An Alternative to Medical Assistance in Dying? The Legal Status of Voluntary Stopping Eating and Drinking (VSED)

de boire, nutrition orale et hydratation medical assistance in dying, voluntary stopping eating and drinking, oral nutrition and hydration

Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary stopping eating and drinking (VSED) as an alternative to MAiD. In this paper, I will apply a legal lens to the issue. An understanding of whether VSED is legal provides a foundation for ethical reflection on whether it ought to be permitted. Is it permitted for those who prefer VSED to MAiD? Is it permitted for those who do not qualify for MAiD under our current legislationfor those who do not have a grievous and irremediable medical condition, for mature minors, for individuals whose sole underlying medical condition is a mental disorder and who do not otherwise meet the eligibility criteria, and for individuals who have lost capacity but had completed an advance directive?

Introduction
Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is the use of voluntary stopping eating and drinking (VSED) as an alternative to MAiD. In this paper, I will apply a legal lens to the issue [1][2][3]. An understanding of whether VSED is legal provides a foundation for ethical reflection on whether it ought to be permitted. Is it permitted for those who prefer VSED to MAiD? Is it permitted for those who do not qualify for MAiD under our current legislationfor those who do not have a grievous and irremediable medical condition, for mature minors, for individuals whose sole underlying medical condition is a mental disorder and who do not otherwise meet the eligibility criteria, and for individuals who have lost capacity but had completed an advance directive?
The Canadian federal legislation regulating MAiD came into force on June 17, 2016. This legislation establishes the eligibility criteria and procedural safeguards for MAiD under the Canadian Criminal Code. Notably, it allows access only to individuals who meet the following conditions: • Are eligible for health services funded by government in Canada (or would be but for a minimum period of residence or a waiting period); o their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

•
Have waited ten days between the day their formal request for MAiD was signed and day MAiD is provided (unless this waiting period has been abbreviated due to imminent death or imminent loss of capacity); • Have given explicit consent immediately before the provision of MAiD.
The cumulative effect of these requirements is that there are individuals who are experiencing enduring and intolerable suffering who are, or are going to be, ineligible for access to MAiD and so are seeking an alternative path to end their suffering. For example: • A patient with Alzheimer's disease who, by the time their state of decline is advanced and suffering is intolerable, will no longer have decision-making capacity; • A patient who has had a debilitating stroke but for whom natural death is not "reasonably foreseeable"; • A patient with an intractable mental illness causing enduring and intolerable suffering but for whom natural death is not "reasonably foreseeable"; • A patient with severe and debilitating chronic pain who is experiencing enduring and intolerable suffering but for whom natural death is not "reasonably foreseeable." There are also individuals who are experiencing enduring and intolerable suffering and could meet the eligibility criteria for MAiD, but who would not have access to it (e.g., because there are no willing providers or institutions where they live, and they are unable to travel) or who would not choose it (e.g., because it is contrary to their religion or conscience). Of course, every effort should be made to offer such individuals access to resources and interventions that might alleviate their suffering without ending their lives. Palliative care is an obvious example of such an intervention. However, there are times when these resources and interventions are not able to alleviate the person's suffering. There are also times when such resources and interventions are not accessible or acceptable to the person who is suffering. It is in the face of such circumstances that the issue of Voluntary Stopping Eating and Drinking (VSED) arises. 1 For the purposes of this paper, VSED involves either: 1) a competent individual stopping eating and drinking and indicating that, when they become incompetent (because of having stopped drinking), they do not want to be given oral or artificial nutrition and hydration; or 2) a previously competent individual refusing oral and artificial nutrition and hydration through a prior capable expressed wish.
In this paper, I will address a number of legal questions that can be asked about VSED: • Is a competent person legally permitted to cause their own death through VSED (either through a refusal while competent or through a refusal made in advance of loss of capacity)? • Must health care providers respect a previously competent person's prior expressed wishes not to be offered or given oral or artificial nutrition or hydration after losing capacity? • What are health care providers' legal obligations to a previously competent person who, when capable, expressed a desire not to be offered or given oral or artificial nutrition or hydration, and then, once incapable, requests oral or artificial nutrition or hydration? • Is a health care provider legally permitted to tell patients about VSED as a possible pathway to death?
I seek to answer these questions using Nova Scotia as the case study. 2 I also provide, in Annex 1, a template institutional policy developed on the bases of the analysis presented in this paper.
Three additional questions fall outside the scope of this paper. First: what are the legal implications if an individual seeking MAiD plays a role in their death's reasonable foreseeability? In other words, can an individual whose medical circumstances do not make their natural death reasonably foreseeable commence VSED as a way of causing their natural death to become reasonably foreseeable? [5,6] This paper focuses solely on individuals pursuing VSED all the way to death (i.e., not as a way to access MAiD). The question of VSED as a path to eligibility for MAiD is the subject of a separate paper. Second: are mature minors legally permitted to cause their own deaths through VSED? Space constraints preclude adequately representing the nuances of statutory differences between provinces and territories with respect to the role of a best interests analysis when considering mature minors' decision-making authority [7]. Third: is a health care provider legally permitted to help patients to cause their own death through VSED? This question is addressed in a separate paper [8].
Is a person legally permitted to cause their own death through VSED?

Common law
It is very clear that competent adult patients have a legal right to refuse any or all medical treatment even where the consequence of the refusal is or may be death: The law has long protected patient autonomy in medical decision-making.
In While we do not have any Supreme Court of Canada decisions turning on the issue of the right to refuse oral or artificial nutrition and hydration, it is reasonable to extrapolate from their discussions of the right to refuse medical treatment. There is no reason to believe that the Supreme Court of Canada, presented with a case turning on the issue of the right to refuse oral or artificial nutrition and hydration, would do anything other than point, yet again, to its commitment to the principle of bodily integrity and respect for autonomy and conclude that competent adult patients have a legal right to refuse oral or artificial nutrition and hydration, even where a potential or certain consequence of the refusal is death.
This conclusion is supported by comments made about the right to refuse oral or artificial nutrition and hydration in some lower, albeit not binding, court decisions. As noted by Justice Smith in Carter v Canada: To summarize, the law in Canada is that: (a) Patients are not required to submit to medical interventions (including artificial provision of nutrition and hydration), even where their refusal of or withdrawal from treatment will hasten their deaths, and physicians must respect their patients' wishes about refusal of or withdrawal from treatment. [10] 3 Again in Carter, Justice Smith noted that the Attorney General of British Columbia "submits that 'the able bodied and the disabled can equally commit suicide by refusing to eat or drink or by refusing provision of artificial nutrition or hydration'." [9] Justice Smith did not take issue with this submission; indeed, she relied upon it in her argument against the absolute ban on assisted dying. Similarly, in Bentley v Maplewood Seniors Care Society, Justice Greyell noted that, "adults have a common law right to consent or refuse consent to personal care services [including oral nutrition and hydration]" [12] 4 : [T]here is common law authority for the proposition that it is necessary to obtain consent before providing personal care or basic care. Indeed, intentional non-consensual touching can amount to the tort of battery he common law right to bodily integrity and personal autonomy is so entrenched in the traditions of our law as to be ranked as fundamental and deserving of the highest order of protection." These statements recognizing the common law right to be free from non-consensual touching or care of one's body must encompass the right to consent or refuse consent to personal care or basic care. For consent to personal care to be meaningful, the decision must be made by someone who is capable of understanding the proposed care and who is free from undue influence or coercion.
[12] 5 It is also clear that previously competent adult patients have a common law right, through prior expressed wishes, to refuse any or all medical treatment even where a potential or certain consequence of the refusal is death. The philosophy underlying this principle is, as the Ontario Court of Appeal stated in Fleming v Reid (and the Supreme Court of Canada endorsed in Rodriguez v British Columbia [14] and Carter [9]): A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient's right to forgo treatment, in the absence of some overriding societal interest, is paramount to the doctor's obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient's life or health, and regardless of how ill-advised the patient's decision may appear to others. [15] Again, we do not have any Supreme Court of Canada decisions turning on the issue of the right to refuse oral or artificial nutrition and hydration through prior expressed wishes. However, it is reasonable to extrapolate from their discussions of the right of a competent adult to refuse treatment and conclude that, presented with a case turning on the issue of the right to refuse oral or artificial nutrition and hydration through a prior express wish, the Supreme Court of Canada would point to its commitment to the principle of bodily integrity and respect for autonomy.
Thus it can be concluded that competent adults and previously competent adults whose prior capable informed expressed wishes are known, have a common law right to refuse oral and artificial nutrition or hydration.

Nova Scotia legislation
Under the Hospitals Act [16], no patient in a hospital shall be treated without consent to such treatment. If a patient is incapable of consenting to treatment, consent may be given or refused by a substitute decision-maker. Substitute decision-makers must make decisions "in relation to specified medical treatment" on behalf of the person according to the person's "prior capable It must be noted here that the Hospitals Act likely does not authorize substitute decision-makers to refuse care as opposed to treatment. The definition of "substitute decision-maker" is "a person who is given the authority to make admission, care or treatment decisions on behalf of a patient under this Act or a voluntary patient." [16, s 2(w)] However, the subsequent provisions dealing with the authority and basis for substitute decision-making do not make reference to care but rather only treatment. It seems reasonable to interpret the Hospitals Act as covering artificial hydration and nutrition (as treatment) but not oral nutrition and hydration (as care). Further, under the Personal Directives Act, a person may name a delegate to make decisions on her behalf about health and personal care (when she has lost decision-making capacity) [17]. There is no reason to believe that health care does not include artificial nutrition and hydration and personal care explicitly includes oral nutrition and hydration [17].
Thus, it can be concluded that competent adults have a statutory right to refuse artificial nutrition or hydration. 6 Previously competent adults have a statutory right to refuse oral and artificial nutrition and hydration through a personal directive.

Must health care providers respect a previously competent person's prior capable expressed wish not to be offered or given oral and artificial nutrition or hydration after losing capacity?
Health care providers have a duty to respect patient refusals. Physicians are required by law to respect such refusals. For example, to touch a person against the person's wishes would constitute battery 7 or assault [18]. Therefore, health care providers risk civil and criminal liability for forcing artificial nutrition or hydration against a competent adult's wishes, a valid personal directive, or a substitute decision-maker basing a refusal of consent on prior capable informed expressed wishes of a previously competent adult. Health care providers also risk civil and criminal liability should they force oral nutrition or hydration against a competent adult's wishes or a valid personal directive of a previously competent adult.
It must be noted here that some have suggested that, in the context of VSED, failure to provide oral or artificial nutrition or hydration could constitute the Criminal Code offence of "failure to provide the necessaries of life." [12] However, this fails to 6 There is one somewhat bizarre exception to this general conclusion in Nova Scotia as the Involuntary Psychiatric Treatment Act, SNS 2005, c 42, s 39 establishes that an advance directive made by a person while capable but now an involuntary patient, can be made in accordance with the substitute decision-maker's belief in the person's best interests "if following the patient's prior capable informed expressed wish would endanger the physical or mental health or safety of the patient or another person, in accordance with what the substitute decision-maker believes to be in the patient's best interests." Many people have argued that this provision is unconstitutional (violating s 15 of the Charter) but to this day it remains the law. 7 The Supreme Court of Canada has clearly endorsed the view that the common law concept of bodily integrity requires that health care providers not touch patients without their consent. Starting or continuing treatment would be considered touching and, if done against a patient's wishes, would be considered tortious battery. See, for example, Ciarlariello v Schacter [1993] 2 SCR 119. recognize two things: 1) there is a duty to provide the necessaries of life only where the patient (directly or through their substitute decision-maker) is unable to remove themself from the physician's charge and is unable to provide themself with the necessaries of life; and 2) there is an offence only where the health care provider is under a duty and fails without legal excuse to perform that duty [18].
I would argue that, when a person or their substitute decision-maker has the decision-making capacity and legal authority to refuse oral nutrition or hydration and is refusing it, then that person will not be under the charge of the physician. Being "under the charge of" entails "the exercise of an element of control by one person and a dependency on the part of the other." [19, at 42]. It does not make sense to consider a person to be under the control of a physician in relation to the unwanted provision of treatment when the physician is legally prohibited from touching them without their consent or to consider someone to be dependent on a physician for nutrition and hydration that they do not want (and that they or their proxy have the legal authority to refuse). In such a case, there is no duty to provide the necessaries of life.
I would also argue that, even assuming for the sake of argument there is a duty, a valid refusal in a VSED case constitutes a lawful excuse for not meeting that duty because administering oral or artificial nutrition or hydration in the circumstances of a valid refusal would constitute tortious battery and criminal assault, and because provincial/territorial consent legislation across Canada allows patients or substitute decision-makers to refuse consent to treatment (covering artificial nutrition and hydration) [20][21][22].
It can therefore be concluded that health care providers have a legal obligation to respect a previously competent person's prior capable informed expressed wishes not to be offered or given oral or artificial nutrition or hydration after losing capacity.

What are health care providers' legal obligations if a previously competent person, when capable, expressed a desire not to be offered or given oral or artificial nutrition or hydration, and then, once incapable, requests oral or artificial nutrition or hydration?
Under the Hospitals Act, the incompetent person's substitute decision-maker must make the decision about whether to give consent to the provision of artificial nutrition or hydration: (a) in accordance with the patient's prior capable informed expressed wishes unless (i) technological changes or medical advances make the prior expressed wishes inappropriate in a way that is contrary to the intentions of the patient, or Therefore, if subsections (i) or (ii) are not met, the substitute decision-maker must, despite the request from the incompetent person, refuse consent to artificial nutrition or hydration in accordance with that person's prior capable expressed wishes; further, the health care providers must respect that refusal [17, s 15(2)(a)]. 8 Under the Personal Directives Act, the substitute decision-maker ("delegate") is required to act in accordance with instructions in a personal directive unless: (i) there were expressions of a contrary wish made subsequently by the maker who had capacity, (ii) technological changes or medical advances make the instruction inappropriate in a way that is contrary to the intentions of the maker, or In turn, a court may "vary, confirm or rescind a personal-care decision, in whole or in part, made by a delegate or statutory decision-maker" [17, s 31(1)(d)] or "order that all or part of a personal directive ceases to have effect." [17, s 31(1)(i)] However, this power is limited by the fact that "the court may not add to or alter the intent of an instruction contained in a personal directive unless the court is satisfied that the maker's instruction or wishes changed subsequent to the making of the instruction." [17, s 31(3)] Again, if the exceptions are not met, the delegate must, despite the request from the incompetent person, refuse consent to oral or artificial nutrition or hydration, the court must not intervene, and the health care providers must respect that refusal.
Finally, under the common law, an express refusal of oral or artificial nutrition and hydration made by an individual while competent overrides a request for oral or artificial nutrition and hydration made while incompetent unless there is a basis for concluding that the person had changed their views while they were still competent [23].

Is a health care provider legally permitted to tell patients about VSED as a possible pathway to death?
To answer this question, we must determine whether death by VSED is suicide and, if so, whether telling patients about VSED as a possible pathway to death constitutes counselling, abetting, or aiding suicide under the Criminal Code.
The Criminal Code establishes the following: 241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, (a) counsels a person to die by suicide or abets a person in dying by suicide; or (b) aids a person to die by suicide.

Is death by VSED suicide?
It is unclear whether death by VSED is always, sometimes, or ever to be considered suicide. A detailed discussion of this issue is available in "The legal status of deep and continuous palliative sedation without artificial nutrition and hydration" [8] and "Is refusing care a legal pathway to medical assistance in dying?" [24] The conclusion drawn, based on a review of the case law as well as a review of instructions for and practices with respect to the completion of medical certificates of death (including when the manner of death is to be certified "suicide"), is that we cannot in all cases confidently state whether or when death by VSED is suicide. In the face of such uncertainty and in light of the seriousness of the possible consequences of criminal charges, it seems prudent to assume for the sake of argument that death by VSED is suicide and therefore to explore whether telling patients about VSED as a possible pathway to death constitutes counselling, abetting, or aiding suicide under the Criminal Code.

Counselling
There are no Supreme Court of Canada decisions on the meaning of "counselling" in the context of s.241(1) of the Criminal Code. Based on the available lower court decisions in this context and other court decisions about counselling in other contexts, it seems very unlikely that a health care provider would be convicted of counselling suicide for telling a patient about VSED as a possible pathway to death or for advising them on how to follow this pathway unless: • the health care provider wanted to induce the patient to stop eating and drinking as a means of committing suicide. • the health care provider wanted to use her influence to induce the patient to pursue death through VSED. • the health care provider sought to convince or persuade the patient to pursue death through VSED.
As concluded by Justice Christine Gosselin of the Court of Quebec (QCCQ) in R v Morin, after summarizing the relevant Supreme Court of Canada (SCC) jurisprudence, "counselling" for the purposes of s.241(1) "concerns speech that, assessed objectively, aims to induce, persuade or convince a person to commit suicide." [25] 9 Health care providers in the context of VSED would be telling a patient about VSED as a possible pathway to death because they have an obligation to disclose all treatment options and alternatives; VSED is an alternative. They would not be wanting to induce, influence, convince, or persuade the patient to follow VSED. Therefore, they should not face criminal liability for counselling suicide.

Abetting
Abetting suicide likely requires "encouraging, instigating, promoting or procuring the crime to be committed." [30] 10 Again, as with counselling, health care providers in the context of VSED would not be aiming to encourage, instigate, promote or procure suicide. Therefore, they should not face criminal liability for abetting suicide.

Aiding
Aiding suicide likely requires that the accused assist or help the person who commits suicide. A health care provider who merely tells a patient about VSED as a pathway to death is not assisting or helping the patient to follow that path. Therefore, they should not face criminal liability for aiding suicide.

Conclusion
It can be concluded that VSED is a legal pathway to a hastened death. As noted earlier, it may be of particular interest for those individuals who would not qualify for MAiD or who are experiencing enduring and intolerable suffering and could meet the eligibility criteria for MAiD, but who would not have access to it (e.g., because there are no willing providers where they live and they are unable to travel) or who would not choose it (e.g., because it is contrary to their religion or conscience). Individuals can: 1) refuse oral and artificial nutrition and hydration while capable; and 2) state a very clear informed refusal of oral and artificial nutrition and hydration through a prior capable expressed wish. These refusals must, in almost all circumstances, 11 be respected. It can also be concluded that health care providers are legally permitted to inform patients about VSED as a pathway to death. 12 The author would like to thank Brad Abernethy, Michael Hadskis, and Leah Hutt for their constructive comments on an earlier draft of this paper and Kate Scallion for her research assistance. This research was supported through the author's fellowship from the Pierre Elliott Trudeau Foundation.

Conflit d'intérêts Conflicts of Interest Aucun déclaré
None to declare
Reviewer evaluations are given serious consideration by the editors and authors in the preparation of manuscripts for publication. Nonetheless, being named as a reviewer does not necessarily denote approval of a manuscript; the editors of Canadian Journal of Bioethics take full responsibility for final acceptance and publication of an article. • Health care professionals and institutions must respect decisions about oral nutrition and hydration made by capable patients (directly or through valid personal directives when the maker becomes incapable) or incapable patients' delegates except where the delegate is acting outside their authority. 15

Institutional commitments
It is central to the philosophy of [institution name] that its staff shall identify, assess, and respond to each patient's situation in a manner consistent with the patient's wishes and best practices.
[Institution name] recognizes the right of patients to exercise their autonomy by making decisions regarding their care at the end of life, including decisions to stop oral nutrition and hydration. Such decisions may be made at the time of the proposed provision or through a personal directive in advance of loss of capacity.
[Institution name] also recognizes the obligation of an incapable patient's delegate to make decisions on behalf of the patient according to the patient's prior expressed wishes (if any) or values and beliefs relevant to the specific decision (if known), or best interests (if wishes, values, and beliefs relevant to the specific decision are not known). This includes decisions to stop oral nutrition and hydration. The exception to this rule comes when there is good reason to believe that a presently incapable patient changed their mind while capable or would have come to a different conclusion while capable had they had the information available to their delegate.
[Institution name] also recognizes that health care providers have an obligation to respect refusals of oral nutrition and hydration (from capable patients or through instructions in previously capable patients' valid personal directives or through instructions given by patients' delegates). An exception to this rule comes when there is good reason to believe that a delegate is acting outside their authority in which case the health care providers should make an application to the Supreme Court of Nova Scotia.
[Institution name] also recognizes that health care providers have a right to refuse to participate in the stopping of oral nutrition and hydration so long as this refusal is expressed in a way that does not harm the patient and alternative health care providers can be provided by the institution.