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MacDonald Laurier Institute

Barriers to care persist but access to MAiD keeps expanding

Published

3 months ago

17 minute read

From the Macdonald Laurier Institute

By Ramona Coelho

Our government has allowed the incredible power of certain lobby groups to control the public discourse and policies around MAiD and its expansion, prioritizing access to MAiD over the safety of Canadians.

My family medicine practice serves predominantly low-income and marginalized patients, including refugees, those who have been in our prison system or are facing charges, and many with disabilities and mental health issues. My patients experience high barriers to care and support and face social isolation and all kinds of discrimination. Observing the impacts of this has left me deeply concerned about our government’s priorities.

When the federal government introduced MAiD (a medical procedure that causes death) to those not at imminent risk of dying, I was appalled to learn that my patients, who are frequently blocked from care as a result of hurdles created by our government and systems, could potentially be offered an expedient death provided by the government.

In 2016, assisted suicide and euthanasia were first legalized in Canada and the term medical assistance in dying (MAiD) was created. Originally MAiD was presented as an exceptional lethal procedure for ending the lives of consenting adults who were experiencing intolerable suffering and were near death. The legislation required that patients meet certain criteria, including having a “grievous and irremediable” medical condition, such as organ failure or cancer, and a “reasonably foreseeable natural death.”

But the Canadian discourse around MAiD rapidly shifted to facilitating access and there has been a broadening of the number and criteria of those who qualify for MAiD. In 2021, Bill C-7 came into effect and removed some of the safeguards within the original pathway, now called Track 1, and created a new, second track, Track 2, for adults with physical disabilities[1] who are not  dying. Furthermore, there is a planned expansion, though the timing is currently being debated in Parliament, for patients whose only medical condition is mental illness. Parliamentary recommendations in 2023 included future expansion to children and to incapable adults who signed advance directives for euthanasia.

Currently, those in Track 1 with a “reasonably foreseeable natural death” can potentially have their life ended the same day as the initial request if all the criteria are met and practitioners are available.

For those in Track 2, those not dying, death by lethal injection is set at a minimum of 90 days after the completion of the first MAiD assessment. To qualify for this track, a patient must also have a “grievous and irremediable” condition and experience intolerable psychological or physical suffering. Suffering is treated as purely subjective with no requirement for further validation. There is also no legal requirement for standard treatment options to be accessible or tried, only that a patient be informed that they exist. This means that a patient who says they are suffering intolerably could access MAiD having declined treatments that would remediate their condition. This could be because the treatment is inaccessible, or unaffordable, or if the patient declines therapy.

The Canadian Association of MAiD Assessors and Providers (CAMAP) has received 3.3 million dollars in funding from Health Canada to educate clinicians assessing and providing for those who have requested the service. So although the existing Track 1 and Track 2 pathways have different safeguards, in aiming to allow those near death to have access to MAiD quickly and with no barriers, CAMAP has created a guidance document that suggests clinicians can be flexible as to whether someone fits Track 1’s reasonably foreseeable natural death, since the law does not require that the person be terminally ill or likely to die within 6 or 12 months. It also states that a person may meet the reasonably foreseeable criterion if they’ve demonstrated a clear and serious intent to take steps to “make their natural death happen soon, or to cause their death to be predictable.” This could come about from a refusal to take antibiotics for an infection, stopping oxygen therapy, or refusing to eat and drink.

This means that people with disabilities can state their intention to or make themselves sick enough to qualify as having a reasonably foreseeable natural death, as is currently happening with adults who are not dying and yet are having their lives ended within days of their first MAiD assessment. In one case, a man had a mild stroke and received MAiD shortly after, even though he wasn’t terminally ill. The reason? He was approved for track 1 as he was temporarily eating less. This was due to following a cautious meal plan ordered by the treating team which was intended to prevent choking and aspiration risks.

Currently, some places in Canada have MAiD rates that are the highest in the world. By the end of 2022, there had been almost 45,000 MAiD deaths across Canada since legalization—more than 13,000 of which took place in 2022 with 463 of those individuals accessing MAiD through Track 2. Estimates based on provincial reporting approximate 16,000 deaths in 2023. Health Canada and MAiD expansionists have tried to reassure the public that the overwhelming number of MAiD deaths have been mostly Track 1 deaths (implying they were dying anyway) but we do not know how many of those persons were “fast-tracked” and may have had many decades of life left to live and the potential to recover with time and care.

The CAMAP guidance document that seems to circumvent Track 2 safeguards is just the beginning of many serious problems with MAiD legislation and practice in Canada.

Patient safeguards for MAiD are lacking

Other jurisdictions in the world where MAiD practices are legalized, such as New Zealand and Victoria, Australia, frown on or prohibit raising death as a treatment option. This is due to the power imbalance that exists between physician and patient, coupled with the patients’ assumption that the provider will only suggest the best options for their health. Raising  MAiD unsolicited could cause undue pressure to choose death.  Yet Health Canada’s 2023 Model Practice Standard for Medical Assistance in Dying recommends that MAiD should be raised to all who might qualify if the practitioner suspects it aligns with a patient’s values and preferences.

The model practice standard’s approach to “conscientious objection” is equally troubling. Health care providers who object to providing MAiD, even in specific cases, are considered conscientious objectors. A physician who is concerned that MAiD is not a patient’s best option is supposed to ignore their conscience or professional opinion and simply refer the patient on so they can seek access to a MAiD death.

This is further echoed in a CAMAP video training session where experts explain that patients might be driven to MAiD by unmet psycho-social needs. The expert leading the session responds to a trainee’s concerns: “If withdrawing is about protecting your conscience, you have [an] absolute right to do so.” But he adds: “You’ll then have to refer the person on to somebody else, who may hopefully fulfill the request in the end.” This demonstrates precisely how effective referrals can funnel patients toward death despite legitimate professional concerns and obligations that should have instead led to the process being stopped or paused.

In response to this legislation, many from the disability community have advocated for safe spaces where MAiD can’t pose a risk to their lives. The Disability Filibuster, a national grassroots disability community, stated in an open letter that its members have raised fears about seeking health care where death could be offered to them and if at their lowest, they might agree.

The disability community is not being alarmist in this concern. Health care providers often rate the quality of life of those with disabilities as poor despite those patients rating their own quality of life as the same as aged-matched healthy individuals. Put differently, many physicians might consider that patients with disabilities are better off dead, consciously or unconsciously, which might lead them to suggest MAiD.

Besides the problems of mandatory referral and raising MAiD unsolicited, there is another important factor to consider. Persons with physical disabilities systemically lack much of the essential care they need to live and consequently suffer higher rates of isolation, poverty, and marginalization, all of which can make death their most accessible option. The Canadian government commissioned a University of Guelph study, published in 2021, in which the researchers noted that some persons with disabilities were encouraged to explore the MAiD option—even though they had not been contemplating doing so—because of a lack of resources that would enable them to live. Those with disabilities can be approved for MAiD based on their disability, but it is their psycho-social suffering that can drive their requests.

The United Nations Special Rapporteur on the rights of persons with disabilities, the Independent Expert on the enjoyment of all human rights by older persons, and the Special Rapporteur on extreme poverty and human rights have all warned the Canadian government that the current MAiD framework could lead to human rights violations. Their concerns are validated by the numerous fact-checked stories about MAiD abuses that are emerging in Canada. These should give us pause. For example, Sathya Dhara Kovac, 44, ended her life through the MAiD program. She lived with a degenerative disease and her condition was worsening, but she wanted to live but lacked the home care resources to do so. “Ultimately it was not a genetic disease that took me out, it was a system,” Kovac wrote in an obituary to loved ones. All Canadians have a right to humane living conditions, to be treated with respect and dignity, and to receive appropriate timely medical care. Considering the living conditions and lack of care that as a society we allow persons with disabilities to have, choices to die might be understandable for those like Sathya. But we should ask ourselves if choices, made under inhumane conditions, are made freely if driven by structural coercion.

Disturbingly, there are MAiD assessors and providers who seem to be ok with proving MAiD under such inhumane conditions. One such provider testified at a parliamentary committee on MAiD that if someone had to wait a long time for a service that would remediate their suffering, she would still consider that waiting to be irremediable suffering and grant them MAiD in the interim. Therefore, it is not surprising that patients with unaddressed psycho-social suffering are being given MAiD by assessors like her.

When it was considering Bill C-7, the federal government asked the Parliamentary Budget Officer to estimate cost savings to our health care system of the legalization of MAiD. The office did this by looking at the comparative cost savings of MAiD versus palliative care at the end of life. Through this impoverished lens of valuation, it is clear that the cost savings will be even greater when, by many years, we prematurely end the lives of people who have higher care needs, especially when we factor in social services, disability benefits, equipment, and other costs on top of the direct savings to health care budgets. But this is not how we should create budgets or measure outcomes. Our socialized health care system is meant to serve those with disabilities, not consider them a cost to the system.

The Canadian government is currently deciding on the timing for its further roll-out of MAiD, this time for mental illness and with no legislative changes to the current safeguards. This expansion is alarming given what we know is happening already to disabled Canadians under the existing MAiD regime. The Canadian Association of Chairs of Psychiatry wrote a letter in 2022—and some testified more recently in Parliament—that we are not ready for this development. They have warned that there is no evidence to guide decisions about who with mental illness would not get better. The evidence suggests that for every 5 people whose lives would be ended based on the sole medical condition of mental illness, 2 or 3 would have recovered. We expect to have much higher numbers qualifying for MAiD on the grounds of mental illness in Canada than in other jurisdictions that allow assisted death for this reason, since barriers to care and unmitigated psycho-social suffering do not have to be rectified in this country (as they do elsewhere) before being granted MAiD.

Our government has allowed the incredible power and influence of certain lobby groups and their members to control the public discourse and policies around MAiD and its expansion, prioritizing access to MAiD over the safety of Canadians. Besides the current discussion about when to legalize MAiD for mental illness, the parliamentary committee has also recommended expansion to children and MAiD by advance directives. With eligibility for MAiD continuing to broaden, we are not giving priority to serving those most in need, but instead seem intent on rapidly expanding a path to end their lives.

[1] Disabilities is an umbrella term that includes impairment, chronic illness and/or other conditions.

Dr. Ramona Coelho is a family physician in London, Ontario. Her practice largely serves marginalized patients.

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Proposed changes to Canada’s Competition Act could kneecap our already faltering economy

Published on May 10, 2024

By

From the Macdonald Laurier Institute

Aaron Wudrick, for Inside Policy

No party wants to be seen as soft on “big business” but that is a bad reason to pass potentially harmful, counterproductive competition policy legislation.

The recent federal budget was widely panned – in particular by the entrepreneurial class – for its proposal to raise the capital gains inclusion rate. As it turns out, “soak the rich” might sound like clever politics (it’s not) but it’s definitely a poor narrative if your goal is to incentivize and encourage risk-taking and investment.

But while this damaging measure in the federal budget has at least drawn plenty of public ire, other harmful legislative changes are afoot that are getting virtually no attention at all. They’re contained in Bill C-59 – the omnibus bill still wending its way through Parliament to enact measures contained in last fall’s economic statement – and consist of major proposed amendments to Canada’s Competition Act. The lack of coverage and debate on these changes is all the more concerning given that, if enacted, they could have a long-term negative impact on our economy comparable to the capital gains inclusion rate hike.

Worst of all, the most potentially damaging changes weren’t even in the original bill, but were brought forward by the NDP at the House of Commons Standing Committee on Finance, and are lifted directly from a previous submission made to the committee by the Commissioner of Competition himself. In effect, they would change competition law to put a new onus on businesses to prove a negative: that having a large market share isn’t harmful to consumers.

MPs on the committee have acknowledged they don’t really understand the changes – they involve a “concentration index” described as “the sum of the squares of the market shares of the suppliers or customers” – but the government itself previously cast doubt on the need for this additional change. It’s obvious that a lot of politics are at play here: no party wants to be seen as soft on “big business.” But this is about much more than “big business.” It’s about whether we want to enshrine in law unfounded, and potentially very harmful, assumptions about how competition operates in the real world.

The changes in question are what are known in legal circles as “structural presumptions” – which, as the name implies, involve creating presumptions in law based on market “structure” – in this case, regarding the concentration level of a given market. Presumptions in law matter, because they determine which side in a competition dispute – the regulatory authority, or the impugned would-be merging parties – bears the burden of proof.

So why is this a bad idea? There are at least three reasons.

First of all, the very premise is faulty: most economists consider concentration measures alone (as opposed to market power) to be a poor proxy for the level of competition that prevails in a given market. In fact, competition for customers often increases concentration.

This may strike most people as counterintuitive. But because robust competition often leads to one company in particular offering lower prices, higher quality, or more innovative products, those who break from the pack tend to attract more customers and increase their market share. In this respect, higher concentration can actually signal more, rather than less, competition.

Second, structural presumptions for mergers are not codified in the US or any other developed country other than Germany (and even then, at a 40 percent combined share rather than 30 percent). In other words, at a time when Canada’s economy is suffering from the significant dual risks of stalled productivity growth and net foreign investment flight, the amendments proposed by the NDP would introduce one of the most onerous competition laws in the world.

There is a crucial distinction between parliamentarians putting such wording into legislation – which bind the courts – and regulatory agencies putting them in enforcement guidelines, which leave courts with a degree of discretion.

Incorporating structural presumptions into legislation surpasses what most advanced economies do and could lead to false negatives (blocking mergers that would, if permitted, actually benefit consumers), chill innovation (as companies seeking to up their game in the hopes of selling or merging are deterred from even bothering), and result in more orphaned Canadian businesses (as companies elect not to acquire Canadian operations on global transactions).

Finally, the impact on merger review will not be a simplification but will likely just fetter the discretion and judgment of the expert and impartial Competition Tribunal in determining which mergers are truly harmful for consumers and give more power to the Competition Bureau, the head of which is appointed by the federal Cabinet. Although the Competition Bureau is considered an independent law enforcement agency, it must still make its case before a court (the Tribunal, in this case).The battleground at the Tribunal will shift from focusing on the likely effect of the merger on consumers to instead entertaining arguments between the Bureau’s and companies’ opposing arguments about defining the relevant market and shares.

Even if, after further study, the government decided that rebuttable structural presumptions are desirable, C-59 already repeals subsection 92(2) of the Competition Act, which allows the Tribunal to develop the relevance of market shares through case law – a far better process than a blanket rule in legislation. Nothing prevents the Bureau from incorporating structural presumptions as an enforcement screen for mergers in its guidelines, which is what the United States has done for decades, rather than putting strict (and therefore inflexible) metrics into statute and regulations.

No one disputes that Canada needs a healthy dose of competition in a wide range of sectors. But codifying dubious rules around mergers risks doing more harm than good. In asking for structural presumptions to be codified, the Competition Bureau is missing the mark. Most proposed mergers that will get caught by these changes should in fact be permitted on the basis that consumers would be better off – and the uncertainty of being an extreme outlier on the global stage in terms of competition policy will create yet another disincentive to start and grow businesses in Canada.

This is the opposite of what Canada needs right now. Rather than looking for ill-advised shortcuts that entangle more companies in litigation and punt disputes about market definition rather than effects to the Tribunal, the Bureau should be focusing on doing its existing job better: building evidence-backed cases against mergers that would actually harm Canadians.

Aaron Wudrick is the domestic policy director at the Macdonald-Laurier Institute. 

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MacDonald Laurier Institute

The Governor General deserves better, but we deserve impartiality

Published on April 20, 2024

By

From the Macdonald Laurier Institute

By Philippe Lagassé

Mary Simon’s impartiality was undermined by hosting a symposium tied to controversial government legislation.

Mary Simon has been a guarded Governor General. She’s adopted a low profile since her appointment, performing her vice-regal responsibilities without much notice. When she has been in the news, it’s usually because of her efforts to learn French and costly diplomatic trips, not on account of an initiative she’s launched or a stance she’s taken. Aside from routine public statements and some championing of Indigenous reconciliation, Simon hasn’t tried to make a mark. Until last week, that is.

On April 11, Her Excellency hosted a symposium on online abuse and creating safe digital spaces. Simon has been the target of vitriol on social media, a reality she shares with many public figures, particularly women. She wants to address this problem, stressing that “we deserve better.” As far as causes go, this is a laudable one. Online abuse is a serious issue, one that can excuse and encourage physical violence and attacks. To highlight the severity of the challenge, the Governor General’s symposium featured well-known Canadians who’ve also suffered from online abuse and are determined to fight it.

Unfortunately, the Governor General’s symposium took place while a government bill on online harms is making its way through Parliament. Bill C-63, the Online Harms Act, has been the source of significant controversy, notably around its impact on free expression and the potential life sentences it imposes on certain types of hateful speech. C-63 has been criticized by law professors, civil liberties advocates, and the Conservative Party. While there may be a general consensus that online abuse is a scourge, the solution is contentious, and Bill C-63 has been the subject of serious debate.

As well-intentioned as the Governor General’s symposium was, she should never have hosted it in this context, a conclusion that’s reinforced by the Minister of Justice publicly tying the event to bill C-63. As soon as the government tabled the bill, Her Excellency should have understood that the symposium was no longer appropriate and would present a risk to her office’s impartiality.

The Governor General is the second highest office of the Canadian state, right under the King. As the King’s vice-regal representative, the Governor General performs core constitutional functions. These demand that the Governor General not only act impartially but be perceived to be impartial. This isn’t just good form, it’s a fundamental part of the job.

As part of their constitutional role, Governors General exercise the Crown’s reserve powers. These include the granting of royal assent to legislation on the advice of the houses of Parliament, proroguing and dissolving Parliament on the advice of the Prime Minister, and inviting a party leader to form a new government when the serving Prime Minister resigns. Impartiality helps shield the Governor General from partisan attacks when exercising these powers and maintains public trust in the office.

Now, to be clear, the Governor General has very limited discretion in exercising these reserve powers. As long as the Prime Minister’s party holds the confidence of the House of Commons, the Governor General must almost always accept their advice. Yet, there have been and will be cases where vice-regal representatives exercise their discretion to decide the fates of governments or guard against unconstitutional abuses of power. When these occur, we need the Governor General to be respected as a non-partisan, politically neutral office. Doubts about a Governor General’s impartiality undermine her or his constitutional functions and can weaken trust in the office when it’s most needed.

Turning back to the symposium, it’s important to clarify why it undermined her impartiality, or at least perceptions of it. Defenders of the symposium have argued that the event didn’t feature any members of the government as speakers, hence it wasn’t partisan or meant to endorse the Online Harms Act. Suffice to say, had ministers spoken at the event, we would be dealing with an outright constitutional debacle, not just concerns about vice-regal impartiality. A full-on violation of constitutional norms isn’t the standard here. Instead, we should be asking why the Minister of Justice was even there, and why the Governor General decided to host the symposium, considering how contentious Bill C-63 has been already. Hosting the event allowed Her Excellency to get pulled into the partisan fray, a predictable outcome that she shouldn’t have risked.

Those who participated in the symposium will counter that it was the Minister of Justice who made the connection with Bill C-63, not the Governor General. Her Excellency’s motives, and the importance of the cause addressed by the symposium, shouldn’t be impugned by a careless, partisan tweet. Alas, partisans are going to partisan and politicians are going to politick. This is precisely why vice-regal representatives should avoid wading into politically charged topics. Expecting politicians to show restraint and respect the neutrality of the office of the Governor General is more than a tad naive. Vice-regal representatives should have the wherewithal to avoid situations where their office can be leveraged for partisan purposes.

Defenders of the symposium offer another argument: as the sovereign’s representative, the Governor General should address important social problems that affect Canadians. The vice-regal role shouldn’t be confined to constitutional functions, ceremonies, and commemorations. Not allowing vice-regal representatives to advocate for the public good would be a lost opportunity. This is a fair point, though Governors General need to be careful about what causes they take up. When it comes to vice-regal advocacy, banal benevolence is the way to go. Anything that’s the subject of notable partisan and parliamentary debate, is ideologically fraught, or might be fought over during an election should raise red flags.

Thankfully for the Governor General, the controversy surrounding her symposium hasn’t extended beyond the Ottawa bubble yet. She should keep it that way by abandoning her “We Deserve Better” campaign while partisans battle it out over Bill C-63 and the courts review the Online Harms Act if it becomes law.

This isn’t because the Governor General doesn’t deserve better; she does, as do all those who suffer online abuse. It’s because Canadians deserve impartiality from the Governor General, both real and perceived.

Philippe Lagassé is an associate professor at Carleton University. He’s the co-editor of Canada and the Crown: Essays on Constitutional Monarchy (2014) and The Crown and Parliament(2015).

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