy doses of analgesia, applied for MAID. Her physicians were hesitant because they did not think her death was imminent. Her case went before Ontario Superior Court Justice Paul Perell who said, “Doctors exhibit an abundance of caution and apprehensive misunderstanding of the law pertaining to MAID. To be reasonably foreseeable, the person’s natural death doesn’t have to be imminent or within a specific time frame or be the result of a terminal condition. Perell said, "The legislation is intended to apply to a person who is on a trajectory toward death because he or she a) has a serious and incurable illness, disease or disability; b) is in an advanced state of irreversible decline in capability; and c) is enduring physical or psychological suffering that is intolerable and that cannot be relieved under conditions that they consider acceptable.”

This judgment was not appealed and throws considerable and welcome light on to the fog of the present law as it is written. Some MAID providers have decided that 'reasonably foreseeable' can mean that death is likely to occur within the next five years, a very elastic interpretation of some extremely sloppy legal drafting.

Eighteen months in, the situation surrounding MAID in Canada is still subject to various court cases: some seeking to widen its scope, others seeking quite the opposite. These cases will take time to resolve. The CCA process will not become entirely clear until at least this time next year. Several provinces have not finalized their procedures regarding MAID. Satisfactory fee structures for health professionals engaged in the assessment and provision of MAID are not yet in place. In a perfect world, access to thoroughly effective palliative care would be easy nationwide. Such care would be able to assuage all of the suffering: physical, mental and spiritual for all who are in the grip of serious disease. Patently, we do not inhabit such a world and there will be many who seek relief through MAID. During the next few years, their success will be subject to uncertainty while society, health professionals, the law and legislators wrestle with the questions that it poses.

Dr. David Amies is a retired doctor in Lethbridge, Alta., and a member of DWD Canada's Physicians Advisory Council.

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