Many Canadians may be unaware that Medical Assistance in Dying (MAiD) was born out of the will of our judicial system and not through the will of our policy makers. On February 6, 2015, the Supreme Court of Canada struck down the law prohibiting physician-assisted death and allowed the federal parliament to legalize MAiD within 12 months, later granting a 6-month extension. Bill C-142 became law on June 17, 2016, making it legal for physicians and nurse practitioners to provide MAiD to adults suffering with a serious and incurable illness, disease or disability who are in an advanced state of irreversible decline and whose natural death has become reasonably foreseeable.
Three and half years after MAID was legalized, the courts continue to play a key role in the evolution of the interpretation of the eligibility criteria. A recent ruling in the Quebec Superior Court struck down the “reasonably foreseeable” provision, once again putting the onus back on governments to rewrite the language to make it compliant with the Supreme Court decision. In her decision, Justice Christine Baudouin of the Quebec Superior Court found that the “reasonably foreseeable” provision in the cases of Nicole Gladu and Jean Truchon violated their fundamental “rights to liberty and security of the person.”
Ms. Gladu is a 74-year-old woman with post-polio syndrome, an incurable degenerative condition that has caused severe weakness such that she relies on the use of a wheelchair. Her breathing has become difficult and she lives in constant pain. Mr. Truchon is a previously active 51-year-old man with spastic cerebral palsy who is now unable to meaningfully use his arms or legs. They met all eligibility requirements of MAiD, except that their deaths were not “reasonably foreseeable,” which prompted their legal action. In relying on our judicial system to decide who has the right to access MAiD as a means to relieve intolerable suffering, we are delaying important decisions on how to deliver high-quality end-of-life care to all Canadians.
In my practice as a general internist and palliative care physician, I often care for people with intolerable suffering who then go on to request MAiD. I focus my discussions with them on trying to understand their suffering and what we can do to try to relieve it. I ask for help (a lot!) from the incredible team of allied care professionals with whom I work to address our patient’s suffering from all angles. And I offer my patients MAiD as one tool of many to help relieve their suffering, not as a means to shorten their life.
Unfortunately, some of these patients are deemed ineligible to receive MAiD because their death is not reasonably foreseeable, as was the case for Ms. Gladu and Mr. Truchon. They are forced to continue suffering despite the efforts by many around them. Yet many of my colleagues believe that all forms of suffering can be relieved, and failures to do so simply reflect a lack of trying.
Tom Koch, a well-known medical ethicist specializing in chronic and palliative care, recently suggested in a Globe and Mail opinion piece that MAiD could be avoided if only we, as healthcare providers, were given “a chance to show [people] how to live a full life in a different way.” I have certainly tried my hardest for many of my patients who have endured incredible suffering. In the end, most received MAiD or died trying.
The decision to undergo MAiD is a deeply personal one and one that I am in no position as a physician or an individual to judge as “right” or “wrong.” I believe that it is our obligation as a society to explore a person’s request to receive MAiD, while also offering alternative therapies to help relieve their suffering. But I also think it is reasonable for someone to choose MAiD if they are unable to find relief from that suffering, irrespective of the foreseeability of their death. My concern is when we leave these decisions to the courts, we as a society lose control of these important decisions.
In January 2019, the federal government received three expert panel reports from the Council of Canadian Academies that addressed (but made no specific recommendations about) varying aspects of the eligibility criteria to receive MAiD: the possibility of extending it to mature minors, to people with psychiatric conditions, and to those making requests in advance. I can honestly say that I do not know what the “right” decision is when it comes to these circumstances. But I am confident that we, as a society, should figure it out together, rather than leaving it to the courts to decide for us. How do we arrive at our collective consensus? Our present choices are limited but should not be left in the hands of any single group of individuals. We could lobby our elected officials to amend Bill C-142 on our behalf, or we could hold a national referendum to further clarify societal views. Either appears more palatable than relying on a series of unelected judges.
MAiD is but one of many effective medical therapies, including high-quality palliative care, that aims to relieve the suffering of our sickest patients. As the Canadian population ages and becomes increasingly medically complex, so too will the potential for our collective suffering. Therefore, we must choose carefully which Canadians have the ability to receive MAiD as a means to relieve suffering – our lives depend on it.
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Just a small point of clarification – Tom Koch is not a well known palliative care physician, nor is he a physician. He calls himself a gerontologist, which is easily mistaken for geriatrician.
In my humble opinion, his G+M opinion column confuses supporting people to live with dignity and requiring some to continue to live despite the indignity and suffering they describe themselves.
Extending access to MAiD need only make it a possibility for more people.
Yes, concerns arise and safeguards are needed.
Thank you for this correction!
Thank you for the clarification! How embarrassing on my part.
My husband and I responded to the GOC survey. Unfortunately, his father recently died a painful death at 97, due in large part to a physician (hospitalist) who did not listen. Everyone touts the benefits of palliative care, but he was not afforded this option until one day before he finally died. He spent weeks in agony….surely we can and must do better than this.
My big worry is that MAiD could easily be used on all of us as a cost cutting measure, as when we get old and need pain medications to function because of our injuries, and those of us that need insulin and many other drugs to function so that we do not die. As something like that could be implicated where I live south of you in the USA. There are those that are always looking for ways to cut social programs, and using the definitions that are given it could easily apply to anyone that goes to doctors, and the only reason it has not happened yet is there are too many drug makers and doctors that benefit from keeping the majority of us alive. Also those companies have more of a pull than the military here in the USA, and the only thing bigger than those two are the banks. All of these entities have far more political power than most people think. Looking at the wording “reasonably foreseeable”, as this applies to all of us that are born into this world, as we are all going to die at some point, and a serious and incurable illness that can easily apply to many things as it did not say that it is untreatable, as there are many things that are treatable and incurable. I have had an incurable S. aureus infection for around 20 years or so and as long as I can get the correct antibiotics it does not develop into pneumonia. So here are 2 things that those in power could use to exterminate me and there are probably more. This is the problem with all of these laws as they do not say things such as can live without too much suffering with medications, as I did not read that. I can pick things out of a few paragraphs, but not enough to read the whole thing. Also if someone is in severe pain with medications such as Morphine, diamorphine, fentanyl, or any other strong pain medication in any amount that does not cause severe respiratory distress then I would say they can’t be helped, but not including that as a factor is a slippery slope that could easily be used as a cost cutting method.
Thank you for your comment, Paul.
The most important aspect of MAiD is to protect our most vulnerable patients from receiving treatments not in line with their personal values and preferences. Many safeguards are currently in place to ensure this doesn’t happen.
MAiD is a request made by the patient, not by anyone else. The criteria you outline (e.g. reasonably foreseeable death, serious and incurable illness) are to be applied to deem patients eligible/ineligible for their requests to undergo MAiD. These criteria are in place to ensure the we are using it as a tool to relieve intolerable suffering for the right patient (i.e. those who wish to receive the treatment and are eligible) at the right time.
Thank you for this thoughtfully written article.
The Bill in question, incidentally, is C-14. It is very difficult to imagine how legislation could successfully balance the demands of those who, like the group Dying With Dignity, favour completely unfettered and unconditional access to MAiD, on the one hand, with effective protection of vulnerable disabled or chronically ill people, on the other hand, who are immersed in a culture that progressively devalues their lives as MAiD access is expanded. It is especially disheartening to see how little effort is going into making improvements in the availability and quality of palliative care, community based care, and living conditions for chronically ill or disabled persons, as compared with the energy and publicity that is devoted to the expansion of the practice of MAiD.
Thank you for your comments, Paul. I agree that we should be doing more to improve access to home and palliative care – but there is hope.
I sit on the Ontario Palliative Care Network as a Clinical Advisory Council member to advise our provincial government on the delivery of palliative care across Ontario. We are diligently working to address all of the issues you raise above, which we believe are equally as important.
The continued advocacy from people like yourself are needed to help influence funding and policy decisions for our healthcare system.
I agree Paul, as access to pain medications has been sharply curtailed here in the USA for many people and you are having the same problem in Canada. There is a big difference between psychological addiction and dependent on something to function or live. However there are many that feel that if Christ had to suffer on the Cross that all of us should be able to suffer as well. Also this war on drugs actually started as a way of destroying minority communities under the Nixon administration and has been creating more and more suffering ever since. Then it spread to nearly all other countries on this planet. Also there is this illusionary getting high and I have no clue as to what that could be, but there are a few drugs that are quite easy to get doctors to prescribed that make people stoned, and I hate being stoned. Amitriptyline, Nortriptyline, Celebrex, and a few others get me so stoned that I can’t safely do much of anything, but they are far easier to get than things that are far more effective as pain medications. Just because someone has a memory they want to forget does not mean they should be taking pain meds to help themselves, as that is not what most use them for. However that is exactly what those that abuse them use them for.
My common-law partner fulfills the whole of the criteria for medical assistance in dying with the exception of the “reasonably foreseeable death” criteria point. Even so, she has been trying to access MAID for almost two years now. We continue to wait for change.