It is professor, not doctor.
Thank you, Chair and committee members, for inviting me to join you this evening. My name is Constance MacIntosh. I'm a full professor of law at the Schulich School of Law. I served as the director of Dalhousie's Health Law Institute for six years.
By way of background on the issue at hand, I was on the organizing committee for four international conferences on end-of-life clinical practice, empirical evidence, law and policy. Among other focuses, I've published on law and policy concerning minors and health care decision-making for very young minors—children and neonates—as well as adolescents and mature minors.
I have two recommendations from my perspective as a legal scholar. The first is that the Criminal Code should be amended to remove the reference to an age requirement. In my view, that is unconstitutional. If the committee concludes that an age needs to be included, to ensure public confidence I would recommend placing it at 12, because that's in line with the psychological evidence about capacity development, where it's just so unlikely that a child younger than that could be found to have decisional capacity to make that sort of decision. That sort of age bar would be constitutional.
Further, I recommend developing regulations, or introducing another amendment to the code itself, that codify or potentially enhance the existing process for assessing decisional capacity of youth were they to seek to access MAID. I think this is required as a matter of public transparency, because the public doesn't know about the concept of the “mature minor”, and also for public confidence. I think we need to be very clear, if we take this step, about how the potential vulnerability of youth is recognized and assessed.
I have five reasons for these recommendations that I'll slide through.
First, the MAID regime is based in the actual decisional capacity of each individual. Given that foundation, it makes no sense to disregard the actual decisional capacity of people just because of their age.
Second, the MAID regime's approach to consent and capacity should be consistent with Canadian clinical practice and law on health care decision-making by minors. Those are crafted to assess the situation of each individual and their potential vulnerability. As I'm sure you know, being under the age of 18 is not an absolute bar to minors making their own decisions about medical procedures, including decisions to withdraw or withhold life-sustaining treatment.
The regimes vary in their details across the provinces, but at their heart they all turn on the maturity of the youth and, in particular, whether the individual understands and appreciates the nature and consequences of a decision, and of course any possible alternatives, and their consent is freely given. In assessing that, experts look to factors like maturity, life experience and the youth's psychiatric, emotional and psychological state. A team of experts decides if the minor truly possesses the required maturity to make whatever the medical service decision in question is.
Third, as I've already alerted you to, I believe the MAID regime will be found unconstitutional if it maintains an age-based bar, because this is inconsistent with the evidence on how capacity develops with age and with experience. Because this absolute age bar bans youth who do in fact possess capacity, and because it bars them from accessing MAID and they don't need the protection of a ban, it's going to be found overbroad. Because the age of 18 doesn't signal anything in terms of maturity and development—it's arbitrary and not a magic birthday—this law, I believe, will be found unconstitutional if it's challenged.
The vulnerability of youth does require a different approach from what's taken with older people. Other safeguards are required. I believe that many are already built in to how health care providers approach adolescents who seek to make decisions about medical services. Effectively, as the seriousness of the health treatment decision escalates, so too does the scrutiny which is used when assessing capacity, voluntariness, and understanding. It may be, once again in the interest of public confidence and transparency, that additional safeguards are required for mature minors, such as the requirement of parental consultation.
Finally, I note that all the Canadian expert panels that had a mandate to specifically make recommendations endorsed a capacity-based approach, and rejected an age-based approach.