CANADIAN CRITERIA FOR MEDICAL
ASSISTANCE IN DYING
In 2016, the
national Parliament of Canada passed a new right-to-die law.
Canadian doctors and nurse practitioners now have the right
to prescribe gentle poison for their patients who request it
and who fulfill the following criteria
for eligibility, quoted from the law:
"Grievous and irremediable medical condition
(2)
A person has a grievous and irremediable medical condition
only
if they meet all of the following criteria:
(a)
they have a serious and incurable illness, disease or disability;
(b)
they are in an advanced state of irreversible decline in capability;
(c)
that illness, disease or disability or that state of decline
causes
them enduring physical or psychological
suffering
that
is intolerable to them
and
that cannot be relieved under conditions
that
they consider acceptable; and
(d)
their 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."
These four tests are quoted from the
complete law, here.
Scroll down to about half way thru this right-to-die law.
Immediately
following these quoted provisions,
the law says that the doctors and nurse practitioners
are solely responsible
for interpreting
and applying these
criteria.
A second, independent, medical provider must also
agree
that the patient meets these four tests
to be eligible for medical assistance in dying (MAiD).
No lawyer, judge, or public official has any role
in deciding whether or not the patient qualifies.
There are no provisions for
appeal or review by anyone else.
Only the licensed medical providers
who have examined the patient requesting MAiD
will ask and
answer these four questions.
The words in black are
directly quoted from the law:
a. Does this patient
have
a serious and incurable illness, disease or disability?
Careful doctors and nurses will issue written
statements
summarizing all the relevant medical facts about the patient's
condition.
b. Is this patient
in
an advanced state of irreversible decline in capability?
The doctor does not have to declare that this
patient is terminally ill.
Rather, is this patient on the downward pathway towards death?
Is this patient losing powers of thought
in a way that cannot be reversed?
c. Do the medical practitioners find
that
illness, disease or disability or that state of decline
causes
them enduring physical or psychological
suffering
that
is intolerable to them
and
that cannot be relieved under conditions
that
they consider acceptable?
Clearly, the lawmakers want to leave lots of leeway
for the doctors and nurses to affirm that the suffering
(either physical or emotional or both)
has become intolerable for the patient.
d. Do the doctors agree that
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?
WHEN IS DEATH REASONABLY
FORESEEABLE?
This last criterion was expected to be the most
problematic.
What does "reasonable foreseeable" mean?
This expression has little history in law or medical ethics.
Thus, the individual medical practitioners are free to interpret
and apply this
expression as seems reasonable to them.
If the lawmakers had wanted to put a specific
time-frame into this law,
they could easily have included some duration here.
Many other right-to-die laws say
that the patient must be within 6 months of natural death.
And if the lawmakers had expected the time remaining
to be less than 6 months,
they could have said "4 months or less"
or some other projection of the patient's likely life-span.
Or the right-to-die law could have said "less than one year".
Therefore, the only possible interpretation is
that the lawmakers wanted to permit
the likely length of time between today and the day of the patient's
death
to be possibly greater than
6 months.
And they even included this disclaimer:
without
a prognosis necessarily having been made
as
to the specific length of time that they have remaining.
Thus "reasonably foreseeable" means
whatever the medical
practitioners decide it means.
If in their professional judgments,
this patient's death can be foreseen
reasonably,
then they can certify
that this patient qualifies
for medical assistance in dying (MAiD).
We might seek insights from the use of
"foreseeable" in law.
For example, a "foreseeable risk"
is something that a normal person might expect to happen
when using a certain power tool
or when investing in a new company.
Unforeseeable risks
would be dangers not normally expected.
An alternative common-sense expression might have
been:
"The doctor would not be
surprised if this patient dies in the next
year."
Given everything the doctor knows about the patient's condition,
it would be reasonable to expect death within the foreseeable future.
And this expression—"foreseeable future"—
might offer more clues for applying
this new concept in medical ethics.
All human beings can project what the future holds for them
—up to a certain rather distant point
in time,
after which the future become unknowable.
We make daily decisions based on what we foresee our futures to be.
Thus, the medical practitioners are asked to look
into the future:
Given all the medical facts, is this patient likely to die soon?
However, instead of trying to reduce the doctor's
professional opinion
to just one "yes" or "no" answer,
it would be much more helpful for the doctor to issue a written analysis
of the patient's complete
medical history and present condition.
Then the doctor might write something about this patient's future
—perhaps the expected results
if certain courses of medical treatment are
followed or omitted.
After this doctor's
statement of condition and prognosis is shared,
then this might form the foundation for asking
if this patient's natural death is reasonably foreseeable.
Canada's right-to-die law also calls for a second
professional opinion.
Does this doctor or nurse practitioner agree with the first doctor's
analysis?
Also, asking about the likely date of death for this
patient
allows the doctors and nurses to take all of the medical facts
into account.
The medical professionals are not asking about the most likely cause of
death.
The age and general condition of the patient should also be taken into
account.
There might be several forms of physical and mental decline
all taking place in the patient's life simultaneously.
When all known medical problems are listed together,
it might become easier to say that this patient is likely to die soon.
In the first two years of operation of this
right-to-die law,
it has been used by about one
percent of all deaths in Canada.
Thus, the lawmakers did not create
unnecessary controversy or uncertainty
by using their new expression "reasonably foreseeable".
This rate of usage of the law is higher than
expected,
based on the experience with other new right-to-die laws,
such as Oregon's.
In Oregon in the first year,
only 1 patient per 1,000 deaths used the Oregon Death with Dignity Act.
After 20 years, dying patients in Oregon still use
their right-to-die law for only four deaths out of 1,000.
The Canadian rate of use is much
higher
---more than 10 patients choose MAiD out of 1,000 deaths.
And in some locations, this rate is much higher than 1% of all deaths.
DOES MENTAL SUFFERING COUNT?
The other major worry of the supporters of the
right-to-die in Canada
was the question of how
mental or emotional suffering might apply.
Criterion (c) does mention "psychological suffering".
And, once again, the only person who must be convinced
is the medical doctor
or nurse practitioner.
If their professional medical opinion is
that this patient has deep mental
suffering,
that psychological suffering
could satisfy test (c)
to qualify this patient for medical assistance in dying.
A second independent professional medical opinion must agree.
Once again, the law does not provide for any review
or appeal.
The medical practitioners alone
decide whether the mental suffering
is sufficient to qualify a particular patient for medical assistance in
dying.
Canada's right-to-die law might be expanded to
include more explicitly
mental, emotional, or psychological suffering.
For example, it might provide for a professional
psychological evaluation
—especially in cases where the main
reason for choosing death
is the inward suffering of the patient.
Even without any changes in the words of the law,
the written recommendation of a psychologist or psychiatrist
could help to clarify the full situation of the patient.
Because of its proven success in practice,
perhaps there is no compelling need to revise Canada's right-to-die law.
As applied, it does include patients with an indeterminate future
and whose suffering is
emotional rather than exclusively physical.
Lawyers might ask for deeper analysis of the words
"reasonably foreseeable death",
but doctors who have any doubts will resolve uncertainty
by deeper investigation into the actual condition of the patient.
And here doctors and nurse practitioners
should not worry about second-guessing by lawyers.
Given all of the clinical facts,
we believe that this patient's death is "reasonably foreseeable".
RIGHT-TO-DIE
PROVIDERS IN CANADA
DISCUSS
THE MEANING OF "REASONABLY FORESEEABLE"
A group of
medical providers has now emerged in Canada
for the explicit purpose of helping
patients to qualify for MAiD.
Their association is called:
Canadian Association of MAID
Assessors and Providers (CAMAP).
Here is their 10-page discussion of
the meaning of "reasonably foreseeable":
https://web.camapcanada.ca/wp-content/uploads/2019/01/cpg1-1.pdf
CANADA'S RIGHT-TO-DIE LAW AND
SUGGESTIONS FOR EXPANDING IT
See the complete
text of
Canada's new right-to-die law,
with safeguards highlighted and
explained in further detail.
There are actually 12
safeguards in this law,
when we include such things as the 10-day waiting period.
The criteria discussed above deal only with the medical condition of the patient.
After this presentation of the complete text of the right-to-die law,
suggestions for improvement are offered.
The national Criminal Code of Canada
is not the best place to spell out
details
of rules and regulations for
making
life-ending decisions.
Such health-care provisions
should be enacted by Canada's
provinces
and territories.
Quebec already has its
own
right-to-die law.
And here are some useful suggestions
for the other provinces:
Canadian
Provinces Create Right-to-Die Health-Care Laws.
Other places on the Earth could also
adapt these principles:
"Putting the Right-to-Die into
Health-Care Laws and Regulations:
Authorized Medical Methods of
Managing Dying,
Safeguards for Life-Ending
Decisions":
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-HCLAWS.html
Created
September 8, 2016; Revised 9-13-2016; 9-15-2016; 10-12-2016;
12-30-2016;
4-21-2017; 6-20-2017; 11-18-2017; 2-7-2018; 1-22-2019;
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