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.