Restrictions in Canada's assisted-dying laws struck down

September 13, 2019 9:44 AM

Medical assistance in dying (MAID), known elsewhere and previously as physician-assisted death, assisted suicide, and voluntary euthanasia, has been legal in Canada since 2016, following the historic Supreme Court decision in Carter v. Canada, in which two women, Gloria Taylor and Kay Carter (represented by her family posthumously), successfully challenged the government's restriction on MAID. But that was not the end of the story.

In June 2016, the federal government under the Liberal party introduced legislation to regulate MAID (short summary here). One of the more contentious aspects of the new law was the requirement that patients seeking MAID must be in a state where their natural death "is reasonably foreseeable," a term that implied neither clinical nor legal clarity. A subsequent Ontario court case and an academic assessment of the term led to a broader understanding, namely that patients needed to be on a trajectory towards death, without requiring a specific prognostic timeline. However, this still meant that patients with irremediable suffering who were otherwise stable could not access MAID in Canada.

In 2017, two Quebecers living with significant suffering and disability, Jean Truchon and Nicole Gladu, challenged the constitutionality of the "reasonably foreseeable" clause (as well as the Quebec-specific version, which applied a similar restriction), arguing that it ran counter to the original Supreme Court decision, which contained no such restriction. This week, a Quebec Superior Court judge, Christine Baudouin, agreed with the plaintiffs (in French) and declared the relevant sections of the law invalid, subject to a 30 day period for appeals and a 6 month period for the federal and Quebec governments to craft new legislation. (The two plaintiffs are allowed to proceed immediately if they so wish.)

All this comes just as Canada is in midst of a federal election campaign culminating in a vote on October 21st.

(Full disclosure: I am a medical practitioner involved in providing MAID in Canada.)

posted by greatgefilte (20 comments total)

For the record, the full set of criteria for eligibility according to the national law (outside of Quebec) are:

A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be
eligible — for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
(a) they have a serious and incurable illness, disease or disability;
(b) they are in an advanced state of irreversible decline in capability;
(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological
suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;
and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
posted by greatgefilte at 9:53 AM on September 13, 2019 [4 favorites]

So glad for Jean Truchon, Nicole Gladu, and all of the other people who will be helped by this.

Another fight yet to be won is for people to be allowed to make advanced directives concerning their desire for medical assistance in dying - something of great concern to people in the early stages of progressive illnesses that affect cognitive function.
posted by Secret Sparrow at 10:15 AM on September 13, 2019 [9 favorites]

A serious question: isn't the natural death of literally everyone "reasonably foreseeable"? We're mortal, right? What are the other options?
posted by Faint of Butt at 12:24 PM on September 13, 2019 [3 favorites]

I am interested in this as my mother in law SUFFERED from motor neurone disease and she begged various people to help her.
She was on morphine, but because there wouldn't always be a qualified person around to administer it, we were having to go to a chemist's every day to get a day's worth of dose.

As it happened, my father used to be an under manager for the coal board and that actually qualified him to use it even though he had never done so. My mother was a nursing sister in her time and yet she WASN'T legally allowed to administer it.

There was a Bank Holiday coming up so we were allowed to get three days worth in one go and we managed to organise it so that several of us gave her the correct dose independently
I will never forget her last words to me which were "Thank You, Look after my daughter will you!".
posted by Burn_IT at 12:24 PM on September 13, 2019 [24 favorites]

A number of my clients (I do wills and estates law) have availed themselves of MAID and they've all seemed to find it an empowering process. I don't think it's possible to ever work out all the kinks for having access to MAID be equitable, but this is a step in the right direction.
posted by LegallyBread at 12:44 PM on September 13, 2019 [2 favorites]

As I recall, the "Reasonably forseeable death" was an olive branch to the Canadians With Disabilities community who lobbied pretty hard against Medically Assisted Dying. They were concerned that a law with too few restrictions would lead to caregivers choosing to have people (who otherwise could not give consent) killed "because suffering". I wonder what their reaction will be to the court ruling.
posted by Popular Ethics at 1:18 PM on September 13, 2019 [5 favorites]

A relevant quote from my link: "The [Council of Canadians with Disabilities] opposes any government action to decriminalize assisted suicide because of the serious potential for abuse and the negative image of people with disabilities that would be produced if people with disabilities are killed with state sanction…"
posted by Popular Ethics at 1:20 PM on September 13, 2019 [4 favorites]

#Obligatory internet contrarian dudebro, like on Reddit, except on metafilter, so it's asked in good faith, because these are the thoughts I had

What are the actual moral hazards of assisted suicide being available to anyone who wants it at any time. One I can think of is using it to fake murder, the second is that some people feel temporarily suicidal, but a 6-month waiting period + free counseling are probably reasonable (and counseling should be a regular part of healthcare anyway, and the government should provide that for free, please tax me), the third I see from comments is that it might lead to eugenics-like thoughts among assholes about differently-abled people. Other than that, what's the list?

disclaimer: I'm not at all feeling suicidal. Just trying to wrap my head around how I feel about this.
posted by saysthis at 1:35 PM on September 13, 2019

In a situation where dying is much cheaper than living, legal suicide has a lot of the same moral hazards as paid organ donations, paid surrogacy, etc.
posted by Ralston McTodd at 1:44 PM on September 13, 2019 [13 favorites]

They were concerned that a law with too few restrictions would lead to caregivers choosing to have people (who otherwise could not give consent) killed "because suffering". I wonder what their reaction will be to the court ruling.

This doesn't remove the consent piece, though, just the "reasonably foreseeable" part (which I have always thought to be such a horribly vague term that it was going to be the first thing challenged); but I do think the "reasonably foreseeable" clause was put in as a means to address the concerns around ensuring that there are adequate and appropriate resources to support people with all kinds of disabilities and health conditions live well rather than MAID becoming the "easy out", especially for the system. Which I think is a very valid concern to have.

I work in the dementia field, and the consent piece is the focus of a lot of attention, because consent of the person requesting MAID needs to be given throughout the process, right up until the moment of administration - so caregivers/family members can't request it on anyone's behalf, and the law also doesn't allow for advance requests. That will be one of the next challenges.

Health Canada just released an update on MAID yesterday, in terms of implementation and the next steps/challenges/questions still present.
posted by nubs at 1:51 PM on September 13, 2019 [6 favorites]

An old friend just went to Switzerland for this.
https://www.thelocal.ch/20180503/what-you-need-to-know-about-assisted-death-in-switzerland
posted by hank at 1:59 PM on September 13, 2019 [2 favorites]

I am in favour of MAID but I am also cognizant of the major impact that the social detiremants of health has on sucidal ideation. When someone feels that MAID is appropriate for them it should be incumbent on society to ensure that they are having the best quality of life before we start scheduling a quality death.

My concern is especially from a feminist point of view, as womens’ health/pain management is systematically dismissed in the current system. Indigenous people are also routinely denied the care that would be normally offered to non-POC. People with addictions, psychological challenges, and trauma history are also often treated as “lost causes” as well by a medical field that has too much entropy in it (in Ontario at least, under the OMA). The recent controversy over denying life-saving organ transplants to people with a past history of addiction re-enforces
s that message. In addition, even with universal health care there are significant costs to being ill; I hope the SES of people electing MAID are being tracked to avoid systemic culling of the people who have been socialised to sacrifice themselves for the sake of their family’s economics.

Let’s make sure to give everyone a good life before we give them a good death. Of course, the partisans want to make this a black and white issue, but since the legislation was passed I don’t feel there has been a huge “death panel” propaganda movement like what was seen in the states.
posted by saucysault at 2:02 PM on September 13, 2019 [9 favorites]

I hope in the next decade or two the U.S. can make some progress towards something like MAID. I'm currently seeing a family member suffering a long, slow decline with dementia and memory loss. It is not a thing I would wish to endure or inflict on my family, partner, or friends.

The medical system here sucks, but in the end there's not a damn thing medical science could be doing as far as I understand it that would reverse or even pause the decline.
posted by jzb at 2:14 PM on September 13, 2019 [1 favorite]

The second link in my comment appears to have suddenly disappeared behind a login page, so here is the MAID update directly from Health Canada; it covers data up to Oct 31, 2018.

Some stats of possible interest:
-Overall total number of MAID deaths since implementation: 6,749
-the vast majority are physician administered; self-administered was only selected by 6 people
-it looks like the gender split is 51% men to 49% women
-average age is 72-73
posted by nubs at 2:24 PM on September 13, 2019 [2 favorites]

The Judge's decision is bloody long: over 65 000 words!
posted by Monday, stony Monday at 3:38 PM on September 13, 2019

isn't the natural death of literally everyone "reasonably foreseeable"?

I'd assume that "reasonably forseeable" meant you could reasonably foresee when and how it will happen, not you can predict that death will eventually occur.

For people with depression who may look into suicide, the legal issue is now likely to hinge on "advanced state of irreversible decline in capability."
posted by ErisLordFreedom at 4:37 PM on September 13, 2019

To my mind, recognizing the complexities and conflicts of the combination of privileging personal liberty with effective opposition to institutionalized oppression is the essence of the transition from second- to third-wave feminism, and is more broadly the contemporary approach to issues of social justice.

Put differently, a near-exclusive focus on personal liberty ignores structural issues and therefore most benefits those having structural privilege and is often leveraged as a means of strengthening that privilege. This is "natural rights" derived classical liberalism. It was progressive in comparison to religiously-linked class and caste based political and legal regimes that explicitly legitimized subjugation and slavery and all they imply, but outside that comparative context it is not progressive or even "liberal" because it both creates a facade behind which structural oppression hides while often, as I wrote, is leveraged to increase privilege rather than reduce it.

Second-wave feminism largely formed and existed within this classical liberal context and, as an "equal rights" movement, therefore had the same strengths and weaknesses. This is, for example, how first- and second-wave feminism centered and privileged white women. At some point, people began to recognize that the advances made were very unevenly distributed and, perversely, often subordinated individual personal liberty to the sensibilities of the prevailing structural privileges.

Third-wave feminism and intersectionalism recognizes these limitations and conflicts and attempts to widen the scope to address structural privileges while protecting personal liberty. It's not easy or simple because this has never, ever been simple or easily resolved and that we've built political and social structures around the myth of the simplicity of absolute natural rights has long, long outlived its utility.

Speaking as a disabled person, very opposed to ableism but also as someone who strongly believes that extended suffering justified by some absolutist "sanctity of life" is deeply wrong, it's not so much that I feel caught in the middle of this "conflict" so much as I feel that it's being "fought" on the wrong terrain. We need to account for personal liberty, minimizing suffering, and structural inequality and how the classical liberal notion of individual rights is inevitably used to reinforce these structural problems. It's not that I have any specific suggestions for how to do this, but that I feel reframing these issues into the proper, modern social justice context is essential.

In many respects, the anti-ableist resistance to assisted-dying is much more within this modern framework than is the classically liberal "right to die" movement. But that doesn't make the essential goals of the right to die movement any less important, just as the limitations and problematic consequences of second-wave feminism did not and should not discredit feminism itself.

Contemporary social justice rightly prioritizes bodily autonomy -- indeed, this is a cornerstone of the anti-ableism movement. Bodily autonomy does include choosing when and how one dies. Not as an blind absolute, to be sure. But it's there and it matters. It can be integrated into anti-ableism.
posted by Ivan Fyodorovich at 7:04 PM on September 13, 2019 [8 favorites]

(Not threadsitting, just wanted to add a few more links of interest which address some of the points being discussed:

• There is already a lot of Canadian research on MAID practices and attitudes. Li et al., from 2017, showed that among early adoptees, the majority were Caucasian and not socially deprived. This is also borne out by a lot of anecdotal evidence.)
• It is well worth reading the decision in its entirety, as the judge considered, at length, many of the issues regarding the societal impact of expanding MAID access. (The English translation of Truchon is forthcoming; a Google-translated version is available here.) The same issues arose during the Carter decision and the court in that case also made clear that it was crucial to balance the potential negative impact on society with individual autonomy.
• The issue of one's dire personal/social circumstances impacting a decision to seek MAID has come to light in two high-profile cases over the last few years: Roger Foley and Sean Tagert. In the former, Mr. Foley claims that he was pressured by the hospital to consider MAID, as he was refusing to leave until home support care could be arranged to his satisfaction. (Keep in mind that only his side of the story has been made public, and the reality is likely a lot more complicated how it's being portrayed.) In the latter, Mr. Tagert, dying of ALS, chose MAID because he could not funding for 24 hour care in his final days. (Interestingly, he was ventilator-dependent, and could've chosen to just discontinue artificial respiration, so his decision is not necessarily about MAID in particular.)

posted by greatgefilte at 5:54 AM on September 14, 2019

This is so deeply troubling. All human suffering has been "irremediable" at some point in human history- until we found ways to remedy it. Surely we should be working towards providing better medical care, palliative care, and social support rather than decreasing regulations on when it's permissable to kill people. But that's expensive.

How can we as a nation claim to care about preventing suicide with any credibility when we're endorsing it and seeking to expand it at the same time?
posted by windykites at 8:10 AM on September 14, 2019 [1 favorite]

Surely we should be working towards providing better medical care, palliative care, and social support rather than decreasing regulations on when it's permissable to kill people.

These aren't mutually exclusive. It's asking a lot of people who are currently suffering horribly to keep suffering because we're working toward better care that will be available after they're dead. There are a lot of people who will choose that suffering, and that's their choice. I would very much prefer to avoid it if I can.
posted by Mavri at 9:22 AM on September 14, 2019 [8 favorites]