\u201d (A-to-P) FAQ \u2013 the MPS offers an inconsistent approach to the information. This is most apparent in problems accompanying terminology and definitions, which are often contradictory, self-referential, imprecise, and inadequate:<\/span><\/p>\nDefinitions<\/b><\/p>\n\n- Some terms are not explained or defined, but simply restate the statutory language, e.g. \u201cDisability support services,\u201d (MPS \u00a7 10.3.5.1) \u201cExternal pressure,\u201d (MPS \u00a7 9.1.3) \u201cPalliative care,\u201d<\/span>[2]<\/span> \u201cReasonable Knowledge Care and Skill,\u201d (MPS \u00a7 3.0) and \u201cvoluntary request\u201d (MPS \u00a7 9.1.3).<\/span><\/li>\n
- Some concepts are introduced without definition or reference to the statute.\u00a0 See e.g., MPS \u00a7 8.7 \u201cProviders must ensure <\/span>safe prescribing, use, storage, and return of substances<\/i><\/b> related to the provision of MAID.\u201d<\/span><\/li>\n
- Some terms should be synonymous but are not; MPS \u00a7 9.1.2 refers to capacity to make decisions <\/span>with respect to health<\/i><\/b>\u201d while MPS \u00a7 9.3.1 and \u00a7 9.3.2 refer to \u201cdecisions <\/span>with respect to MAiD<\/i><\/b>.<\/span><\/i>\u201d<\/span><\/li>\n
- Different terms are used to express the same idea, e.g. \u201cCollateral information\u201d (MPS \u00a7 10.3.4.2) versus \u201cCollateral History\u201d (A-to-P #8).<\/span><\/li>\n
- As well, the Practice Standard uses multiple variants on \u201cthe means to relieve suffering\u201d:<\/span>\n
\n- \u201creasonable and available means to relieve [the person\u2019s] suffering,\u201d is found in MPS \u00a7 8.10, 10.2.9, and 10.3.6, but is not defined.<\/span><\/li>\n
- \u201cmeans available to relieve suffering\u201d appears at MPS \u00a7 9.11.2, 10.2.8 10.3.5, and in A-to-P #s 9a) and 9b),<\/span><\/li>\n
- \u201cmeans available\u201d occurs at MPS \u00a7 9.7.2(a) and is defined at \u00a7 10.3.5.3 as <\/span>\u201cavailable means that are reasonable and recognized.\u201d<\/span><\/li>\n<\/ul>\n<\/li>\n
- MPS \u00a7\u00a7 9.4 through 9.7 explain what constitutes a \u201cGrievous and irremediable medical condition,\u201d without defining terms such as \u201cgrievous,\u201d \u201cirremediable\u201d and \u201crecognized, available, and potentially effective treatments.\u201d<\/span>\n
\n- Where terms are defined, (such as \u201cincurable\u201d (MPS \u00a7 9.5.2, A-to-P 3a), 3b)) \u201ccapability\u201d (MPS \u00a7 9.6.2), \u201cadvanced state of decline\u201d (MPS \u00a7 9.6.3) and \u201cIrreversible\u201d (MPS \u00a7 9.6.4)), they appear not in the Glossary, (which would indicate global applicability) but only in the section that explains eligibility.<\/span><\/li>\n
- In addition, the definition of \u2018incurable\u2019 mentions <\/span>\u201creasonable treatments\u201d without specifying whether this includes promotive, preventive, curative, rehabilitative and\/or palliative care. Nor does the MPS address whether a treatment not covered in the person\u2019s provincial health plan (or another province), would be considered \u201creasonable,\u201d or if the cost (to the province or to the individual), the travel burden or wait time would render them \u201cinaccessible;\u201d (as described in A-to-P # 3b).<\/span><\/li>\n<\/ul>\n<\/li>\n
- The (ambiguous and undefined) phrase \u201cperson requesting MAiD\u201d appears 13 times.<\/span>[3]<\/span> The phrase is probably supposed to indicate the person who <\/span>is asking to die<\/i><\/b>; it is ambiguous because substitute decision makers, family members and medical providers sometimes ask for MAiD on a person\u2019s behalf.\u00a0 Nor is the ambiguity resolved by cautions against \u201cconduct[ing] an assessment for MAID\u201d (MPS \u00a7 8.8) or \u201cprovid[ing] MAID on the direction of anyone other than the person requesting MAID,\u201d (MPS \u00a7 8.4) or even the requirement that \u201c[p]roviders must obtain informed consent directly from the person requesting MAID, not the substitute decision-maker of an incapable person\u201d (MPS \u00a7 9.10).\u00a0 The term should be clearly defined in the Glossary, with reference to each section where it occurs in the Practice Standard documents.<\/span><\/li>\n
- The Glossary (MPS \u00a7 17.0):<\/span>\n
\n- Includes terms not used in the MPS (such as \u201cHealth Professional Association\u201d)<\/span><\/li>\n
- Omits terms that are in the statute, the MPS and \u201cAdvice to the Profession\u201d documents, such as \u201cCounseling services\u201d and \u201cmental health services,\u201d (MPS \u00a7 10.3.5.1) \u201cserious consideration,\u201d (<\/span>MPS \u00a7 10.3.6, A-to-P # 9b)<\/span> \u201cstructural vulnerability,\u201d (A-to-P #13) and \u201csafely and competently\u201d [assess eligibility for or provide MAiD] (MPS \u00a7 4.2).<\/span>[4]<\/span><\/li>\n
- Omits terms that are defined in their statutory context but that also have global application, such as: \u201cadvanced state of decline,\u201d \u201cconsult with,\u201d \u201cincurable,\u201d \u201cirreversible,\u201d and \u201cvoluntariness\u201d\/\u201dvoluntary request\u201d<\/span><\/li>\n
- Omits the terms \u201cShould\u201d and \u201cMust\u201d which \u201carticulate the regulatory authority\u2019s expectations\u201d<\/span>[5]<\/span> and are defined in the preamble. The word \u201cMay\u201d is used in a similar manner<\/span>[6]<\/span> but is not defined in the preamble or the Glossary.<\/span><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
Incomplete \/ missing elements<\/b><\/p>\n
The MPS is incomplete and lacks important elements,<\/span>[7]<\/span> such as:<\/span><\/p>\n\n- Procedures for obtaining or overseeing the waiver of final consent (MPS \u00a7 13).<\/span><\/li>\n
- Procedures for implementing advance consent \u2013 self-administration (MPS \u00a7 14). This applies only to the narrow exception described in \u00a7 241.2(3.5) of bill C-7 which allows a practitioner to administer a lethal substance should self-administration (assisted suicide) fail.\u00a0<\/span><\/li>\n
- Procedures governing self-administration of MAiD (assisted suicide) or for provision of euthanasia (MPS \u00a7 15).<\/span><\/li>\n
- Procedures for documenting MAiD (MPS \u00a7 16.0) and other outcomes, such as:<\/span>\n
\n- whether the person was advised of MAiD, (MPS \u00a7 6.3.3).<\/span><\/li>\n
- completing required documentation, (MPS \u00a7 8.2.3).<\/span><\/li>\n
- the reasoning and evidence on which a capacity determination is based (MPS \u00a7 9.3.6).<\/span><\/li>\n<\/ul>\n<\/li>\n
- Any obligation to provide suicide prevention assessment or intervention EXCEPT where the person making the request is found ineligible for MAiD<\/span>.<\/span><\/li>\n
- The \u201cEffective referral\u201d requirement of timeliness found at MPS \u00a7 5.2.1, and 6.4 are not applied to palliative care, disability supports, and mental health services. This reflects Health Canada\u2019s continuing mission to make access to death ever broader, easier and faster, while relegating services in aid of living well to lower priority. The timely access mandate must be expanded to cover services and supports that reduce requests for euthanasia.<\/span><\/li>\n<\/ul>\n
Modifying policy without legislative approval.<\/b><\/p>\n
Practices that have evolved over the first seven years of MAiD implementation are justified, delimited, and codified by the Practice Standard to legitimize them.\u00a0 Examples include:<\/span><\/p>\n\n- broadening MAiD eligibility<\/b>. BD p. 2 \u00b6 3 mentions \u201ccases of mental disorder as a sole underlying medical condition (MD-SUMC) bear many clinical similarities when compared with some other cases already permitted under the new \u2018Track 2\u2019\u201d and \u201cpersons with mental disorders were already accessing MAID provided they had another qualifying condition.\u201d<\/span><\/li>\n
- Acknowledging the practice of \u201cdoctor shopping.\u201d<\/b> MPS \u00a7 10.2 refers to an \u201celigibility assessment for the current request,\u201d implying that multiple MAiD requests by the same person are expected, tolerated, and accommodated. The A-to-P #8 also refers to doctor shopping in the context of \u201cpast MAID assessments.\u201d<\/span><\/li>\n<\/ul>\n
The Practice standard also changes policy outside of the legislative process.<\/span><\/p>\n\n- Sections of the MPS would <\/span>limit<\/b> (the scope and application of) <\/span>the right to be informed of the means to relieve suffering<\/b>.<\/span>\n
\n- Bill C-14 \u00a7 241.2(1)(e), states that MAiD eligibility requires \u201cinformed consent \u2026 <\/span>after having been informed of the means available to relieve their suffering<\/i><\/b>, including palliative care.\u201d<\/span>\n
\n- The person must be informed of the means to relieve suffering in order to satisfy eligibility criterion, and<\/span><\/li>\n
- The section applies to all MAiD applicants, regardless of whether they have a reasonably foreseeable natural death.<\/span><\/li>\n<\/ul>\n<\/li>\n
- MPS \u00a7 6.1 states that practitioners \u201cmust<\/span> take reasonable steps to ensure<\/i><\/b> persons<\/i><\/b> are informed<\/i><\/b> of \u2026 treatment options available to relieve suffering.\u201d<\/span>\n
\n- \u201cTake reasonable steps\u201d is a lower standard than the \u201cinformed consent\u201d requirement for eligibility.<\/span><\/li>\n<\/ul>\n<\/li>\n
- MPS \u00a7 8.10, (footnote 15) states that \u201c[w]hile an assessor <\/span>may<\/span><\/i> discuss the means available to relieve the person\u2019s suffering for persons under Track 1, it is only a <\/span>Criminal Code <\/span><\/i>requirement that both the assessor and the provider do so for persons under Track 2.\u201d<\/span>\n
\n- Requirement for eligibility equals \u201cmust.\u201d<\/span><\/li>\n
- The right to be informed is not restricted to track 2.<\/span><\/li>\n<\/ul>\n<\/li>\n
- MPS \u00a7 8C omits any duty (on assessors) to inform people on track 1 of the means to relieve suffering.<\/span><\/li>\n
- MPS \u00a7 10.3.5 is labeled \u201cMeans available to relieve suffering (only Track 2).\u201d<\/span><\/li>\n<\/ul>\n<\/li>\n
- The discrepancy between MPS \u00a7 9.1.2 \u201ccapacity to make<\/span> decisions with respect to health<\/i><\/b>\u201d and MPS \u00a7 9.3.1 and \u00a7 9.3.2, referring to \u201c<\/span>decisions with respect to MAiD<\/i><\/b>\u201d is either a significant error or an attempt to change policy.<\/span><\/li>\n<\/ul>\n
Clarification needed.<\/b><\/p>\n\n- MPS \u00a7 4.2 and A-to-P #10 state that practitioners must have \u201csufficient training and experience to safely and competently\u201d assess eligibility or provide MAiD.<\/span>\n
\n- Despite the fact that every person who asks for MAiD has a disability \u2013 whether or not they self-define as \u201cdisabled\u201d \u2013 Health Canada and Parliament have thus far refused to recognize the prevalence of disability and the effects of disability discrimination among people asking for help to die. \u201cSufficient training, experience and qualifications\u201d should therefore include a grasp of the (medical, social and disability justice) models of disability, and the role of barriers and discrimination in limiting the life options available to disabled people.<\/span><\/li>\n
- The \u201cspecial training\u201d recommended for Assessors and Providers (\u201ctrauma-informed care, and cultural safety and humility\u201d) does not mention ableism; though the definition of Cultural Safety does refer to racism and gender bias. Nor does it take into account that disabled people share a legacy of language and cultural deprivation, eugenic practices, poverty, medical abuse and health disparities, exclusion, forced institutionalization, disenfranchisement and physical or sexual violence (and thus disproportionate rates of trauma) similar to that experienced by other oppressed groups.<\/span><\/li>\n<\/ul>\n<\/li>\n
- At MPS \u00a7 6.5, the practice standard requires practitioners to \u201c<\/span>take reasonable steps to<\/i><\/b> ensure the person does not perceive coercion<\/i><\/b>, inducement, or pressure.\u201d<\/span>\n
\n- There is no indication whether this caution is meant to govern the practitioner\u2019s own behaviour, or whether they are charged to prevent coercion, inducement or pressure from other sources, such as the medical team, the person\u2019s family, or entourage.<\/span><\/li>\n
- Also, a cynical view would point out that the caution is against the person \u201cperceiv[ing]\u201d coercion or inducement; does that mean if the person is unaware that they\u2019re being coerced, no violation has occurred?\u00a0<\/span><\/li>\n<\/ul>\n<\/li>\n
- MPS \u00a7 9.3.2 states that the person must have capacity \u201cat the time of the MAID assessment.\u201d This \u2018snapshot\u2019 approach is seemingly contradicted by MPS \u00a7 9.3.3 which provides that \u201cAs capacity is fluid \u2026, practitioners must be alert to potential changes\u201d and recommends that \u201cassessors and providers should undertake serial assessments of \u2026 capacity.\u201d<\/span><\/li>\n
- The definition of \u201cincurable\u201d (MPS \u00a7 9.5.2) mentions <\/span>\u201creasonable treatments\u201d without specifying whether a treatment not covered in the person\u2019s provincial health plan, would be considered \u201creasonable,\u201d or if the cost, travel burden, wait time or other factors would render them \u201cinaccessible;\u201d (as per A-to-P # 3b).<\/span><\/li>\n<\/ul>\n
Capacity determination<\/b><\/p>\n\n- It is unclear whether the guidelines for capacity assessment contained in MPS \u00a7 9.3 are meant to satisfy \u201cclinical standards and legal criteria\u201d referred to, but not described, in MPS \u00a7 9.3.5.<\/span><\/li>\n
- MPS \u00a7 9.3.2 proposes a modified Appelbaum standard for determining capacity, where the abilities to understand, appreciate, reason and express a decision are whittled down to the ability to \u201cunderstand and appreciate,\u201d and applied to three topics; the history and prognosis of the medical condition, treatment options, risks and benefits, and that the outcome of MAiD is death.<\/span>\n
\n- This requires that the person be given information that is not statutorily mandated for people whose natural death is \u201creasonably foreseeable \u2026 without a prognosis necessarily having been made as to the specific length of time that they have remaining.\u201d If a prognosis has not been made or communicated, how can the person\u2019s capacity be determined based on their ability to understand and appreciate the implications of the prognosis?<\/span><\/li>\n
- Also, as Dr. Madeline Li pointed out in the <\/span>expert report<\/span> she submitted in the <\/span>Lamb<\/span><\/i> case, the Appelbaum criteria \u201cfocus only on the cognitive aspects of capacity \u2013 which represents a low bar that only those with significant cognitive impairment would fail to reach.\u201d (at \u00b6 15).<\/span><\/li>\n<\/ul>\n<\/li>\n
- The Practice Standard recommends that \u201cwhere appropriate, assessors and providers should consult with clinicians who have expertise in capacity assessments (MPS \u00a7 9.3.4) but fails to mention how such experts would be identified, or what circumstances would make such a consultation \u201cappropriate\u201d or necessary.<\/span><\/li>\n
- No guidance as to format, deadline or recipient\/audience is provided for assessors and providers to \u201cdocument the reasoning and evidence upon which their assessment of capacity is based\u201d (MPS \u00a7 9.3.6).<\/span><\/li>\n<\/ul>\n
Low compliance standards<\/b><\/p>\n\n- The MAiD statute (at \u00a7 241.1(d)) says that a voluntary request is one that \u201cin particular was not made as a result of external pressure,\u201d but \u201cexternal pressure\u201d is not defined in the statute, the regulations, or the Model Practice Standard. The MPS Task Group excludes socio-economic pressures from its discussions of \u201cexternal pressure,\u201d limiting it to \u201cundue influence\u201d (with no mention of abuse or coercion, despite the high rates of abuse documented against elders and disabled people). This shifts the focus away from poverty, discrimination, and other systemic causes that prompt people to ask for death.<\/span>\n
\n- The discussion of suffering at MPS \u00a7 9.7.2 limits \u201call dimensions\u201d of suffering to \u201cphysical, psychological, social, [and] existential,\u201d emphasizing that \u201cthe person\u2019s illness, disease, or disability and\/or state of decline in capability \u2026 is the cause of the person\u2019s suffering,\u201d without reference to \u201cexternal pressures.\u201d<\/span><\/li>\n
- The explanation of Voluntariness at MPS \u00a7 9.8 also omits \u201cexternal pressure,\u201d saying that \u201cassessors and providers must be satisfied that the person\u2019s decision to request MAID has been made freely, without undue influence \u2026 from family members, health care providers, or others.\u201d Nor does the section explain how practitioners should determine whether the person has been subjected to interpersonal pressure.\u00a0<\/span><\/li>\n
- The section on involuntary hospitalization (MPS \u00a7 9.9) says nothing about institutionalization due to lack of home-based services.<\/span><\/li>\n
- A-to-P #13b) says that practitioners should \u201cstrive to be aware of structural vulnerability and how associated systemic barriers and biases against MAID requesters may have affected their interactions in the healthcare system and their ability to access appropriate resources\u201d not whether their request was voluntary.\u00a0 Imposing a <\/span>de minimis<\/span><\/i> obligation (that practitioners \u201cstrive to be aware\u201d of \u201cbarriers and biases\u201d) absent any obligation to remediate the effects of discrimination and exclusion, makes the statutory protection against \u201cexternal pressure\u201d meaningless.<\/span><\/li>\n<\/ul>\n<\/li>\n
- Health Canada has failed to correct the low priority given to communication access in the procedural safeguards, which remain at the end of the checklist (MPS \u00a7 10.1.7, 10.2.11).\u00a0 This despite studies showing that 33-53% of people using mechanical ventilation need communication access,<\/span>[8]<\/span> and that failure to ensure effective communication can lead to patients feeling helpless, anxious, and frustrated, and contribute to medical errors, unnecessary pain, confusion about medication regimes, and human rights violations. The MPS should mandate that effective and impartial receptive and expressive communication is ensured from the first interaction between the person and MAiD assessors and providers.<\/span><\/li>\n
- MPS \u00a7 10.3.4 states that \u201c[f]orming an opinion about MAID eligibility <\/span>