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Changes to medical assistance in dying are overdue, and still not quite right

November 25, 2020

When the Supreme Court of Canada ruled that the absolute prohibition on physician-assisted death infringed on a person’s Charter rights, the Court made it clear that the problem with the prohibition was the fact that it forced individuals facing a grievous and irremediable medical condition to end their lives prematurely, for fear that they would not have the physical autonomy to do so at the point that their suffering became intolerable. Thus, the right to life, liberty and security of the person, protected by s.7 of the Charter, was violated.

In order to remedy this violation, logic would dictate, any revised prohibition in the Criminal Code, would have to work its way around the fact that a person with a grievous and irremediable medical condition ought not to be on death’s door in order to be eligible for medically assisted death. In other words, requiring a person’s natural death be reasonably foreseeable to be eligible for medically assisted death would violate a person’s s.7 Charter rights because by the time their natural death was reasonably foreseeable, some individuals would either have already endured intolerable suffering or would have ended their lives prematurely for fear of the intolerable suffering.

So, the government’s requirement in the Criminal Code (post-Carter) that a person’s natural death be “reasonably foreseeable” in order to be eligible for medically assisted death contradicts the very first paragraph of Supreme Court’s decision in Carter, which reads: “people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

Despite the very clear decision in Carter, individuals across the country continued to have to make the very same choice at the heart of the Carter decision; either endure severe and intolerable suffering, and a loss of dignity, in order to be eligible for medically assisted death, or be inclined to end their lives prematurely. This was because of the way the government worded the revised prohibition, post-Carter; specifically, by requiring that a person’s natural death be ‘reasonably foreseeable.’

In 2019, Truchon came before the Superior Court of Quebec. The two applicants were Mr. Jean Truchon and Ms. Nicole Gladu, who were both declared ineligible for medically assisted death because their natural deaths were not reasonably foreseeable; meaning they could continue to live beyond the near future. In their own eyes, however, their lives had theoretically ended long ago.

Ms. Gladu was diagnosed with degenerative muscular post-polio syndrome, which is incurable. She described herself as a “prisoner of her body and her disease.” Despite the complete lack of quality of life, agonizing daily pain and eventual excruciating death, she was not eligible for medically assisted death because her natural death was not near. Her only options were that she continue to endure intolerable suffering in hopes that she would, at some point, become eligible for medically assisted death, or commit suicide.

Mr. Truchon suffered from spastic cerebral palsy with triparesis, since birth. Also ineligible for medically assisted death because he did not satisfy the ‘reasonable foreseeable’ requirement, his only option, he submitted to the court, was to “die of hunger and thirst because, given his condition, he has no other less painful means to kill himself.”

In Truchon, Madam Justice Baudouin of the Superior Court of Quebec, decided that the “reasonable foreseeable” requirement in the Criminal Code infringes on a person’s constitutionally protected rights to life, liberty and security of the person. The reason being that the “reasonable foreseeable” requirement “exposes individuals to a heightened risk of death” because it forces individuals with a grievous and irremediable medical condition to end their life prematurely “often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” 

For if these individuals were to wait until their deaths were reasonably foreseeable, they would have to endure cruel and unusual suffering while waiting for their deaths to become reasonably foreseeable.

Justice Baudouin decided that the “reasonable foreseeable” requirement in the Criminal Code, infringed upon s.7 (life, liberty and security of the person) and s.15 (equality) of the Charter, and the infringement could not be justified under s.1, thus the provision in the Criminal Code were declared constitutionally invalid.

In response to this decision, the federal government has proposed Bill C-7, to amend, again, the provisions in the Criminal Code which prohibit medically assisted death. The bill proposes to remove the “reasonable foreseeable” requirement.

But the language of Bill C-7 is still not without problems. First, the Criminal Code continues to use the word “medical practitioner” but in the context of medically assisted death, it should be either “medicine” (instead of medical) or “physician”. Technically speaking, while all physicians are medical practitioners, not all medical practitioners are physicians. For example, the government of Canada has a list of “medical practitioners” on its website, for unrelated tax purposes, but that list includes; midwifes, chiropractors, dental assistants, dietitians, acupuncturists, etc. These professions are, technically, medical professions, but not the profession of medicine. There is an important difference. The word we are looking for, in the context of medically assisted death, ought to be “physician.”

Further, the bill proposes a section on “safeguards” for a situation in which a person’s natural death is not foreseeable (to address the abovementioned contradiction). The language of this section requires that the same physician who assess you and decides whether you are eligible for medically assisted death must be the same person who administers the medically assisted death.

The proposed “safeguard” amendments also require “at least 90 clear days” between the first eligibility assessment and the day on which the medical assistance in dying is provided. Three months is a very long time for someone with a grievous and irremediable medical condition; that amount of time can be the difference between a person with autonomy and a person enduring incapacitating agony. The point of the case law is that individuals ought not to get to the point of intolerable suffering before they are eligible for medically assisted death.

Although the proposed amendments provide the option for a shorter period, that shorter period is only applicable in a circumstance where the loss of the person’s capacity to consent is imminent. However, the loss of consent is not the end of the discussion. The issue we saw in Truchon was not consent, it was the prolonged, intolerable suffering.

This is not to say that safeguards are not necessary. Of course, there must be safeguards in medically assisted death. But the effect of the word “the medical practitioner” in conjunction with the 90-day requirement brings us back to a territory that looks a lot like “reasonable foreseeability.” The correction would be; as opposed to the shorter period being applicable only in a circumstance of diminished capacity, it should also be applicable in a circumstance of intolerable suffering, in order to protect those with conditions that will put them in misery before the 90-day timeframe is met. The question of misery is a question for the individual; it is the individual who should be able to decide when their suffering is intolerable, and not the medical or nurse practitioner, because it is the individual’s right to life, liberty and security of the person that is the issue.

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