September 2019 has been an extraordinary month for medical assistance in dying (MAiD), with two major developments only seven days apart. As a result, more Canadians with grievous and irremediable medical conditions will be able to end their enduring and intolerable suffering on their own terms at a time of their choosing.

In the first case, which centred on Montrealers Jean Truchon and Nicole Gladu, a Quebec Superior Court judge struck down the requirement that a person’s natural death must be “reasonably foreseeable” before she or he could be eligible for MAiD. Unless it is appealed by the federal government, this criterion will be gone from the law for people in Quebec as of March 2020.

In the latest case at the BC Supreme Court, Lamb v. Canada, an expansive interpretation of “reasonably foreseeable” death has emerged. This interpretation can now be used by physicians and nurse practitioners across Canada.

Julia Lamb is a young British Columbia woman who has a degenerative neuromuscular disorder. When the Supreme Court of Canada struck down an absolute ban on assisted dying in the landmark Carter case in 2015, she took comfort in knowing that if her suffering were to become intolerable, she would be able to access MAiD. But in 2016, the federal government imposed a novel and narrow definition of grievous and irremediable medical condition with the passage of Bill C-14, which restricted access to individuals whose natural death had become “reasonably foreseeable.” It was a requirement not present in the Carter ruling.

Clinicians and their insurers and regulators initially articulated various interpretations of “reasonably foreseeable,” including one that specified a person’s natural death must be predicted to be within 12 months. Lamb saw her potential access to MAiD disappear. The year that C-14 was adopted, she and the BC Civil Liberties Association went to court to argue it violates the Canadian Charter of Rights and Freedoms.

Over the years, as the case made its way through the legal process, the “reasonably foreseeable” criterion came to be understood more expansively by clinicians. For example, the College of Physicians and Surgeons of Nova Scotia explains “reasonably foreseeable” as “if a medical or nurse practitioner is of the opinion that a patient’s natural death will be sufficiently soon or that the patient’s cause of natural death has become predictable.” Nonetheless, it was assumed that Lamb would still not qualify as, given the unpredictable nature of her condition, MAiD assessors and providers would not find her natural death reasonably foreseeable.

But then recently, the Attorney General of Canada submitted evidence to the court from an expert witness, Dr. Madeline Li, stating that Lamb did indeed meet the requirements for MAiD. To meet the “reasonably foreseeable” criterion, all Lamb likely had to do was express certain intent to stop preventive care and refuse treatment for the inevitable ensuing infection.

In a letter submitted to the court, Lamb’s lawyer, Joe Arvay, quoted from Li’s expert report:

“If Ms. Lamb were to be assessed now, and she indicated an intent to stop BiPaP [a machine similar to a CPAP machine, which helps a person breathe better while sleeping] and refuse treatment when she next developed pneumonia, it is likely that she would be found to meet the threshold for having a reasonably foreseeable natural death … She would not be required to develop an episode of pneumonia before being approved for MAID. Most would consider it sufficient that she expresses certain intent to refuse treatment when this occurs, as she will inevitably develop a chest infection in the near future.”

As a result, Lamb and the British Columbia Civil Liberties Association sought an adjournment in the case. There was no need to proceed if on the government’s own evidence, Lamb could be eligible for MAiD.

“There is no conflict in the evidence about whether the plaintiff, Julia Lamb, may qualify for MAID in her present condition,” the Attorney General of Canada said in a document it submitted to the court. “The only evidence before this Court on Ms. Lamb’s current eligibility for MAID is from Canada’s expert, Dr. Madeline Li.” The Attorney General can therefore be held to Dr. Li’s interpretation of “reasonably foreseeable.”

The adjournment in Lamb is deeply significant because the government expert’s evidence advances our understanding of the phrase “reasonably foreseeable.” Access to MAiD will be possible for Julia Lamb and others previously denied access. The adjournment should help clinicians understand that patients can meet the “reasonably foreseeable” criterion if they have demonstrated a clear intent to take steps to make their natural death happen soon or to cause their death to be predictable.

In other words, reasonable foreseeability should now be understood to be within the control of patients. For Julia Lamb, this means indicating a certain intent to stop BiPAP and then refuse antibiotics for the pneumonia that will inevitably result from the lack of ventilatory support. By logical inference, for others it will mean indicating a certain intent to refuse regular turning, then refuse skin care for the inevitable bedsores, and then refuse antibiotics for the infections that will inevitably result from the untreated bedsores. For still others, it will mean indicating a certain intent to refuse all food and liquids.

Given the recent developments in the Truchon and Gladu and Lamb cases, the government should repeal the reasonably foreseeable criterion and bring harmonization and certainty to MAiD in Canada. If they do, September 2019 will go down in history as the month in which Canada achieved the dream of Kay Carter, Gloria Taylor, Julia Lamb, Jean Truchon, and Nicole Gladu – brave Canadians who fought for MAiD for themselves and for so many others.

Photo: Julia Lamb, who has a degenerative muscle disease, leaves a news conference in Vancouver, BC, on June, 27, 2016. Lamb has been challenging Canada’s medical assistance in dying law, and its requirement that death be reasonably foreseeable. 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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