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September 11, 2019

On September 11, 2019, a Quebec Superior Court decision struck down the Canadian government medical assistance in dying (MAiD) legislation as unconstitutional, triggering the current review of the law to extend eligibility and remove safeguards on ‘dying with dignity’.  That same day, the same court issued another ‘dying with dignity’ decision, which largely went unnoticed. Which is unfortunate, because the latter should give pause to advocates of MAiD expansion.

The legal proceedings of that case are apparently under publication ban. However, a critical reading of the cryptic details provided about the history of the case and the hearing proceedings raise numerous questions and concerns.

The relatively short decision, regarding a hospital’s application to withdraw life support and administer medication(s) to end a patient’s life, references “death / dying with dignity” 4 times. The most concerning reference notes the patient’s continued care was “preventing her from dying with dignity”.

The problem is the patient had not consented to MAiD. The decision notes the patient had “signed a level of care document… requesting that the Applicants do whatever they can to treat her.”

This would suggest the patient was not only conscious and capable of giving consent, but had a reasonable expectation of recovering and leaving the hospital. She had neither contemplated nor requested MAiD – in fact the opposite.

However, the decision goes on to state that the patient “is unconscious” without indicating when or how she was rendered so. It notes she had started “receiving continued medication to alleviate the pain on September 10th, 2019 further to a Safeguard Order rendered by the Court.”

The details of that order, which medication(s) it authorised and whether the medication(s) had rendered the patient unconscious, all critically important details, are conspicuously missing from the decision.

In any case, her husband, who had legal authority to make decisions on behalf of his incapacitated wife, “categorically refuses” the hospital’s request to disregard his wife’s written directive.

The decision also states that the patient was suffering from a number of conditions, again without indicating when or how she was rendered so. There is no reference to medical records, just the testimony of one doctor working for the hospital that was applying to end the patient’s life.

More troubling is that, other than the patient’s cancer diagnosis, most of the conditions upon which the hospital based its application – severe bed sores, infections, gastrointestinal bleeding – are commonly accepted as indicators of medical negligence when they occur in hospitals.

“Stage IV decubitus ulcer” is the most advanced pressure ulcer (aka bed sore) stage. Pressure ulcers are widely accepted as indicators of negligent care. “They are often the result of medical or nursing negligence when they occur in hospitals”.

Two of the other conditions were “distributive shock and profound swelling” and “acute gastrointestinal bleed”. The most common causes of distributive shock are sepsis and anaphylaxis, often caused by poor hospital conditions and negligent medical care. Certain antibiotics used to treat sepsis are known to cause gastrointestinal bleeding, particularly in elderly patients with certain conditions.

It seems the family was aware of this, as the decision notes it “wants one more week to see if her bleeding in her stomach will stop if a certain medication is stopped”.

Last, but most importantly, is the focus on the patient’s pain. The hospital presented pain as the primary reason for its application to end the patient’s life. Chronic, debilitating pain in the absence of a ‘reasonably foreseeable’ natural death is supposedly the primary motivation for proposed MAiD expansion.

The patient was unable to attest to her level of pain. Her family did not contest that she was in pain, but submitted the primary source of pain was the bed sore caused by the hospital’s negligent care. “The family has consented to have the occasional pain medication administered to her but refused that it be administered on a consistent basis”.

The reason the family did not consent to the hospital administering continuous pain medications is likely the same reason the hospital was insistent on doing so: Serious cardiovascular adverse events are associated with the use of such medications, and significantly raise mortality rate among critically ill patients.

According to the Canadian government’s MAiD guidelines: “Many of the drugs commonly used for this procedure are already marketed in Canada and are prescribed at lower dosages for common purposes, such as: nausea, pain control, anaesthesia.” (emphasis added)

Without oversight of the type or dose of continuous pain control medication it could administer, against the consent of the patient and her family, the hospital had effectively been authorised to commit involuntary euthanasia, which is supposed to still be a criminal offence in Canada.

The problem is that, unlike MAiD, it appears there is no requirement for informed consent with respect to a change in ‘care plan’, at least under Quebec law. This appears to have been a test case on how to skirt MAiD restrictions altogether: Just (misre)present involuntary euthanasia as a change in ‘care plan’.

The recent shifts in social, political and legal narratives on ‘dying with dignity’ coincided with the great demographic shift. The Supreme Court of Canada Carter decision, which precipiated MAiD in Canada, notes: “In 2011, the Royal Society of Canada published a report on end-of-life decision-making and recommended that the Criminal Code  be modified to permit assistance in dying in some circumstances.” The first Canadian baby-boomers turned 65 in 2011.

As a result of great strides in hygiene, sanitation, reductions in child mortality and other scientific advances, a Canadian woman born today has a life expectancy of 84.1 years, on average. A Canadian woman age 65 today has a life expectancy of 22.3 years, on average.

However, health-adjusted life expectancy (HALE), the number of years she can expect to live without chronic health problems, has not increased as markedly, just 70.4 years, on average, for a Canadian woman born today. A Canadian woman age 65 today has a HALE of 15.4 years, on average.

It is not difficult to understand the fiscal implications of the demographic shift. Health care costs due to population aging are projected to skyrocket. And those costs pale in comparison to the burden baby boomers, who are projected to outlive their parents by nearly 15 years, will place on public pensions (CPP, QPP) and old age benefits (OAS, GIS)

Let’s not kid ourselves: The incentive to make it easier for adults to end their lives once chronic health problems, often characterised by chronic pain, set in is not entirely altruistic. As MAiD becomes a more widely available and socially acceptable option, there will invariably be increased pressure on the elderly and infirm to avail themselves of that option, so as not to ‘prevent’ themselves from dying with dignity. And if they do not… well, let this case serve as a warning of what awaits at the bottom of the MAiD slippery slope.

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