A Legal Framework for the Assessment of a Voluntary Request for Medical Assistance in Dying

In response to the Supreme Court of Canada’s (“SCC”) 2016 ruling Carter v. Canada, Parliament passed Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Bill C-14 primarily amended section 241 of the Criminal Code to create an exemption to the crime of counselling or aiding suicide, thereby allowing physicians and nurse practitioners to provide eligible patients with medical assistance in dying (MAID). Since Bill C-14, there has been further evolution in the law to allow patients to access MAID if their natural death is reasonably foreseeable or even if natural death is not reasonably foreseeable provided the associated safeguards are met. The evolution of the law to include those whose natural death is not reasonably foreseeable has raised concerns in the medical and legal community about the interpretation of the legal requirement that a request for MAID be voluntary and not the result of external pressure. These concerns include who should be involved in assessing voluntariness and how this is best achieved. Recently this has expanded to include the extent to which psycho-social-economic concerns, factors that may be beyond the control of the individual requesting MAID and the health care team, influence the assessment of voluntariness.\nThis project examines the idea of voluntariness and argues that social workers are uniquely situated to assist with assessing whether a patient’s request is voluntary. Chapter two explores the historical decriminalization of assisted suicide and how voluntariness has been considered in the relevant jurisprudence, including Rodriguez v British Columbia (Attorney General) and Carter v Canada (Attorney General). Chapter three expands my scope of review to other areas of law that consider voluntariness such as the confessions rule arising in the criminal law context, unconscionability as it relates to contract law, and informed consent in health law. A comprehensive review of the various special senate committee reports, which address the development of Bill C-14 and the subsequent expansion of Canada’s MAID regime, is used to inform the intention of the voluntary request provision. Chapter four explores the role of social workers in assisting with voluntariness assessments and considers how they are uniquely situated to assist with this work arising from their professional Code of Ethics and scope of practice. The social work profession has a particular interest in the needs of the vulnerable and identifying barriers to services and unmet psycho-social-economic needs. The consideration of unmet needs play an important role in the assessment of voluntariness. Chapter five pulls together the learnings from the previous chapters and identifies the key legal considerations when assessing voluntariness and the important role of social workers in this work.\nThis project ultimately identifies a role for social workers in assisting physicians and nurse practitioners with voluntariness assessments and suggests they serve as an additional safeguard for ensuring comprehensive voluntariness assessments that consider the individuals’ biopsychosocial context in which the request for MAID arises. It concludes by identifying key legal considerations to assess voluntariness and how the law supports the role of social workers in this work.

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