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In its 2015 decision in Carter v. Canada, the case that struck down the Criminal Code provision against physician-assisted death, Canada’s Supreme Court Justices invoked the idea of Canadian exceptionalism as a bulwark against the type of slippery-slope euthanasia practices that had been observed in Belgium’s system, where terminally ill children and individuals with psychiatric disorders had been extended the right to request assisted death.

“The permissive regime in Belgium is the product of a very different medico-legal culture,” they wrote.

“In the absence of a comparable history in Canada,” they continued, going on to cite a lower court ruling, “the trial judge concluded that it was problematic to draw inferences about the level of physician compliance with legislated safeguards based on the Belgian evidence.”

At the same time, though, the Court noted that “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.”

Over the past seven years, the Canadian government has passed legislation on assisted death that contained such safeguards – that death be “reasonably foreseeable,” that patients provide final consent immediately before receiving medical assistance in dying (MAID), and so on – but in 2019, a Superior Court of Quebec decision struck down certain provisions of the law as too restrictive. The result: Canadians whose deaths are not “reasonably foreseeable” may now apply and be approved for MAID, and as of March 17, 2023, individuals suffering from mental illness may apply and be approved, too.

To some, this is evidence enough of the slippery slope that the SCC so casually dismissed in Carter v. Canada, but perhaps that’s a matter of perspective. Indeed, if you believe that psychological torment can be just as grievous and intolerable as physical suffering, then the expansion of eligibility is less a descent into reckless permissibility than a necessary correction to the law’s unjust limitations.

But what is less a matter of perspective is the apparent evolution of MAID in Canada as an option being offered to patients in lieu of treatment, as suggested by a few recent egregious examples.

This past week, Global News reported that a Veterans Affairs employee raised MAID with a Canadian veteran who was seeking treatment for post-traumatic stress disorder and a traumatic brain injury. The federal employee reportedly brought up the issue unprompted, and Veterans Affairs Canada now says it has launched an investigation into the conversation in which MAID “was discussed inappropriately”. And earlier this month, CTV News reported that an Ontario man with a neurological disease recorded hospital workers offering him medically assisted death when discussing his treatment and care options, despite his stated wishes for self-directed care.

Even proponents of the most permissible MAID regimes should be uncomfortable with death being offered to patients as a “treatment plan,” which is precisely the type of ableist devaluation of life that disability advocates had warned about. Medically assisted death should be available as a last resort to those who seek it when all other remedies have failed, not as an option shopped to vulnerable individuals as a simple way to end their suffering. But that’s what appears to be happening. And so despite what the justices wrote in Carter, Canada doesn’t seem to be so exceptional, after all.

These cases are certainly not evidence that Canada’s venture into MAID is a failure. Thousands of Canadians have been able to end their lives on their terms – 3.3 per cent of all deaths in Canada, or 10,064 people, in 2021 – and that is a freedom that should be protected in a decent and compassionate society. But the system is clearly lacking in certain safeguards, particularly when it comes to vulnerable people suffering with chronic but not necessarily life-threatening conditions. The situation will only become more complex when those with invisible psychological illnesses become eligible for MAID.

There are safeguard ideas that Canada can adopt from other countries that have more stringent requirements for accessing medically assisted death. In the two states in Australia where MAID is currently available, for example, health care professionals are explicitly prohibited from bringing up the topic of what they call “voluntary assisted dying”; only a patient may initiate the discussion, and contravention by a health care worker is considered unprofessional conduct. (In Canada, it remains illegal to “counsel” a person to die by suicide, but that is legally distinct from initiating a conversation.) In the Netherlands, doctors must report every assisted death to a regional review committee to ensure that due care criteria have been met. Physicians who do not follow proper procedure by, for example, failing to demonstrate they suitably assessed the voluntariness of the request, can be criminally prosecuted.

Additional safeguards come with drawbacks, of course. The onus on patients in Australia to bring up the topic of voluntary assisted dying themselves can mean that patients might assume they are ineligible for the procedure if they don’t hear their physician offer it as one of the available options. And the threat of criminal prosecution and regular committee review, such as in the Netherlands, could dissuade practitioners from offering the service.

But more safeguards, drawbacks and all, ought to be considered as Canada continues to navigate a complex and evolving legal framework on assisted dying. Canadians are fallible in making these life-and-death decisions, just like the Belgians, the Dutch, the Australians and so on. Our MAID laws should reflect that.

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