Foreseeably Unclear: The Meaning of the 'Reasonably Foreseeable' Criterion for Access to Medical Assistance in Dying in Canada

Abstract

Canada's medical assistance in dying legislation contains the eligibility criterion "natural death has become reasonably foreseeable." The phrase "reasonably foreseeable" is unfamiliar and unclear. As a result of ongoing confusion about its meaning, there is reason to be concerned that under-or over-inclusive interpretations of the phrase are adversely affecting access to MAID. With critical interests at stake (eg access to MAiD and potential criminal liability), it is essential that the meaning of the phrase be clarified. Furthermore, the meaning of "reasonably foreseeable" will be at issue in the Charter challenges to the federal MAiD legislation currently before the courts in British Columbia and Quebec. In order to determine whether the s. 241.2(2) violates the Charter, the courts will first have to determine what "reasonably foreseeable" means because whether the limits on access to MAiD violate the Charter depends on the scope of the limits. This paper therefore brings the principles of statutory interpretation to bear and proposes an interpretation of "reasonably foreseeable" in an effort to contribute to the judicial consideration of the meaning of the phrase and to guide clinical practice until clarification is provided by the courts.La legislation canadienne en matiere d'aide medicale a mourir (AMM) prevoit le critere d'admissibilite selon lequel la mort naturelle est devenue raisonnablement previsible .,, L'expression raisonnablement previsible , est pas familiere et nest pas claire. En raison de la confusion persistante quant a sa signification, il y a lieu de s'inquieter du fait que des interpretations trop larges ou trop etroites de Iexpression nuisent a Iacces a IAMM. Compte tenu des inter~ts critiques en jeu (par exemple Iacces a IAMM et la responsabilite penale potentielle), il est essentiel que le sens de Iexpression soit clarifie. De plus, le sens de IVexpression raisonnablement previsible , sera en cause dans les contestations au titre de la Charte de la legislation federale sur IAMM actuellement devant les tribunaux en viole la Charte, les tribunaux devront d'abord determiner ce que Ion entend par raisonnablement previsible ,, car la question de savoir si les restrictions a Iacces a IAMM violent la Charte depend de I'etendue de ces restrictions. Le present document met donc a profit les principes de IPinterpretation des lois et propose une interpretation de Iexpression raisonnablement previsible > afin de contribuer a Iexamen judiciaire du sens de Iexpression et de guider la pratique clinique jusqua ce que les tribunaux apportent des precisions.

But it’s legal, isn’t it? Law and ethics in nursing practice related to medical assistance in dying

“…It therefore lies with clinicians to determine whether the clinical trajectory and presentation makes a person eligible for MAiD. We also know that the criterion of reasonably foreseeable death remains a topic of debate among clinicians, and that clinicians will vary in their opinions as to when someone becomes eligible (Downie & Scallion, ). So, as it relates to the criterion of reasonably foreseeable death, clinician judgement becomes paramount.…”

Refusing care as a legal pathway to medical assistance in dying

“…Some provincial/territorial consent legislation includes elements relevant to the analysis: the requirement of consent to treatment and personal care or personal assistance services (which could include assistance with eating and drinking) and the definitions of these terms. 10 However, the statutes either codify the common law or are silent and therefore leave the common law position undisturbed. Thus, healthcare providers have a duty to respect competent adult patients' refusals of care no matter the origin of the underlying condition (disease or disability, accident, intention or self-induced injury), the nature of the underlying condition (fatal or chronic), the type of care (e.g., ventilator, antibiotics, turning, artificial or oral hydration and nutrition), the goal of the intervention (preventative, curative, or palliative), and whether the person is able-bodied or has a disability but is otherwise healthy.…”

“…In response, they are exploring three pathways to access MAiD: first, arguing in court that the provision breaches their Charter rights [7]; second, advocating for interpretations of "reasonably foreseeable" that are broader than those being used in their denials; 2 and third, taking steps to make their deaths "reasonably foreseeable" even on a narrow interpretation of the phrase. 3 In this paper, we explore this third potential pathway to access MAiD, i.e., competent patients refusing care so that their death will become reasonably foreseeable on any of the leading interpretations of that phrase (if the patient is likely to remain steadfast in their refusal), as it will be predictable that, when, and how the person will die [10,12]. In these cases, the word "natural" requires attention.…”

“…For example, arguing that "reasonably foreseeable" does not mean "death expected within 12 months" or denying that there is a temporal proximity condition[10] 3. Individuals might also request deep and continuous sedation and refuse artificial hydration and nutrition as a path to death when found to be ineligible for MAiD or if they object to MAiD but wish a hastened death.…”

“…"(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (a) with respect to a duty imposed by paragraph (1)(a) or (b), (i) the person to whom the duty is owed is in destitute or necessitous circumstances, or (ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently"[1, s.215] 10. Newfoundland and Labrador, New Brunswick, Manitoba, Saskatchewan, Alberta, Northwest Territories, and Nunavut do not have rel evant legislation and so are governed by the common law as explained above.…”