The Law Governing Medical Assistance in Dying Part II: The Future of MAID
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.
This is Part II of a two-part blog series about the past, present, and future of the law governing Medical Assistance in Dying (“MAID”) in Canada.
NOTE: This blog series (Part I and Part II) was updated in April 2023.
The law governing MAID is still relatively new and includes specific and restrictive criteria for who can access MAID. The provisions of the Canadian Criminal Code which govern 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. Although these are challenging issues, the Courts have been clear that MAID falls under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”) and that the legislature is expected to address these issues within the timelines provided. The Committee’s review has included consulting the public and experts.
The amended 2021 MAID Provisions included a provision which required a special joint parliamentary committee (the “Committee”) to undertake a comprehensive review of the MAID provisions and their application, including but not limited to issues relating to mature minors, advance requests, mental disorder, the state of palliative care in Canada and the protection of Canadians with disabilities. The Preamble for Bill C-7 further specifies that this review is to allow for consultation and deliberation regarding the risks and complexity of providing MAID in these circumstances.
What does the future of MAID look like for mature minors, those who wish to make an advance request for MAID, and those whose sole underlying medical condition is a mental disorder? We provide a brief overview of each of these issues below.
Mental Disorder
Under the 2016 MAID provisions, the MAID eligibility requirements included a requirement that the requestor have a reasonably foreseeable natural death. This precluded individuals whose natural death was not reasonably foreseeable from receiving MAID, even if they met all other eligibility criteria. When this restriction was removed by Bill C-7, it opened up the possibility of people whose sole underlying medical condition is a mental disorder accessing MAID. To prevent this, the legislature expressly excluded mental disorder[1] as a reason for seeking MAID and committed to a review of the issue over the next two years, ending on March 17, 2023.
The final report of the Committee is expected to be completed and its findings reported on February 17, 2023. However, this would only allow Parliament one month to consider and implement these findings to expand MAID to include people whose sole medical condition is mental disorder before the deadline. On December 15, 2022, the Honourable David Lametti (Minister of Justice and Attorney General of Canada), the Honourable Jean-Yves Duclos (Minister of Health), and the Honourable Carolyn Bennett (Minister of Mental Health and Addictions and Associate Minister of Health), issued a statement calling for a negotiation of an extension for expanding MAID and temporarily delaying the introduction of a new legal framework which allows MAID under these circumstances.
The Committee’s deliberation include the consideration of an independent report by an expert panel, which was released on May 13, 2022. The expert panel made 19 recommendations regarding establishing practice standards and training, the interpretation of “grievous and irremediable medical condition” (e.g. establishing a history of attempts at treatment), vulnerabilities and safeguards, the assessment process, consultation of indigenous peoples, data collection, research and oversight. The expert panel expressed the belief that its recommendations could be implemented without adding new safeguards to the Criminal Code, but by ensuring that there is an adequate structure in place to guide the interpretation of the MAID Provisions in the specific context of mental disorders.
Mature Minors
The MAID Provisions of the Criminal Code require that the person requesting MAID be 18 years-old, or older. This eligibility requirement blocks minors from accessing MAID when there is otherwise no age limit on an individual’s capacity to make decisions about their health care treatment. This category of potential MAID requestors is referred to as “mature minors”. Although this prohibition has not yet been challenged before the Courts, the Canadian government is aware that this issue is on the horizon and will eventually need to be addressed.
When MAID was introduced in 2016, then Minister of Health Jane Philpott and Minister of Justice and Attorney General of Canada Jody Wilson-Raybould commissioned the Council of Canadian Academies (“CCA”) to prepare reports on the issues of requests by mature minors, advance requests, and requests where a mental disorder is the sole underlying medical condition. Among other topics in the CCA report regarding mature minors, the CCA discusses a lack of data in this area, with even the two jurisdictions in which minors can access MAID – Belgium (no age limit) and the Netherlands (age limit 12 years-old) – only having 12 cases total between them since 2002.
Despite undertaking this study several years ago, the legislature has not yet committed to addressing this issue within a particular time frame.
Advance Directives
As is discussed above, express consent of the person requesting MAID is always required. Following the first path, this is provided at the time MAID is administered, and following the second path, MAID is provided on a date agreed upon in advance between the provider and the recipient. An advance request for MAID differs in that it is a request for MAID created in advance which sets out the circumstances in which the person wishes to have MAID administered if they lose the capacity to make their own health care decisions.
The CCA report regarding advance requests identifies several challenges and potential safeguards applicable to an advance request for MAID, the most central of which is the tension between the needs of those who may lose their opportunity to access MAID due to a loss of capacity and the risk of potentially administering MAID against someone’s wishes.
Similar to the issue of mature minors, the legislature has not committed to addressing this issue within a particular time frame. However, the introduction of the waiver of final consent has introduced a grace period of sorts for those whose loss of capacity to provide consent to MAID may be imminent.
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.
[1] Although the legislation uses the term “mental illness”, the expert panel referred to below has recommended the use of “mental disorder” and this has already been adopted by the Committee.
