Wednesday, May 18, 2022

Argumenta ad passiones: Canada Debates Access Thresholds to MAiD


Canada’s parliament is reviewing its MAiD (medical assistance in dying) legislation. This is because there were some issues left to be addressed in the future when the country initial decriminalised MAiD. It is also conducting a global review because more than five years have passed since MAiD became legal in Canada and it is time to review how things are going elsewhere. The purpose of this commentary is not to go into the legal details of the discussion, this is better left to legal minds, but to focus on some of the salient ethical issues that appear to motivate another round of heated arguments between those in favour of restrictive access criteria and those supporting a more liberal approach to MAiD access.

Proponents of restrictive access criteria rightly point to the fact that – historically – arguments in favour of MAiD oftentimes went along the lines that a terminally ill patient with unbearable pain could only find relief if their request for MAiD would be granted. The paradigmatic cases were late-stage cancer patients, and, indeed, it is this group of patients that still makes up the majority of MAiD cases in most jurisdictions, including Canada. It is noteworthy that Canada’s Supreme Court in its landmark decision that decriminalised assisted dying did not base its judgment on that rationale. Terminal illness was never an access threshold in the country. Here are the access criteria laid out in the Supreme Court’s judgment:

Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.[1] (para 147)

Some of the criteria here were in part a result of findings that indicate that the motives that lead to MAiD requests are oftentimes not the result of insufficient pain management, they have to do with one’s life being unbearable, and with there being no end in sight with regard to that kind of suffering. Pain is only one possible contributing factor here, if oftentimes an important one. If the disease conditions that lead to such a dire life situation are intractable but not terminal patients are arguably worse off than those who do suffer from a terminal illness, because potentially they could be forced to suffer unbearably for many decades.  This suggests that pro-choice campaigns that focus solely on the pain experienced by some terminally ill patients are misguided.

What ethically justifies making MAiD available for decisionally capable patients is a combination of societal respect for self-regarding autonomous choice and an informed decision by a patient that their life is unbearable as a result of a particular intractable illness, disease, or disability. That illness may be cancer in some cases, it may be depression in other cases, it may also be some kind of disability.

Some of the arguments that excite Canadians currently are peculiar to the country. One such argument is the claim that the pending liberalisation of access criteria demonstrates that slippery slope concerns by opponents of MAiD were well-founded. After all, less than a decade since the Supreme Court judgment more groups of patients will become eligible for MAiD. In most other situations where these are the facts of the matter advocates of liberal and restrictive MAiD access policies would debate questions such as whether an increase of people eligible to access MAiD constitutes a slippery slope or not. To some the mere increase would be evidence of a slippery slope, to others the increase would be a sign of a maturing access system that’s fine-tuned, quite deliberately so, in order to meet patient needs. It’s probably fair to say that the philosophical technical term ‘slippery slope’ has taken on a life of its own in Canadian public MAiD discourse. It’s fairly liberally attached to situations one wants to criticise.

In Canada these arguments would be missing an important fact: The starting point of Canada’s MAiD policies was the earlier quoted Supreme Court judgment that prescribed arguably liberal access criteria. It was followed by unconstitutional government legislation introducing a restrictive regime. Current attempts aimed at fixing this legislation would merely take the country back closer to where its MAiD journey began, namely the Supreme Court’s criteria. Strangely, proponents of restrictive access criteria choose to start with the unconstitutional legislation, then pointing to a widening of access criteria as evidence of a slippery slope, while ignoring the actual starting point, namely the framework provided in the Supreme Court judgment.[2]

Of course, one would expect academic proponents of slippery slope arguments to be aware of this history. I do wonder, for that reason, whether the deployment of such arguments is aimed at understandable anxieties about risks attached to the introduction of MAiD among people less familiar with these chronological details. Perhaps these argumenta ad passiones are more about effective political campaign strategies than they are about the facts of the matter.

Another example of this are attempts to exploit the dire straits that some patients find themselves in in the service of anti-choice activism. Ostensibly the concern is about protecting vulnerable patients, but in reality these efforts translate into removing the agency of decisionally capable patients without offering them a way out of their predicament. Patients ultimately would be worse off if this activism succeeded.

Consider this case that made the news both in Canada[3] as well as internationally[4]. I encourage you to study the two news reports as they are good examples of campaign journalism versus factual reporting. Reportedly a woman on disability benefits who experienced severe sensitivities to chemicals chose MAiD, because her efforts aimed at moving into special housing suitable for her needs failed. It has been suggested that it is not the case that she badly wanted to end her life, but rather that she considered her quality of life unbearable as a result of her inability to access more suitable housing. There are more details to this case than were revealed in the media coverage and it is certainly not the case that her decision turned solely on housing.  Regardless, there are certainly good reasons to empathise with the deceased and to be critical of government agencies’ failure to accommodate her.

On a conceptual level this case might seem to be an example of types of cases where arguably social determinants of health play a significant role in patients’ requests for MAiD. Proponents of restrictive access regimes use such cases to appeal again to anxieties about abuses in liberal MAiD regimes. This can be found in views[5] expressed along this line: ‘it’s easier to receive MAiD in Canada than adequate housing for the poor.’ The hope behind the statement is that the listener will be suitably offended by this and joins the campaign for a restrictive MAiD access regime.

These argumenta ad passiones are flawed. For one thing, on a regulatory level, Canadian MAiD legislation operates at federal government level, while health- and social care is a provincial responsibility. Any suggestion then that these liberal access criteria are designed to reduce health- and social care costs ignores the division of responsibilities for the delivery of health care. Furthermore, and this is arguably the more important ethical question: How would this patient have been any better off for not being able to choose MAiD, given her circumstances?  It’s only right to criticise government for not providing adequate housing for people like the woman in this case, but it does not follow that therefore she should not be able to access MAiD. In fact, in Canada, the level of government responsible for MAiD legislation is not even in a position to address the housing issue.

The same argumenta ad passiones come into play when it comes to the question of whether decisionally capable people with mental illnesses should be able to access MAiD. The arguments here follow the by-now-familiar pattern. They appeal again to anxieties, on this occasion about abuse inflicted on vulnerable psychiatric patients, flag the dismal state of mental health services and move from there to campaigning against granting decisionally-capable people with mental illnesses access to MAiD. Of course, in reality even state of the art best psychiatric care fails a significant number of psychiatric patients with refractory conditions. It also remains true what I pointed out already in the case of the woman with severe sensitivities to chemicals, namely: how would a psychiatric patient who is failed by an unresponsive health care system be any better off for having their ability removed to request and receive MAiD if they meet ethically defensible access thresholds? The health care system will be no more responsive. One also has to wonder how proponents of such arguments square their activism with decade-long attempts to destigmatise mental illness, given that their primary objective here seems to be to remove these patients’ agency when such patients make choices they happen to find disagreeable.

Ethical Progress on the Abortion Care Frontiers on the African Continent

The Supreme Court of the United States of America has overridden 50 years of legal precedent and reversed constitutional protections [i] fo...