Not only is Canada further advanced than all states in the US with respect to Medical Aid In Dying (MAID or MAiD), it also has surpassed the US for those who want Voluntary Stopping of Eating and Drinking (VSED–also used for Voluntarily Stopping Eating and Drinking), both at a time when the patient is mentally competent and when a person has placed VSED instructions in an advance directive to be used when the person is no longer competent.
In a recent paper on the subject, “VSED as an alternative to MAiD: A Pan-Canadian legal analysis” by Sarah Mader and Victoria Apold, published by SSRN, an online publisher of research, the authors provide legal analysis, though without presenting direct case law on the issues. In the US, too, we don’t have case law supporting VSED through advance directives.
To understand the availability of VSED using advance directives, it is necessary to consider it in each jurisdiction. Canada has thirteen jurisdictions–ten provinces and three territories. MAID is available in all of them through Canadian federal legislation. In contrast, the US has fifty states, the District of Columbia, and sixteen territories, five of which are inhabited. MAID in the US is available in ten of these jurisdictions, most through state laws, one by action of the D.C. City Council, and by a decision of the Montana Supreme Court interpreting its state constitution to allow it.
No MAID or advance directive law of which I am aware directly discusses VSED, though artificial nutrition and hydration is frequently mentioned in advance directive statutes as a treatment that a person can disavow or reject to hasten their death.
MAID in Canada
The research paper explains how MAID works in Canada:
[A]ccess to MAiD is restricted to individuals who meet the following conditions:
Are eligible for health services funded by a government in Canada (or would be eligible but for minimum period of residence or waiting period);
• Are at least 18 years old and capable of making decisions with respect to their health;
• Have a grievous and irremediable medical condition which meets the following criteria: – they have a serious and incurable illness, disease or disability;- they are in an advanced state of irreversible decline in capability;- that illness, disease, or disability, or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and- their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
• Make a voluntary request for medical assistance in dying that was not made as a result of external pressure;
• Give informed consent to receive medical assistance in dying after having been informed of means available to relieve their suffering, including palliative care;
• Have 10 clear days between the day their formal request for medical assistance in dying was signed and the day on which the medical assistance in dying is provided (unless death or loss of capacity to provide informed consent is imminent then a shorter period);
• Immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.
These criteria are similar to US states MAID requirements, though they differ in several important respects:
1. Eligibility to participate in the Canadian health care system (something unavailable to millions of US citizens in their country, which does not offer universal health care).
2. The criterion “grievous and irremediable medical condition” is used in Canada, where MAID statutes in the US require a terminal illness.
3. Natural death must be “reasonably foreseeable” rather than defined as six months or less to live (as it is in the US).
4. Canadian law also can include psychological suffering, whereas US jurisdictions rely solely on physical suffering. However, psychological suffering alone cannot be the reason for use of the Canadian MAID law, though some experimenting with a broader psychological basis for using the MAID law is being advanced in some Canadian jurisdictions.
There are at least two limitations common to both Canadian and US law: (1) those who have decision-making capacity at the time of their initial MAID request, but do not have decision-making capacity at the time they want to use the law; (2) patients who meet the MAID eligibility requirements, but do not have access to MAID clinicians who will carry out their choice.
VSED issues
Perhaps the most important contribution to the VSED discussion made by this paper is the clear presentation of two issues involved with VSED (though I would word the second issue slightly differently):
(1) Is a competent person legally permitted to cause his or her own death through VSED?
(2) Must health care providers respect a previously competent person’s prior capable expressed wishes not to be offered or given artificial and oral nutrition or hydration after losing capacity?
The answer to the first question is that in Canada, as well as the US, competent individuals have the legal right to refuse both orally ingested and artificial nutrition and hydration. The answer to the second question is more complicated in both Canada and the US:
(a) In both Canada and the US, competent persons may refuse artificial nutrition and hydration.
(b) In both the US and Canada, previously competent persons are legally permitted to refuse artificial nutrition and hydration through a valid advance directive.
(c) “Previously competent individuals are legally permitted to refuse oral nutrition and hydration through a valid advance directive in Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Quebec, Ontario, Alberta, British Columbia, Yukon and Nunavut.” (Emphasis added.)
(d) “In New Brunswick, Manitoba, Saskatchewan and the Northwest Territories the legal status of VSED for a previously competent person refusing oral hydration and nutrition through an advance directive is less certain.” (Emphasis added.)
In contrast, nowhere in the US is it clearly established that a previously competent person may refuse oral (i.e., orally ingested) nutrition and hydration through an advance directive. For more information about VSED in the US, especially concerning why a VSED advance directive should be legal, see the previous post on this subject.
A chart for Canada, its provinces and territories, showing the conclusions reached in this paper can be found at Prof. Thaddeus Pope’s blog.
Thank you for this clear presentation. These distinctions between the US and Canadian law help clarify how far behind the US is in legislation and how much more work there is do be done.
Although not a focus of this post, a huge difference between Canadian and USA MAiD is that Canada allows euthanasia in that providers may assist the dying with taking the life-ending dose, typically (at least in British Columbia) by IV.