I'm a physician, and I've worked since 1984 in the geriatric clinic at the McGill University Health Centre. My focus is on care for patients with cognitive disorders. I often do capacity assessment and testify in court for my patients. My colleagues ask my advice on capacity assessment and refer to me their most difficult cases.
Before seeing a patient, I collect all the information I can from the family, social worker and other sources. You can’t assess capacity without knowing what decisions the patient is facing, the constraints, and the reasons why others consider certain choices to be harmful to the patient. I typically spend two hours with the patient, and sometimes I need to see them more than once.
When we assess capacity, we try to enter into the patient's mind to determine whether any cognitive or mental disorder is interfering with their ability to understand the information needed to make decisions, appreciate how it applies to their situation, reason and express a choice. We also weigh the degree of risk associated with the decisions they have to make, and this may influence our conclusion. All this explains why experts may disagree about the capacity of a patient.
Beyond capacity is the question of agency. There’s no such thing as an autonomous decision free from constraints. This is true for all of us. Internal constraints include fear or other emotions, habit, lack of knowledge of options or a desire to please others. External constraints include marginalization, a lack of options and pressure from others. That’s why the federal correctional investigator called for a moratorium on MAID for prisoners.
Another example of lack of full agency is abuse, where competent adults remain in situations that are harmful to them. I see many victims of elder abuse. One was a widow from eastern Europe who had no relatives in Canada. A woman pretending to be her niece fraudulently obtained power of attorney, emptied her bank account and moved her to a nursing home against her will. She ran away in mid-winter with her walker and was later brought to me for assessment. She didn't have advanced dementia, as alleged. She was not fluent in English, but she was fully capable. She lacked the agency necessary to defend her rights without help.
Suicide is another example. The CCA expert panel couldn’t reach a consensus on whether there is a meaningful difference between suicidal desires and a desire for MAID. The suicide rate after traumatic spinal cord injury is 20 times that of the general population for five years. Those who choose suicide may not be depressed or incapable of decision-making. Their options have been tragically narrowed, and it takes a long time to readjust, but people do. After five years, the rate is the same as that of the general population. They need protection from their despair. That’s why our society responds to suicidal desires with prevention. That’s why we can’t allow MAID after 90 days.
Bill C-7 creates a framework for people not near their natural death that only requires provision of information on other means to relieve suffering and a 90-day waiting period. Giving information has no value if access to the service is not available. It's largely not within that time frame. Often there's not even time to see a specialist, certainly not time to regain some hope of healing.
The bill is proposing a Criminal Code amendment to permit doctors to end the lives of Canadians whose suffering has not been addressed in other ways. We’re told that the numbers will be small. Beyond disabled persons, who made their point clearly on Tuesday and today, we could look at a few common medical conditions we see in our practices. Over two million Canadians live with chronic obstructive lung disease. There are 600,000 who live with heart failure. There are 700,000 stroke survivors, and there are five million people with osteoarthritis.
Of course, not all these people will seek MAID, but many of them will be eligible. They have “a serious and incurable illness”. The question of whether they are in an “advanced state of irreversible decline in capability” is subjective, as is the presence of “enduring physical or psychological suffering that is intolerable to them”.
Everyone with an acute or chronic condition that causes suffering and loss of autonomy will lose the protection of the Criminal Code, which will be reserved for the young and able-bodied. Ageism and ableism are rampant. Seniors and people with disabilities are denied care because their life is seen as less valuable than other people’s.
To leave to doctors the decision about providing MAID to anyone who meets the criteria is to entrust them with life-and-death decisions for millions of people in a vulnerable position. Doctors have the same limitations as everyone else does, which may include unconscious bias towards MAID as an option and against living in certain situations. No one should have that power.
It should be made clear in the law that MAID is not a medical treatment on the same level with real treatments. It's not a standard of care. It should be a last resort when all other reasonable options have failed.
Thank you.