MAiD^[1] – Medical Assistance in Dying, as it is labeled in Canada; assisted suicide everywhere else. No matter what you call it is a difficult subject.

In previous posts in Travels With Myself, I’ve been considering the problem of ageing, and its inexorable outcome. I’ve tried to explore the existential dilemmas faced by sentient human beings in the inevitability of our physical decline (and by physical I also mean mental decline insofar as decline in brain physiology leads to cognitive and mental decline) and ultimately, in either case, to the loss of identity, our once vital selves. At some point in our lives we become increasingly aware that we are not the same physical and mental persons we once were. Our cognizant awareness of the inevitability of this fact, largely ignored for most of our lives, now takes on increased significance with each new crick and creak and blemish. We’re getting old. The usual coping mechanisms we have adopted to positive effect for most of our lives to protect our sense of self no longer serve, or serve well, and we have to find new ways to accept the inevitable decline, the change in who we are, and the ultimate existential question, oblivion.

In ‘Mortality and Immortality’ I argued that immortality, even with increasing advances in medical science, is highly unlikely, and even if achieved, perhaps not as desirable as imagined. Consequently, accepting our mortality, and trying to age gracefully, was the usual advice.  But this is still a very challenging proposition when it means accepting change in our psychological identity, our sense of self, that illusion our brains have created for us. This becomes even more challenging when. the changes we are supposed to accept include serious infringements in the quality of life. So in ‘The Question of Suicide, revisited’, I offered that, despite the strong personal values and societal norms this question raises, persons contemplating suicide ought not be denied this freedom of choice. Of course the obvious problem is that the person not of sound mind may be making a huge mistake, destroying the potential of an unfulfilled life but there is no one there to guide his thinking, or help him change his mind.

Dealing with death is difficult enough – the loss of a loved one, parent, spouse – but when it’s your own death, it’s another story altogether. I often quote Woody Allen on death: ‘I’m not afraid of death. I just don’t want to be there when it happens!’ Well, when it comes to suicide, and especially MAID, you’re going to be present.

Offing oneself presents many problems, as we discussed in the last post. Suicide may once have been a criminal offence, (how oxymoronic), and is still a Cardinal Offence in the eyes of the Catholic Church, but as society relaxed its views on suicide, even attempted suicide was repealed from the Criminal Code of Canada as an offence (1972). (I wonder what was the punishment for that crime – hanging?)

Quite apart from the moral question, and even the legal issues of suicide, the Criminal Code of Canada (Section 241 (b), a provision going back to ancient Common Law), has been pretty clear on the question of a third party providing assistance to someone wishing to terminate his or her own life: It’s criminal. Counseling, aiding and abetting suicide is punishable for up to 14 years imprisonment. 

So, attempted suicide (by one’s own hand) was no longer a criminal offense, but assisting another’s suicide was. The problem this presented was the relative unfairness to a disabled person who was not physically capable of committing suicide. The landmark case was Rodriguez vs British Columbia (AG) in 1992. 

Sue Rodriguez was a 42‑year‑old mother in the final stages of ALS. Her condition was rapidly deteriorating and she would soon lose the ability to swallow, speak, walk and move her body without assistance.  Rodriguez did not wish to die so long as she still had the capacity to enjoy life but sought that a qualified physician be allowed to set up technological means by which she might, when she was no longer able to enjoy life, end her life by her own hand, at the time of her choosing. The Supreme Court of Canada ruled (1993 September) in a split decision (5 to 4) that the criminal code proscription against assisted dying was not ultra vires of the Constitution Act Charter of Rights and Freedoms and so Rodriguez’ appeal to override 241 b) was denied. 

In denying her application and upholding the provision of the Criminal Code prohibiting assisted dying Rodriguez was condemned to a horrible death, and denied her right to choose her own demise. She overcame this dilemma when a prominent politician, Svend Robinson, arranged to have an anonymous physician aid in her ending her own life. She died on 1994 February 12. An investigation was conducted but no charges were brought against Robinson.

Twenty years later (2014 February), a similar case, Carter vs. Canada (AG), the Supreme Court of Canada decided, in an absolute majority, in favour of the appellant and Section 241 (b) was overturned with instructions from the SCC that Parliament enact enabling legislation within two years. In 2016 June, Bill C-14 of that parliament passed legislation amending section 241 (b) of the Criminal Code of Canada, to the effect that assistance in dying was still a criminal offense excepting where very specific conditions are met; where these conditions applied, medical assistance in dying would not be a criminal act and moreover could not be denied (and therein lies another problem for medial practitioners conscientiously objecting).

In 2021, further amending legislation expanded the conditions under which medical assistance in dying would apply. And the current Liberal government is still mulling over terms for mental illness as a qualifying condition. 

Note that the conditions are medical assistance in dying: only qualified persons may conduct the procedures; ordinary persons may not assist another in dying.

In effect, Parliament has struggled mightily, and in my view admirably, to address the SCC’s challenge and society’s values, with the dilemma raised earlier in this series of blog posts: how to find the balance between the right of the individual to choose his time and means of dying and the responsibility of society to protect vulnerable persons. In other words, when does assisted suicide become euthanasia?

Here is the text of the current Section 241 (b) of the Criminal Code prescribing medical assistance in dying: it makes for fascinating reading, especially considering how this challenging philosophical question is reduced to unambiguous legal language: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-241.2.html

But of particular interest is the set of conditions that must be met before qualifying for medical assistance in dying:

Eligibility for medical assistance in dying

• 241.2(1) A person may receive medical assistance in dying only if they meet all of the following criteria:
  •  they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
  •  they are at least 18 years of age and capable of making decisions with respect to their health;
  •  they have a grievous and irremediable medical condition;
  •  they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
  •  they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Grievous and irremediable medical condition

•  A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
•  they have a serious and incurable illness, disease or disability;
•  they are in an advanced state of irreversible decline in capability; and
•  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;
• (d) (concerning death as imminently foreseeable) repealed 2021

Exclusion

•  For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability.

 I’m sure no-one could object – unless of course they disagreed philosophically with the whole premise of suicide, assisted or otherwise – that this provision for the terminally ill or intolerably suffering person is right, so far as it goes. But who determines if the applicant’s condition is a grievous and irremediable medical condition. And is this the only basis for medical assisted suicide? If the able-bodied and able-minded supplicant determines that his quality of life is such that he sees no point in continuing it, should the state prevent this from proceeding in the most efficacious and humane manner possible? Or is that only available to the terminally ill and enduring suffering person? Is the right to die with dignity, this freedom of choice, to be denied to those convinced of the correctness of their determination that their quality of life is not sufficient for him to continue? Should society be able to prevent a citizen’s will with respect to his or her own life? Is the person otherwise obliged to end his life by whatever means he can manage, as messy and as lonely as that might be?

Some would argue the quality of life is a condition that ought to be respected even as subjective as that condition may be. Should a person in chronic and acute pain, though not terminal, be obliged to continue a life he no longer wishes to live? Should someone in chronic and acute mental distress be obliged to suffer these interminable demons, with no help nor prospect of help from the medical science? Should penury and financial destitution be a factor in determining quality of life circumstances?

Of course safeguards need to be in place to establish beyond a reasonable doubt that the supplicant genuinely wishes for this outcome and that medically assisted suicide is a preferred method for terminating one’s life and dying with dignity, rather than in agony and despair.

I’ve had experience with medical assistance in dying, with my dogs. Scoff if you like, but I’m sure the rituals and emotional experience of it is very similar. And the worst of it is, the trusting quadrupedal family member has no idea what is coming. For our pets, and severely injured and ill animals of any description, we have almost no reservations about euthanasia for them.

With bipedal family members the experience must be different. Sentience in the human makes the difference, and so we defer to the one who will die to make the decision? But what if they can’t? Or leave it too late?

When my wife Marlene was diagnosed with terminal cancer, and then suffered with three years of deterioration and chemotherapy, she always spoke, grimly, of taking the Thelma and Louise route – it’s a dramatic idea, to drive off the edge of the Grand Canyon. It was like an angry mental shaking of the fist at life, and death. But because Marlene lived in the moment, and had a positive attitude to life, the time for her death was always a question she would deal with later, and suffer in the meantime.

MAID was passed into law in June 2016; Marlene began to be mentally incapacitated in November of 2016, and no longer eligible for MAID, and for that matter, by July of 2017 no longer physically capable of suicide. If she was to die with dignity, I would have to help her. Because she couldn’t decide for herself when her time was come, even with my help, the only option left was to die ‘naturally’. She chose hospice care, believing, wrongly, that with the gentle ministrations of the staff at Hospice Care Ottawa, she would die with dignity. She still clung to some sort of faint hope until, her last day of consciousness, she finally accepted the finality of her imminent death. She lapsed into a morphine induced coma and died eight days later. I’ll never know what her last thoughts were on her passing from this life.

Because of Marlene’s ignoble end, I found myself increasingly persuaded that Dying with Dignity Canada has an agenda I can support, and expand upon. This blog post (and the preceding ones) would be in line with that sentiment – dying with dignity.

I don’t think there is any ‘good death’, because all deaths represent profound endings, and the loss is always painful, to everyone involved, both the dearly departed and the grieving remainders. I’m coming to the conclusion that euthanasia is the right and proper ending for anyone who has the capacity to make that determination for themselves, no matter what the circumstances. 

When my last Standard Poodle’s days were done – Bonnie was 14 and she had cancer of the toes – I called Claire Place Mobile Services and made an appointment for them to come to the house. Trusting Bonnie lay on the carpet of my living room; daughter Alison, Bonnie’s ‘mom’ for most of her life was there; Carmen in The Philippines’ attended by ‘Messenger’. The technician prepared Bonnie with a sedative and we then watched her succumb quietly to the barbiturates infusion. It was a shame to have to say goodbye to this happy and enthusiastic dog, but she had a ‘good death’.

I would hope to be able to make that call for myself one day.

Doug Jordan, reporting to you from Kanata, Canada

© Douglas Jordan & AFS Publishing

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^[1] For a comprehensive summary of MAiD law in Canada consult this Dalhousie Law publication.