Assisted dying for prison populations: Lessons from and for abroad

Abstract

Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.

Medical Assistance in Dying (MAiD) for Canadian Prisoners: A Case Series of Barriers to Care in Completed MAiD Deaths

“…In Cases 1 and 3, the patients likely accessed the community hospital by temporary absence, meaning that if they withdrew consent for MAiD, they would return to prison. 5 The CSC guideline outlines extra measures to evaluate voluntariness that are unique to the prison context before acquisition of a standard MAiD eligibility assessment, 2 and the physician in Case 1 collaborated with the hospital ethics committee to assess for these prison-specific concerns.…”

“…4 Others argue that such safeguards found in CSC's current guideline may contribute to barriers that preclude patient-centered care, such as adding time to the process, potentially undermine voluntariness, and contravene international human rights norms of equivalent access to health care in prison as for the public. 5 , 6…”

When Prisoners’ “Right to Die” Goes Online: A Case-Study of Legal and Penal Sensibilities

“…It also presupposes that the prisoner requesting MAiD will be transferred out of the federal penitentiary into the community for the second of two eligibility assessments and, if eligible, the completion of the procedure. To facilitate such transfers, CSC will consider "all release options," including parole, parole-by-exception, and temporary absence, and inmates can also write to the Governor General of Canada who may grant the inmate's release under the Royal Prerogative of Mercy (Downie, Iftene, and Steeves 2019). Guideline 800-9 specifies that the "external [environment] to CSC [is], namely, […] a community hospital or health care facility" (CSC 2017), where policies and procedures of the hospital would also apply.…”

“…Prisoners in Canadian penitentiaries can request that a physician or nurse practitioner administer or prescribe a medical substance that causes their death (CSC 2017;Downie, Iftene, and Steeves 2019). Such requests are possible because the Criminal Code allows every competent, autonomous Canadian patient to obtain medical assistance in dying (MAiD) if they seek "death as a response to a grievous Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2022Société, , pp.…”

“…Beyond the content of Guideline 800-9 and the other directives and authorities cited in that guideline (see e.g., Downie, Iftene, and Steeves, 2019), as well as a recent study of how inmates in a Canadian penitentiary navigate end-of-life care and view MAiD (Shaw and Driftmier 2021), little is publicly known about MAiD in prisons (also see Shaw and Elger, 2016;Stensland and Sanders, 2016). The Office of the Correctional Investigator released an annual report in 2019-2020 that identified "three known cases of MAiD in federal corrections, two carried out in the community" (OSC 2020), but the report does not say much more than the Correctional Investigator's recommendations to expand access to compassionate 1 Carter v Canada, 2015 SCC 5, para 2.…”