With the approaching legalization of Physician Assisted Suicide (“PAS”) for mental disorders set to take effect in Canada on March 17, 2024, both proponents and opponents are making last ditch efforts to forestall or support implementation.

The statutory law is complex, extensive and awash in legalese.  So, I am embedding a link to this law:

https://www.parl.ca/documentviewer/en/44-1/AMAD/report-2/page-ToC

A Reader’s Digest version of this law, as it pertains to “mental disorders,” and presuming the “mental disorder” does not result in a natural death that is reasonably foreseeable is as follows:

Safeguards for persons whose natural death is not reasonably foreseeable.

The following procedural safeguards apply to persons’ whose natural death is not reasonably foreseeable (*indicates safeguards specific to those requests):

• request for MAID must be made in writing: a written request must be signed by one independent witness, and it must be made after the person is informed that they have a “grievous and irremediable medical condition” (a paid professional personal or health care worker can be an independent witness);
• two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met;
• • *if neither of the two practitioners who assesses eligibility has expertise in the medical condition that is causing the person’s suffering, they must consult with a practitioner who has such expertise;
• the person must be informed that they can withdraw their request at any time, in any manner;
• *the person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services;
• *the person and the practitioners must have discussed reasonable and available means to relieve the person’s suffering, and agree that the person has seriously considered those means;
• *the eligibility assessments must take at least 90 days, but this period can be shortened if the person is about to lose the capacity to make health care decisions, as long as both assessments have been completed;
• immediately before MAID is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent.

To provide greater insight, I am embedding testimony taken in May 2022 before the Special Joint Commission on Medical Assistance in Dying:

https://www.parl.ca/DocumentViewer/en/44-1/AMAD/meeting-9/evidence

This site contains much of the evidence and testimony elicited when the Canadian law was being vetted. And of course, there are a number of matters and issues of concern contained within the Report and testimony.

For example, with regard to the crucially important, “Balancing Individual Autonomy and the Protection of the Vulnerable,” the Committee’s findings constituted only four (4), short paragraphs and ended with the following conclusion: “The committee recognizes that a delicate balance must be struck between promoting individual autonomy and protecting against socio-economic vulnerabilities.”

We have an adequate grasp of the painfully obvious. Perhaps the Committee should have focused on the merely obvious conclusion.

Under the Canadian law, the Committee stated, “To be eligible for MAID, a person must have a ‘grievous and irremediable medical condition.’ As Jennifer Chandler explained, “irremediable” is not a medical or scientific term. Rather, as noted above, “grievous and irremediable” is defined in the law as incurability, being in an advanced state of irreversible decline, and “enduring physical or psychological suffering that is intolerable to [the person] and that cannot be relieved under conditions that [the person] consider[s] acceptable.”

Because of this wording, eligibility must meet ALL of these criteria. Further, if we are to use that definition, doesn’t that necessarily exclude all instances of anorexia nervosa? Incurability? Anorexia?

With regard to Minors, the Committee stated, “In Canada, a person must be at least 18 years old to access MAID. However, minors with the requisite capacity are generally entitled to make their own healthcare decisions. The exact parameters of minor consent to healthcare vary by province.” The Committee then held, “The term ‘mature minor’ refers to a common law doctrine according to which “an adolescent’s treatment wishes should be granted a degree of deference that is reflective of his or her evolving maturity.”

Minors. Our teenagers. Our children.  The Committee also found, “In the Netherlands, MAID is allowed for minors aged 12 and over, and may soon be expanded to include younger children. In Belgium, there is no minimum age, so long as the minor has the requisite capacity.”

So, are we to allow young people, our children, whose brain is not biologically developed let alone mature to make life or death decisions? Where is the morality in that?

Principle of Double Effect

Which brings us to the issue of a just society and the morality not only of medical professionals making this life or death call, but whether the very act in question is morally right. To this, we turn to the Principle of Double Effect. (Principle)

The Principle has its historical roots in the medieval natural law tradition, especially in the thought of St. Thomas Aquinas (1225-1274). It has been refined both in its general formulation and in its application by generations of Catholic moral theologians[1].

Although there has been significant disagreement about the precise formulation of this principle, it generally states that, in cases where a contemplated action has both good effects and bad effects, the action is permissible only if it is not wrong in itself and if it does not require that one directly intend the evil result.

Classical formulations of the Principle of Double Effect require that four conditions be met if the action in question is to be morally permissible:

1. First, that the action contemplated be, in itself either morally good or morally indifferent;
2. Second, that the bad result not be directly intended;
3. Third, that the good result not be a direct causal result of the bad result, and;
4. Fourth, that the good result be “proportionate to” the bad result.

Supporters of the Principle argue that, in situations of “double effect” where all these conditions are met, the action under consideration is morally permissible despite the bad result[2].

The Principle is regularly invoked in ethical discussions about palliative sedation, terminal extubation and other clinical acts that may be viewed as hastening death for imminently dying patients. Unfortunately, the literature tends to employ this useful principle in a fashion suggesting that it offers the final word on the moral acceptability of such medical procedures. In fact, the rule cannot be applied appropriately without invoking moral theories that are not explicit in the rule itself. Four tenets of the rule each require their own ethical justification. For example, the third condition must necessarily invoke the Pauline Principle which states, “One should never do evil so that good may come.” 

Some ethicists believe that if a suffering, terminally ill patient dies because of intentionally receiving pain-relieving medications, it makes a difference whether the death itself was intended or merely anticipated.  If the death was intended it is wrong but if the death was anticipated it might be morally acceptable[3]. 

Philosophers and medical ethicists have speculated that, “According to this Principle, euthanasia and physician-assisted suicide are always illicit acts, while the same is not said for other actions that bring about patient’s death as a foreseen effect, namely, palliative treatments that hasten death or failure or interruption of life support. The reason for this difference is that, in the first two cases, the patient’s death is intended as a means of pain relief; whereas, in the latter two, death is only a side effect of a medical act, an act justifiable if it is necessary to achieve a proportionate good.”

We also need to question whether the moral objection to an action is the same as the physical performance of that action. Dr. Paulina Taboada addressed this question accordingly, “But the physical performance of an action (actus hominis) does not necessarily coincide with a moral act. Only an action in which human freedom is exercised (actus humanus) can be morally qualified. A moral act is essentially an act in which human freedom is exercised. This means that the moral act itself is marked by an ‘intrinsic intentionality’; it tends towards an object (called moral object).”

Dr. Taboada then stated, “Hence, the moral act cannot be properly characterized by describing a mere physical performance. In order to find out which is the kind of moral act we are performing (i.e., the ‘moral species’ of the act), the key question is: What are you doing? And an answer like “injecting morphine to this patient” would not do it. The proper answer to this question – relieving pain – reveals the ‘intrinsic intentionality’ of the moral act. An analysis of the lived ethical experience shows that the moral character of our free acts is basically determined by this ‘intrinsic intentionality’ of the act, i.e., by the kind (‘species’) of act we perform.”

Dr. Taboada then concluded, “A careful analysis of our most basic human moral experience shows that the ethical character of human acts does not primarily depend on the motivation or intention of the agent, but on the moral species of the action to be performed. Hence, the common saying ‘the end does not justify the means’.[4]”

The Canadian law, at best, paid lip service to this incredibly complex issue. An issue which not only touches our existence, but the very heart of our humanity. Faith. The Soul. Life. Death.

Our society seems to be in such a rush to show all others that we are capable of performing a certain act better than it has ever been done … and thus, show our individual wisdom and humanity. However, in doing so, we have lost sight of the question we need to be exploring, that is, “Should we do this act?”

A question that our medical and mental health providers certainly cannot answer. Perhaps there is no answer. And yet, if we do not keep exploring the boundaries of our being, our imagination, our very lives, we will continue to fail. We will fail on a generational level.

We cannot, and do not have the luxury of taking action without seeking wisdom from all interested parties. We must work toward being open to options we never previously considered. We must strive to chart the unknown and unlimited possibilities of existence.

And we can only do that if we take all reasonable and necessary steps to preserve the sanctity of life.

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[1] http://sites.saintmarys.edu/~incandel/doubleeffect.html

[2]https://pubmed.ncbi.nlm.nih.gov/3080130/#:~:text=The%20doctrine%20holds%20that%2C%20in,%2C%20and%20(d)%20there%20is

[3] https://medicine.missouri.edu/centers-institutes-labs/health-ethics/faq/euthanasia

[4] https://hospicecare.com/policy-and-ethics/ethical-issues/essays-and-articles-on-ethics-in-palliative-care/shaws-criticism-to-the-double-effect-doctrine/