See below for a letter from the CCRC sent today to members of the Joint Parliamentary Committee on MAID.
June 23, 2022
Re: Medical Assistance in Dying – recommendation for children’s rights approach and considerations in fall committee hearings
Dear Mr. Garneau and other members of the Joint Parliamentary Committee on MAID,
The Canadian Coalition for the Rights of Children (CCRC) is reaching out to suggest the consideration of children’s rights in regard to the upcoming changes to MAID and the interim report submitted on June 22, 2022. The CCRC is a national umbrella group of organizations and individuals across Canada who promote the rights of children and the full implementation of the Convention on the Rights of the Child in Canada, and globally.
In your deliberations in respect of your mandate to update recommendations on the framework of a federal response on physician-assisted dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians, our Coalition urges you to consider the impact of your recommendations on children through the perspective of the rights of children and Canada’s international obligations under the Convention. The following is a brief summary of the issues that we believe reflects that perspective. In addition, we urge you to work with the Department of Justice to undertake a full Child Rights Impact Assessment to study this issue for children’s rights, and to invite experts in children’s rights to appear in Committee in the fall.
There are a number of important children’s rights principles that must be taken into account when looking at MAID. In brief, these include:
- UN Convention of the Rights of the Child (CRC), Article 12 (views of the child): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
- UN CRC, Article 2 (non-discrimination): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Also important for the provision for special safeguards for vulnerable groups, such as those with disabilities.
- UN CRC, Article 24 (access to health care and health services): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
- UN CRC, Article 5 (evolving capacity of the child): States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
In an ideal world, no child would ever suffer from a terminal condition; they would not endure intractable pain nor face the indignity of losing control over one’s own body and mind nor would their parents have to watch their child suffer, knowing death was inevitable.
Despite advances in health care, in particular palliative care and pain management, there are cases where suffering cannot be alleviated. Further, physical suffering alone is not the sole motive of those who seek an end to life. Loss of dignity and autonomy as one’s body succumbs to disease and injury, are most often stated as reasons alongside intractable pain, to control how and when the end comes. Losing control over bodily functions, the inability to communicate, and having to rely on family members and others for the most basic tasks of existence, all contribute to the underlying desire for physician-assisted death. The application of MAID for mental health reasons alone may not be appropriate for those under the age of 18, given what is known about the natural history of many mental health disorders that first present in adolescence; however, the emotional suffering experienced by mature minors confronting terminal physical health conditions must not be discounted as less profound or significant than that of the adults for whom MAID has been deemed a consideration.
As the Government of Canada updates MAID, the question remains: Will the amendments to the law respect the rights of capable children and youth; or will the law deny them equal access to make decisions concerning their bodily integrity, such that they alone will be left to “endure intolerable suffering” when death is a certitude, without the right to seek physician-assisted dying? Such a decision would not only be cruel and unfair, but also in violation of Article 12 of the UN Convention on the Rights of the Child, as well as inconsistent with Canadian common law and the majority of provincial laws, which grant the right to make one’s own medical decisions based on capacity, not an arbitrary age maker.
In A.C. v. Manitoba (Director of Child and Family Services), a majority of the Supreme Court held that “The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views….” “ If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected (para. 87).”
Thus, Canadian children and youth based on their capacity, not age, can request the removal of life-sustaining medical equipment such as ventilators, refuse artificial nutrition and hydration, and refuse life-saving treatments such as dialysis or chemotherapy even though that treatment may prolong their life. It is incoherent and unethical to acknowledge the right of capable children and youth to consent to end medical treatment, which might result in their own death; but not extend to them the same right as adults, to assistance in ending their suffering from a “grievous and irredeemable dying”.
As in all discussions concerning physician-assisted death, there are legitimate concerns about protecting the vulnerable, those who do not have capacity, and those who do not have the ability to express their wishes. The concerns about vulnerable populations is not age dependent, nor should concerns about adequate safeguards (as the Supreme Court has noted) justify denying the most basic rights to the citizens of a country, the right of bodily integrity and security of the person as it applies to ending an unwanted life, dominated by intolerable and hopeless suffering. It is important that the Supreme Court’s ruling that the suffering must be “grievous and irremediable” is respected and that all avenues of pain alleviation are offered, and that only those in a hopeless medical situation are offered assistance in dying as a relief from suffering. However, that desired relief should not be denied on the basis of age alone.
While the state has a legitimate interest in protecting those who are vulnerable, choosing an arbitrary age upon which to grant the right to assistance in ending the intolerable suffering of a prolonged dying, cannot stand up to scrutiny under the Charter or the UN Convention on the Rights of the Child.
We hope there is a chance for children’s rights experts to be invited to committee hearings in the fall to address these important considerations.
Coalition Canadienne pour les Droits des Enfants
Kate Butler, CCRC Chair