In February 2016, the Special Joint Committee on Physician-Assisted Dying presented its first Report, Medical Assistance in Dying: A Patient-Centred Approach, pursuant to Orders of Reference from the Senate and the House of Commons. The Committee has been charged with studying medical assistance in dying (MAID) in the wake of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) (2015 SCC 5), in which the prohibition on physician-assisted death was declared void. The Committee was asked to consult broadly on relevant sources and studies, and to make recommendations regarding the federal response to MAID.

The Committee heard from 61 witnesses, and received over 100 written submissions, reflecting the diverse views and intense scrutiny the new framework has occasioned. The Committee`s Report highlights universal access to MAID for individuals meeting the eligibility criteria set out by the Committee as a foundational concern, and emphasizes the importance of a systematized approach from one province or territory to the next. The Report also includes the recommendation that the value of Aboriginal healing practices ought to be recognized in the treatment of Aboriginal patients, and that palliative care, generally, should be improved upon in order to provide a more comprehensive support system to individuals with disabilities, mental health issues or dementia, as there is an explicit concern that individuals without such support will seek MAID as a result of this oversight.

The Committee recommends the following substantive safeguards:

• A grievous and irremediable medical condition (including an illness, disease or disability) is required;
• Enduring suffering that is intolerable to the individual in the circumstances of his or her condition is required;
• Informed consent is required;
• Capacity to make the decision is required at the time of either the advance or contemporaneous request; and
• Eligible individuals must be insured persons eligible for publicly funded health care services in Canada.

The Committee makes the following recommendations with regard to procedural safeguards:

• Two independent doctors must conclude that a person is eligible;
• A request must be in writing and witnessed by two independent witnesses;
• A waiting period is required based, in part, on the rapidity of progression and nature of the patient`s medical condition as determined by the patient`s attending physician;
• Annual reports analyzing medical assistance in dying cases are to be tabled in Parliament; and
• Support and services, including culturally and spiritually appropriate end-of-life care services for Indigenous patients, should be improved to ensure that requests are based on free choice, particularly for vulnerable people.

One of the Committee`s recommendations is that MAID be made available to individuals with both terminal and non-terminal medical conditions. The Committee does not interpret the Carter decision as limiting MAID to individuals with terminal illness, and points out that such a limitation would lead to Canadians with grievous and irremediable conditions who are experiencing enduring and intolerable suffering having to continue such suffering unwillingly.

With regard to mental illness, the Committee recommends that individuals should not be excluded from eligibility for MAID simply on the basis that they have a psychiatric condition. The presence of a psychiatric condition does not imply that an individual lacks decisional capacity in any respect. In addition, despite the notion that irremediable suffering is difficult to define in the context of mental illness, the Committee notes that the Carter decision did not expressly exclude MAID for those individuals with psychiatric conditions, and that a competent person meeting the criteria set out by law should be able to access recognized Charter rights. The Committee addresses the concerns many commentators have expressed regarding the confluence of MAID and psychiatric conditions by pointing out that difficulty in evaluating such situations does not justify discrimination in the form of denying access to MAID.

The Committee`s approach to the issue of capacity was reflected throughout the Report and, in particular, in its recommendation that the capacity of a person requesting MAID to provide informed consent should be assessed using the existing medical framework, with particular emphasis on the need to screen for vulnerabilities in end-of-life circumstances. Such an approach places an onus on healthcare and social services to provide a comprehensive support system to Canadians. While recognizing that complete solutions to systemic problems such as poverty will not be immediately available, the Committee encourages the provision of enhanced supports and services in order to reduce the vulnerabilities of individuals who might seek MAID. Such safeguards and oversight, according to the Committee, are the best means of ensuring informed consent and voluntariness in the context of MAID while still preserving access to this course of action for individuals who are experiencing intolerable and enduring suffering.

The most contentious recommendation the Committee makes is, arguably, that the Government of Canada should implement a two-stage legislative process, consisting of a preliminary stage allowing competent adults to access MAID, followed by a second stage enabling competent, mature minors to access MAID, with the second stage coming into force no later than three years after the first. The Committee also recommends that the Government of Canada immediately engage in careful, in-depth consultation and study regarding the moral, medical and legal issues surrounding the concept of `mature minor`, as well as applicable competence standards.

The issue of competence is echoed in the Committee`s recommendation regarding advance directives. The Committee suggests that, where an individual is diagnosed with a condition that is reasonably likely to cause loss of competence, or after the diagnosis of a grievous or irremediable condition before suffering becomes intolerable, permission to use advance requests for MAID should be provided. The Committee stipulates that advance consent to MAID should not be granted prior to an individual being diagnosed with such a condition. The idea of advance consent, according to the Committee, may provide comfort and reduce psychological suffering. Moreover, the Committee points out that the Carter decision sought to avoid the type of scenario in which individuals desiring access to MAID and faced with loss of competence are left to either suffer or end their lives prematurely.

Overall, the Committee`s Report delves into some of the particularly contentious questions surrounding the implementation of a legislative MAID regime. Though it is unlikely that universal consensus on every issue will be achieved, a focus on the more complicated areas of the new framework has prompted us to wrestle with convoluted notions of what is morally, legally, medically and socially acceptable, and how the answer might change from one circumstance to the next. In the midst of that national conversation, when it comes to the protection of autonomy and of vulnerable individuals, the Committee`s central premise is perhaps its simplest and least contentious: The welfare of Canadians who might seek MAID requires a patient-centred approach and a strong, comprehensive support system.