Interpreting Canada’s MAiD Legislation

Canada’s MAiD (medical assistance in dying) legislation contains a significant number of words and phrases that are unfamiliar to many medical and nurse practitioners and patients. Yet access to MAiD hinges on what they mean.

In “Interpreting Canada’s Medical Assistance in Dying Legislation” Jocelyn Downie and Jennifer Chandler identify six key phrases in the current law that need to be clarified:

  • Natural death has become reasonably foreseeable
  • Serious and incurable condition/li>
  • Intolerable suffering/li>
  • Irreversible decline in capability/li>
  • Imminent loss of capacity to provide informed consent/li>
  • Exclusion of mental illness/li>

They explain how these phrases are creating uncertainty for care providers and patients. They propose an interpretation for each phrase and justify each interpretation. The aim of their report for the Institute for Research in Public Policy (IRPP) is not to find ways to expand or restrict access to assisted dying. Rather, its aim is to find the most defensible interpretations of the legislation.

Jocelyn Downie and Jennifer Chandler also discuss interpreting Canada’s MAiD legislation in an Institute for Research on Public Policy webinar.

One of the greatest difficulties with Canada’s medical assistance in dying legislation is the requirement that a person’s “natural death has become reasonably foreseeable.” Just what does that phrase mean?  Death expected in a short window of time? A diagnosis with a fatal disease?

As medical and nurse practitioners and patients struggle to interpret the phrase “reasonably foreseeable”, they can turn to various places for guidance or information.

The meaning of “reasonably foreseeable” was the subject of the case A.B. v. Canada (Attorney General), 2017 ONSC 3779.  In this case, Justice Perell rejected the interpretation short window of time interpretation.  Rather, he said:

Natural death need not be imminent and that what is a reasonably foreseeable death is a person-specific medical question to be made without necessarily making, but not necessarily precluding, a prognosis of the remaining lifespan.

In formulating an opinion, the physician need not opine about the specific length of time that the person requesting medical assistance in dying has remaining in his or her lifetime.

The Canadian Association of MAiD Assessors and Providers has published a Clinical Practice Guideline offering a “clinical interpretation of “Clinical Practice Guideline”:

Clinicians can consider interpreting “reasonably foreseeable” as meaning “reasonably predictable” from the patient’s combination of known medical conditions and potential sequelae, whilst taking other factors including age and frailty into account.

Clinicians should not employ or support rigid timeframes in their assessments of eligibility for MAID. Bill C-14 contains no requirement for a prognosis having been made as to the length of time the patient has remaining.

The College of Physicians and Surgeons on Nova Scotia included the following statement on this issue in its Professional Standard Regarding Medical Assistance in Dying:

Therefore, natural death will be reasonably foreseeable if a medical or nurse practitioner is of the opinion that a patient’s natural death will be sufficiently soon or that the patient’s cause of natural death has become predictable.

The meaning of “reasonably foreseeable” is also discussed in great detail in Jocelyn Downie and Kate Scallion, Foreseeably Unclear: The Meaning of the ‘Reasonably Foreseeable’ Criterion for Access to Medical Assistance in Dying in Canada.  They conclude that

“Natural death has become reasonably foreseeable” does not mean that eligibility is limited to fatal conditions, being terminally ill, predicted survival of six or twelve months, or being “at the end of life” or “nearing the end of life.” There is no temporal proximity limit on eligibility for access to MAiD in Canada. Temporal proximity can be sufficient for concluding natural death is reasonably foreseeable but it is not necessary. It is not necessary to predict the length of time the patient has remaining.

“Natural death has become reasonably foreseeable” means that, in the professional opinion of the medical or nurse practitioner, taking into account all of the patient’s medical circumstances, how or when the patient’s natural death will occur is reasonably predictable.

They also offer some concrete illustrations of the implications of the interpretation if this interpretation were adopted:

Meet reasonably foreseeable:

  • Patient with Amyotrophic Lateral Sclerosis, Parkinson’s, Huntington, Spinal Muscular Atrophy, or Alzheimer’s as of day of diagnosis
  • Patient with intractable anorexia

Do not meet reasonably foreseeable:

  • 40-year-old patient with incurable cancer for which suffering can be controlled by means acceptable to the patient
  • 25-year-old patient with paraplegia resulting from a car accident but no other health conditions
  • 60-year-old patient with spinal stenosis but no other health conditions
  • 45-year-old patient with chronic pain but no other health conditions
  • 50-year-old patient with schizophrenia but no other health conditions

On September 18, 2019, the British Columbia Civil Liberties Association announced that the Charter challenge to Canada’s federal MAiD legislation brought by Julia Lamb and the BCCLAhad been adjourned. Julia Lamb had challenged the legislation on the grounds that it violated her Charter rights as, because of the nature of her degenerative neuromuscular condition, she would not be eligible for MAiD at the point at which her suffering had become intolerable (her natural death would be too remote and unpredictable). It was adjourned because the Attorney General of Canada had accepted as uncontested expert evidence (indeed, from their own expert) that:

If Ms. Lamb were to be assessed now, and she indicated an intent to stop BiPaP [a machine similar to a CPAP machine, which helps a person breathe better while sleeping] and refuse treatment when she next developed pneumonia, it is likely that she would be found to meet the threshold for having a reasonably foreseeable natural death … She would not be required to develop an episode of pneumonia before being approved for MAID. Most would consider it sufficient that she expresses certain intent to refuse treatment when this occurs, as she will inevitably develop a chest infection in the near future.

This suggests that, quite apart from the interpretations discussed above (“not too remote” and/or predictable cause), “reasonably foreseeable” can also mean that a person has demonstrated a clear intent to take steps (whether that be refusing medical treatment, preventive care, or food and liquids) that will make their death happen soon and of a predictable cause.

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