Medical Assistance in Dying: An Update
As of June 6, 2016, medical assistance in dying (“MAID”) is permitted in Canada. This date marked the passing of a deadline set by the Supreme Court of Canada (“SCC”) for the federal government to pass a new law on MAID before the Criminal Code prohibition on MAID became invalid. As a result of the fact that no such legislation has yet been passed, there is much confusion among the provinces, health care providers, and the patients who wish to access MAID. What is clear, however, is that MAID is still only available to the individuals who meet the criteria set out by the SCC in the Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”) decision. In order to be eligible for MAID an individual must:
Be a competent adult;
Clearly consent to the termination of life;
Have a grievous and irremediable medical condition (including an illness, disease or disability); and
Experience enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
In Ontario, physicians are now permitted to provide MAID to their patients (but not required to do so) in accordance with the guidelines established by the College of Physicians and Surgeons of Ontario (“College”) in its policy on Physician-Assisted Death.
In a joint statement issued on June 6, 2016, Ontario’s Attorney General and Minister of Health and Long-Term stated that the province is setting up a referral service so that physicians who are unwilling or unable to provide MAID can connect patients with those physicians who are willing and able to complete a patient consultation and assessment. Furthermore, the government indicated that Ontario will ensure that drugs for MAID will be available at no cost to patients.
It was recommended in the joint statement that patients who wish to access MAID should talk with their health care provider, and health care providers should consult their regulatory colleges about any rules, guidelines or practices regarding MAID. Oddly, however, the joint statement also provided that while not required by the SCC, patients and health care providers were encouraged to seek further clarity about how the SCC’s decision applies to their particular circumstances by bringing an application to the Ontario Superior Court of Justice. As we previously summarized here on our blog, individuals who wished to access MAID prior to June 6, 2016 had to make such an application for an order granting them permission to do so.In our view, it is unfortunate that Ontarians are being encouraged to continue to pursue a costly, time-intensive, public process for access to MAID, when the College policy sufficiently sets out the professional and legal obligations that apply to physicians providing MAID, including safeguards to ensure that MAID is being carried out in accordance with the requirements set out by the SCC in Carter. Although the deadline of June 6, 2016 has passed, the federal government can still enact legislation regarding MAID at any time. While federal legislation would create much needed clarity and consistency across the country, there doesn’t have to be a criminal law in place to prevent the misuse of MAID. Regulatory law can serve that purpose.
