VSED and VSPeC

VSED and VSPeC

In Canada, the law restricts who may have MAiD. This means that there are patients who are not eligible for MAiD even though they may want to hasten death to end their suffering. This would include patients who have a mental illness as their sole underlying medical condition and patients who are at risk of losing the capacity to give consent immediately before the provision of MAiD but are not eligible to complete a final consent waiver (see “Are advance requests for MAiD legal in Canada?” under Assisted Dying tab).

As well, some patients do not want MAiD or may not have access to a MAiD assessor and provider.

Patients may therefore turn to voluntary stopping eating and drinking (VSED) or voluntary stopping personal care (VSPeC) as an alternative to MAiD or as a path to MAiD.

What is VSED?

VSED is an acronym for voluntary stopping eating and drinking.

What is VSPeC?

VSPeC is an acronym for voluntary stopping personal care.

Personal care includes health care to prevent or cure illness. Examples of personal care include:

artificial nutrition and hydration
being spoon fed
regular changing of positions (for example, for someone with paralysis to prevent bedsores)

Are VSED/VSPeC legal paths to MAiD in Canada?

In order to be eligible for MAiD, a person must have a serious and incurable illness, disease, or disability that is not a “mental illness.” VSED could cause a serious and incurable physical illness, disease, or disability. Could a person with a mental illness as their sole underlying medical condition choose to VSED in order to become eligible for MAiD?

In order to be eligible for a final consent waiver for MAiD, a person’s natural death must have become reasonably foreseeable. VSED and VSPeC make a person’s death reasonably foreseeable (indeed certain). Could a person’s reasonably foreseeable death caused by VSED or VSPeC be considered natural?

These are complicated questions to answer: no court has ruled on them; no legislation directly addresses them; and there are no clinical practice guidelines about them.

The issue of a person using VSED to make their natural death reasonably foreseeable when that was a criterion for access to MAiD (vs. now when it is a condition for eligibility for a final consent waiver for MAiD), has been directly addressed in one disciplinary case, a complaint against a British Columbia doctor who determined that a patient’s natural death had become reasonably foreseeable after refusing food and liquids. The committee hearing the complaint said:

[the patient met the criteria for MAiD] despite the fact that her refusal of medical treatment, food, and water undoubtedly hastened her death and contributed to its ‘reasonable foreseeability.’

The issue of a person using VSPeC to make their natural death reasonably foreseeable (again when that was a criterion for access to MAiD), has also been addressed indirectly in one of the two Charter challenges to Canada’s MAiD legislation. In Lamb v. Canada, the Attorney General accepted as uncontested expert evidence (indeed, from their own expert) that:

If Ms. Lamb were to be assessed now, and she indicated an intent to stop BiPaP [a machine similar to a CPAP machine, which helps a person breathe better while sleeping] and refuse treatment when she next developed pneumonia, it is likely that she would be found to meet the threshold for having a reasonably foreseeable natural death … She would not be required to develop an episode of pneumonia before being approved for MAID. Most would consider it sufficient that she expresses certain intent to refuse treatment when this occurs, as she will inevitably develop a chest infection in the near future.

This suggests that “reasonably foreseeable” is met if a person has demonstrated a clear intent to take steps (whether that be refusing medical treatment, preventive care, or food and liquids) that will make their death happen soon and of a predictable cause.

Both the BC discipline case and the Lamb case suggest that VSED and VSPeC may be legal paths to MAiD.

This issue will continue to be the subject of much debate as the effects of the Lamb concession are felt in practice.

Some will argue that a person can make their natural death reasonably foreseeable through VSED or VSPeC except where the cause of their underlying medical condition is an injury (whether caused by themselves or someone else) or accident.

Others (including the author of this website) will argue that a person can make their natural death become reasonably foreseeable through VSED or VSPeC no matter the cause of their underlying medical condition. If a person stops eating and drinking or refuses any type of personal care and dies as a result, it is reasonable to consider their death to be natural if an underlying medical condition (regardless of whether caused by disease or naturally occurring disability, accident, or intentional injury by self or other) precipitated the refusal to eat and drink or of personal care. It is therefore reasonable to conclude that a person’s natural death has become reasonably foreseeable when they have refused to eat or drink or refused personal care without which they will die and it is reasonable to conclude they will not deviate from that refusal.

For a full discussion of this issue, see here.

Are VSED/VSPeC legal alternatives to MAiD in Canada?

Competent patients can legally cause their own death through VSED/VSPeC because they can legally refuse artificial and oral nutrition and hydration.

The Canadian common law clearly holds that competent adult patients can refuse medical treatment even when that refusal has the direct consequence of death. Likewise, previously competent adult patients may refuse medical treatment through prior expressed wishes where the consequence of that refusal is death. And given the principles of bodily integrity and autonomy that are entrenched in the common law, it can be persuasively argued that competent adult patients have a common law right to refuse oral and artificial nutrition and hydration as well as personal care.

Therefore, it can be concluded that the common law permits VSED/VSPeC as a path to death and this legal status only changes if the common law is displaced by legislation. As issues relating to consent and capacity in the context of health care are a matter of provincial and territorial jurisdiction, we now turn to an analysis of relevant provincial and territorial legislation.

VSED/VSPeC

Competent individuals are legally permitted to refuse oral and artificial nutrition and hydration in all provinces and territories across Canada. Previously competent persons are legally permitted to refuse artificial nutrition and hydration through a valid advance directive in all provinces and territories across Canada. Previously competent individuals can refuse oral nutrition and hydration through a valid advance directive in Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Quebec, Ontario, Alberta, British Columbia, Yukon, and Nunavut. In New Brunswick, Manitoba, Saskatchewan, and the Northwest Territories the legal status of VSED/VSPeC for a previously competent person refusing oral hydration and nutrition through an advance directive is less certain.

Details on the legal status of VSED/VSPeC and whether a competent person can cause his or her own death through VSED/VSPeC and secondly, whether health care providers must respect a previously competent person’s prior capable expressed wishes regarding VSED/VSPeC can be found here.

The legal status of VSED/VSPeC by province or territory is summarized in the table below:

Green indicates permitted

Yellow indicates legal status is less certain but arguably permitted

Text indicates legal authority (i.e., whether from common law or legislation)

Province/Territory	Competent patient/ Oral nutrition and hydration	Competent patient/ Artificial nutrition and hydration	Incompetent patient/ Oral nutrition and hydration	Incompetent patient/ Artificial nutrition and hydration
Newfoundland and Labrador	Common Law	Common Law	Legislation	Legislation
Nova Scotia	Common Law	Legislation	Legislation	Legislation
Prince Edward Island	Common Law	Legislation	Legislation	Legislation
New Brunswick	Common Law	Common Law	Legislation	Legislation
Quebec	Legislation	Legislation	Legislation	Legislation
Ontario	Common Law	Legislation	Legislation	Legislation
Manitoba	Common Law	Common Law	Legislation	Legislation
Saskatchewan	Common Law	Common Law	Legislation	Legislation
Alberta	Common Law	Common Law	Legislation	Legislation
British Columbia	Common Law	Legislation	Legislation	Legislation
Yukon	Legislation/Common Law	Legislation	Legislation/Common Law	Legislation
Northwest Territories	Common Law	Common Law	Legislation	Legislation
Nunavut	Common Law	Common Law	Common Law	Common Law