By Jocelyn Downie and Udo Schuklenk<\/p>\n
In its 2015 landmark Carter<\/em><\/a> decision, Canada\u2019s Supreme Court ruled that the blanket criminalisation of medical assistance in dying (MAiD) unjustifiably infringes on Canadians\u2019 rights and declared that the prohibitions were:<\/p>\n \u201cof no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.\u201d<\/p><\/blockquote>\n The ruling\u2019s eligibility criteria meant that someone who requested MAiD did not have to be suffering from a terminal illness. For instance, some patients suffering non-lethal intractable mental illnesses or disabilities could be eligible to request and receive MAiD.<\/p>\n Canada\u2019s Parliament responded 16 months later with legislation (Bill C-14<\/a>) defining persons with a grievous and irremediable medical condition thus:<\/p>\n \u201c(a)\u2002they have a serious and incurable illness, disease or disability; (b)\u2002they are in an advanced state of irreversible decline in capability; (c)\u2002that 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)\u2002their 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.\u201d<\/p><\/blockquote>\n With this narrow definition, the country\u2019s political leaders demonstrated an unwillingness to fully reflect the Supreme Court\u2019s boundaries of permissibility in the regulatory regime they sought to introduce, despite warnings during parliamentary hearings by constitutional law experts<\/a> that the Bill was inconsistent with both the judgment and the Canadian Constitution<\/a>. The Canadian Senate unsuccessfully tried to amend the Bill to remove the unconstitutional provisions. Predictably, within days of the Bill passing it was challenged in court in British Columbia<\/a> and Quebec. The Quebec trial court agreed<\/a> with the plaintiffs, declaring that the \u201creasonably foreseeable\u201d eligibility criterion violated their constitutional rights, including that it unjustifiably discriminated against persons with disabilities (and others whose natural death was not reasonably foreseeable) by preventing them from accessing MAiD.<\/p>\n The Canadian government chose not to appeal this decision (publicly acknowledging<\/a> that it was sound and that they would lose on appeal) and proposed Bill C-7<\/a> to bring its legislation in line with constitutional requirements. The Bill removed \u201cnatural death has become reasonably foreseeable\u201d as an eligibility criterion for MAiD, so persons with disabilities as their sole underlying medical condition could access MAiD. However, persons with a mental illness as their sole underlying medical condition could not because the government added an exclusion criterion \u2013 for the purposes of the \u201cserious and incurable illness, disease or disability\u201d provision in the legislation, mental illness is not considered an \u201cillness, disease or disability.\u201d However, Parliament added a sunset clause<\/a> to this exclusion so in March 2023 there will automatically no longer be a blanket exclusion of people with mental disorders as their sole underlying condition.<\/p>\n As Bill C-7 was being considered by Parliament, there was a heated debate about the inclusion of people with disabilities and mental illnesses as their sole underlying conditions. Commentators invoked slippery slope arguments and arguments grounded in concerns about the role of social determinants of health in MAiD requests. These deserve a response.<\/p>\n Some argued<\/a> that making MAiD available to people with mental illnesses or disabilities as their sole underlying condition was evidence of a slippery slope, as predicted by opponents of MAiD when the initial legislation came into effect. They argued that because the change from C-14 to C-7 moved Canada in a more permissive direction, it was evidence of an \u2013 in their view – unwanted slide down a slippery slope.<\/p>\n However, slippery slope claims vis-\u00e0-vis today\u2019s law take a narrowly composed snapshot that fails to capture the entire scene. Yes, the change from C-14 to C-7 moved Canada in a more permissive direction. However, that ignores where Canada was before C-14. The change from the Supreme Court 2015 criteria to 2016\u2019s C-14 moved Canada in a restrictive direction. Canada did not become more permissive between Carter<\/em> and Bill C-7. Rather, Canada unconstitutionally restricted the eligibility criteria for a few years, but today the country is back where the Supreme Court of Canada put it in its decision.<\/p>\n Some disability rights activists opposed to the proposed reforms to Canada\u2019s legislation argued that it is never the disability or the mental illness that renders a person\u2019s life not worth living to the person, but rather it is the person\u2019s social determinants of health. On this view, people with disabilities or mental illness as their sole underlying medical conditions seek MAiD because their suffering is caused, not by their condition, but rather by the absence of reliable support services when they are needed or poverty, homelessness, and other social determinants of health. These activists argue<\/a>, persons with disabilities or mental illnesses as their sole underlying condition should be ineligible for MAiD until the disparities in the social determinants of health are fully remedied.<\/p>\n These arguments disrespect the lived experience of some people with disabilities or severe mental illness who report that their suffering is caused by their condition and not by social determinants of health. These arguments also fail to recognize that: some people with disabilities or severe mental illness seeking MAiD are privileged and not lacking with respect to the social determinants of health; and some people with disabilities or severe mental illness have good access to all possible treatments. A collective\u2019s vulnerability tied to the social determinants of health cannot be used to justify overriding an individual\u2019s right to choose.<\/p>\n Even if one accepts (as we do) that supports and services for persons with mental illnesses and disabilities should be dramatically improved, it still does not follow that a patient who is unwilling to tolerate their situation any longer should be stripped of their agency to request MAiD. Removing such patients\u2019 agency to make such decisions condemns such patients to potentially very long periods of excruciating suffering, in an attempt to improve a particular health care system \u2013 reducing these patients to a mere means used to achieve another, worthy, objective. The decision to partake in such activism should be a person\u2019s voluntary and deliberate choice. It should not be a result of holding decisionally-capable people hostage to the project of reform.<\/p>\n Furthermore, many people with disabilities support access to MAiD for persons with disabilities. The available polling<\/a> demonstrates that. And it should not be ignored that the lead counsel in Carter<\/em><\/a>, the sponsor of Bill C-7<\/a>, and the plaintiffs in the Quebec case<\/a> were all persons with disabilities \u2013 vehemently arguing that denying this group access to MAiD is stigmatizing, strongly paternalistic, and unjustly discriminatory.<\/p>\n Canada clearly has a permissive MAiD regime. Its legislation embodies a regime that respects the rights of each individual autonomous person with a mental illness or disability causing them enduring and intolerable suffering to choose to end that suffering through MAiD.<\/p>\n Paper title: Social determinants of health and slippery slopes in assisted dying debates: lessons from Canada<\/a><\/p>\n Authors: Jocelyn Downie and Udo Schuklenk<\/span><\/p>\n Affiliations:<\/p>\n JD: School of Law, Dalhousie; University Schulich School of Law, Halifax, Nova Scotia, Canada<\/p>\n US: Department <\/span>of Philosophy, Queen\u2019s University, Kingston K7L 3N6, Ontario, Canada udo. schuklenk@ pm. me<\/p>\n Competing interests: None declared.<\/p>\n Social media accounts of post authors:<\/p>\n Jocelyn Downie twitter @jgdownie<\/a><\/p>\nSlippery slopes<\/h5>\n
Social determinants of health<\/h5>\n
Looking forward<\/h5>\n