Slowing the Slide Down the Slippery Slope of Medical Assistance in Dying: Mutual Learnings for Canada and the US

Abstract

Canada and California each introduced legislation to permit medical assistance in dying in June, 2016. Each jurisdiction publishes annual reports on the number of deaths that occurred under their respective legislations in the previous years. The numbers are disturbingly different. In 2021, 486 individuals died under California’s End of Life Option. In the same year 10,064 Canadians died under that country’s Medical Assistance in Dying (MAiD) legislation. California has a slightly larger population than Canada, and while medically assisted deaths as a percentage of total deaths remained virtually unchanged in California from 2020-2021, Canada saw a 30% increase from 2020 to 2021. This essay examines some of the factors propelling Canada down the slippery slope of medically assisted suicide, as well as those that may be keeping California and other US jurisdictions from taking the slide. At a time of increasing pressure in many jurisdictions (both nationally and internationally) to liberalize access to medical assistance in dying, some lessons from this comparative analysis are offered.

Keywords:

• Active euthanasia
• assisted suicide
• end-of-life care
• state sanctioned homicide

This article is referred to by:

A Disabled Bioethicist’s Critique of Canada’s Medical Assistance in Dying (MAID)

Top Ten New and Needed Expansions of U.S. Medical Aid in Dying Laws

Care to Ease the Slope? Differences in Canadian and Californian Medical Assistance in Dying Laws

Different MAiD Laws, Different MAiD Outcomes: Expected Rather Than “Disturbing”

The Quest for Humane Termination of Intractable Suffering May Be an Uphill Struggle, Not a Downhill Slide on a Slippery Slope

Daryl Pullman on the Slippery Slope of MAID: Simple, Neat, and Wrong

What’s Wrong with Medicalization?

The Slippery Slope Argument and Assisted Death: Which Approach to MAiD Does It Really Support?

Of Slopes and Ropes: Learning from the Diversity of European Regulations of Assisted Dying

A Slippery Argument: Ableism in the Debate on Medical Assistance in Dying

Ethics of Love for End-of-Life Care: Beyond Autonomy and Efficiency

Comparisons Only Yield Valid Mutual Learnings If Based on Accurate Descriptions of the Comparators

Medical Assistance in Dying: Going beyond the Numbers

Canadian Medical Assistance in Dying and the Hegemony of Privilege

When Death Becomes Therapy: Canada’s Troubling Normalization of Health Care Provider Ending of Life

A Different Slippery Slope

Aid in Dying in Canada and the United States: Are U.S. States Too Cautious?

For every human problem there is a solution that is simple, neat, and wrong. —H.L. Mencken

In 1994 George Annas published a fictitious letter in the Hastings Center Report titled: “The Last Kevorkorium: Rights and Responsibilities at Death’s Door” (Annas 1994). Annas’s tongue-in-cheek missive was supposedly authored by the executive director of the National Ethics Action Tabernacle (NEAT). It was dated May 2020, then a quarter of a century in the future. In that letter, NEAT was sounding the alarm about a secret plan of the National Health Board to eliminate America’s last remaining Kevorkorium.

Named after the (in)famous patient rights pioneer Dr. Jack Kevorkian, Kevorkoria were effectively death parlors where responsible citizens could go to fulfill their simple duty to die with dignity. Customers of these facilities could choose from a variety of end-of-life experiences, all administered by the friendly staff in a relaxed and dignified setting. However, in Annas’s dystopian future, by 2020 Congress had given all physicians a federal license to kill and a concomitant obligation to provide patients with lethal pills or an injection upon request. With the legalization and medicalization of suicide complete, the National Health Board deemed Kevorkoria redundant; hence the plan to close them. NEAT’s concern was that in the absence of Kevorkoria, medicalized suicide was undercutting autonomy by making death insufficiently dramatic: “Outside of Kevorkoria suicide is no longer a deeply personal act—it is a communal act,” complained NEAT’s executive director. “Families encourage their loved one to take advantage of the physician’s needle to avoid a long and lingering death. Communities give good citizen awards for those families who volunteer their demented loved ones for substituted judgment suicide” (Annas 1994, 16).

In 1994 American was struggling to come to grips with the actions of the real Dr. Kevorkian, a medical pathologist who defied the courts by willfully assisting dozens of terminally ill people to end their lives. Annas’s facetious letter can thus be read as a somewhat dramatic slippery slope argument. If America failed to act decisively with people like Dr. Kevorkian, it would effectively be embracing the notion of physician assisted death. The eventual outcome might be the medicalization of suicide and the co-optation of the medical profession itself.

With the benefit of hind-sight we can now see that Annas’s concerns about America’s potential descent into such a dire future have so far not materialized. Although Oregon enacted legislation in 1997 to allow for physician assisted death, and while numerous other US jurisdictions have introduced similar legislation in the intervening years (at this writing, 10 US states and the District of Columbia allow some form of medical assistance in dying), America is not yet on the brink of the full-scale medicalization of suicide of which Annas warned.

The same cannot be said for America’s neighbor to the north. Canada passed legislation in 2016 to permit medical assistance in dying [MAiD] (Bill C-14 2016). Although the initial bill was already more liberal than what is currently permitted in any US jurisdiction, the Canadian law has now been amended to allow for wider access (Bill C-7 2021). No longer does an individual’s death need to be “reasonably foreseeable” in order for an applicant to qualify for MAiD. Beginning in March 2024 the revised legislation will also allow those suffering from a mental illness but without any other underlying medical condition to be eligible for MAiD (Government of Canada 2023). A parliamentary committee recently recommended exploring the possibility of extending eligibility to “mature minors” (Fraser 2023). Far from being concerned about a potential slippery slope with regard to the rapid expansion of MAiD in Canada, the Canadian courts and legislators seem intent on waxing the runners on the sled. In a very brief time Canada has come alarmingly close to realizing the hypothetical future of medicalized suicide and co-opted medical professionals of which Annas warned America some 25 years ago. There is little humor and less comfort in observing that the efforts of Annas’ fictitious “NEAT” are on the path to being realized by Canada’s actual “MAiD.”

Despite the rapid rise in the number of MAiD deaths during the brief time Canada has had this legislation, not all are convinced Canada is on a slippery slope; many take comfort in the fact that various lower court decisions expanding access to MAiD have gone largely unchallenged by government, taking this as an indication that all is well. But as has been demonstrated all too clearly in the recent US Supreme Court decision on Roe v Wade, the fact that any court (including the highest in the land) establishes a legal precedent, does not obviate the moral issues pertaining to the matter at hand. Many who in principle are not opposed to MAiD in all circumstances, are nevertheless concerned about the rapid liberalization of MAiD law in Canada that is effectively medicalizing suicide.

In what follows I review some of the factors that have contributed to the rapid liberalization of assisted death in Canada, comparing it to the somewhat more cautious approach taken in various US jurisdictions with a particular focus on California. As the debate about the introduction and/or expansion of assisted dying legislation continues, there are potential lessons (both positive and negative) that could inform this discussion on either side of the border.

ASSISTED DYING IN CANADA AND CALIFORNIA: A DISTURBING COMPARISON

MAiD became legal in Canada in June 2016, the same month and year that the End of Life Option Act became law in California (California, End of Life Option Act 2016). While California’s legislation is modeled closely on that of other US jurisdictions which have taken a decidedly conservative approach to the legalization of physician assisted death, Canada looked to established European examples such as those of Belgium, the Netherlands and Luxembourg, all of which have embraced more liberal approaches. California has a slightly larger population than Canada, so the two jurisdictions provide a natural comparison of how medical assistance in dying has played out over the first 6 years in two North American liberal democracies.

Both Canada (Health Canada 2020, 2021) and California (California Department of Public Health 2020, 2021) produce annual reports complete with statistics on the practice of medically assisted death. The numbers for the years 2020 and 2021 are disturbing (see Table 1). In Canada, 7,595 people received MAiD in 2020, representing 2.5% of all deaths in the country. In the same year, California reported 435 deaths under the End of Life Option, 0.15% of all deaths. While the Canadian numbers for 2020 represent a 25% increase over the deaths reported in 2019, California reported a slight decrease in assisted deaths between 2019 and 2020. The numbers for 2021 indicate a continuation of these trends. While California saw a marginal increase in the total number of assisted deaths in 2021, assisted deaths as a percentage of total deaths remained constant at 0.15%. Canada saw a greater than 30% increase of medical assisted deaths in 2021 compared to 2020 and assisted deaths as a percentage of total deaths increased from 2.5% in 2020 to 3.3% in 2021. From the time MAiD became legal in 2016 through 2021, 31,664 Canadians have died under that legislation, compared to 3,344 Californians who exercised the End of Life Option during that same period. While the most recent report from Health Canada states somewhat reassuringly that MAiD deaths as a proportion of all deaths remains relatively small, the appropriate question in this context is “relative to what, exactly?” Relative to California the Canadian numbers are disturbingly high, and they are trending upward.

Table 1. Canada–California comparison—2020/2021^a.

MAiD (Canada)—End-of-Life Option (California)
Comparative statistics	Canada 2020	Canada 2021	California 2020	California 2021
Number of requests	9,375	12,286	Not reported	Not reported
Number of approvals	7,384	12,165	677	772
Number of deaths	7,595	10,064	435	486
Death via lethal injection	7,588	10,057	0	0
Death via oral protocol	7	7	435	486
Assisted deaths as percentage of all deaths	2.5%	3.3%	0.15%	0.15%
Percentage of requests withdrawn (not completed)	2.5%	1.9% (13.1%)	28.5%	37%
Total assisted deaths 2016 through 2020/2021	21,589	31,664	2,858	3,344

^aThe annual reports issued in either jurisdiction are at times ambiguous in the manner that numbers are reported. This is due in part to the fact that patients approved for an assisted death in one year may not complete the act until the following year. In some cases particular details reported in one year are excluded in subsequent years, or conversely, details excluded in a previous report might be included in a subsequent report.

We can only speculate as to why so many more people in Canada choose a medically assisted death as compared to those in California. Perhaps the criteria for access are too restrictive in California, or maybe Canada’s criteria are too liberal. Maybe Californians have access to better palliative and end-of-life care than is available in Canada, or perhaps California has better social support networks in general. Perhaps some Canadian health care providers are just too quick to acquiesce to requests for MAiD, and the fact they are then willing to facilitate the process by directly administering the lethal medications required, could influence some patient’s decisions. Such reasoning is of course speculative, and there are no doubt many factors involved. But when the numbers are so stark and the stakes so high, it behooves us to identify and examine the contributing factors.

Consider first the criteria for access to an assisted death. All US jurisdictions with a legalized end-of-life option require that those who wish to exercise it must have an incurable, terminal condition with a life expectancy of six months or less. Although the Canadian legislation enacted in 2016 did not specify a 6 month time frame per se, it did state that to qualify an individual must have a “reasonably foreseeable natural death” (RFND). However, from the outset in Canada, for a variety of reasons, the RFND criterion was interpreted loosely. To begin, the index legal case that was eventually ruled upon by the Supreme Court of Canada (SCC) is now known as the “Carter decision.” It is named after Lee Carter, one of several plaintiffs who, in 2012, brought their case to the Supreme Court of British Columbia (SCBC). Carter et al argued that the prohibition of assisted suicide contained in the Canadian Criminal Code violated their rights as codified in the Canadian Charter of Rights and Freedoms.

In 2010, Lee Carter had taken her mother Kay to Switzerland to receive an assisted death which was technically against the law in Canada at that time. However, Kay Carter was suffering from a non-terminal illness when her daughter assisted her in receiving MAiD in Switzerland. While the SCBC eventually ruled in favor of Lee Carter and the other plaintiffs, that ruling was overturned by the BC Court of Appeal on the grounds that the Supreme Court of Canada (SCC) had established a precedent on this matter in a 1993 ruling (Rodriguez v. Canada 1993). As such the SCBC court could not overrule the highest court in the land. The Appeals Court decision was then appealed to the Supreme Court of Canada (SCC) which, in 2015, overruled the BC Appeals Court upholding the original SCBC decision (Carter v. Canada 2015). Inasmuch as the Criminal Code prohibition against assisted suicide was thus deemed unconstitutional, Parliament was required to draft legislation removing that prohibition. Hence the 2016 legislation on MAiD that included the RFND criterion.

While the BCSC and subsequent SCC decisions will forever be referred to as the “Carter” case, in point of fact, neither court considered the details of Kay Carter’s chronic but non-terminal medical condition when making their respective rulings. Instead each very intentionally focused its deliberations and subsequent judgment on another plaintiff, Gloria Taylor, who did have a condition that would lead to her death in the reasonably foreseeable future. This was because the details of Gloria Taylor’s medical condition closely mirrored those of Sue Rodriguez, the woman at the center of the earlier SCC ruling (Rodriguez v. Canada 1993). In effect the so-called Carter case provided the SCC an opportunity to revisit its earlier decision by focusing on Gloria Taylor, a relevantly similar case. Upon reflection the SCC decided that in light of evidence that had emerged in the intervening years it could now reverse the decision it had made two decades earlier. It must be emphasized, however, that the SCC decision was based on the facts of the Taylor case.

Even though the SCC purposefully distanced itself from Lee Carter’s role in assisting her mother’s death when making its final arguments, stating explicitly that its ruling was restricted to the circumstances of the Taylor case, proponents of the rapid liberalization of the law in Canada continually offer a more expansive interpretation of the SCC decision, a view that is generally supported by the mainstream media (Downie and Chandler 2018). Thus there is a general perception amongst the Canadian lay public and amongst many medical professionals as well, that the SCC decision in “Carter” is focused on the case of Kay Carter who suffered from a chronic but non-terminal condition. Indeed, one physician who is perhaps the most prolific purveyor of MAiD in Canada has used actuarial charts to predict that Kay Carter might have lived an additional 10 years had she not received an assisted death. Hence she interprets and applies the RFND criterion accordingly (Bryden 2020). This expansive interpretation has been adopted by the Canadian Association of MAiD Assessors and Providers, members of which facilitate the vast majority of MAiD cases in Canada (Canadian Association of MAiD Assessors and Providers 2017).

Any ambiguity in interpreting the RFND criterion was rendered moot in 2018 when two Quebec residents with non-terminal illnesses challenged the criterion. A Quebec court deemed the criterion a violation of the Canadian Charter of Rights and Freedoms (Truchon v. Procureur général du Canada 2019). Given the narrow focus of the SCC ruling in Carter/Taylor, it was surprising that the federal government decided against challenging this lower court decision choosing instead to amend the earlier legislation, thus giving access to MAiD for those deemed not to meet the RFND criterion. The Quebec judgment effectively separates “suffering” from “end-of-life.” It is now clear that the Canadian legislation is not primarily about hastening death for the terminally ill, but more expansively about ending suffering irrespective of the proximity of that suffering to a patient’s natural death.

Bill C-7, the revised legislation introduced in the wake of the Quebec decision, reiterates the original legislation in emphasizing that whether suffering is deemed unbearable is up to the individual patient to decide. However, under the expanded criterion virtually any person with an irremediable disease, illness or disability deemed to be experiencing an irreversible decline of capability is now eligible. There is no obligation for medical practitioners to ensure that all other medical options for relief of suffering have been explored (Lemmens, Shariff, and Herx 2021).

Once suffering is separated from end-of-life, and MAiD becomes a first line option for ending subjective suffering, however it is construed, MAiD becomes an efficient solution to a variety of complex problems, medical, social, or otherwise (Raikin 2023). While MAiD is a fully insured service in all Canadian jurisdictions, there is no guaranteed access to medication, housing, or other social determinants of health that ostensibly contribute to the suffering of Canadians everywhere. In one recent disturbing case, a 51-year-old woman suffering from multiple chemical sensitivities received an assisted death when her attempts to find adequate housing, free of cigarette smoke and other chemicals, were unsuccessful (Favaro 2022). Although access to MAiD for those suffering from mental illness will not be permitted legally until 2024, already in 2019 an individual suffering from chronic depression was granted MAiD despite the protests of his family (Cheng 2022). While such troubling cases are reported in the media from time to time, there appears to be little appetite or capacity among various oversight bodies to challenge them. While continuing efforts are being made to ensure that the revised legislation removes “barriers to access,” the matter of effective monitoring and oversight has been neglected. Indeed what are now described as “barriers” were characterized previously as “safeguards” (Kotalik 2020).

The Quebec decision (and the federal government’s subsequent acquiescence) has pushed Canada decisively down the slope to the full-fledged medicalization of suicide. In the wake of the Quebec decision, Canadian legislators have now amended the law to create two tracks for MAiD complete with separate eligibility criteria. Track one still requires a diagnosis of an RFND with an expedited process to an assisted death. Track two, for those deemed not to have an RFND, requires a 90-day reflective period in which to consider whether a non-lethal intervention might be sufficient and/or preferable.

Human rights observers from the United Nations, including the Special Rapporteur on the rights of persons with disabilities, echoed the concerns of disability rights advocates across the country when they expressed alarm that the proposed expansion of Canada’s legislation would put vulnerable persons at risk (Quinn, Mahler, and De Schutter 2021). While not speaking on behalf of the United Nations per se, the observers nevertheless worried that the proposed expansion was based on ableist assumptions that devalue the lives of persons with disabilities and suggest the revised legislation might contravene Article 10 on the Rights of Persons with Disabilities, a document Canada had ratified in 2010.

While the initially ambiguous and recently expanded access criteria have no doubt contributed to the higher number of deaths due to MAiD in Canada compared to California, the expanded criterion only came into effect in 2021; technically the effects of the expanded criteria are not yet reflected in the 2020 report. Although the 2021 report does include deaths now eligible under the expanded criteria, only 2.2% of the total deaths reported in 2021 were for those who did not have a RFND. Given that the RFND criterion has always been interpreted liberally, so far the amended legislation appears to be having only a marginal effect on additional cases.

The considerably higher numbers of assisted deaths in Canada are in large part due to the liberal interpretation and application of the RFND criterion even before the legislation was revised, compounded by the acquiescence and seeming indifference of the various federal and provincial authorities, the courts, and medical associations alike, all of which are ostensibly responsible for policing the act. Indeed, the Canadian Association of MAiD Assessors and Providers has released a statement advising its members that there is no need to revisit the RFND criteria in light of the revised legislation (Canadian Association of MAiD Assessors 2022). Anecdotally there is evidence that some MAiD assessors and providers prefer an expanded interpretation of the RFND criterion over the recent non-RFND amendment, as the 3-month waiting period for non-RFND patients (i.e. those experiencing intolerable suffering but who are expected to live longer than 10 years) is viewed by some as an unnecessary burden.

Another significant difference between Canada and California concerns the mode of death offered under the respective legislations and the role of medical professionals in the process. California, like all US jurisdictions that allow physician assisted death, permits physicians to prescribe a lethal dose of medication, but prohibits them from actively participating in terminating their patient’s lives by administering the medication. This is described as the oral protocol; terminally ill patients are responsible for filling the prescription, and then ingesting it at a time of their choosing should they decide to complete the act. Canada’s legislation is more liberal in that it permits physicians and nurse practitioners to actively end patient’s lives through the administration of a lethal dose of medication intravenously, irrespective of whether the patient is suffering from a terminal illness. While all Canadian jurisdictions (except Quebec) allow for the oral protocol, it is rarely used. Only 7 of the 7,588 MAiD deaths reported in 2020 and 7 of the 10,064 deaths in 2021 utilized the oral protocol.

It is notable that in California in both 2020 and 2021 approximately 30–35% of individuals who were approved for an assisted death either never filled the prescription, or, having filled it, decided against using it, thus dying of natural causes. This number is generally consistent with other US jurisdictions that permit physician assisted suicide. For a considerable number of individuals simply knowing they have the option to end their lives should their circumstances become unbearable, seems to be sufficient. In Canada, only 2.5% of individuals deemed to have met the criteria for MAiD in 2020, and 1.9% in 2021, withdrew their request. Health Canada’s 2021 report indicates that 13.1% of those deemed eligible for MAiD died of natural causes before MAiD could be initiated. While some proponents of MAiD might see this as a positive indication that the Canadian health care system provides at least this particular service in an effective and efficient manner, others might worry that a heightened efficiency in terminating the lives of the suffering portends a continuing inefficiency in attending to other means of compassionate care. Both “compassion” and “sympathy” connote the idea of “suffering with,” of coming alongside of the vulnerable so as to bear their burdens with them. Compassionate caring thus construed, foregrounds the values of community and our mutual responsibilities for one another. This latter position has been championed in the “ethics of care” literature, yet in Canada the notion of “care” is very narrowly construed (Pullman 2020). This is not to suggest that proponents of the expansion of MAiD in Canada lack sympathy or compassion for the suffering of those who consider that the end of their existence is their best available alternative. It is just that managing such suffering is characterized as a matter of personal autonomy and individual choice; mutual responsibility thus construed requires responding positively to the supposedly autonomous decisions of desperate individuals to end their suffering (physical, psychological, existential or otherwise) by actively terminating their lives. It is this kind of outcome about which Annas raised the alarm in his 1994 missive.

The foregoing raises the question of what constitutes a truly autonomous choice. In light of the dramatic difference in the total numbers of medically assisted deaths in Canada as compared to California and other US jurisdictions, as well as the relatively low number of Canadians who decide against completing the process once initiated, the role of the medical professional in these respective processes demands closer scrutiny. The somewhat arms-length role of US practitioners ensures that they are only the proximate cause of death for those patients who follow through by first filling the prescription and then eventually ingesting the lethal dose of medication. The fact that a significant percentage of terminally ill patients in the US who initiate the process never follow through, suggests that the process itself serves as a safeguard ensuring that only those fully and consistently committed to ending their lives will experience a physician assisted death. Put otherwise, the California protocol aims to ensure that this most momentous and final decision is indeed an autonomous one. The Canadian approach is more ambiguous in this regard. While the proponents of MAiD insist that honoring patient autonomy and individual choice is their driving principle, the role of the health care practitioner in first assessing whether the patient meets the increasingly expansive criteria for an assisted death, and then acting as the direct cause of the patient’s death by administering the lethal medications, renders this claim suspect.

Those contemplating the end of their existence, for whatever reason, are clearly vulnerable. Physicians and other health professionals ostensibly involved in their care can serve as a controlling influence by virtue both of their perceived powerful role in society in general, as well as their direct involvement as care providers, however that care is construed. It is notable in this regard that while only 75% of requests for MAiD in Canada were approved in 2020, 99% were approved in 2021 indicating that assessors are becoming increasingly comfortable with the expanded criteria. Again, this is not to suggest that Canadian medical practitioners involved in the provision of MAiD either as assessors or as direct administers of the lethal medications, are intentionally coercive toward these most vulnerable patients. But when a patient approaches a medical professional intent on exploring the option of an assisted death, how that professional interacts with the patient can do much to influence the patient’s decision, irrespective of the intent to be non-directive. Indeed, the very effort to be non-directive out of some narrow view of what it means to respect “patient autonomy” could be perceived as an endorsement of that option. This will become a particularly acute concern when the eligibility criterion are expanded yet again to include those suffering from a mental illness, but with no other underlying physical ailment (Blikshavn, Husum, and Magelssen 2017). California and other US jurisdictions that permit only the oral protocol, mitigate the physician’s potentially coercive influence to some extent by legislating their arms-length participation in the process. While the oral protocol is an option in Canada, it is almost never used, hence its mitigating effects are negligible at best.

SLOWING THE SLIDE: POTENTIAL LESSONS FOR THE ETHICAL ADMINISTRATION AND LEGAL OVERSIGHT OF ASSISTED DYING

In 1994, the same year George Annas published his provocative warning about the potential slippery slope America could be facing concerning physician assisted death, physician-bioethicist Grant Gillett published a paper in which he defended the conjunction of the following two claims: (i) that killing a patient should remain against the law, and (ii) that this action, may on occasion, be the only right thing to do (Gillett 1994, 312–313). Gillett’s careful attempt to navigate the morally ambiguous terrain between these seemingly incompatible positions, speaks to the importance of legal restraint in holding individual moral sensibilities in check, especially when dealing with this most momentous of decisions. Leading Canadian bioethics and legal scholars, also writing in 1994, concurred with that wisdom: "It is not inconsistent to judge certain acts of hastening death to be ethically justifiable, or at least ethically tolerable,” write Roy, Williams and Dickenson, “and yet simultaneously to maintain that laws should not be changed to grant doctors or anyone else advance legal authorization to administer euthanasia" (Roy, Williams, and Dickenson 1994, 430).

It has now been almost three decades since Annas published his dire warning, and Gillett and others contemplated how to manage the ethical-legal tensions concerning medically assisted death. An increasing number of jurisdictions, including California and Canada, have prioritized Gillett’s second claim, and have then struggled with massaging the first in order to ensure sufficient legal restraint so as to avoid Annas’s slippery slope. California, like all other US jurisdictions, has managed to maintain a certain level of legal restraint by specifying strict eligibility criteria ensuring that assisted dying is restricted to those already nearing death, and by prohibiting physicians from actively killing their patients. Canada, on the other hand, is arguably on the path to realizing Annas’s dystopian future; Canadian legislators and courts have granted physicians (and nurse practitioners) a federal license to kill, and have consistently loosened existing legal restraints, relying increasingly on health care professional’s moral intuitions as to when actively killing a patient is appropriate. The ongoing pressure in Canada to further liberalize the already elastic legal restraints is effectively medicalizing suicide (Coelho et al. 2022). Canada is descending rapidly on that slippery slope, and so-far the sled seems only to be gaining speed.

The comparative analysis offered here might nevertheless provide mutual learnings for legislators, bioethicists, and medical practitioners on either side of the border. For the US the lessons from the Canadian experience should confirm that the relatively cautious approach all US jurisdictions that permit physician assisted death have employed so far, has been largely successful. By first ensuring that the end-of-life option is available to only those who, upon any reasonable assessment, are in the final stages of their life’s journey, and then restricting physicians from actively euthanizing their patients, California has managed to curtail the expansion of physician assisted death. Canada, on the other hand, has much to learn from California. First, as California and all other US jurisdictions have demonstrated, although it will never be a precise process, it is possible to specify criteria for a reasonably foreseeable natural death that are not subject to capricious interpretation. Now that Canada has introduced a second track for MAiD for those whose death is not reasonably foreseeable, law makers need to revisit the RFND criteria to ensure they are indeed reasonable while limiting the opportunity for overly subjective interpretation. Again, any reasonable interpretation of a RFND should be measured in months, not years, and certainly not 10 years. It is just such liberal interpretations and applications of the RFND criteria that have brought Canada to the brink of the medicalization of suicide.

Second, Canada needs to reconsider carefully the role of the physician/nurse practitioner as the direct cause of a patient’s death, with a view to expanding the utilization of the oral protocol. As the US experience in California and elsewhere has shown, almost a third of patients for whom death is imminent either die before they need to exercise that option or chose not to exercise the end-of-life option even when it is available. Given Canada’s two track approach, once the criteria for assessing a RFND have been tightened appropriately, those judged not to meet those criteria but who nevertheless are deemed eligible for MAiD, should have access to only the oral protocol.

There is one other potential lesson US legislators might contemplate when reviewing the Canadian experience, but it is one that should be considered with the utmost caution. Could there be exceptional cases in which patients who meet the criteria for an assisted death, should be eligible for the direct assistance of a medical practitioner in terminating their lives? I’m thinking now of the patient who is suffering through the end stages of a progressive and debilitating terminal illness that could render them physically incapable of exercising the oral protocol at the point when they would choose to end their lives. Indeed, it is exactly this kind of case that was the focus of the Canadian SCC deliberations that eventually resulted in the Canadian legislation that permitted MAiD. Both Sue Rodriguez in 1993, and Gloria Taylor in 2012, suffered from amyotrophic lateral sclerosis, and although neither wanted to end their life while physically capable of doing so, both foresaw a time when their symptoms would be so severe that they’d prefer a quicker death but feared being physically incapable of doing so on their own. These are of course exceptional cases, but if we grant, as per Gillett’s second proposition, that such cases can and do occur, we perhaps must make space within a MAiD regime to provide direct assistance in such rare cases. The Voluntary Assisted Dying Act 2017 enacted in Victoria, Australia would be instructive for both American and Canadian legislators in this regard (Parliament of Victoria 2017). But as noted earlier, these would be exceptional, relatively rare cases, and if US legislators were to entertain a direct option it should be with only the most stringent legal guidelines in place, and provisions for ongoing ethical and legal oversight to ensure compliance while curtailing abuse. While the Canadian legislation refers to directly administration of lethal medications as “assisted deaths,” these are in point of fact, homicides. As such they should require arm’s length review and oversight by a body independent from those delivering the putative “service.” Failing to provide such strict guidance and oversight risks slipping down the slope of which Annas warned almost 30 years ago, and on which Canada now finds itself.

This essay opens with a quotation attributed to H.L. Mencken concerning the danger of looking for quick and tidy solutions to complex human problems. End of life decision making is one of those complex human issues which admits no quick and tidy solution. Grant Gillett echoes Mencken’s warning in this regard: “When there is an easy, instant and decisive answer to an inherently difficult and personally demanding situation … the conditions are ripe for that answer to gain ready acceptance. Euthanasia is just such an answer. Therefore, like any other medical technique that solves a persistent problem its use may well do away with some of the finely balanced and participant moral judgment that would otherwise be required of us” (Gillett 1994, 324). The analysis offered here demonstrates that not every proposed approach to managing this complex human problem will necessarily result in the abandonment of moral judgment, but moral judgment must both inform and be constrained by the law. Canada has much to learn from the US in this regard. Conversely, the US should keep a wary eye on Canada so as to avoid the precipitous slide now happening there.

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