Assisted dying in Canada is still working great

There’s nothing new in the new AP article

Photo by Hermes Rivera

When a healthcare provider faces a clinical decision, the law and ethics are both relevant, but they can come apart. Although laws govern providers in enumerable ways, there are also a bunch of ways where there’s no relevant law or the correct interpretation of the law isn’t settled. But even when a law does exist and it’s settled, that only means that the law doesn’t prohibit some particular action. Whether that action is ethically acceptable is simply a different question. This is why healthcare providers are given latitude to determine what they’re ethically comfortable with. Some ethical questions are hard and reasonable people disagree about them.

Ethically fraught cases occur in most types of healthcare. I personally don’t find this surprising, since for years my full-time job was to talk to healthcare providers about the ethically fraught medical decisions they were facing in my role as a clinical ethicist. The issues providers face involve all types of healthcare. I tend to hear from some groups, such as intensive care, more often, but I’ve heard from pretty much every type of provider providing pretty much every type of care.

Anyway, there’s a new article by Maria Cheng, the person most to blame for launching my newsletter. Here’s some stuff from it:

Some doctors fear moving forward even with cases that meet Canada’s legal requirements, which allow euthanasia for people with “irremediable suffering” from serious but nonfatal medical conditions and disabilities. On private forums, doctors and nurses have expressed deep discomfort with ending the lives of vulnerable people whose deaths were avoidable, according to messages provided to AP by a participant on condition of anonymity due to their confidentiality.

Some of the requests from the forums were approved and acted upon. Others were denied. But the discourse about patients who are poor, disabled or lonely shows a fraught process where medical professionals test the limits of what conditions warrant euthanasia. The controversial cases in the forums have never been disclosed through Canada’s oversight system, even in an anonymized manner.

The forums in question are run by the Canadian Association of MAiD Assessors and Providers. Someone with access to them leaked some of the discussions to Cheng, whose article raises two general issues with MAID in Canada. The first is that MAID assessors and providers find some MAID requests ethically fraught. The article describes some of those cases. The second is a concern that these cases are only being discussed behind closed doors. According to Cheng, experts say that “the lack of transparency about controversial cases is alarming”.

Cases

Cheng’s articles are filled with word choices that reveal her opposition to MAID. It’s fine to be against MAID, but it’s not fine to misrepresent how MAID actually works, which her articles do. Here’s an example:

The nonprofit organization Inclusion Canada regularly hears from people with disabilities who are offered euthanasia, including one disabled woman whose physiotherapist suggested it when she sought help for a bruised hip, said executive vice president Krista Carr.

Many people will read this and have the impression that the physiotherapist in question was holding a syringe in her hand, ready to proceed with the MAID provision as soon as the patient gave the word. The truth is that physiotherapists can’t be MAID assessors or providers—only physicians are nurse practitioners can be—so calling the interaction an ‘offer’ of MAID is false. It’s only an offer if the person can provide the thing in question. At most, the physiotherapist could only refer the patient to a MAID assessor, and there’s still no guarantee that the patient would have met the criteria. That this is the first case the article describes should give you a sense of the approach Cheng is taking here.

The case of the physiotherapist isn’t actually one the MAID providers discussed in the forum, so let’s look at a couple of those. Here’s the first:

A middle-aged worker whose ankle and back injuries made him unable to resume his previous job told his doctor that the government’s measly support was “leaving (him) with no choice but to pursue MAiD.” His doctor told forum participants the patient met legal criteria, with severe pain, strained social relationships and inability to work. Others agreed and assured the doctor the man was clearly in pain. But the doctor was hesitant because the man cited reduced government payments as a key factor.

Now, this is Cheng’s summary, not a full description of the case the provider likely gave, but let’s assume that the worker’s disabilities were causing him intolerable suffering, which would mean, as the article says, that he met the legal criteria for MAID. The question is whether MAID would be ethical in this case.

My view, which I’ve argued for here, here, and here, is that assessing cases should be done based on the facts the patient is experiencing, not a counterfactual scenario in which the world is better (housing is more affordable, long-term disability supports are increased, healthcare wait times are reduced, etc.). I think this because the patient is experiencing the actual situation, not the counterfactual. This approach shows that, while there are multiple ways society could be improved, specifically for those with disabilities, banning MAID when non-medical factors play a role isn’t going to help the worker in question. It will only mean that he will continue to live in a way he finds intolerable.

Since I suffer from thinking this argument is correct, were a MAID provider to consult me about this type of case, I would tell her my view that MAID in this case is ethically permissible. But, per the point I made at the start of this post, providers have latitude to decide for themselves what they’re comfortable with, so, even without all the details of the case, the provider is allowed to decline the provision if she doesn’t feel comfortable with it.

Here’s another case from the article:

One doctor wrote that although his patient had a serious lung disease, his suffering was “mostly because he is homeless, in debt and cannot tolerate the idea of (long-term care) of any kind.” A respondent questioned whether the fear of living in the nursing home was truly intolerable. Another said the prospect of “looking at the wall or ceiling waiting to be fed … to have diapers changed” was sufficiently painful.

The legal and ethical basis of MAID is that people should have control over the manner and timing of their deaths. This case is a good example of the value judgments involved in requiring that the people be experiencing intolerable suffering to qualify for MAID. There are cases where people will broadly agree that suffering is intolerable, but there are other cases where people will have mixed views about the intolerability of a situation.

The law specifies that, if you want to qualify for MAID, you must “experience unbearable physical or mental suffering from your illness, disease, disability or state of decline that cannot be relieved under conditions that you consider acceptable.”

Health Canada has produced a model practice standard that elaborates on assessing suffering. Among other things, the provider “must be of the opinion that it is the person’s illness, disease, or disability and/or state of decline in capability that is the cause of the person’s suffering; (d) must be of the opinion that the suffering is enduring; and (e) must respect the subjectivity of suffering.”

The point where suffering becomes unacceptable is subjective simply because there’s no way to make sense of “objective intolerable suffering”. In practice, that would mean intolerable suffering as judged by the provider or the state, which is contrary to the point of MAID. 

This lung disease case shows why providing support for people isn’t going to eliminate requests for MAID, despite what people say. The patient was given the option of going into long-term care, where his needs would be met, but he judged that option to be unacceptable. He preferred death. This isn’t the choice many people would make, but forcing him into long-term care would be a serious violation of his right to autonomy. Therefore, MAID is ethically acceptable.

There’s another lesson here. Some MAID opponents, such as Christopher Lyon, argue that the suffering requirement for MAID is too subjective. On this point, I agree that it isn’t doing much work, which is why I support removing it. While I think it’s fine to say that, for this patient, long-term care would cause intolerable suffering, it’s more efficient to say that the patient is making a value judgment about what constitutes a life worth living, which is about his autonomy, not his well-being. He should be allowed to decide for himself.

To summarize my view, insofar as these cases reveal problems, the problem isn’t that MAID is available to these people. Banning MAID isn’t going to help when what Canada really needs is more affordable housing and better disability benefits. But even if these things occurred, there are still going to be people who would choose MAID.

Other cases mentioned in the article show that there are in fact tough cases, either in applying the legal criteria or ethically. As a result, providers on the forum disagreed about some of the cases. This isn’t unique to MAID: in many of the situations I get consulted about, the consultation arises because two or more people involved disagree about what should be done. That isn’t evidence of a systemic problem with the law. Healthcare is fraught. 

Income

The second piece of leaked data Cheng acquired is a presentation by Dr. Dirk Huyer, Ontario’s chief coroner. The presentation isn’t published, so, again, we have to rely on Cheng’s summary. Huyer is quoted as saying that the data hasn’t been properly analyzed, adding “it’s tough to know exactly what it means.”

According to the article, there were 4,528 MAID deaths in Ontario last year, of which 116 were track two, meaning that the person’s natural death wasn’t reasonably foreseeable. This is news; these data haven’t been officially released. It works out to 2.5 percent of MAID deaths, which is a decline in the number of track two deaths relative to track one from 2022.

The new data are presented in the context of Cheng’s claim that “Critics have long warned that Canada’s policies have led to euthanasia among disadvantaged people whose deaths weren't imminent.” The new data are meant to be evidence of this, so let’s take a look.

First, the data doesn’t say anything about the income of the 116 people who used track two. The closest it gets is noting that 29 percent of the people who had track-two MAID in Ontario last year lived in one of “the most deprived communities”, which doesn’t tell us the income of the people in question. If each of those people was living in poverty, that’s thirty-three people, but we don’t actually know that.

But suppose we had the number, which is at most 116 people. What could we infer from that about the role of poverty? Precisely nothing. People in poverty can still make informed medical choices—suggesting otherwise is discriminatory—so we would need further evidence to conclude that poverty itself is driving people to get MAID. My point here isn’t to deny that social factors are sometimes playing a role. Instead, it’s that the data don’t establish this.

Interlude

Cheng says that “Unlike many other countries, Canada doesn't require that patients exhaust all medical treatments before seeking death.” I’m not aware of any jurisdiction that actually requires this, but please let me know in the comments if you know of one. In any case, “unlike many other countries” is almost certainly false.

Process

The final concern I want to address is about the oversight process. Here’s Cheng on the cases discussed in the forum:

Some of the requests from the forums were approved and acted upon. Others were denied. But the discourse about patients who are poor, disabled or lonely shows a fraught process where medical professionals test the limits of what conditions warrant euthanasia. The controversial cases in the forums have never been disclosed through Canada’s oversight system, even in an anonymized manner.

Cheng is once again using misleading language when she says that providers use the forums to “test the limits” of MAID. This implies that they’re trying to figure out how far they can go or what they can get away with, but, as her examples show, what’s actually happening is providers are raising concerns or asking questions to make sure they’re acting appropriately. I don’t see the problem with that, and anyone who does should also have a problem with providers consulting with a lawyer or clinical ethicist.

As for tracking MAID cases, the bioethicist Kasper Raus is quoted in the article as follows. “This is a procedure that ends people’s lives, so we need to be closely monitoring any changes in who is getting it. If not, the entire practice could change and veer away from the reasons that we legalized euthanasia.” Importantly, there’s no indication in the article that Raus thinks the necessary close monitoring isn’t occurring. He supports assisted dying for minors, so he isn’t exactly a MAID opponent (though he has argued that Belgium has issues with its monitoring).

Each year, the Government of Canada produces a report with all the data it collects on MAID. The 2023 report hasn’t been released, but the 2022 report is fifty-five pages long and includes the same data or more than other jurisdictions. It includes the following demographic information: underlying medical condition, gender, average age and age range, nature of suffering, how people who had MAID received palliative care and disability support, and their geographic location. The government could also collect data on income, which I support. As Cheng notes in the article, data shows that MAID tends to be more common among wealthier people. And, as I note above, wealth isn’t a proxy for capacity to make informed decisions. 

It’s also unclear what it would mean for these cases to be “disclosed through Canada’s oversight system”. I suppose providers could check a box on the MAID forms indicating that they found the case ethically complex. They could call lawyers to get clarity on the law, but physicians already have access to this through the Canadian Medical Protective Association. Or they could call a hotline run by the federal government staffed by clinical ethicists. I’m interested to know how to improve this aspect of the process—in particular, to find ways to support MAID providers better—but if the worry is that morally distressing cases are evidence that the system is broken, that fails to understand the nature of medicine. Morally distressing situations are everywhere.

Nothing in Cheng’s article or elsewhere provides evidence that the demographics of MAID are changing. This is because Cheng’s article is just more of the same. Her last major article on MAID, from August 2022, simply repeated the same few cases that had already been reported, and it isn’t clear that she did any new reporting at all. The new article has some new stuff, but it isn’t different in kind, which is why my responses to her 2022 article apply just as well here.

So, two years later, my conclusion is the same. MAID in Canada is working great. There are bigger problems elsewhere in healthcare and outside it. If people really care about helping people with disabilities and those living in poverty, they should focus on addressing those problems directly. But maybe 2026 will bring something different.