MAID: Upcoming Developments

January 28, 2020 Nick Esterbauer Elder Law, Ethical Issues, Health / Medical, In the News, Public Policy Tags: , , , , , , , 0 Comments

In many respects the law of Quebec differs from that of other provinces.  In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.

In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable.  The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable.  The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed.  The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome.  Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.

The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.  While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.”  Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.

Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter.  The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”

The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional.  The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.

Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional.  Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect.  Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.

As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.

Thank you for reading,

Nick Esterbauer

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