Dying With Dignity Canada also has concerns with bill C-41 on medical assistance in dying
Regarding the recently tabled MAID Safeguards Act (bill C-41), Dementia Justice Canada recommended the statutory appointment of an independent and publicly funded lawyer to advocate for the patient’s rights prior to proceeding with medical assistance in dying (MAID) pursuant to an advance request.
“The patient needs a voice at the table,” said Heather Campbell Pope, a lawyer and chair of Dementia Justice Canada. “When a decision will end someone’s life, the person must have a voice in the process.”
“When a person’s life is at stake and they can no longer speak for themselves, the legislation needs a procedural safeguard to ensure they have an independent voice in the decision-making process,” added Dr. Fay Martin, a retired social worker and Dementia Justice Canada’s second vice chair.
More on the MAID Safeguards Act
On Oct. 27, the Canadian government introduced bill C-41, which is expected to amend the Criminal Code, 1985. Specifically, the proposed legislation may decriminalize MAID in line with an advance request.
According to the federal justice department, the bill seeks to impose requirements and safeguards when permitting adults to give their advanced consent to later receive MAID after being diagnosed with an incurable illness that is expected to deprive them of their capacity to decide.
In its statement, Dementia Justice Canada commended the federal government’s care in developing the planned protections, which seek to strike a balance between the autonomy and safety of vulnerable persons.
Dementia Justice Canada also acknowledged the complicated legal, ethical, and practical issues involved in the legal landscape surrounding MAID.
Concerns of Dementia Justice Canada
Dementia Justice Canada expressed concerns that bill C-41’s proposed protections insufficiently responded to the legal and ethical risks arising from advance requests, such as undue influence, coercive control, and other types of abuse.
First, in situations where a practitioner providing MAID is unsure about whether an individual’s words, sounds, or gestures constitute a refusal, Dementia Justice Canada pointed out that the bill imposed no limitation on the number of times the practitioner could try again before attempts should be stopped, suspended for an extended period, or sent for external review.
Second, Dementia Justice Canada questioned who would serve as the individual’s independent representative when doctors, nurses, social workers, and family members were talking about whether to proceed with MAID in accordance with an advance request.
“Everyone around the table can be caring and well-intentioned, but they may also be emotionally involved in the situation, which can affect their judgment,” Martin said. “Good intentions do not replace independent legal scrutiny.”
Concerns of Dying With Dignity Canada
Helen Long, chief executive officer of Dying With Dignity Canada (DWDC), described the federal government’s approach as fundamentally flawed.
“At best, bill C-41 will create a patchwork of systems across the country, thus further increasing inequity in MAID access, instead of a federal framework that would ensure that all people across Canada could have access to advance requests for MAID if they choose and are eligible,” Long said in a statement. “At worst, some people in Canada may never has access to advance requests in their province or territory.”
Under the bill, provinces and territories should pass further legislation establishing a repository or storage system for advance requests, which according to Long amounts to providing jurisdictions with veto power over advance requests.
DWDC also expressed concern that the bill would require a subjective assessment of intolerable suffering prior to MAID.
“Individuals should be allowed to define what they consider to be physical and psychological intolerable suffering, as part of the advance request, and medical practitioners should base their decision on that objective standard,” Long said.
Next, DWDC criticized the bill’s exclusion of individuals whose only underlying medical condition was a mental illness from MAID eligibility.
“We believe that preventing a group of people from having access to a legal medical procedure simply because of their diagnosis violates Charter rights,” Long said. “It is stigmatizing and unconstitutional and Dying With Dignity Canada continues to be dismayed in any action that prevents all Canadians from equal access to apply for MAID.”
Groups’ recommendations
Dementia Justice Canada called on Canada’s legislators to push for the appointment of an independent legal voice to protect those who could no longer speak for themselves, thus setting a minimum access-to-justice safeguard across the nation, with implementation left to the provinces and territories.
On the other hand, DWDC urged the federal government to amend bill C-41 to ensure that every eligible and willing person in Canada can complete an advance request, regardless of where they reside in the country.
More news on assisted dying
Earlier this month, Dementia Justice Canada raised concerns regarding the federal government’s plan to allow advance requests for MAID.
Last year, the Associated Press reported that Slovenians blocked via a referendum an assisted dying bill that would allow mentally competent and terminally ill patients to administer lethal medication to themselves.
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