The Law Governing Medical Assistance in Dying Part I: Past & Present
UPDATE: This blog post was updated in April 2023. READ THE LATEST VERSION HERE.
Medical Assistance in Dying (or “MAID”) is an aspect of medical treatment and end-of-life care that has been available to Canadians since 2016. The legislation which governs MAID continues to be refined as it is applied, and further changes are anticipated following the Final Report of the Special Joint Committee on Medical Assistance in Dying, which is expected to be published in February 2023.
In this first part of a two-part blog series, we will provide an overview of the legislative history of MAID, the two paths which are currently available, and anticipated changes to who can access MAID in the future.
The History of MAID
MAID is a medical treatment in which a nurse practitioner or physician (the “Provider”) with reasonable knowledge, care, and skill administers substances which cause a person’s death. Prior to 2016, assisting a person in causing their death was a crime under the Canadian Criminal Code. However, these provisions of the Criminal Code were found to be contrary to the Canadian Charter of Rights and Freedoms (“Charter”) in the 2015 landmark case of Carter v. Canada. The Supreme Court in Carter found that these provisions limited the rights to life, liberty, and security of the person under section 7 of the Charter in a manner that was not demonstrably justified under section 1 of the Charter.
As a result, the Supreme Court of Canada ordered that parliament develop new legislation governing MAID, which complied with the Charter. New legislation came into force in June 2016 in the form of amendments to the Criminal Code (the “MAID Provisions”). The MAID Provisions were further amended by Bill C-7, which came into force on March 17, 2021. This amendment specified additional protections for recipients of MAID, introduced waivers of final consent (which will be discussed below), and provided a pathway to MAID for individuals whose death was not “reasonably foreseeable” in order to comply with the Superior Court of Québec’s 2019 decision, Truchon v. Canada, which found that the eligibility requirement of a “reasonable foreseeability of natural death” was also an unjustified limitation of section 7 rights under the Charter.
The Two Paths to MAID
The first step in seeking MAID is for a person to discuss their treatment and care options with their health care provider(s) and to provide them with a written request for MAID. Physicians are not obligated to provide MAID but do have a professional responsibility to refer a person requesting MAID to another health care provider who provides this treatment.
Once connected with a Provider, the person seeking MAID must be assessed and approved by two independent assessors, both of whom must agree that all of the criteria for MAID are met.
The MAID eligibility criteria (as of the time of writing) are that the person seeking MAID:
is eligible for publicly funded health care services in Canada;
is 18 years of age or older;
is capable of making health care decisions;
is able to provide informed consent, which means that they have given permission after they have received all the information that they need to make their decision;
voluntarily requests medical assistance in dying; and
has a “grievous and irremediable medical condition”, which means that they:
have a serious and incurable illness, disease, or disability;
are in an advanced state of irreversible decline in capability; and
are enduring physical or psychological suffering, caused by the medical condition or state of decline, that is intolerable and cannot be relieved by means acceptable to them.
The Criminal Code does not provide definitions of the above listed criteria. Instead, they are to be determined by the Provider based on an exercise of their professional judgement. If the Provider and second assessor agree that the above criteria are met, there are two paths which a person may take to access MAID.
Death Need Not Be Reasonably Foreseeable
Prior to the enactment of Bill C-7, MAID was only available to individuals who had a grievous and irremediable condition and whose death was “reasonably foreseeable”. After the Truchon decision found this requirement to be contrary to section 7 of the Charter, the law was changed to permit individuals whose death is not reasonably foreseeable to access MAID. In these circumstances, individuals must still meet all other criteria for eligibility, including having a grievous and irremediable medical condition, but they must also undergo a longer period than is required for individuals whose death is reasonably foreseeable. Where a person’s death is not reasonably foreseeable, a 90-day assessment period is observed between the first assessment and the MAID procedure, in order to allow the assessors time to investigate the requestor’s medical condition. This assessment period can be shortened if the assessors have completed their assessments and agree that the patient is both eligible to receive MAID and is at imminent risk of losing capacity to consent.
The First Path: Final Consent by the Individual
In what we refer to as the “First Path”, the consent of the individual seeking MAID is confirmed at the time that MAID is performed. This is referred to as the “final consent”. The requirement of final consent means that a person must be capable of making and communicating their decision to have MAID performed at the time that it is performed.
A person is presumed to be capable of making their own decisions regarding medical treatments (such as MAID), unless their health care provider has reasonable grounds to believe that they are incapable. Unlike other decisions regarding medical treatments, a substitute decision-maker cannot consent to MAID on another’s behalf, and neither can a Provider proceed without consent in the case of an emergency. The consent of the individual seeking MAID is required in all cases.
The Second Path: Waiver of Final Consent
The requirement for final consent in the 2016 iteration of the MAID Provisions presented a dilemma for people with advancing illnesses that would ultimately remove their decision-making capacity: they would have to choose between taking their lives earlier than they wanted and risking the loss of capacity before being able to access MAID, resulting in the procedure not being available to them. Changes in the law brought by Bill C-7 attempted to address this problem by introducing an exemption to the requirement for contemporaneous consent: the waiver of final consent
On what we refer to as the “Second Path”, the person accessing MAID plans their MAID procedure with their Provider, sets a date, and provides their consent to MAID and waives the requirement for final consent. This exemption is only available for a person whose natural death is “reasonably foreseeable”, which is otherwise not an eligibility requirement for MAID.
Through this Second Path, a Provider can provide MAID to individuals who are no longer able to consent under certain circumstances, by scheduling the MAID procedure and obtaining the patient’s consent in advance. There is no restriction on rescheduling the MAID procedure as long as the patient remains capable of providing consent to MAID and the Provider agrees to do so.
A Provider must ensure that the following criteria are met before providing MAID in connection with a waiver of final consent:
the person’s natural death has become reasonably foreseeable (a prognosis of the specific length of time that they have remaining is not required and this is not defined in the MAID Provisions);
the person is eligible for and was approved to receive MAID;
the procedure for MAID has been scheduled with a specific Provider;
the person has been informed by their Provider that they are at risk of losing decision-making capacity before the scheduled date for their MAID procedure;
the person consents in writing to the Provider administering a substance to cause the person’s death on the scheduled date; and
when the procedure is performed, the person does not refuse or resist (by words, sounds or gestures) having the substance administered.
If a person still has the capacity to provide consent on the day of their MAID procedure, then they must be given the opportunity to withdraw their request and they must provide express consent to receive MAID. Practically speaking (and with the agreement of the MAID Provider) in these cases a new date could be scheduled and the procedure deferred.
The law governing MAID is still relatively new and includes specific and restrictive criteria for who can access MAID. The MAID Provisions do not allow for requests by mature minors, advance requests, or requests where a mental disorder is the sole underlying medical condition. In Part II of our two-part series, we will discuss the future of MAID in these areas.
We hope that the above information is helpful to you as you evaluate your options regarding MAID. MAID is truly an ongoing legislative project, and we will continue to provide updates as this area evolves. If you or your organization have questions about MAID in Canada, please contact us.
