Thursday, June 23, 2022

In an article for Impact Ethics, Faculty of Law Professor Trudo Lemmens, Scholl Chair in Health Law and Policy, argues that proposals to expand advance requests for medical assistance in dying (MAID) ignore the Supreme Court’s restraint reflected in the Carter decision and reverse constitutional and human rights norms.

While a federal Joint Parliamentary Committee on Medical Assistance in Dying is still supposed to be exploring whether offering MAID based on an advance request (AR) should be expanded, one of its members, Senator Wallin, already introduced a bill to do exactly that; and Quebec’s government also wants to do so before the summer recess. An expansion would further allow MAID based on a prior signed form, when the person is no longer capable to confirm consent. When allowing this in situations of advanced dementia, we will be faced with what has evoked outrage in the Netherlands: the surreptitious medicating of patients with dementia who no longer understand what is done to them, to facilitate ending their life; and potentially suppressing their physical resistance.

The Netherlands was the only jurisdiction that allows MAID under such circumstances, and its Supreme Court recently endorsed the practice. Belgium allows euthanasia based on advance requests, but only when patients have become permanently unconscious. Since Bill C-7’s adoption, MAID can be performed with an advance request in Canada when the person satisfied the law’s access criteria and was able to consent at the time of signing the form. MAID providers are prohibited from ignoring refusal or resistance “expressed by words, sounds, or gestures” but the law undermines this safeguard by allowing MAID providers to interpret these to be “involuntary”, “made in response to contact.” The law remains silent about surreptitiously medicating patients. MAID advocates now want to expand ARs for MAID to allow someone to stipulate the circumstances in which they want to have their life ended, with another person deciding that the time has come.

Read "Turning human rights upside down with advance request for MAID"

In a Faculty blog post published June 16, Professor Lemmens further examines Parliament's fast-track review of Canada's MAID regime and the push for further expansion, in the context of recent reports of some controversial applications of MAID.

On June 16, 2022, in the margins of a meeting of the UN Conference of States Parties to the Convention on the Rights of Persons with Disabilities, where Windsor law Prof Laverne Jacobs was elected as a first ever Canadian member of the CRPD Committee, Canadian disability rights organizations organized a session to call the world’s attention to troubling developments with our Medical Assistance in Dying Regime. One of the concrete examples that featured prominently was the case of a  a women living in poverty who struggled with severe chemical sensitivity and had desperately been trying to obtain social housing adjusted to her medical needs. CTV reported how Toronto physicians ended her life with MAID, at her request. CTV also reported on the case of another woman in a similar situation who was approved for MAID, following a MAID assessment which in her words “focused [little] on what services I had, what I needed to achieve some level of normal. Nothing was offered in terms of support.” Fortunately, private charitable fundraising permitted her to move into temporary adjusted housing and to postpone the ‘MAID procedure’. Finally, a third report of June 2022 revealed how a woman in her 30s, suffering from a rare but not terminal condition, applied to the British Columbia Fraser Health Authority for MAID in the hope it would lead to more medical or social supports. While she was offered access to MAID, no additional support of specialized health care was allegedly made available or promised.

Read Faculty blog post by Professor Lemmens