Over the last few days headlines have been made by Audrey Parker, a woman with brain cancer who is pursuing medical assistance in dying ("MAID") earlier than she prefers, because she fears she will lose capacity to consent at a later date. It is important to note that a substitute decision-maker, guardian or attorney under a POA would not be able to consent to MAID on her behalf.
Under Canada’s criminal law, a medically assisted death is only permitted if the patient is mentally capable when they make the initial request AND when the death is about to occur.
Several years ago, when the law was first passed, some people argued that the law should permit advance requests. This concept was and remains wildly controversial.
For some, losing the right to MAID is terrifying. They worry they will be in tremendous pain and lack the capacity to end their suffering when they are ready to go. Others fear living in a certain kind of state, such as advanced dementia, and want the peace of mind that life will end before they progress that far.
But, on the other hand, some are troubled about ending the life of a person without their current capable consent. It is possible to become a completely different person over time due to cognitive impairment. And incapable persons, more so those with dementia than a painful terminal illness, can be happy. It is easy to see how some medical and nurse practitioners would not want to assist with or administer the death of a person who does not appear to be suffering. The College of Physicians and Surgeons of Ontario has written
“In practice, there can be a striking contrast between a patient’s prior capable wish and the patient’s conduct when incapable. Specifically, there may be situations where a patient has expressed a prior capable wish to receive a particular treatment, but then physically recoil or verbally protest when clinicians attempt to provide that very treatment.”
This issue raises an important philosophical question. Which “self” prevails? The past/capable self or the future/incapable self? Should one version of the self trump the other? Should capacity prevail over recency?
One important point not mentioned in most of the latest media articles is that the Canadian government did actually contemplate advance requests to medically assisted death. Rather than legalize it, the law (Bill C-14) mandated an independent review into the more controversial aspects of MAID:
9.1 (1) The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent, initiate one or more independent reviews of issues relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.
(2) The Minister of Justice and the Minister of Health must, no later than two years after the day on which a review is initiated, cause one or more reports on the review, including any findings or recommendations resulting from it, to be laid before each House of Parliament.
The independent review is already under way. In December 2018 it is expected that the Council of Canadian Academics (CCA), the organization engaged to conduct the review, will release its report “The State of Knowledge on Advance Requests for Medical Assistance in Dying”.
In her final Facebook post, Audrey Parker stated that Dying with Dignity will be submitting a bill to Parliament called “Audrey’s Law” that would amend the legislation to remove the requirement for a second consent by persons who have been “assessed and approved” for MAID. She explained that:
“Had late stage consent been abolished, I simply would have taken my life one day at a time. If I noticed I was losing capacity, I would have taken control myself….and called my doctor to come assist me with my death. All I have to give is 24 hours notice so she can pick up the drugs from the drug store in my neighborhood. We were totally organized but the law tied our hands.”
So will advance requests to MAID become legal? Only time will tell.
through a difficult time?