When the Canadian medical assistance in dying (MAiD) legislation came into force in June 2016, it was widely noted that the meaning of some of its key terms and phrases was unclear. For example, questions were immediately raised about the meaning of “incurable illness, disease, or disability,” “advanced state of irreversible decline in capability,” and “natural death has become reasonably foreseeable.” Interpretation challenges are not uncommon with new legislation. However, in the context of something as significant as access to MAiD and potential criminal liability for getting the meaning of the legislation wrong, these challenges must be confronted by those who have the responsibility and authority to provide interpretative guidance to patients and health care practitioners.
The risks of leaving uncertainty and confusion unaddressed in this context are significant both in terms of the seriousness of the consequences and the probability of occurrence. Some individuals may be denied access who should have access (too narrow interpretation) and some individuals may be given access who should not (too broad interpretation). Two individuals in the same circumstances may be treated differently (one allowed and one denied access) simply because their providers interpret the legislation differently. In addition, some individuals may forego effective symptom management in order to maintain the necessary capacity to reiterate their request for MAiD. Other patients may be roused from palliative sedation immediately prior to provision and, by definition, be brought back into a state of intolerable suffering in order to reiterate their request. Finally, the uncertainty about the meaning of key terms and phrases may have a chilling effect on physicians’ and nurse practitioners’ willingness to provide MAiD.
With almost a year of experience of MAiD under the federal legislation, it is time for those who can help to clarify the meanings and correct the misunderstandings to do so. In the spirit of contributing to such a project, we propose a set of interpretations of key phrases in the legislation. We call upon all relevant entities to exercise their authority and capacity to provide interpretative guidance for, and education about, the practice of MAiD in Canada. They can do this by adopting, endorsing, and disseminating interpretations such as those presented in this paper.
Jocelyn Downie & Jennifer A Chandler, "Interpreting Canada’s Medical Assistance in Dying Legislation," IRPP Report (Montreal: Institute for Research on Public Policy, 2018).