In the wake of Canada’s nascent legislation governing medical assistance in dying (“MAID”), which received Royal Assent on June 17, 2016, many commentators have been left wondering whether our approach is too restrictive. For example, the issue of whether mental illness could amount to such unbearable and irremediable suffering that we are willing to extend MAID to individuals experiencing such illnesses has been a frequent and unanswered question among legal and medical professionals. Now that the maelstrom of diverging opinions on the epistemology of the new MAID legislation has subsided somewhat, and now that the foundational premise that we are willing to permit MAID is firmly entrenched in our national psyche, there appears to have been a cultural magnifying of the issues that constituted purely hypothetical arguments mere months ago. It is perhaps unsurprising, then, to see that the worries and “what-ifs” that plagued us when deciding whether to implement this legislation at all are playing out in the pragmatic context of how this legislation affects various individuals and whether its scope must be altered to be more or less inclusive.
Predictably, within months of the new legislation being implemented, the front page of the Toronto Star recently featured an article entitled, “Why I am Fighting for the Right to Die”. In this article we are introduced to Adam Maier-Clayton, who embodies the hypothetical that many commentators posited when the issue of whether to implement MAID first arose. The article states that Mr. Maier-Clayton “…says he’s always been confident, clear-minded and brimming with ambition. But he still wants to kill himself.” Our current legislation does not permit MAID for those individuals suffering from a purely psychiatric illness. Indeed, death must be “reasonably foreseeable” for MAID to be an option. Mr. Maier-Clayton has indicated that he will end his life, and has argued that doing so via MAID would be preferable to seeking out ways in which to end his life by his own devices.
The issue of whether individuals with a purely psychiatric illness ought to be permitted to end their lives brings up a question at the very foundation of the arguments advanced in the course of deciding whether to implement MAID at all: Does every Canadian have the right to die? We may have the right to life, liberty and security of the person, but does this Charter-protected freedom extend to the inverse propositions? So far, our laws have tacitly acknowledged that, while we will permit some individuals to end their lives, we will not allow others to do so. This premise leads to the inexorable conclusion that the right to die is not a universal one in Canada. Rather, it is a right based on contingencies and qualifications. It is at this intersection of protection and autonomy that we must struggle with what it means to allow an individual to choose the time and manner of his or her death. The law demands predictability and broad applicability; individual circumstances do not.
Unless and until our law stipulates that every Canadian may access MAID, there will likely be challenges to its inclusivity and relevance. The inquiry is not merely dualistic. It is insufficient to say that we will or will not permit MAID. The truly difficult pursuit lies in the more nuanced ethical challenges ahead, and the notion that every person and every circumstance calls for introspection and judgment, rather than a uniform approach. We have come to expect a high degree of predictability from the law, and MAID stands in the way of this comfortable ideal.
Ultimately, traversing unfamiliar terrain is an arduous and surreptitiously controversial task. It is insufficient for us to proclaim leadership and the furtherance of human rights when there remains so much work to be accomplished. It seems that, on a national level, the heralding of a healthcare system involving MAID must be tempered by the acknowledgement of the work that remains to be done in this field, as well as the inevitability of significant hurdles along the way to what we hope will be a noble approach to an enduringly complicated issue.