Extending the Right to Die to Mature Minors in Canada

By Gali Katznelson

Until February 2016, medical assistance in dying (MAID) in Canada, which encompasses both euthanasia and physician assisted suicide, was prohibited under the criminal code as a form of homicide. This ruling was challenged in Carter v Canada in the Supreme Court and overturned on the grounds that the ruling opposed the Canadian Charter of Rights and Freedoms. In June 2016, MAID became legal in Canada under Bill C-14.

Under this law, a person may receive medical assistance in dying if they meet all of the following criteria:

  • They are eligible for health services funded by a government in Canada
  • They have a grievous and irremediable medical condition. This includes an irreversible state of decline that causes intolerable suffering that cannot be relieved, with a reasonably foreseeable natural death
  • They have made a voluntary request for medical assistance in dying that was not made as a result of external pressure
  • They give informed consent to receive medical assistance in dying after having been informed of other means that are available to relieve their suffering, including palliative care
  • They are at least 18 years of age and capable of making decisions with respect to their health

The decision to omit minors from the legislation on MAID was influenced by the Canadian Pediatric Society (CPS) report, which cited the lack of available data for an unmet need, as well as the lack of information on the Canadian population’s consensus on this issue.

Since then, more information about the need for MAID for minors has emerged. The CPS surveyed 1,050 pediatricians, finding that 35 physicians had conversations with 60 minor patients about MAID, and received 17 explicit requests for MAID. Moreover, data from Belgium and the Netherlands suggest that some minors already use medical aid in dying. In Belgium, there has been one reported case of a 17-year-old receiving euthanasia since the 2014 legislation extending to minors, and in the Netherlands, there have been five reported cases between 2002 and 2012, including one 12 year-old and four individuals aged 16 – 17. While more information about Canadian societal attitudes toward MAID with respect to minors is still necessary, it is clear that minors do suffer to the extent that they consider assisted death a serious option.

Two common concerns arise in discussions of extending MAID to minors. These concerns stem from the ‘slippery slope’ fear that legalizing MAID for minors will lead to involuntary euthanasia (whereby euthanasia is performed against a patient’s will), as well as to non-voluntary euthanasia (whereby a person cannot provide explicit informed consent for euthanasia). Though some arguments have been made for non-voluntary euthanasia that are much beyond the scope of this short post, it is widely agreed that involuntary euthanasia should remain ethically deplorable and unlawful.

There may, however, be a way to develop legal infrastructure that will allow MAID for minors that would abate the above ethical concerns. One option, which is due to be considered after a report is presented to parliament this year by an independent expert panel, is to draw from the “Mature Minor Doctrine.” This doctrine, endorsed by Canada’s Supreme Court, is one under which a person below the age of the majority can autonomously consent to accept or refuse medical treatment without a parent/guardian’s interventions – if that person has the capacity to appreciate fully the nature and consequences of a proposed treatment and gives informed consent. This doctrine acknowledges that age does not dictate competence and that minors may possess the capacity to make autonomous informed decisions about their health.

Though a helpful starting point, this doctrine still raises the question of how to determine whether a minor’s decision is truly autonomous. Children are considered to be especially susceptible to external pressures, and psychological developmental evidence suggests that decision-making capacity is a function of many factors such as age. A robust tool to help physicians assess a minor’s maturity in decisional capacity for MAID would need to be developed by experts and its use mandated as part of any further legislation.

This would be in addition to the safeguards already in place under Bill C-14 that serve to prevent involuntary and non-voluntary euthanasia. Under the law, two independent practitioners must confirm in writing that a person has met all of the substantive criteria above, that a person must know that they can withdraw consent at any time, and that a person must be given the option to withdraw the request and to express consent again immediately before MAID is provided. These provisions ensure that MAID is only currently available to people who have the capacity to give voluntary consent without coercion. Under no circumstance should this change with a law that extends specifically to mature minors.

Regardless of one’s own views surrounding physician-assisted death, it is important to remember that despite medicine’s best efforts, children also experience “grievous and irremediable medical conditions” that cause them intolerable pain and suffering. As it stands, the arbitrary age cut-off prohibits some people from considering the option to face their suffering in a way that is right for them. This has the potential to be discriminatory and unjust. As more data is gathered about societal attitudes in Canada, hopefully information about the unmet need for MAID for minors will prompt the public’s interest in extending the law to mature minors. With sufficient research and oversight, it may indeed be ethically permissible to entrust mature minors with greater agency over their end-of-life decisions.

 

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