CBA: Proposed MAID amendments fall short

Amendments proposed in the federal government’s medical assistance in dying legislation fall short of the goal of harmonizing and clarifying the law, the CBA says in a submission to the Committee on Justice and Human Rights.

The amendments came in response to the Quebec Superior Court’s Truchon decision, which struck down the law’s requirement of “reasonably foreseeable death” for anyone seeking medically assisted death. The court originally gave the federal government six months to amend the legislation, but extended the deadline to July 11.

In January the CBA’s End-of-Life Working Group participated in a ministerial round table on a proposed legislative response to Truchon and later prepared a written submission.

Now the Working Group, comprised of members drawn from diverse areas of expertise, including constitutional and human rights, health and elder law, among others, says it has several concerns with Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

Among other things, the proposed amendments do not clear up the question of “reasonably foreseeable death” that was at the heart of Truchon.

“The criterion of ‘reasonably foreseeable death’ has caused significant uncertainty and difficulty in practice and Bill C-7 does not give any guidance on how to apply it,” the Working Group says. “We recommend that guidance be given to avoid confusion on which safeguards apply and ensure appropriate access to MAID.”

A waiver of final consent should apply both when death is reasonably foreseeable and when it is not, since capacity may be lost in both situations, the Working Group says.

Many of the Working Group’s concerns revolve around the question of personal autonomy.

For example, the bill would require that practitioners agree that the person seeking MAID has seriously considered all reasonable and available alternative means of ending their suffering. The Working Group says that the practitioner should only need to attest that the person has received all necessary information – whether the practitioner agrees that serious consideration was given to that information is irrelevant.

Autonomy is also a consideration for the mentally ill. Mental illness should be included in the definition of serious and incurable illness, the Working Group says, whether death is reasonably foreseeable or not. “In Truchon,” it says, “the Court stated that vulnerability must be assessed from an individual perspective through informed consent. The general exclusion of all persons suffering from mental illness is likely to be constitutionally challenged.”

C-7’s new requirement that one of the two assessors have expertise in the condition causing the applicant’s suffering is likely to create a barrier to receiving MAID, since appointments with specialists can take years, especially in areas where medical resources are limited. The current law requires the practitioner to determine their own level of expertise when assessing and seeking informed consent.