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Author: Trudo Lemmens, Professor of Health Law and Policy, University of Toronto
Original article: https://theconversation.com/ontario-chief-coroner-reports-raise-concerns-that-maid-policy-and-practice-focus-on-access-rather-than-protection-253917
The Chief Coroner for Ontario recently released two new reports of its interdisciplinary MAID Death Review Committee: on Same or Next Day Provision of MAID and on Waiver of Final Consent.
The MAID Death Review Committee — of which I am a member — reviews cases of Medical Assistance in Dying (MAID) that are selected by the coroner’s MAID team for the common issues they raise. The review helps inform policy recommendations.
Committee reports contain case summaries and summaries of committee discussions, and the Chief Coroner’s recommendations. The newly released reports appear to confirm what is argued in several chapters in our recently co-edited volume, Unravelling MAiD in Canada: Euthanasia and Assisted Suicide as Medical Care, and in other publications: Canada’s MAID law, policy and practice focuses excessively on promoting access to death, not on protection.
Some of the cases suggest a troubling prioritizing of ending patients’ lives with MAID rather than a precautionary approach. In my opinion, they reveal an urgent need for more rigorous legal and professional standards. Committee members’ starkly contrasting views on the ethics of some of the practices, which can be gleaned from the anonymous summaries of the committee’s discussions, are striking.
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Access over protection
The topics of the reports illustrate how Canada’s MAID law reform has prioritized access over protection. Most assisted dying laws or policies in other countries prohibit same-day provision of MAID and waiving of final consent. Many impose a reflection period to protect patients against rushed and desperate decision-making, for example following a devastating diagnosis.
Before 2021, Canada’s MAID law had a 10-day reflection period, which could be shortened by request. This was removed in the 2021 expansion of MAID, which also removed the safeguard of a reasonably foreseeable natural death.
At the time, concerns that removing the 10-day reflection period could lead to rushed decisions were dismissed, with a hypothetical example involving same-day MAID provision being described as “absurd.” An official report now documents the practice.
Waiver of final consent, which was also introduced in 2021, moves Canada clearly away from unambiguous or clear consent, which the Supreme Court emphasized as a key safeguard in its 2015 Carter decision — the decision that declared an absolute criminal law prohibition on euthanasia and assisted suicide to be unconstitutional.
A waiver enables track 1 patients (those with a reasonably foreseeable death) who are at risk of losing capacity to receive MAID at a specific time in the near future. In contrast, with an advance request for MAID, a patient authorizes someone else to request MAID on their behalf in the future, when they have lost capacity and specified conditions are met.
Québec recently introduced advanced requests, and Health Canada has organized public consultations on the topic, seemingly considering it. But it remains prohibited under the Criminal Code. Rightly so, since it raises unique ethical, legal and professional challenges.
The coroner’s report on waiver of final consent includes cases, and notes on case discussions, that demonstrate the fine line between flexible use of such waivers and circumventing the prohibition of advance request. In some cases, it appears that different guidance documents of the Canadian Association of MAID Assessors and Providers have been combined to facilitate MAID: guidance on waiver of final consent and on dementia.
In a journal publication, my co-authors and I warned that combining these guidance documents, which we consider to be obfuscating, could lead to advance requests for MAID even though they remain prohibited under the criminal code.
Case reports
Take the case of Mr. A. Distressed by short-term memory loss and a diagnosis of an onset of Alzheimer’s disease, he signed a waiver scheduling MAID 3.5 years later. Some, but not all, members of the committee opined that scheduling it so much in advance was incompatible with a track 1 approval, since it revealed that he was not approaching his death, not in an advanced state of irreversible decline of capability and could hardly be considered to suffer intolerably at the time of approval.
The MAID provider ended up not using the waiver for Mr. A’s consent for MAID. However, his MAID death remains problematic due to concerns about how the provider accepted he was able to provide final consent.
Less than a year after signing the waiver, he was hospitalized after a fall. He was deemed delirious, confused and had hallucinations. During “a period of cognitive improvement” the MAID provider deemed him capable of confirming final consent and provided MAID based on the original assessment.
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Informed consent concerns also arose in the case of 80-year-old Mrs. B, who told a first MAID assessor she preferred palliative care because of personal and religious values. When a palliative care physician noticed her husband’s “caregiver burnout,” he requested hospice care for Mrs. B, which was rejected.
Her husband then contacted a second MAID assessor, who approved her for MAID and who rejected the first assessor’s request to talk to Mrs. B. the next day. A third assessor confirmed the second assessor’s approval and Mrs. B received MAID the same day.
The case of Mr. C involved a man in his 70s, diagnosed with metastatic cancer, who requested a MAID assessment five days after admission into palliative care. But before he could be assessed, he experienced cognitive decline and “loss of ability to communicate.”
When the palliative care team told a MAID provider the next day that he had lost capacity to consent, the provider “vigorously roused Mr. C., who opened his eyes and mouthed ‘yes’” when asked if he wanted MAID. After withholding pain medication for 45 minutes, the provider considered him more “alert.” A second MAID assessor confirmed his eligibility after an online assessment, also accepting mouthing yes, and “nodding his head in presumed agreeance” as clear and capable informed consent, and he was euthanized.
These and some other cases described in the committee reports raise several concerns. They show how MAID has been provided in cases where assessors clearly disagree about the application of access criteria, with two seemingly limited assessments favouring MAID overriding others.
Some patients received MAID after capacity and informed consent procedures that appear problematic, in the case of Mr. C overriding a capacity assessment by a treating palliative care team. Family pressures, such as caregiver burnout, may also be insufficiently investigated, as in the case of Mrs. B.
And MAID appears to have been delivered in the case of Mr. C. when the patient appeared otherwise comfortable in palliative care and may not have had capacity to consent.
The reports also reveal that even patients specifically hospitalized for suicidal ideation and in need of mental health care are offered MAID, as earlier coroner reports already revealed. Some cases appear to stretch the contours of MAID law.
Starkly differing views
The committee discussions included in the report further suggest starkly different views among MAID Death Review Committee members, including on standards for assessing capacity for consent.
As discussed in a recent study I co-authored, most of Canada’s MAID practice is driven by a relatively small group of frequent providers. The study found that there are 1,837 MAID providers in Canada, but up to 336 of these are frequent providers who are likely responsible for the majority of annual MAID deaths. This adds to concerns about arguably overly flexible provision of MAID among these providers.
Another committee member recently discussed how the report on same- or next-day provisions reveals this practice is disproportionately present in some geographical locations. This suggests, as others have discussed in relation to Québec’s MAID practice, that there may be starkly different professional standards and approaches among providers.
To date there have been no known cases of criminal or professional sanctions against a MAID provider. However, the Chief Coroner’s reports, as well as media reports, indicate that this does not mean Canada’s MAID practice is exemplary, safe and compliant. When reading these cases, many likely wonder, as I do, what it will take for political, judicial and professional authorities to provide firmer guidance, investigate thoroughly and put a halt to problematic delivery of MAID.
The United Nations Committee on the Rights of Persons with Disabilities, after hearing evidence from both the federal government and civil society organizations, recently urged Canada to withdraw track 2 MAID (MAID cases in which the patient’s death is not reasonably foreseeable), not to introduce MAID for mental illness and with advance requests, and to improve MAID monitoring and safeguards.
The UN committee cited the earlier coroner reports. The two most recent reports, which the UN committee did not have yet at its disposal, clearly confirm the urgent need for a revisiting of our MAID law, and for refocusing on protection, not on further expansion.
Trudo Lemmens is a member of the Chief Coroner of Ontario MAID Death Review Committee. He has been an expert witness for the Federal Attorney General in the Truchon and Lamb cases. He has been an advisor to the Vulnerable Person Standard. His research is partly funded by a Scholl Chair in Health Law and Policy. He is co-editor of a McGill/Queens University Press book Unravelling MAID in Canada: Euthanasia and Assisted Suicide as Medical Care.