Interpreting Canada’s

Medical Assistance in
Dying Legislation
Institute for Research on Public Policy
Webinar
September 25, 2018
Your hosts
• Jennifer Chandler BSc, LLB, LLM
• Bertram Loeb Research Chair
• Professor, Centre for Health Law,
Policy and Ethics and Faculty of
Law, University of Ottawa
• Jocelyn Downie CM, FRSC, FCAHS, BA, MA,
MLitt, LLB, LLM, SJD
• James Palmer Chair in Public Policy
and Law
• Fellow, Pierre Elliott Trudeau
Foundation
• Professor, Health Law Institute and
Schulich School of Law, Dalhousie
University
Why we are here today
• Federal MAiD legislation introduced April 2016
• Controversy immediately ensued
• Too narrow
• E.g., requests cannot be made in advance of loss of capacity
• Too broad
• E.g., no judicial pre-authorization required

• Federal MAiD legislation passed June 2016

• Confusion immediately ensued
• What do the eligibility criteria mean?
• E.g., “natural death has become reasonably foreseeable”
Key confusing provisions
• “natural death has become reasonably foreseeable”
• “serious and incurable condition”
• “intolerable suffering”
• “irreversible decline in capability”
• “imminent loss of capacity”
• ? mental illness excluded
Consequences of confusion
• Too narrow = inappropriate denials of access
• Too broad = inappropriate granting of access
• Inconsistency - same circumstances but different access dependent
on interpretations of different assessors
• Forgo drugs for pain control, remain in state of intolerable suffering,
in order to maintain decision-making capacity until immediately prior
to provision
• Chilling effect on physicians’ and nurse practitioners’ willingness to
provide MAiD
Problem
• Only courts can give authoritative interpretations of legislation
• Courts are inaccessible
• Prohibitively expensive
• Time-consuming
• Those seeking access are very ill
But others can help…
• Federal government
• Provincial/territorial directors of public prosecution and Attorneys
General
• Professional regulators
• Health authorities
• Professional liability protection providers
• Professional associations
• Civil society groups
Because they can issue…
• Prosecutorial charging guidelines
• College standards
• College disciplinary decisions
• Health Canada and Justice Canada
• Public statements
• Health Canada Glossary
• Regulations
• Health authority policies
Our attempt to help them exercise their
authority
• Drafted interpretations
• Solicited feedback from a small number of MAiD providers
• Revised interpretations
• Posted on SSRN and sought feedback through an open call (Twitter networks and e-mail)
and direct contact with MAiD providers
• In person-conversations with key experts from legal or regulatory entities
• Revised interpretations
• Chatham House Rule meeting with experts to test draft interpretations
• Revised interpretations
• Solicited further feedback from Chatham House Rule participants
• Revised and finalized interpretations and published IRPP Report
• Shared interpretations and report with key authorities – A call to action
For each phrase…
Possible meanings
Proposed interpretation
Justification
Key confusing provisions
• “natural death has become reasonably foreseeable”
• “serious and incurable condition”
• “intolerable suffering”
• “irreversible decline in capability”
• “imminent loss of capacity”
• ? mental illness excluded
“Natural death has become reasonably
foreseeable”
• The full phrase (s.241.2(2)(d))
• “…natural death has become reasonably foreseeable, taking into account all
of their medical circumstances, without a prognosis necessarily having been
made as to the specific length of time that they have remaining.”
• Possible meanings
• Predictability of timing (the “when”)
• Predictability of cause (the “how”)
• Predictability of both
“Natural death has become reasonably
foreseeable”
• Proposed interpretation
• Eligibility is not limited to fatal or terminal conditions, or cases of imminent death
• Either of the following two conditions is sufficient to establish “natural death has
become reasonably foreseeable”
• Temporal proximity — the nearness of natural death in “a period of time that is not too
remote”
• A predictable cause of natural death
• Justifications
• AB v. Canada (AG) 2017 ONSC 3759
• Language of the law
• Ambiguous governmental statements?
• Results would be consistent with apparent governmental intentions
“Serious and incurable condition”
• The full phrase (s.241.2(2)(a))
• “…they have a serious and incurable illness, disease or disability”
• Possible meanings
• Incurable  No available means of cure in view of clinicians
• Further uncertainty – how likely must the cure be to make a condition curable
• Incurable  No available means of cure acceptable to the patient
• Note that the suffering criterion includes proviso that the suffering cannot be
relieved under conditions acceptable to the patient.
• Why not here as well?
“Serious and incurable condition”
• Proposed interpretation
• “In the professional opinion of the medical or nurse practitioner, the person
cannot be cured by means acceptable to that person”
• Justifications
• General legal preference for autonomy in deciding to accept treatment or not,
regardless of consequences to the person
• SCC discussion of “grievous and irremediable condition” in Carter
• Governmental statements
“Imminent loss of capacity”
• The full phrase (s.241.2(3)(g))

• “…ensure that there are at least 10 clear days between the day on which the
request was signed by or on behalf of the person and the day on which the
medical assistance in dying is provided or — if they and the other medical
practitioner or nurse practitioner referred to in paragraph (e) are both of the
opinion that the person’s death, or the loss of their capacity to provide
informed consent, is imminent — any shorter period that the first medical
practitioner or nurse practitioner considers appropriate in the circumstances”
“Imminent loss of capacity”
• The problem
• 10 day waiting period doesn’t start until patient meets all eligibility criteria
(including intolerable suffering)
• full 10 days of suffering
• avoidance of pain medication and symptom control in order to maintain capacity

[Note: problem was unintended - original version of the legislation

(starts with meeting “reasonably foreseeable natural death” only),
amended for other reasons, implication unforeseen]
“Imminent loss of capacity”
• Proposed interpretation
• “imminent when it is caused by the underlying condition alone or in concert
with other natural conditions; or when the patient is at risk of permanent loss
of capacity to consent to MAiD while under sedation or other medically
appropriate treatment needed to alleviate suffering”
• Justifications
• resolve the unintended problem by allowing 10-day window to be
abbreviated where capacity-impairing levels of treatment are needed to
address extreme suffering
• medical precedents for using treatment decisions rather than natural
biological disease processes for determining important ethico-legal
boundaries (e.g., “irreversible” cessation of cardiac function for
determination of death)
“Intolerable suffering”
• The full phrase (s.241.2(2)(c))
• …”causes them enduring physical or psychological suffering that is intolerable
to them and that cannot be relieved under conditions that they consider
acceptable”
• Possible meanings
• Cannot be tolerated
• At the far end of a spectrum of intensity of suffering running from mild to
extreme
“Intolerable suffering”
• Proposed interpretation
• “Extreme, in the opinion of the patient”
• Justifications
• 10-day waiting period suggests law regards the suffering as possible to bear
• Otherwise could be no MAiD (all deep and continuous sedation therefore ineligible)
• Otherwise 10 day waiting period would always be waived because sedation would be
indicated
• More humane result of compelling patients to endure 10 days of suffering
that is extreme but not literally unbearable.
“Irreversible decline in capability”
• The full phrase (s.241.2(2)(b))
• …”they are in an advanced state of irreversible decline in capability”
• Possible meanings
• physical and/or cognitive
• sudden and/or gradual
• stabilized or continuing
• subjective or objective standard (assessed by patient or practitioner)
• patient’s prior capabilities or those of an average person or …
“Irreversible decline in capability”
• Proposed interpretation
• Decline can be physical or cognitive
• Decline can be sudden or gradual
• Decline can be ongoing or stabilized
• Decline is assessed by medical assessor relative to patient’s prior capabilities
• Justifications
• Physical/Cognitive
• Consistent with lay meaning of capability
• Consistent with use of the term in other laws, including elsewhere in Criminal Code
• Can have advanced decline in some cognitive functions and retain decision-making
capacity
“Irreversible decline in capability”
• Justifications
• sudden/gradual
• otherwise should have said “advanced state of gradual irreversible decline…”
• ongoing/stabilized
• otherwise should have said “advanced state of ongoing irreversible decline…”
• decline is assessed by medical assessor
• whether there has been a decline in capability is a clinical question to be answered
objectively
• decline is assessed relative to patient’s prior capabilities
• what other standard would be used? (best-case, median, mean; relative to whole world,
country, region; relative to groups individual belongs to eg gender, race, disability)
• otherwise should have specified if intended something other than patient’s prior
capabilities
? exclusion of mental illness
• Question
• Are people whose sole underlying medical condition is a mental illness
excluded from eligibility for MAiD? Or can they be eligible if they meet all of
the criteria set out in the legislation?
? exclusion of mental illness
• Proposed answer
• “Persons with mental illness, whether as the sole underlying medical
condition or as a comorbidity, are not automatically excluded from access to
MAiD. They are eligible under the law if they meet all of the eligibility criteria
set out in s.241.2. Some persons with mental illness as their sole underlying
medical condition may meet the criteria.”
• Justifications
• no explicit exclusion in legislation
• testimony of Minister of Justice and Attorney General of Canada before
Senate Committee
• letter from Minister of Justice and Attorney General of Canada
Where to from here
• Spread the word to patients and families
• Bedside advocacy
• Call for action from public entities
• Interpretive guidance
• Watch the Charter challenges to the legislation
• Interpret before deciding whether violates Charter
• Litigate
• Seek authoritative interpretations from courts
Questions and Discussion