MAID for mature minors

The basic case

Photo by Olivier Guillard

I had a nice conversation with Paul Magennis of MAiD in Canada last month about the ethics of assisted dying for mature minors. While I was getting ready for that interview, I realized that I haven’t done a post specifically on assisted dying for mature minors. So, here’s that.

In Canada, a person needs to be at least eighteen years old to qualify for MAID. Carter, the unanimous Supreme Court of Canada decision that struck down the general prohibition on assisted dying, refers to “competent adult persons”. This is because the appellants (the people challenging the law) were adults. Bill C-14, which Parliament passed in response to Carter, specifies that qualifying for MAID requires “being an adult (at least 18 years old) who is mentally competent (“capable”) to make health care decisions for themselves.” The law has changed in other ways since C-14 was passed, but this part still applies. Currently, the Criminal Code requires a person to be “at least 18 years of age and capable of making decisions with respect to their health”.

Being capable or competent to make a medical decision means being able to understand the relevant information and appreciate the consequences of the decision. While capacity is presumed for adults, I know of no bioethicist who argue that age alone is sufficient to determine capacity (though, as we’ll see, there’s disagreement about where the line is). Since there’s variation in how minors mature, and since capacity is on a spectrum, people develop capacity over time and there’s variation in when people become capable of making end-of-life decisions for themselves.

Legally, all provinces recognize that people under the age of majority might be capable of making their own medical decisions. Such people are called mature minors.¹ There’s variation between the provinces on who is presumed to have capacity, but every jurisdiction recognizes that some minors are capable. For example, in Ontario, everyone, regardless of age, is presumed to have capacity unless demonstrated otherwise. In contrast, in Alberta, everyone under eighteen is presumed to lack capacity unless demonstrated otherwise. Both recognize mature minors, but the burden of proof is different.

The Basic Argument

Ethics and the law agree that restricting medical decision making based solely on age is unjustified. This is importantly different to other arbitrary age-based restrictions, such as for voting, driving, and purchasing alcohol. For driving, it’s discriminatory to prevent people from getting their licenses before they reach a certain age. We could address this by changing the law so that passing the test is sufficient for getting one’s license, no matter one’s age. But this would be costly in lots of ways, and the injustice of having to wait an extra year to drive isn’t significant enough to warrant changing the system.

The case for treating medical decision making on a case-by-case basis while having an age cutoff for driving is that, first, bodily autonomy is much more important. Forcing treatment on someone, or prohibiting a person from accessing treatment someone older would qualify for, is a significant injustice in a way that delaying access to driving isn’t. Second, physicians are conveniently well placed to assess capacity, which isn’t true of driving examiners. Capacity assessments take time, but the stakes are high, so the costs to the system are worth it.

The upshot of this is that, in every province and territory, it’s possible for a sixteen- or seventeen-year-old patient to demonstrate her capacity and make treatment decisions in the same way an adult would.² Under sixteen, things get more legally complicated in some places. In Manitoba, for instance, the law says that, while minors who are sixteen or older should be presumed to be deciding in their own best interest, no such presumption exists for minors under sixteen. This led the Supreme Court of Canada in A.C. v. Manitoba to uphold giving a blood transfusion to a fourteen-year-old patient against her will—she was refusing on the grounds that she was a Jehovah’s Witness—even though she was found to have capacity.

Recognizing mature minors doesn’t mean that all sixteen-year-olds are capable of making all decisions. Capacity is on a spectrum, so someone might be capable of some decisions but not others. The point is that some sixteen-year-olds will be mature enough to make life-altering, and even life-ending, decisions. Well before MAID became legal, sixteen- and seventeen-year-olds were regularly found to be capable of making end-of-life decisions for themselves. And many jurisdictions where MAID is illegal allow mature minors to refuse life-sustaining treatment.

This fact alone is enough to invoke Sumner’s Law, which says that most objections to assisted dying commit the person raising the objection to some type of inconsistency. In the case of mature minors, objecting to MAID for mature minors on the grounds that minors are incapable of making this type of decision is inconsistent with current legal and ethical practice. For instance, here’s a paper by Christophe Lemmens, who argues that “minors can be mature enough to refuse treatment at a much earlier time than the age of legal majority, whatever the consequences of that refusal may be.”

To show that this shouldn’t apply to MAID, one would have to show either that MAID is different to, say, consenting to the withdrawal of a ventilator, or that the entire mature minor doctrine is mistaken. I’ll say more about each below.

Recall that Carter refers to “competent adult persons” and C-14 requires “being an adult […] who is mentally competent”. The question is whether ‘adult’ is doing any important work in either of these criteria. In other words, if someone is found competent to make her own medical decisions, can she somehow otherwise be lacking in some way that would justify prohibiting her from having an assisted death, provided she meets the other criteria?

One possibility is to argue that capacity doesn’t capture all that is required to make an appropriate decision. Perhaps there’s some further quality, maybe ‘worldly experience’ or something else, that all minors lack.

I’m doubtful. For one, it’s unclear why this should apply to MAID but not to other end-of-life decisions. For another, it’s hardly the case that worldly experience is something eighteen-year-olds have and seventeen-year-olds lack. This problem generalizes to whatever age cutoff we choose. We could make the cutoff twenty-five instead, but there will still be twenty-four-year-olds on par with those older than them.

Yet another problem with the argument is that minors who would qualify for MAID have often been in treatment for years. They are intimately, painfully familiar with their condition, what treatment options exist, and what those options involve, which makes it difficult to conclude that they don’t know what they’re doing.

All of this makes me skeptical that some feature of all seventeen-year-olds exists that will justify banning MAID for them but not eighteen-year-olds.

Can Minors be Mature?

Now, you might say that we should also ban MAID for eighteen-year-olds and perhaps even people older than this. And not just MAID, but all decision making. This is the view of Mark Cherry, a philosopher at St. Edward’s University in Texas. Cherry gives neurological evidence that minors are unable to make decisions at a sufficiently high level, which he uses to conclude that we should abandon the mature minor doctrine entirely.

He summarizes the brain development research as follows:

There is a heightened responsiveness to the immediacy of short-term rewards over long-term gains and a documented enhancement of sensation seeking, leading to increased risky decision making without sufficient consideration of long-term consequences.

That young people sometimes behave this way will be familiar to anyone who was ever a teenager or has listened to Meat Loaf’s “Paradise By the Dashboard Light”. However, it doesn’t justify Cherry’s sweeping conclusion that we should abandon the mature minor doctrine.

The claim that some minors have capacity isn’t undermined by the fact that minors are, on average, more prone to unreflective decision making. This is why the mature minor doctrine isn’t the claim that we should simply lower the age of majority.³ I’m fine with healthcare providers taking extra care to assess capacity and ensure the person is making a decision that reflects the facts of her situation and deeply held values. It might even turn out that most minors are incapable of consenting to MAID, but each one should be given the chance to demonstrate capacity.

Out of the Weeds

The ethical case for allowing MAID for mature minors is clear, and changing the law to allow for mature minors is about as easy as it gets: The Criminal Code should read “(b) they are at least 18 years of age and capable of making decisions with respect to their health”.

Here’s a simpler argument. Suppose a seventeen-year-old patient has been treated for cancer for years, but it is now found to be terminal. She gets a second, third, and fourth opinion. All the specialists agree that it’s terminal. Multiple psychiatrists agree that she’s capable of making her own decisions. She wants MAID and has wanted it for months. On what ethical grounds can we insist that she ought to wait until her eighteenth birthday? My view is that there’s no compelling argument for preventing her from making her own choice.

This isn’t to say there’s nothing tragic about her situation. No one, especially a seventeen-year-old, should be in the situation she’s in. But she is, and delaying her choice doesn’t help.

1. Here’s a summary of the provincial laws: https://cps.ca/en/documents/position/medical-decision-making-in-paediatrics-infancy-to-adolescence

2. The only wrinkle to this is British Columbia, which specifies that “Consent is not valid unless [healthcare providers] have also made reasonable efforts to ensure treatment is in a minor’s best interests.” Still, this wouldn’t prohibit MAID for mature minors.

3. It’s also consistent with the Supreme Court of the United States’s decisions in Roper v. Simmons, which found the death penalty for minors unconstitutional, and which Cherry uses to support his argument. If we haven’t done a capacity assessment, the mature minor doctrine is compatible with presuming the minor lacks capacity. And there are important differences between criminal responsibility and medical decision making.