Interpreting and operationalizing the incurability eligibility criterion in the Canadian assisted dying legislation

Mona Gupta ^1,2* Jocelyn Downie ³

• ¹ Montreal University, Montreal, Canada
• ² University of Montreal Hospital Centre (CRCHUM), Montreal, Quebec, Canada
• ³ Dalhousie University, Halifax, Nova Scotia, Canada

To access Medical Assistance in Dying (MAiD) in Canada, a person must have a "grievous and irremediable medical condition" defined in part as "a serious and incurable illness, disease or disability". Thus, the clinical assessment of the "incurability" of a person's condition is central to determining MAiD eligibility. However, the clinical interpretation and operationalization of the term has been uncertain due to the absence of a clear legal definition and evolving legislation. This has led to confusion and controversy in the public and professional discussion of MAiD eligibility. In this paper, we examine various attempts to interpret and operationalize the term "incurable," identifying the limitations of each approach. We aim to overcome these limitations by proposing a method for operationalizing the term. We argue that our approach: 1. is consistent with the current legal framework, 2. is consistent with the interpretations of the terminology used in the Criminal Code, and 3. reflects the clinical knowledge and reasoning about the full range of medical conditions that can lead to a request for MAiD. In our analysis we show that "incurability" cannot be understood only as a feature of a person's medical condition but resides in the interplay between the nature of the pathology and the person's treatment decision-making. Our analysis should help with the ongoing operationalization of "incurable" in Canada. It may also be helpful to clinicians in other jurisdictions that either invoke or are considering invoking similar terms/concepts.