If you hire an expert to tackle a problem, should you not expect them to come up with a solution?
For example, if you hire an architect, you don’t just want a catalogue of the possible homes you could build, and the pros and cons of each – you want a blueprint for a home that meets your needs.
Yet, when the federal government commissioned the Council of Canadian Academies to study some thorny outstanding issues related to medical assistance in dying, the blue-ribbon panel’s explicit mandate was to not make any recommendations.
The experts spent 18 months studying three issues related to assisted death: whether mature minors should have the same right to end their life as adults; how to handle advance requests for medical assistance in dying (MAiD), particularly from people with dementia; and how to legislate MAiD for people suffering from mental illness.
Now we have the result: 798 pages of thoughtful and mercilessly detailed analysis of these legal and ethical quandaries, but no solutions.
Under existing legislation, patients under 18 are not eligible for assisted death. That age cut-off is arbitrary and likely will be challenged in court, especially that minors can make other medical decisions, such as discontinuing life support.
Yet, there is no legal definition of “mature minor”; treatment decisions are made based on circumstances related to the medical condition and the maturity of the individual. Will that approach work with assisted death? Will parents/guardians have to be involved?
Canada’s law requires express consent immediately prior to a patient receiving a lethal injection. Practically, that means people cannot give advance consent to MAiD. For example, a person cannot say that once their dementia becomes advanced and they are bedridden, they want an assisted death, because they will lack the capacity for that final consent.
Is written prior consent sufficient? Do you allow substitute decision-makers to make that call, the way they do with ending life support or discontinuing eating and drinking?
Under Canadian law, people with mental illness are not explicitly excluded from seeking a medically assisted death, but they are unlikely to satisfy the eligibility criteria, notably that their condition be “grievous and irremediable” and death “reasonably foreseeable.” These restrictions are already being challenged in lawsuits.
As the panel noted, it can be difficult to distinguish between an autonomous decision to choose MAiD and a pathological desire to die that can be a symptom of severe mental illness, and it is even more difficult to make a prognosis of how illness will evolve.
All three of the issues that were studied by the panels have a common trait: They involve vulnerable groups that need to be simultaneously protected from exploitation and protected from exclusion. In other words, we need to find the balance between protecting them from harm and respecting their rights.
In each of these cases – mature minors, patients making advanced requests and people with mental illnesses – there are three key questions that have to be answered to determine if they should be able to request MAiD: 1. do they have capacity to make a medical decision? 2. can they be provided with adequate information on which to make a decision? 3. can they make a voluntary choice free of duress or coercion?
Those are tough questions and, unfortunately, 18 months of study and three weighty volumes of reflection has brought us no closer to answers, no closer to resolution.
This is not a knock on the panels who did yeoman’s work to produce the reports; they did precisely what they were asked to do – “fill in the gaps in knowledge.”
Today, two-and-half-years after the medical assistance in dying law took effect, a fundamental problem remains: Certain people, because of their age, their underlying condition and the uncertainty about how their illness will evolve, are being denied a right to choose assisted death.
That’s wrong. It needs to be fixed.
The panels have left us with a lot of questions, many of which have no right or wrong answer. But sooner rather than later, politicians – principally the federal government, but there are many provincial issues well – will have to make tough decisions.
We need a law that respects the desire of people – all people – to maintain control over their lives and their wish for a dignified death, all the while safeguarding them from potential abuse.
Politicians and policy-makers cannot continue to keep punting the MAiD ball from committee to expert committee, and ultimately leaving it to the courts to make Solomonesque decisions.