All About Estates

Medical Assistance in Dying (MAiD) and Undue Influence

In 2015, the Supreme Court of Canada held that the ban on Medical Assistance in Dying (MAiD) was unconstitutional (for a summary of the decision, click here). However, MAiD is not available to all persons; to qualify, a person requesting MAiD must have a grievous and irremediable medical condition including an illness, disease or disability. In its seminal decision, Carter v. Canada (Attorney General), 2015 SCC 5the Supreme Court of Canada also set out the requirement that the medical condition be terminal and that natural death be either imminent or at least likely to occur in the near to mid-term.

However, the federal legislature has revised the criminal code (through Bill C-14) such that the law now states that natural death only has to become reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time remaining before death is anticipated. This amendment will facilitate greater accessibility for a person with a condition that is grievous and irremediable to be eligible for MAiD.

The criteria for MAiD also includes that a person make a voluntary request for MAiD that is not the result of external pressure. The courts have found that screening for undue influence can be done by the treating physician. For example, as noted in the Carter decision (at paragraph 106), the trial judge held that:

…it was feasible for properly qualified and experienced physicians to reliably assess patient competence and voluntariness, and that coercion, undue influence, and ambivalence could all be reliably assessed as part of that process.

I suggest the financial and legal term of undue influence has been wrongly introduced into the clinical domain of medicine. In my opinion, the suggestion that physicians can reliably assess for coercion and undue influence is flawed and that the belief that physicians can reliably assess for ambivalence in their patients is misguided.

The first suggestion that physicians can reliably assess for coercion and undue influence is flawed because physicians can only assess for vulnerability to coercion and undue influence; it is not the role of physicians to confirm whether coercion or undue influence actually occurred. That is the role for the Court.

The second suggestion that physicians can reliably assess for ambivalence is misguided because by its nature suicide is a highly ambivalent and unnatural act. Most suicide attempts are not successful, with an estimated 8-25 attempted suicides for every one completion. Ambivalence may be related to hidden motivations for Maid which may or may not invalidate capacity for MAiD but nonetheless could be open to psychotherapeutic intervention to prevent MAiD. Examples include:

  • Fear of being a burden;
  • Fear of being dependent on others;
  • Need for control over dying process;
  • Tired of life;
  • Financial gain for beneficiaries; and
  • Unacceptable quality of life.

Undue influence for MAiD would perhaps be akin to counselling or aiding suicide, which is illegal in Canada. However, the perpetrator of undue influence in this case could find relief in the fact that the suicide was aided and abetted by a medical practitioner, who is allowed to provide MAiD.

Will challenges provide a useful analogy. In a will challenge, applicants tend to allege lack of testamentary capacity of the testator and/or undue influence by a beneficiary. I suggest it is only a matter of time that the consent of a person who died of MAiD will similarly be challenged. When that happens, the physicians involved may have to account for how they assessed patient competence and voluntariness, including assessing for coercion, undue influence, and ambivalence. This may then show the shortcomings of the Supreme Court’s expectations of physicians.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: Richard.Shulman@thp.ca

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