Canada needs a more rigorous process to ensure physicians and nurse practitioners are following the law when they approve patients for medically assisted deaths, bioethicists warn.
Canada has no national board that reviews cases of medical assistance in dying (MAID) to make sure the law is followed.
Some provinces have independent committees that review MAID deaths. Sometimes, these boards notify professional regulatory colleges or law enforcement about cases that raise questions over whether the laws have been followed.
“We need much more independent and transparent oversight,” said Trudo Lemmens, a bioethicist at the University of Toronto who writes widely about the ethics of MAID in Canada.
Lemmens’ comments come after an Alberta judge set aside an injunction that prevented a 27-year-old woman who had been approved for MAID from obtaining a medically assisted death. The woman’s father had requested the injunction, which was issued Jan. 31.
The father did not believe his daughter, who has autism and ADHD, met the eligibility criteria because MAID is currently illegal for people whose only medical condition is a mental illness.
The father had asked for a judge to review the doctors’ approval of his daughter’s request for MAID and Alberta Health Services’ actions during the process.
The daughter did not provide information to the courts about her medical conditions, why she was seeking MAID or why she was approved.
In his ruling, Justice Colin Feasby repeatedly said the courts should not review doctors’ medical decisions — even though he said the father raised legitimate concerns about the independence of the process by which his daughter was deemed eligible for MAID.
“Parliament has put its trust in doctors and nurse practitioners, and it is not for this court to second guess that choice,” he wrote. “The court has no expertise and no place in reviewing MAID assessments in some sort of ad hoc system of pre-authorization.”
The case is being appealed.
In a statement to Canadian Affairs, Alberta Health Minister Adriana LaGrange said the government is reviewing the decision and “assessing what steps we can take to ensure that those with mental health or developmental challenges in this province are protected and properly cared for.”
“We are very concerned about anything that might send a message to those with mental health or developmental conditions that ending their life is the answer. It’s not,” the statement says.
‘Abdication of authority’
Those who study MAID say the Alberta court ruling shows the need for greater oversight in determining eligibility and courts’ hesitancy to review doctors’ decisions about who qualifies.
Challenging a decision about MAID after a person’s medically assisted death is incredibly difficult, says Hugh Scher, a Toronto lawyer who represented a Nova Scotia woman who challenged her husband’s MAID eligibility in 2020. (In that case, the court ruled courts have no place in reviewing doctors’ MAID assessments.)
Getting a coroner’s inquest or launching a successful wrongful death suit is nearly impossible, Scher said.
“I think a judicial oversight would be appropriate in those cases where there is a serious reason to believe there’s a concern or a challenge,” said Scher, who represents the Euthanasia Prevention Coalition, a group that opposes MAID and is seeking intervener status at the appeal of the Alberta court ruling.
Cases where there are serious questions about eligibility being determined properly are “rare,” he said. “But they happen.”
If there is no judicial oversight and decisions about MAID are left completely to doctors, this “seems to me to be an abdication of state authority,” he said.
Judicial review is common in many end-of-life cases, including debates about whether to remove life support, Scher says. “But somehow to deprive [review] in the case of MAID, suggesting somehow the legislature has expressly precluded that. I don’t think that’s accurate, fair or appropriate.”
There is little public reporting in Canada about why doctors approve patients for MAID.
In the Netherlands, that’s not the case. There, each death by what Dutch law calls euthanasia or assisted suicide, is reviewed by a regional panel that includes a doctor, an ethicist and a legal expert. They determine if doctors followed the law properly. If the regional committee finds doctors did not follow the legal requirements, the case is passed onto a committee at the public prosecutor and health care inspector. Details of the most controversial or complex cases are published, without identifying information about the people involved.
The Dutch approach is to “make data as accessible as they can,” said Scott Kim, a bioethicist at the National Institutes of Health in the United States, who studies euthanasia, assisted suicide and MAID worldwide. In general, it is hard to get good health data from Canada, he says. But information is even more “opaque” when it is about medically assisted death, he said.
In Canada, doctors or nurse practitioners who administer MAID are required to report the deaths. And Health Canada publishes annual reports about the number of MAID deaths. But these reports do not include information about specific cases. These reports also rely on medical professionals reporting about themselves. It is unlikely a medical professional would admit in a report that they violated the Criminal Code, Lemmens says.
Review boards
MAID straddles federal, provincial and territorial jurisdictions. Amendments to the Criminal Code, passed in 2016, made medically assisted death legal in Canada. The Criminal Code falls within federal jurisdiction. But MAID is considered health care, which is the responsibility of provinces and territories.
Some provinces and territories have their own review boards. Quebec has a committee that publishes annual reports about MAID in the province. Ontario and British Columbia both have boards that review the forms submitted by medical professionals about a MAID death. These boards can also alert regulatory colleges or law enforcement about concerns with cases.
Since 2018, when British Columbia created its board, it has made 20 referrals to regulatory colleges and two to law enforcement, the B.C. Ministry of Health said in an email.
Ontario’s Chief Coroner has had the MAID Review Team since 2016, made up of nine specially trained nurses who review all MAID deaths in the province. In 2023, three to four per cent of MAID deaths required some form of follow-up, most of which was verbal feedback to a doctor or nurse, a spokesperson for the chief coroner’s office said in an email. Since the committee began, five medical professionals have been reported to regulatory colleges and no referrals have been made to law enforcement, the statement says.
Ontario also recently created an advisory committee called the MAID Death Review Committee that reviews particularly challenging MAID cases. The committee was created because of concern applications for MAID were motivated by social conditions, such as poverty. The 16-member committee includes professionals from law, medicine, ethics, psychiatry, social work and members of the public. The committee will publish annual reports and make recommendations to the coroner’s office. It cannot bring complaints to regulatory bodies or the police, the spokesperson said.
Other provinces do not have a review process for MAID deaths other than medical professionals’ mandatory reporting. New Brunswick, for example, does not have an added review because “the federal provisions that allow MAID relate to the Criminal Code,” a spokesperson for New Brunswick’s department of health said in an email.
These provincial reviews look only at cases after a person’s medically assisted death. Some bioethicists say there needs to be more review before death.
Lemmens says MAID should only be allowed when a person is at the end-of-life. In cases where a person is not dying, there should be an independent review before the medically assisted death.
Medical specialists who are experts on the patient’s condition should be part of this review. The law says people who request MAID for non-terminal reasons must be assessed by a medical professional who has expertise in the patient’s condition. The law does not define what expertise is, and doctors can declare themselves to be experts, says Lemmens.
Last resort
Dr. Donna Stewart, a psychiatrist and a MAID assessor, says the Alberta decision is “wise.”
A national oversight committee for MAID would be “problematic for jurisdictional reasons,” she said in an email.
Stewart supports MAID for people who are not dying and for people whose sole condition is a mental illness. But she thinks there should be an independent board that reviews requests for MAID from people who are not at end-of-life. These reviews should happen before someone has a medically assisted death, but be “done in a timely way to prevent prolonged suffering,” she said.
Both Stewart and Lemmens are members of Ontario’s Death Review Committee. They caution that their comments about the need for more oversight in cases where a patient’s death is not reasonably foreseeable are their personal opinions, not representative of the review committee, they said.
The Canadian Association of MAID Assessors and Providers, a national group of medical professionals involved in MAID, released a statement in 2021 supporting oversight of medically assisted deaths. Such oversight, the statement says, refers to case-review after a death. These reviews should focus on improving the quality of MAID and the education of medical professionals involved in it. The reviews should include experts in various subjects as well as members of the public and provide accountability. These reviews should not create barriers to MAID, the review says.
The association did not respond to an interview request nor to written questions asking for information about this statement nor if the organization wants more oversight processes.
Scott Kim, at the National Institutes of Health, says the entire Canadian MAID law is problematic, in part, because it gives more importance to a patient’s experiences of suffering than it does to a doctor’s medical expertise.
The law says a person is eligible for MAID if their physical or psychological suffering is “unbearable” to them and if it cannot be relieved in a way they think is appropriate.
That means, says Kim, doctors are legally protected if they provide MAID to a patient even if there are treatments that could help that person.
Other countries approach this differently. In the Netherlands, for example, euthanasia or assisted suicide must be the last resort. And the doctor is the one who decides if there are no other medical options, Kim says.
In Canada, MAID is “treated as though it is just another medical procedure, which is entirely under the purview of medical expertise,” said Kim. He finds that puzzling, he added, “because even the law itself does not make medical expertise the basis to determine whether or not a person has irremediable suffering.”
If I’m not mistaken, in BC somehow Stefanie Green is not only a prolific MAiD provider, & originator of CAMAP, she also sits on BCs oversight committee. Conflict of interest!
I do wish that Meagan Gillmore had included BC in this article, particularly Dr Stefanie Green’s multifaceted role in MAiD.
https://www.solacebc.ca/dr-stefanie-green/
How can Stefanie Green possibly be involved with BCs MAiD oversight considering her extensive involvement in MAiD in Canada as well as being one of the most prolific providers in BC?