The medical assistance in dying framework strikes the wrong balance

Physician-assisted suicide was legalized in Canada in 2016 following the Supreme Court’s landmark decision in Carter v Canada (Attorney General), 2015 SCC 5. The SCC unanimously held that a competent adult should be able to consent to suicide if:

• the person has a grievous and irremediable medical condition; and
• the condition causes enduring suffering that is intolerable. 

In response, the federal government enacted MAID, a legal framework for “medical assistance in dying,” in ss. 241.1 to 241.4 of the Criminal Code.

While the criteria set out in Carter is included in MAID, there are also additional requirements that applicants must satisfy. As of March 17, 2021, assessors must also agree that either:

• the applicant’s natural death has become reasonably foreseeable (s. 241.2(3)), or
• if death is not reasonably foreseeable, that the applicant has “given serious consideration” to “reasonable and available means to relieve the person’s suffering” (s. 241.2(3.1)(h)).

As well-intentioned as the additional safeguards may be to prevent vulnerable Canadians from accessing MAID pre-emptively, such extensive physician oversight comes at too high a price. Requiring applicants to have a reasonably foreseeable natural death (RFND) or give serious consideration to available treatment (SCTAT) may prevent Canadians who satisfy the Carter criteria from accessing MAID.

During its deliberations, the SCC had ample opportunity to consider how onerous the requirements should be for Canadians who wish to access physician-assisted dying. Carter could have stipulated that applicants demonstrate an RFND or had already given SCTAT but did not. The fact that such requirements were not addressed, let alone included, in Carter begs the question — are the current legislative criteria for MAID consistent with the balance of values struck by the Supreme Court? In Canada (Attorney General) v EF, 2016 ABCA 155, the Alberta Court of Appeal discussed the balance reached between competing values in Carter, specifically:

“… the sanctity of life, broadly speaking, and society’s interest in protecting the vulnerable, against the Charter rights of an individual to personal autonomy without state intervention, including autonomy over personal decisions regarding one’s life and bodily integrity.”

In its first iteration, MAID prioritized the sanctity of life and protection of the vulnerable over personal autonomy by requiring all applicants to have an RFND. However, after the Quebec Superior Court declared the RFND requirement unconstitutional in Truchon c. Procureur général du Canada, 2019 QCCS 3792, the federal government expanded MAID eligibility in 2021. While the current framework has arguably reduced the focus on the sanctity of life by enabling non-terminal patients to access MAID, the government is still prioritizing the protection of the vulnerable over personal autonomy.

The additional legislative requirements can still frustrate MAID applicants’ private medical decision-making autonomy. If, for example, a clinician denies a MAID application because the applicant does not have an RFND and has not given SCTAT, the applicant will be unable to control their physical integrity. Rather than recognize and respect the medical autonomy of MAID applicants, the current framework has broadened the circumstances under which assessors can approve MAID applications. While all Canadians could access MAID under the current framework, competent adults who consent to MAID and satisfy the Carter criteria may still be turned away. As Justice Baudouin noted in Truchon, the Carter criteria were “intended to recognize the decision-making autonomy and the right of every person to make medical decisions affecting his or her own body, regardless of the timing and potential consequences of those decisions” (emphasis added).

Not only does the current MAID framework not respect the balance between competing values struck by the Supreme Court in Carter, whether the additional legislative criteria will protect vulnerable Canadians is also questionable because of the amount of discretion given to clinicians. There is relatively little guidance in the Criminal Code regarding how clinicians should interpret the requirements that applicants either have an RFND or give SCTAT. As a result, different clinicians have interpreted the MAID requirements differently, as described in an article recently published in the McGill Journal of Law and Health entitled “Interpreting Eligibility under the Medical Assistance in Dying Law: The Experiences of Physicians and Nurse Practitioners.”

The limited case law on point also points to this disparity. For example, in AB v Canada (Attorney General), 2017 ONSC 3759, physicians disagreed about whether the applicant had satisfied the RFND criteria. In reviewing the previous MAID framework, Justice Perell held that satisfaction of the RFND requirement was “a person-specific medical question,” confirming the discretion bestowed on MAID assessors.

Practically speaking, because of the amount of discretion given to MAID assessors, a MAID application may be rejected by one clinician but approved by another. This difference implies that the additional legislative criteria imposed by the federal government do not even achieve their intended purpose of protecting the vulnerable. Instead, the legislative criteria create more red tape for applicants.

These issues are unlikely to be resolved anytime soon. In Sorenson v Swinemar, 2020 NSCA 62 and AB v Canada, the courts held that MAID assessments should be determined by healthcare assessors rather than the courts, meaning that there will likely be few cases interpreting MAID. As such, unless MAID is subject to another constitutional challenge, it looks like Canadians will be stuck with the current framework, and its inherent problems, indefinitely.