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Youth and medical assistance in dying: the complexities

With Canadian pediatricians saying they are increasingly being asked about medical assistance in dying (MAiD) for some patients under 18, Toronto health lawyer Mary Jane Dykeman tells The Lawyer’s Daily that physicians need to be equipped with the correct information about what the current legislative scheme permits.

Dykeman, a partner with DDO Health Law, weighs in on the issue after the Canadian Paediatric Society (CPS) recently released a position statement saying physicians are being approached with increased frequency by “mature minors” (those who have a comprehension of the nature and consequences of medical treatment) and parents of “never-competent” infants and children (those who are severely disabled or terminally ill) about MAiD-related issues.

She expressed some surprise to hear this issue is being raised in the context of young children by parents, but she is less surprised that it would be discussed by some terminally ill patients close to the legal age to consent, being 18 years of age. 

Dykeman notes that extending the conversation about MAiD to “never competent” patients on consent of their parents has a number of inherent challenges because of the sensitivity of the issue, and that it wasn’t enshrined by the federal government in Bill C-14 or by the SCC in the Carter decision.

“[These patients] are clearly not 18, clearly not a mature minor and the capacity issue isn’t met,” she says.

In an interview with AdvocateDaily.com, Dykeman also questions whether society would be ready for a fulsome discussion of the issue: “I would imagine that conversation would be quite polarizing."

She reinforces that under the current legal framework, someone under 18 is ineligible for MAiD, nor is there any mechanism for substitute consent; a person must be capable at the time of making the request, and again at the time of its administration.

The federal government has agreed to examine whether to extend MAiD eligibility to several groups, including those who would like to express a wish today for MAiD in future, for a time they are incapable to provide consent; to those who have a mental illness only; and to mature minors, Dykeman says.

The federal government passed Bill C-14 in June 2016, changing the Criminal Code to allow adults at least 18 years old and capable of making health-care decisions to access MAiD if they have a grievous and irremediable medical condition, says The Lawyer's Daily.

The law followed the Supreme Court of Canada's decision in Carter v. Canada (Attorney General) 2015 SCC 5, in which the court struck down parts of the Criminal Code that prohibited assisted death on the grounds they violated s. 7 of the Charter, it says.

Dykeman tells AdvocateDaily.com that the dialogue about MAiD in Canada is ongoing. She points to recent statistics released by the Office of the Chief Coroner, which states that in Ontario, 781 MAiD deaths were reported by Sept. 30, 2017; all of these were, of course, choices made by capable adults, reportedly between the ages of 22 and 104, according to the Coroner’s Office.

 

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