Ms. S. was a 56-year-old woman with advanced multiple sclerosis. In June 2016, when her suffering became intolerable and her state of decline was advanced as a result of her incurable medical condition, she asked Dr. Ellen Wiebe for medical assistance in dying (MAiD). Ms. S. had earlier declined potentially effective treatment. Dr. Wiebe concluded that Ms. S. met most of the eligibility criteria for MAiD in Canada: incurable condition, advanced state of decline in capability, and enduring and intolerable suffering not remediable by any means acceptable to her. However, as she did not believe that Ms. S. would die “in the foreseeable future,” she deemed her not to meet the final eligibility criterion for MAiD: “natural death has become reasonably foreseeable.” Ms. S. asked again for MAiD in December 2016 and January 2017 and each time she was deemed ineligible on the same grounds.

At the end of February, Ms. S. voluntarily stopped eating and drinking, with palliative care support. Fourteen days later, Wiebe saw her again and concluded that “the significant malnutrition and dehydration were incompatible with continuing survival” and that she now met the standard for reasonable foreseeability. Three days later, the doctor provided MAiD.

On June 30, 2017, Dr. Jatinder Baidwan, chief medical officer and coroner for the BC Coroner’s Service, wrote to the College of Physicians and Surgeons of British Columbia (CPSBC) questioning whether Ms. S.’s death was reasonably foreseeable, given that “her decision to decline treatment arguably contributed to the serious nature of her disease and her act of voluntarily stopping eating and drinking precipitated her advanced state of decline.”

This case put the question of whether patients can, by declining treatment or stopping eating and drinking, make themselves meet the criteria for a “grievous and irremediable medical condition,” squarely before the CPSBC. Can it be ensured that patients’ condition is incurable and their decline is advanced by refusing potentially effective treatment? Can patients make their death reasonably foreseeable by stopping eating and drinking? Can they access MAiD by voluntarily stopping eating and drinking?

On February 13, 2018, an inquiry committee for the CPSBC answered these questions with an unequivocal yes. The committee agreed that patients, even those seeking MAiD, have a right to refuse even potentially effective treatment and to refuse to eat and drink. Ms. S. met the criteria for MAiD “despite the fact that her refusal of medical treatment, food, and water undoubtedly hastened her death and contributed to its ‘reasonable foreseeability.’”

The implications of this committee’s report are significant.

First, the committee did not raise any concerns about health care providers having helped Ms. S. to stop eating and drinking. They noted that she acted “with palliative care support.” This should reassure BC physicians who have wondered whether helping a patient to die by stopping eating and drinking constitutes “aiding suicide”; it suggests that the College thinks not.

Second, it appears that BC physicians who conclude that a patient’s condition is incurable and their state of decline is advanced and their natural death is reasonably foreseeable, even though a potentially effective treatment is available, will not be in breach of the College’s standard.

Third, it appears that BC physicians who conclude that a patient’s death is reasonably foreseeable, even if it has become so because the patient has stopped eating and drinking, will not be in breach of the College’s standard.

Of course, the CPSBC inquiry committee is not a Crown Counsel. It remains an open question whether a Crown Counsel would disagree about whether the eligibility criteria for MAiD are met when a patient causes the reasonable foreseeability of her own death. The question can only be answered definitively by a court. However, the attorney general of BC could certainly (and usefully) amend the Crown Counsel’s policy manual, “Medical Assistance in Dying and Related Prosecutions,” to give interpretive guidance as to how Crown Counsel should exercise their discretion about whether to charge a medical or nurse practitioner in the context of MAiD.

While not definitive, this could be the first step in establishing a common understanding and standard practice with respect to voluntarily stopping eating and drinking. While it is arguably a positive step, in that it will enable individuals who are incurably ill and experiencing enduring and intolerable suffering to access MAiD, it requires that they be willing and able to starve and dehydrate themselves to get there. It is therefore tempting at this point to adapt the first paragraph of the Supreme Court of Canada’s decision in Carter v. Canada (the case that gave Canada MAiD) to the circumstances created by the new federal MAiD legislation, as follows:

It is a crime in Canada to provide medical assistance in dying unless a person’s natural death has become reasonably foreseeable. As a result, people who are incurably ill and experiencing enduring and intolerable suffering but whose death is not yet reasonably foreseeable cannot seek a medical or nurse practitioner’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has three options: she can take her own life prematurely, often by violent or dangerous means, or she can starve or dehydrate herself to death in order to qualify for MAiD, or she can suffer until she dies from natural causes. The choice is cruel.

For more on the uncertainties around the meaning of Canada’s MAiD legislation, see Jocelyn Downie and Jennifer Chandler’s recent IRPP report, “Interpreting Canada’s Medical Assistance in Dying Legislation.”

Photo: Dr. Ellen Wiebe pictured in her Vancouver office on Wednesday, March. 9, 2016. THE CANADIAN PRESS/Jonathan Hayward.

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Jocelyn Downie
Jocelyn Downie is a professor emeritus in the Faculties of Law and Medicine at Dalhousie University, member of the Dalhousie University Health Justice Institute, and adjunct professor at the Australian Centre for Health Law Research at Queensland University of Technology.

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