CBA offers recommendations for safeguards in MAID

  • February 25, 2020

The Quebec Superior Court’s decision in Truchon, which found Canada’s medical-assistance-in-dying law unconstitutional and set a March 11 deadline for the federal government to bring it into line with the Supreme Court of Canada’s Carter decision set off a flurry of consultations, including an online submission and round-table discussions with stakeholders across the country.

The Canadian Bar Association participated in a ministerial round-table discussion in January, and has now followed up that appearance with a written submission reaffirming its commitment to clarifying the law and offering some suggestions for the way forward.

The CBA’s End-of-Life Working Group asserts its support for the Truchon decision, which states that the essence of Carter “is not the proximity of death, but the prevention of intolerable suffering, as well as dignity and the autonomy” of a person clearly able to consent to medical assistance in dying.

The Working Group first of all asks for guidance on how any new safeguards should be interpreted, noting that the former criteria of “reasonably foreseeable natural death” caused uncertainty in practice. “The scope of a similar criterion (without guidance) could have a chilling effect on practitioners and hinder access to MAID,” it says.

The Supreme Court in Carter noted that the medical system deals every day with “decisionally vulnerable” patients who can refuse life-saving or life-sustaining treatment, or ask that it be withdrawn. Doctors already have to assess whether the patient has the will or capacity to make those decisions.

Overall, the Working Group believes that the response to vulnerability issues in MAID is to ensure informed consent, and those assessments can be made on a case-by-case basis by the physicians involved.

“In the same vein, the Quebec Superior Court in Truchon stated that vulnerability must be assessed from an individual perspective rather than inferred on a collective basis, in reference to a group seen as vulnerable persons which may not adequately reflect the diversity of circumstances among that group. We support this patient-centric approach for capacity and consent.”

That said, adding a longer reflection period before MAID is administered, or a psychiatric assessment would be compatible with Carter, and would address capacity and consent issues.

The Working Group suggests a delay between initial diagnosis of a life-threatening illness and a request for MAID, to give the patient time to adjust to the shock of the diagnosis and allow for fully informed consent. A further delay could be imposed between the MAID request and its implementation.

“While the appropriate delay is open to discussion, the legislation should always permit the delay to be shortened in appropriate circumstances, taking into account the person’s suffering and any imminent loss of capacity…”

A psychiatric assessment shouldn’t necessarily be mandatory, the Working Group says, but could be warranted if there’s an issue with the person’s capacity to consent to MAID, or when the patient isn’t near death, to allow a thorough assessment of their mental state. Requesting a psychiatric assessment could create its own issues, so the Working Group recommends more consultations about when it might be warranted.

The Working Group also believes the federal legislation should allow for advance requests in certain circumstances and with appropriate safeguards in place, but recommends further consultation.

If the government allows advance requests, the Working Group “stresses the importance of defining the mechanisms to designate a third party to initiate the MAID application, based on the advance request consented to by the patient, and the limits of this party’s authority. Challenges on the validity and currency of advance requests will also need to be addressed to ensure they remain representative of the person’s wishes over time.”