COMMENT: RELATIONAL AUTONOMY AND THE REPORT OF THE CANADIAN COUNCIL OF ACADEMIES ON THE STATE OF KNOWLEDGE ON ADVANCE REQUESTS FOR MEDICAL ASSISTANCE IN DYING.

• Date: 01 January 2019
• Author: Landreville, Shane

I INTRODUCTION

In 2015, the Supreme Court of Canada released its unanimous decision in Carter v Canada that a complete prohibition on medically assisted death was not justified under Section 7 of the Canadian Charter of Rights and Freedoms. (1) Section 7 states that '[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.' (2) The ruling in Carter declared the blanket prohibition on medically assisted dying in the Criminal Code in violation of this Charter provision and gave the Federal Government one year to amend the legislation. (3) In 2014 the Government introduced Bill C-14 which amended the Criminal Code to allow for Medical Assistance in Death (MAID) under limited and specific circumstances. (4)

The preamble to Bill C-14 outlines its legislative objective which seeks to strike a balance between the autonomy of persons who desire medical assistance in dying and the interests of vulnerable persons who need protection from coercion and despair. (5) The preamble further describes the legislative objective which is meant to provide an exemption to the Criminal Code provision for health care professionals aiding and abetting a person to end their own life. (6) The preamble also refers to'"robust safeguards' which are the specific eligibility criteria aimed at protecting vulnerable individuals from being induced to end their lives prematurely. (7)

Eligibility Criteria for MAID: (8)

s 241.2 (1)(a) they are ... eligible for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

The legislation further defines the third criteria and outlines what it means for a person to have a grievous and irremediable medical condition. To meet this requirement, the patient must have a serious and incurable disease and be in an advanced state of irreversible decline, the illness must be causing intolerable physical or psychological suffering, and their death must be reasonably foreseeable. (9) If a patient has a grievous and irremediable medical condition causing intolerable suffering, MAID can enable these individuals to have a planned and peaceful medically assisted death.

Even with these recent legislative amendments, the issues underlying MAID are still a subject of public, legal and moral debate. To better understand the debate and effects of MAID, the Federal Government asked the Council of Canadian Academies to study three specific issues concerning MAID; the application for mature minors, where a mental disorder is the sole underlying medical condition and the use of advance requests. A panel of experts (the Panel) formed to study these issues through an independent, evidence-based review. The panel does not necessarily provide recommendations or evaluate the current legislation or legal arguments, they only collect and assess the evidence concerning the three specific areas of mature minors, advance requests and mental disorders and the clinical, legal, cultural, ethical, and historical context in Canada. (10)

The Panel's report is quite extensive considering many topics influencing the discussion on MAID. The report explicitly considers the relationship between advance requests and decision making autonomy from both an individualist and a relational perspective. This piece will focus on those findings particularly relational autonomy in the context of advance requests. More specifically, how an individual's relationships and their social context can strengthen relational autonomy and thereby support the autonomous decision making of a patient considering MAID.

II TERMINOLOGY, DETAILS, AND BACKGROUND

The Panel defines advance requests (AR) as a request for MAID, documented before the patient loses decision-making capacity and are to be acted on under the specific circumstances outlined in the patient's request. (11) Outside the context of MAID, advanced planning is available for other health care situations; such as an advanced directive which gives a patient advanced consent or refusal for specific health care treatments. However, the Panel claims that an AR for MAID would be far more complicated to draft, interpret and administer than its health care counterparts. (12) This complexity comes primarily from the need for a third party to be involved with the AR to determine the exact timing and the precise circumstances that the patient is suffering intolerably, thereby activating the AR. (13) Any AR for MAID would, therefore, require precise details, specifically, when and how to tell that a patient's suffering is so subjectively unbearable that the third party should activate the AR.

Preserving and supporting the patient's decision making autonomy is a primary...