MAID in 2022: A Rapidly Evolving Ethical Landscape Flashcards
Rodriguez v. British Columbia
Age 42, ALS, Criminal Code s241(b)
Section 7: everyone has the right to life, liberty and security of the person
Section 15 (1): every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination
Section 12: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment
The Rodriguez v. British Columbia Ruling and Issues Considered
- the majority rejected the claim that section 241(b) violated sections 12 and 15 of the Charter
- the majority recognized that Rodriguez’s right to security of the person was denied by section 241(b) because it deprived her of personal autonomy in decisions considering her body, and it caused her both physical pain and psychological distress
- Buuuut they believed that the prohibition against assisted suicide did not violate section 7 as the CC provision upheld principles of fundamental justice
- they argued that assisted suicide was widely considered to be morally and legally wrong, and that lifting the prohibition could potentially lead to abuses, particularly among the vulnerable
- 5-4 ruling the SCC found the CC provision to be constitutional and not in violation of the CCRF
What is Personal Autonomy
“in medical practice autonomy is usually expressed as the right of competent adults to make informed decisions about their own medical care…the principle underlies the requirement to seek the consent or informed agreement of the patient before any investigation or treatment takes place”
- respect
- self-determinism
- free will
- relational autonomy
- informed consent
Carter (Taylor) v. Canada (2015)
Gloria Taylor (64) and Kay Carter (89)
Taylor: ALS, Carter: Spinal Stinosis
Criminal code S241(b)
Section 7: everyone has the right to life, liberty and security of the person
Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination
What made the Carter (Taylor) v. Canada Case Different?
S7 argument alleged the CC interfered
a) with liberty by constraining the ability of such individuals to make decisions concerning their bodily integrity and medical care
b) with the security of the person by leaving such individuals to endure intolerable suffering
c) deprive some people of life by forcing them to take their own lives prematurely for fear that they would be incapable of doing so when they reached a point where their suffering was intolerable
court went back to fundamental principles of justice and weighed the aim of the law with it’s effect and found the law was overly broad
- law was struck down unanimously
Interest groups
- dying with dignity
- Canadian Council for Disabilities
- Canadian Council for Academics
- BC Civil Liberties Association
Interveners
“friends of the court” or “public interest advocates”
see slides for full list
Bill C14 (2016): Eligibility Criteria for MAID
- consent: be able to give informed consent at multiple stages
- condition: have a grievous and irremediable condition
- voluntary request: no outside influence/pressure
- age: 18+ and deemed mentally competent
- Covered: be eligible for health services funded by the government
Grievous and Irremediable Medical Condition
- have a serious illness, disease or disability
- be in an advanced state of decline that cannot be reversed
- experience unbearable physical or mental suffering from your illness, disease, disability or state of decline that cannot be relieved under conditions that you consider acceptable
- be at a point where your natural death has become reasonably foreseeable
- this takes into account all of your medical circumstances and does not require a specific prognosis as to how long you have left to live
Informed Consent
you have received all the information you need to make your decision:
- your medical diagnosis
- available forms of treatment
- available options to relieve suffering
you must be able to give informed consent:
- at the time of your request
- immediately before MAID is provided
- ** consent can be withdrawn at any time
Timeline Prescribed by Bill C14
- written request: a form that differs by province, two independent witnesses
- medical assessments: two DR or NP must provide a written opinion confirming eligibility
- reflection period: wait 10 days. In some cases, this is waived if the DR/NP agrees that it is not possible
- MAID procedure: give final consent, the procedure is performed
Truchon v. Superior Court of Quebec
- Jean Truchon and Nicole Gladu both suffered from grave and incurable medical conditions, denied MAID
- they were denied access to MAID as they did not meet the criteria of a reasonably foreseeable death and the Quebec criteria that the person is at the end of life
- they argued both provisions were not supported by the Carter decision and were a violation of their S7 and S15 Charter Rights
- The court declared the provisions unconstitutional and they were struck down and the court allowed for a 6-month suspension of its declaration of invalidity to allow for both parliaments to consult and craft a new policy
Bill C7: MAID Amendments
- amend the criminal code to permit MAID for individuals whose death is not reasonably foreseeable
- safeguards would include a 90-day assessment period, a second eligibility assessment by a practitioner with expertise in the condition and two clarifications of informed consent
- changes to the requirement for final consent introducing the potential for an advanced consent arrangement
- enhancements to the federal monitoring regime, expanded reporting obligations
received royal assent on March 17, 2021
Two Track Approach
ORIGINAL MAID LEGISLATION
- request for maid
- eligibility criteria: grievous and irremediable medical condition, natural death must be reasonably foreseeable
- safeguards for all eligible persons
- final consent to be provided before administration of MAID
NEW MAID LAW
- request for MAID
- Eligibility criteria: grievous and irremediable medical condition, “reasonable foreseeability of natural death” criterion repealed
- eligibility for persons suffering solely from mental illness is temporarily excluded until march 17, 2023 (expert review will make recommendations on protocols, guidance and safeguards for MAID for persons suffering from mental illness)
- existing and eased safeguards for eligible persons whose death is reasonably foreseeable, final consent or possible waiver of final consent for eligible persons under certain circumstances
- new and strengthened safeguards for eligible persons whose death is NOT reasonably foreseeable, final consent to be provided before administration of MAID
Mental Illness and the Sunset Clause
- when Bill-C7 passed through the senate of Canada they voted to give the federal government 18 months to expand access to people suffering solely from a mental illness
- the government panel tasked with coming up with those recommendations was expected to provide them by march 2022 (this got pushed due to COVID-19) new date is March 2023
