(Image Credit: Kevin Krejci at flickr.com; the image is at this link. Used without modification under Creative Commons Licence)
‘Encouraging’ doctors to bring up MAiD before their patients do, or getting the patient’s consent in advance, change the very paradigm of our MAiD policy. Wider public input is a must.
At the risk of sounding like a broken record, I feel compelled to reiterate that our policy on Medical Assistance in Dying (MAiD) is marching on without the benefit of wide consultation with the public – what I have termed the ‘societal process’. Not only that, the narrower ‘political process’ is also hardly in evidence; no political party is speaking publicly about the issue as various points worthy of discussion emerge, especially the parties in opposition. If they did, there would be at least some public reaction to the ideas presented.
Instead, all that we are seeing is the even narrower legislative process, where only pre-selected and credentialed individuals are deemed worthy of providing any input on the matter. And more disturbingly, even these individuals’ opinions are not reflected in the final policy (as I pointed out in my earlier article ‘MAiD: The New Moloch?)’. One gets a sense of foreboding about the whole thing. This reminds me of the controversy around the ‘Dawning Street Memo’ from the period preceding the invasion of Iraq in 2003, where it was said that “the intelligence and facts were being fixed around policy” that had already been decided behind closed doors. We are similarly being corralled, under the cover of pin-drop silence in the public arena, to a predetermined policy.
A FRESH OUTBREAK
It was in keeping with this gloomy pattern that an article appeared recently in the National Post with the startling revelation that Canada’s providers of MAiD had produced a guidance document encouraging doctors to bring up MAiD before their patients do. As if that wasn’t shocking enough, I was made aware of a Bill in our parliament, Bill S-248, seeking to make it possible for patients to give ADVANCE consent for MAiD (the Bill is at this link). The Bill was introduced on June 02, 2022 by Senator Pamela Wallin. It was in second reading as on June 07, where it still is.
Senator Wallin’s address to the Senate on Bill S-248 (see this link) can be distilled down to this:
- A previous attempt by the Senate last year to amend the law so as to allow for advance consent for MAiD had been rejected by the government,
- The government of Quebec recently introduced a Bill in the province’s parliament seeking to allow for advance consent for MAiD,
- IF that Bill is passed in Quebec, then there would be a gap between the (federal) Criminal Code and the provincial legislation in Quebec,
- Such a gap would create ‘some concerns about criminal liability’ as well as challenges in the Supreme Court.
At this point, an obvious question arises (which, unfortunately, most Canadians are too polite to ask): Is this a case of the tail wagging the dog? If there is a gap between federal and provincial legislation (which gap doesn’t exist as of now, but is rather conditional on the Quebec Assembly passing the Bill that was introduced there), then which legislation needs to change so as to close that gap? From my study of the legislative history of MAiD so far, it does not appear to me that any court has held that advance consent is a Charter right. It appears to me that the Quebec Bill goes farther than any judicial pressure would force it to – and the Senate (or at least the senator concerned) is anxious enough about the consequences (criminal liability and Supreme Court challenges) of a gap between the two laws to want to have the federal legislation keep up with Quebec legislation. This Senate Bill, therefore, appears to be a pre-emptive move to expand the MAiD regime country-wide before any potential future court verdict forces the government to do so. I acknowledge that I am not familiar with Canadian laws, so if I am wrong here, I would love it if someone qualified in the discipline could clear up this doubt – which brings us to the societal process once again. In its absence, such doubts – whether valid or otherwise – are bound to weigh on the minds of concerned Canadians.
The most striking aspect of the concept of ‘advance consent’ is that it comes at the expense of another concept that we thought we had unanimously agreed to in the ‘Me-Too’ era: that consent is supposed to be on-going, and can be withdrawn at any time without explanation. Such withdrawal of consent was supposed to be beyond challenge. Bill S-248 turns the tables on the issue of consent completely. I must point out here that I am not saying that advance consent for MAiD is wrong, but rather merely saying that we need much more discussion about what ‘consent’ means in the ‘MAiD era’ as opposed to its former meaning in the ‘Me-Too’ era – and where else we can expect exceptions to the concept of ‘on-going consent’ being brought into policy. To put a fine point on it, how do we know that a person who gave advance consent for MAiD is still in favour of MAiD after they have lost control of their faculties? Or are we deciding that it doesn’t matter at that point?
If the realization that the MAiD regime is being expanded in a pre-emptive manner to preclude any future legal challenges was disturbing for you, it gets worse. Let us return to the report about the guidance document that ‘encourages’ doctors to bring up MAiD with their patients before the patients themselves do. I believe this strikes at the heart of the understanding that we have had of MAiD so far – notwithstanding the absence of a proper societal process. It was an article of faith that the discussion about MAiD in each case would be started by, and ONLY by, the individual who wished to access it. This is, indeed, the norm – codified explicitly in law – in all the countries where a version of MAiD exists, except Canada. I think this explicit codification is because if a doctor, being a person in a position of authority vis-à-vis the patient, were to bring it up, it could very well influence the decision of the patient. In other words, in order to keep the patients’ consent about MAiD TRULY free, it is IMPERATIVE to prevent the doctors from initiating the discussion. Canadian law doesn’t do this, and is therefore deficient to that extent.
The report in August this year that a case worker at Veterans’ Affairs had brought up MAiD ‘unprompted’ to a veteran was therefore shocking. In response, Veteran Affairs Canada confirmed that it was ‘investigating the incident’. Now, having learned of the ‘guidance document’, I wonder if they were being forthright in their response. Writing about this story at the time in my article ‘For A Few Dollars Less’, I conjectured the following:
“… the actual offer of MAiD to save money for the healthcare system wasn’t an aberration committed by a staffer at / near the bottom of the official hierarchy; rather, the direction appears to have been set at the upper reaches of the officialdom right from the word ‘Go’… Slippery slope wasn’t a hypothetical argument – because that slope was right in front of our eyes, and its slipperiness was in full view.” (Emphasis added)
It turns out, sadly, that I was right – at least partly. The segment of the medical profession involved in providing MAiD has not only deemed that they have the right to introduce the idea to their patients (thus standing our prior understanding of ‘consent’ on its head), but has also opined that they have a professional obligation to bring up MAiD with their patients. In blunt terms, the MAiD segment of the medical profession has arrogated to itself the authority of making changes to policy WITHOUT reference to anyone else, be it the civilian / judicial authorities, the elected government or the public at large. It is bad enough that only 443 individuals (338 MPs and 105 senators) can possibly vote directly on any policy. It is a whole different level of ‘dangerous’ when a group of professionals who make a living out of implementing the policy on the ground UNILATERALLY decide on the scope of the said policy on behalf of the entire country, without asking anyone or even telling anybody. If any other industry did anything remotely similar, there would be hell to pay for that overreach. But the MAiD policy is obscured from public view and riddled with complexity – in addition to being highly charged with emotion. In addition, everyone involved with the policy is in agreement – in fact, all gung-ho – about expanding it to apply to ever more people. Therefore, I don’t expect the providers of MAiD to be summoned to the parliament to answer as to what made them think that they can make such a fundamental change to a policy of such grave significance in such a brazenly unilateral manner. The fact that so far there has been absolutely NO political reaction to this shocking disclosure reveals that the policy on MAiD is being moved – ever so silently – from the restricted but visible arena of the parliament to behind closed doors and thus beyond any public scrutiny. At this point, inquiring minds many naturally want to know what other changes to the MAiD regime are being considered – and likely even being decided upon – that we don’t / won’t know about.
A LARGE FAMILY
Starting with the understanding that MAiD would be available only to people in the terminal stage of their lives who were also suffering unbearable physical pain, and only when they initiated the discussion themselves, we are now in a place where it is, or would soon be, available to the following categories of people as well:
- Infants between 0 t o 1 year in age (who cannot ‘consent to’, let alone ‘request’, MAiD)
- ‘Mature minors’ (although they cannot be tried as adults on criminal charges, presumably because their mental faculties are not fully developed, they are deemed capable of making a decision, on their own, to end their lives).
- People suffering from mental illness (which the government-administered system may have failed to provide adequate relief from),
- People with disabilities (which also the government-run programs may have failed to provide adequate support for),
- People whose natural death is not reasonably foreseeable, but who fall in any of the above categories,
- People who have provided advance consent for MAiD, in anticipation of losing the control over their faculties such that they may not be able to provide consent later,
- Newly arrived immigrants (economic or family class), refugees, holders of work permit,
- Those who are in Canada on a Temporary Residence Permit, as well as
- People whose application for Temporary Residence Permit has been rejected, and
- People who, in the opinion of the concerned doctor, should consider MAiD when the people themselves have not brought up the subject on their own.
At this point, it is natural to wonder what other categories of people might be added to the above list. It is also equally natural to envisage certain people – old or otherwise fragile – avoiding a visit to the doctor for a serious medical need, fearing that they may be offered death instead of treatment. In a perverse way, this may achieve the goal of ‘preventing our healthcare system from being overwhelmed’, which has been the overriding goal for the duration of the Covid era. This prospect is disappointing but not surprising, seeing that our healthcare system lost sight long ago of its goal of providing timely healthcare.
A QUESTION OF WHO WE ARE
From my experience, it is very difficult – if not impossible – to inject philosophical arguments in a public debate in Canada. This is partly because of the extremely deep tribal divisions, along the lines of political affiliation, that I have discussed at length in my earlier article ‘Structural Dysfunction’. Moreover, as I have pointed out earlier, we have lost sight of the fact that the courts are merely meant to interpret the law (which I understand to mean that they are there to clear up any ambiguity in law, or step in when the rights of two parties are in conflict), and the laws themselves are supposed to be a reflection of the will of the people. But we are on a trajectory where the courts, obsessed with the rights of the individual, have lost sight of what is right for the society – and the political class is all too eager to fall in line with what the courts dictate. From this viewpoint, it appears to me that the tail is indeed wagging the dog.
The cruel irony here is that single-minded pursuit of ideological goals is leaving us increasingly bereft of what should be our ideals. There is no meaningful mechanism in place to find out what the people want – their role is assumed to be one consisting of accepting meekly what is meted out to them by those holding the levers of power. In word, this is not democratic functioning, and therefore it won’t end well for us as a society.
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