A look at the recent Charter challenge to track two MAID

Part one

Thanks to everyone who reached out following my last post. I knew people read this thing, but I didn’t realize you read it so soon. As you’re about to see, I’m starting to feel better.

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Here’s the backstory. If you know the legislative history of MAID in Canada, skip to the next section. Following Carter, the Supreme Court of Canada decision that struck down the general prohibition on assisted dying, parliament passed Bill C-14. C-14 was narrower than Carter in that it permitted MAID only when a person’s natural death was ‘reasonably foreseeable’. 

That was the situation from 2016, when the law took effect, to 2021, when that part of the law was challenged by Jean Truchon and Nicole Gladu, two people with long-term disabilities whose deaths weren’t reasonably foreseeable, but who argued that they should be allowed to access MAID on the grounds that their disabilities caused them intolerable suffering. The Superior Court of Québec agreed, giving us the Truchon decision, which found the ‘reasonably foreseeable death’ criterion to be unconstitutional. 

In light of Truchon, parliament passed Bill C-7, which remains in effect. C-7 created the current two-track system. In many ways, the law is unchanged from before: qualifying for MAID still requires “a grievous and irremediable medical condition” plus some other stuff, but now a reasonably foreseeable natural death is no longer necessary. However, C-7 didn’t get rid of ‘reasonably foreseeable natural death’ altogether. Instead, it implemented additional safeguards for people whose natural deaths aren’t reasonably foreseeable. If you’re likely to die soon, you’re track one. If you aren’t and you still want MAID, you’re track two.

Here are the additional safeguards for track two. First, one of the assessors must be an expert in the medical condition that is causing unbearable suffering. So, for example, if the person applying has motor neurone disease, then one of the assessors must be an expert in motor neurone disease. Second, the person applying for MAID must be informed of available means to relieve her suffering, including being offered consultations with experts in those areas, such as palliative care, counseling, community services, and mental health and disability services. Third, the person applying has to discuss those means with the assessors, and everyone has to agree that the applicant has seriously considered them. Fourth, there is a minimum ninety-day waiting period from the start of the assessment until the person can have MAID. These requirements are in addition to the track one safeguards, of which there are many, including giving final consent, being told that you can withdraw at any time, etc.

We’re still waiting for the 2023 MAID data to be released, but, in 2022, 3.5 percent of MAID deaths (462 people) were track two, the average person was seventy-three years old, and fifty percent of those people had a neurological condition such as multiple sclerosis.

There’s a Charter Challenge

That brings us to this:

A coalition of disability rights organizations has launched a Charter challenge against a part of Canada’s law on medical assistance in dying, calling it an “abandonment” of people with disabilities. 

The group announced Thursday that it had filed a notice of application to challenge what’s known as track two of the MAID law, which it argues has resulted in premature deaths. (Link)

The challenge is specifically directed at Bill C-7, which removed the reasonably foreseeable death requirement. The arguments in the challenge aren’t surprising, but it’s worth going through them in detail. 

I should say that, although I think the law is actually too restrictive, not permissive, it’s nice to see MAID opponents lay out their arguments in detail through a court challenge. If they think the law is bad, there’s a process for challenging it, which is what they’re doing.

Here’s the plan for the rest of this post. I have a copy of the application, but since it’s not easily available online, and since I’m going to get into the weeds, I’ve included quotations from the application followed by my commentary. I’m only commenting on the application. I haven’t seen the affidavits, which will include more information, especially from the two individual applicants.

One of them is K.C., whom the application describes as “a 47-year-old trans, non-binary individual living in southern Ontario.” According to the application, “Since Bill C-7 has become law, K.C.’s experience is that medical assistance in dying for persons whose natural death is not reasonably foreseeable, has caused them, and will continue to cause them, serious damage and harm.” It doesn’t say what those harms are in the application, but presumably there are more details in the affidavit. Since the claim that serious damage and harm is occurring is central to the argument that the law is violating K.C.’s rights, it will be necessary to establish this in detail. Whatever the evidence is, it isn’t presented in what I’ve seen, so I can’t assess it.

The second individual applicant is Kathrin Mentler, a forty-year-old woman living in Vancouver. In contrast to K.C., we are told more about Mentler’s situation. She has chronic pain and a history of depression and suicidality. According to the application, in 2023, Mentler went to Vancouver General Hospital during an acute mental health crisis, during which a clinician “advised her on MAID and discussed MAID in positive terms, even though she was seeking help to live and did not ask for information about how to die.” 

This incident was widely covered in the news when it happened (here, here, and here). According to the Globe and Mail, Vancouver Coastal Health, which runs the hospital, confirmed that the conversation between Mentler and the clinician took place, but that MAID was brought up “as a tool to assess Ms. Mentler’s risk of self-harm.”

I have more to say about what happened to Mentler, which I’ll leave for another post. Here, I just want to point out that the applicants have to show that what happened to Mentler reveals a problem with MAID itself instead of issues with that hospital’s policies or that individual clinician’s actions. This will be difficult. Asking about MAID as part of an assessment for suicide risk isn’t common practice, so it might well be that what happened to Mentler was wrong, but it doesn’t justify repealing C-7. 

With that, let’s dig into the arguments.

The Disability Distinction

The beginning of the application reviews the legislative history. The applicants aren’t criticizing MAID in general. Instead, their issue is with C-7, which, in their view, made the law discriminatory. This happened because, according to them, C-7 is uniquely focused on people with disabilities.

The application doesn’t define ‘disability’, but it does say the following at paragraph 17: “A person with a grievous and irremediable medical condition is, by definition, a person with a disability. Accordingly, all persons eligible for MAiD Track I are persons with disabilities.”

So, in their view, anyone who can access MAID has a disability by definition. 

Here’s paragraph 21:

Critically, Bill C-7 removed the criterion of reasonable foreseeability of natural death for a grievous and irremediable medical condition (previously, section 241.2(2)(d) of the Criminal Code). As a result, the MAiD regime, as amended by Bill C-7, is no longer restricted to persons at the end of their natural lives (“MAiD Track 2”). The exemptions carved out by MAiD Track 2 are based on a distinction between those who are disabled and those who are not. In contrast, the distinction between those who are eligible for MAiD Track 1, is based on a distinction between those who are dying (their natural death is reasonably foreseeable) and those who are not dying.

The argument is that, before C-7, MAID was only available to a subset of people with disabilities: those with reasonably foreseeable deaths. But then C-7 expanded the criteria such that the distinction is now “between those who are disabled and those who are not.”

The problem with this argument is that it isn’t true. Recall that Carter, the Supreme Court decision, doesn’t say anything about reasonably foreseeable natural death. Instead, it discusses MAID for “competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition.” Given this, the more accurate description is that track two is based on a distinction between those who are suffering intolerably as a result of a grievous and irremediable medical condition, and therefore should be able to qualify for MAID, and those who aren’t. Neither Carter nor the current law says that a disability on its own is sufficient for MAID.

Importantly, there are many people with disabilities who can’t qualify for MAID. Inclusion Canada, one of the groups in the coalition, represents people with intellectual disabilities. Since intellectual disabilities don’t typically cause intolerable suffering, that’s one way that C-7 is not “based on a distinction between those who are disabled and those who are not.” To use some jargon that the lawyers who wrote this should recognize, having a disability is a necessary condition for MAID, not a sufficient one. Put another way, Bill C-7 expanded the criteria, but the set of people who can access MAID is still only a subset of people with disabilities.

Put yet another way, under C-14, the original MAID law, MAID was allowed for people with intolerable suffering due to a medical condition plus a reasonably foreseeable natural death (plus the other stuff I’m not concerned with here). With C-7, the law allows MAID for people with intolerable suffering due to a medical condition. This isn’t the same as saying that people with disabilities get MAID while those without don’t.

Recall that the application is only focused on C-7. They aren’t explicitly trying to challenge the constitutionality of MAID in general. Let’s accept their claim that, by definition, all people getting MAID have a disability. That means everyone who gets track-one MAID must meet all these conditions:

Disability + intolerable suffering + reasonably foreseeable natural death + (other stuff)

Their argument is that track two is based on a distinction between “those who are disabled and those who are not.” But disability isn’t the only condition. Here’s what track two requires:

Disability + intolerable suffering + (other stuff)

Therefore, if it’s true that track two is based on a distinction between those who are disabled and those who are not, that’s also true of track one. But, in both cases, disability is only part of the story.   

A Consistency Argument

“Bill C-7 only created exemptions for aiding suicide, administering a noxious thing and murder for people who are disabled. Persons who are experiencing intolerable suffering but who are not disabled, are not eligible for MAiD Track 2. MAiD Track 2 is exclusively offered to persons with disabilities.” para 23

The argument here is that MAID unjustly singles out disability, which is more of the same. This move has the same problem as the previous argument, since, as the quotation of paragraph 17 shows, the application says that track one MAID is also exclusively offered to persons with disabilities. They need to show that there’s a problem just with track two, not MAID in general. (I offer this strategic tip to them on the house. They aren’t going to win a Charter challenge to MAID in general when the Supreme Court has unanimously determined that a complete MAID ban violates the Charter.) 

In any case, they’re making a consistency argument: it’s unjust that people with disabilities should have access to MAID while people with intolerable suffering for some other reason shouldn’t, so the question is whether there’s a case for restricting MAID in this way. 

There are a few potential replies. First, Canada has chosen to follow every other jurisdiction except Switzerland by requiring that someone accessing MAID must have a medical condition (an “illness, disease, or disability”, as the law puts it). MAID is, well, medical. It’s framed as an option for people who are suffering due to medical conditions that can’t be resolved in a way they find acceptable. 

Second, the application seems to deny that there are disabilities that can cause intolerable suffering. (Remember: it isn’t enough to have a disability. One must have a medical condition and experience intolerable suffering because of it.) Jean Truchon and Nicole Gladu both found their disabilities caused them intolerable suffering, as have the hundreds of others who have accessed track two MAID. Therefore, there’s clear space between people who have a disability, are experiencing intolerable suffering, and want MAID from those who don’t meet some of those criteria.

Third, any consistency argument is at risk of being resolved in the opposite way. The application argues that MAID should be restricted so that disabled people aren’t singled out, but the problem would also be resolved if MAID were expanded. The funniest outcome would be that the judge agrees that there’s a problem but resolves it by striking down the requirement that suffering be caused by a medical condition.

A Response to Suffering 

24. Bill C-7’s MAiD Track 2 increases the risk that persons with a disability will be induced to end their lives as a response to suffering. Medical and nurse practitioners are presenting the ending-of-life as a form of medical treatment for people who are disabled. Bill C-7 does not require that treatment options be exhausted before accessing MAiD, which makes choosing death easier. MAiD is portrayed as a no-fail, painless way to alleviate suffering which may incentivize death over other options. Ultimately, this increases the risk that people with disabilities will choose death rather than other solutions for their intolerable suffering. Death should not be a solution for disabled people who experience intolerable suffering but are otherwise not at the end of their lives.

25. By transforming death into a form of medical treatment for persons with disabilities,

Parliament has legitimized the idea that death is an appropriate response to feeling like, or being perceived to be, a burden on the health-care system or one’s family, and that it is an appropriate response to other suffering reported by persons with disabilities as motivating their wish to die, including loss of dignity or loss of the ability for meaningful activities or activities of daily living.

There’s a lot going on here, so let’s unpack this. First is the claim that track two raises the risk of people being ‘induced’ “to end their lives as a response to suffering”. Once again, this doesn’t distinguish between tracks one and two. If there’s a risk of being induced to end one’s life, it’s also a risk for people whose deaths are reasonably foreseeable.

The far bigger issue here is that the application gives no evidence that this is happening. By ‘induced’, I take them to mean something like ‘unduly persuaded’, and this is a genuine risk, both for MAID and for other healthcare decisions. However, MAID has multiple safeguards designed to prevent exactly this. MAID assessors spend a lot of time going over the reasons someone has for wanting MAID, including looking for evidence of coercion or undue influence, which isn’t always true with other end-of-life decisions. Moreover, the application gives no evidence that anyone has ever been unduly influenced to accept MAID. 

Most importantly, I’m happy to simply deny two of the ethical claims they give no arguments for. According to the application, “Death should not be a solution for disabled people who experience intolerable suffering but are otherwise not at the end of their lives.” Once again, there’s no actual argument here, and it happens to be false. I agree with Truchon, Gladu, and the eighty-something percent of Canadians with disabilities who support track two. The ethical foundation of MAID is that intolerable suffering is bad and that people should be able to choose the manner and timing of their deaths when faced with such suffering. Banning MAID for people whose deaths aren’t reasonably foreseeable only condemns them to more suffering. 

Similarly, the application says that the law legitimizes the idea that death is an “appropriate response to other suffering reported by persons with disabilities as motivating their wish to die, including loss of dignity or loss of the ability for meaningful activities or activities of daily living appropriate.” 

You bet it does! If you can no longer engage in meaningful activities, you’ve lost your dignity, and you’re suffering because of it, then death is a reasonable option. Some people with disabilities won’t want to use MAID, which is their choice, but to say that MAID is never justified because of suffering is remarkably false. In any case, the application gives no argument for their conclusion, which makes it especially easy to refute.

In making these points, they’re sloppily showing their real hand. Some people think that suffering, loss of dignity, or a loss of meaningful activities doesn’t justify MAID. I, a strong majority of Canadians, and the courts disagree with them on this point, but, in any case, this isn’t a good argument against track two specifically. Instead, if you oppose MAID for these reasons, then you should oppose MAID altogether. Dying soon doesn’t somehow make suffering more important.

Trust

27. Bill C-7 fundamentally changes the relationship between a patient with disabilities, and their medical or nurse practitioners and other care providers. It can undermine the trust a person should have in their service providers. Death is presented as a form of medical treatment but only because they have a disability. Individuals with disabilities have been and continue to be discouraged from accessing health-care services or from disclosing suffering for fear that their provider will recommend death as a solution. Further, a health-care provider communicating to a person with a disability that the person could or should consider MAiD, and that death is an option for their suffering, can shape that person’s perceptions of their value, dignity and the degree to which they are, or are perceived to be, a burden. An offer of MAiD also communicates that their circumstances are hopeless and that the health care and other systems do not value their lives, and cannot be relied upon to save or support them. MAiD Track 2 thus narrows the range of options that are available, or that persons with disabilities may perceive as available, for dealing with suffering they are finding intolerable.

This is another paragraph that is thick with claims but thin on evidence. Take the claim that MAID “can undermine the trust a person should have in their service providers.” It might be that some people are uncomfortable seeing a provider who is also involved in MAID. If so, they can ask for someone who isn’t so involved. But if the claim is that there’s a justified concern that a  provider will kill someone without consent or even pressure a patient into getting MAID, it’s much harder to take this seriously enough to warrant banning track two MAID. The point of the second assessment and the ninety-day waiting period is to prevent this, and a patient can always report someone who mentions MAID when the patient feels it’s inappropriate. Mentler, the Vancouver woman, filed a complaint and the health authority investigated.

Further, Canada has approximately 96,000 physicians and 7,841 nurse practitioners, which is 103,841 in total. In 2022, there were 1,837 MAID providers. This works out to 1.8 percent of physicians and nurse practitioners who provide MAID. As many people who actually want MAID can confirm, the problem isn’t that it’s hard to move through the healthcare system without encountering a MAID provider, but that it can be difficult to find one. 

What about the claim that “Death is presented as a form of medical treatment but only because they have a disability”? Again, no. If a patient goes to a physician or nurse practitioner with an illness, disease, or disability, that provider might mention MAID. But that’s only because the patient might deem her suffering to be intolerable. In other jurisdictions where providers aren’t allowed to mention MAID first, such as Australia and New Zealand, many patients never learn that it’s an option for them. This discriminates against people who are less health literate. Providers should discuss all the available options.

What about “​​An offer of MAiD also communicates that their circumstances are hopeless and that the health care and other systems do not value their lives, and cannot be relied upon to save or support them”? The use of ‘offer’ here is leading. Typically, providers don’t say “would you like MAID?” Instead, they offer info or to connect the patient with the MAID team. Again, it’s possible that some providers act inappropriately, in which case they can be reported. But the safeguards make it extremely unlikely that someone who is explicitly offered MAID will receive it if she doesn’t want it.

I also just don’t see how mentioning MAID communicates that the healthcare system doesn’t value that person’s life and therefore can’t be relied on. I can imagine what it would take. Suppose a patient is asked about MAID by her family physician, she declines, so the physician says, “Well, in that case, I’m no longer going to see you.” This would be extremely unethical and the provider would be investigated and punished. But, as usual, the application gives no evidence that this has ever happened. Merely asking someone if she wants to know more about MAID doesn’t indicate that the provider values the patient’s life less or that the healthcare system is going to abandon her.

This isn’t to deny that people with disabilities are sometimes discriminated against, but if the problem is that people with disabilities aren’t being heard, then this also applies to MAID. I made this point in my review of Liz Carr’s anti-MAID documentary:

My view is that denying the claims of people with disabilities who want to die because of their disability is wrong for the same reason it’s wrong to deny the claims of people with disabilities who want to keep living. Carr seems to believe that wanting to die because of a disability is always a mistake, but being told you’re living a life worth living when you believe you would be better off dead—when you have the capacity to make these decisions—is also a form of injustice. It’s wrong to insist that someone is mistaken about how well her life is going whether she thinks it’s going better or worse than you do.

Let’s take stock. So far, we’ve seen that the application argues that the current law unjustly singles out people with disabilities, inappropriately allows them access to MAID when they’re suffering, and reduces trust in the healthcare system. I find none of these arguments convincing, but we aren’t done! There are more arguments to cover, which I’ll pick up in my next post.