Notion of ‘mature minors’ in assisted death legislation raises thorny questions

Grave candle besides an injection with a cross in the background on January 31, 2014 in Berlin, Germany. (Photo by Marie Waldmann/Photothek via Getty Images). Photo by Marie Waldmann/Photothek via Getty Images)

TORONTO – A special parliamentary committee has recommended that legislation governing doctor-assisted death for competent adults be expanded within three years to include “mature minors” under the age of 18.

The notion of a young person seeking help to terminate their life raises a number of thorny questions, not the least of which is how does one define a mature minor?

Erin Nelson, a professor at the University of Alberta who teaches medical law and ethics, said the definition of a mature minor is not based an a “bright line” demarcated by a certain age, but on whether a person can understand the nature and consequences of a particular decision.

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“It’s not obvious all the time and you might not always have 100 per cent agreement,” Nelson said Thursday from Edmonton. “If you asked three different people to assess a minor’s competency, you might not get agreement by all of those people.

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“So I suppose the pitfall is that mistakes could be made in deciding that a 14-year-old or a 15-year-old is sufficiently mature to make the decision,” she said

“However … the pitfall of having a bright line is that you may miss people who are sufficiently mature to make their own decision.”

The Canadian Paediatric Society opposes mature minors being included in legislation, which the federal government must draft and pass before June 6, when assisted suicide becomes legal in Canada.

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However, Dr. Dawn Davies, chairwoman of CPS’s bioethics committee, said the organization will not have a full position statement on the issue until it completes a survey of its members.

“What we suspect is that most pediatricians and pediatric health practitioners would not think that mature minors should be included, at least in the first iteration of the legislation, just because of the weight of the decision being made,” Davies said Thursday from Edmonton.

As to how to define when a minor is considered mature enough to make a decision about ending his or her life, Davies said there is no specific age “and that’s where it becomes very related to the individual child.”

“Really, we’re just looking at can they comprehend the information that’s being presented to them? Do they understand all the options and the outcomes of those options? And is there a durability about their wish.”

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Dr. Derryck Smith, who made a submission to the committee during its hearings, said qualifying for assisted death should not be dependent on age, but on whether a person is competent to agree to a medical treatment, including aid in dying.

“Children and teenagers do die and they suffer just as much as adults who are dying,” Smith, the former head of child psychiatry at B.C. Children’s Hospital, said from Vancouver.

“The basic principle is why do we want people of any age to suffer unnecessarily if ultimately they are going to die?”

There are standard measurements for determining competency, which are blind to the age of the individual. So it’s up to the practitioners assessing a patient to decide, based on those standards, if a young person is capable of understanding and consenting to the terminal nature of their request, he said.

“Is a seven-year-old likely to be competent? Probably not. But that’s not because they happen to be seven, it’s because they wouldn’t understand the issues” needed to determine if they have capacity, he said.

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Even so, Smith agrees with the committee’s recommendation that Parliament should wait three years before extending the right to die to mature minors.

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“I think we need to proceed cautiously with this because it’s controversial.”

To date, Belgium and the Netherlands are the only two jurisdictions that allow minors access to physician-assisted death.

Nelson said the issue of mature minors could be legally sticky on both sides of the age divide.

If the federal government drafts legislation that allows only those 18 and older to request medical aid in dying, she said it’s quite likely there will be a Charter challenge brought by a younger person claiming discrimination on the basis of age.

However, if mature minors under 18 are included and a young person were to be found eligible for doctor-assisted death, it’s possible his or her parents could seek a court injunction to prevent the lethal procedure from being carried out, she said,

Or if the young person’s life had already been terminated, Nelson said the parents could conceivably bring a lawsuit against the physicians involved in the death.

“It seems to me that that fear of litigation might be enough to make a lot of doctors hesitant about helping a mature minor in this way.”

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