Compassionate release should be prioritized over MAID in Canadian prisons, says expert

With the number of elderly, sick and mentally ill inmate populations increasing in Canadian prisons, law experts and Canada's prison ombudsman are pushing for compassionate release or parole by exception for those who are contemplating medically assisted deaths.

"It's much easier right now in this country to receive medical assistance in dying than to receive approval for a medical release or compassionate release. And that's a problem," said Adelina Iftene, an assistant professor at the Schulich School of Law at Dalhousie University, who has spent several years researching end-of-life care in Canadian prisons.

According to her research, parole by exception "is the closest Canada has to release on humanitarian grounds, but it fails to fulfil this role."

The criteria for exceptional parole are too stringent, she said, making it difficult to judge whether inmates who opt for MAID are providing true, voluntary consent.

Inmates who are suffering deserve better options so they "can be able to decide, in that context, what it is that they choose for their end of life," she told The Sunday Magazine's Piya Chattopadhyay.

Since its legalization in 2016, there has been ongoing discussion in Canada about the ethics and logistics involved in implementing MAID. In 2017, Correctional Service Canada (CSC) established its own guidelines for MAID inside prisons, which outline parameters on matters such as eligibility and assessment. Since then, CSC told The Sunday Magazine that it has received 13 requests from inmates, four of which have been carried out (one within a prison and three outside.)

Correctional investigator Ivan Zinger, who has monitored MAID in CSC facilities since 2017, said the cases raise ethical and legal questions.

"The state should never be in the business of shortening people's lives inside a prison. It's just wrong."

"The preferred option should always be to release people early in the community, especially those that may end up requiring MAID so that they can make those decisions in the community," he said. "That's the best possible scenario, one that is more consistent with the MAID legislation."

In an email statement, CSC spokesperson Isabelle Robitaille said, "the MAID process as currently set out in CSC policy is comprehensive and contains numerous safeguards to ensure that inmates get full legal protection."

Watchdog calls for MAID moratorium

In his most recent annual report, Zinger called for a temporary moratorium on MAID in prisons, until the necessary policy changes have been instituted.

But Iftene is concerned that a complete moratorium could be ill-advised.

"[It is] a little counterintuitive to say that the solution to the complete lack of autonomy of individuals is to further remove their choices, and to infantilize [them] by saying that they cannot consent," she said.

"The solution would be, in fact, to increase their choices — and to ensure the circumstances in which they make these choices are actually conducive to a proper informed consent."

Zinger agreed that inmates should not be denied access to MAID, but maintained that assisted deaths should only occur outside prisons.

"The point is where would the procedure take place? Ideally you should see people who are getting sick, have cancer, and no longer pose risk, [be] eligible for parole."

These individuals should be released into the community, nursing homes, hospices and halfway houses with geriatric care where they can make an informed decision about MAID, he said.

"The problem is that we're allowing too many people to die in custody because of the lack of efforts to transfer those individuals. And they don't have alternatives."

In an email statement, Parole Board of Canada (PBC) spokesperson Iulia Pescarus Popa said the board works closely with CSC to expedite a review for inmates who are terminally ill or have requested a medically assisted death. She added that in November 2018, changes were made to its policy for reviewing cases for parole by exception involving terminally ill inmates "to clarify that it is not necessary to require a defined period of life expectancy."

Popa said parole by exception cases have increased amid the COVID-19 pandemic. Since March 1, 12 parole by exception cases have been granted and another 11 cases are currently pending decision, versus only four parole by exception cases granted in 2019-2020.

Seeking accountability

Zinger noted that current legislation exempts CSC from conducting an internal investigation and issuing a report when an inmate requests and receives MAID — something that is a statutory requirement for any other death in prison.

"For me, that's a problem with respect to openness, transparency and accountability."

"They should investigate whether everything was done to release the person quickly and they should look at the medical file to see whether the standard of care that was provided in the dying days and leading up to it was all in compliance with the law and best practices."

Inmates have access to "sub-standard" end-of-life care inside prison, Iftene added, lacking palliative care, pain management, and access to family and community supports.

In an email to The Sunday Magazine, CSC spokesperson Marie Pier Lécuyer noted CSC health-care providers are accredited by health-care accreditation body Accreditation Canada.

"Accreditation is an ongoing process of assessment against established standards to assess what is going well and what needs to be approved. When offenders are not released by the PBC at end of life, CSC provides end-of-life health care services to offenders."

In October, the House of Commons gave approval in principle to Bill C-7, which expands medical assistance in dying. Zinger says he might have the opportunity to make his recommendations before the Standing Committee on Justice and Human Rights as it reviews it. The deadline to amend the original legislation is Dec. 18.

"I'm hoping that on the issue of openness, transparency and accountability, that the bill will introduce a section to amend the previous bill to remove that exception — that the service does not have to investigate MAID cases," he said.

While CSC said Public Safety Minister Bill Blair commits to a review of MAID in prisons by the end of 2021, Iftene is skeptical about the prospects of more structural change.

"There is no political will to change anything for prisoners, and even less so for MAID," she told Chattopadhyay. "I am quite disheartened by the little progress that we have seen regarding upholding of prisoners' rights generally and regarding the will of the governments — any of them — to do something to ensure that the rights of prisoners are being protected."

Interview produced by Donya Ziaee.