What are the Requirements for Medical Assistance in Dying?
The federal government’s legislation on medical assistance in dying (“MAID”), also known as Bill C-14, was passed on June 17, 2016. Although this legislation has already been criticized as being in violation of the Supreme Court of Canada’s decision in Carterv. Canada (Attorney General), 2015 SCC 5 (“Carter”), it is now the prevailing law Canada. In this blog, we summarize the current requirements for individuals who wish to access MAID and for eligible health care providers who choose to provide this assistance.
Who Can Provide MAID?
Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID. They may do so in one of two ways: (1) directly administer the substance that causes death; or (2) give or prescribe a drug that is self-administered to cause death.
Those individuals who can help in providing MAID include pharmacists, other health care providers who assist physicians and nurse practitioners, and family members or other people whom the individual obtaining MAID specifically asks to assist him or her.
All of the above-noted individuals may now be involved the MAID process without being charged criminally, so long as they comply with the rules set out in the Criminal Code (introduced by Bill C-14) and applicable provincial and territorial health-related laws and policies. For physicians in Ontario, this would mean ensuring compliance with the College of Physicians and Surgeons of Ontario’s policy on Medical Assistance in Dying.
Finally, it is important to note that the new legislation does not oblige anyone to provide or to assist in providing MAID.
Who is Eligible for MAID?
In order to be eligible for MAID, individuals must meet all of the following criteria:
be eligible for publicly-funded health services in Canada;
be at least 18 years of age and capable of making his or her own health care decisions;
have a grievous and irremediable medical condition;
make a voluntary request for MAID, i.e. a request that is not the result of outside pressure or influence; and
give consent to receive MAID after being provided with all of the information necessary to make the decision, including information about his or her medical diagnosis, available forms of treatment and options to relieve suffering.
Bill C-14 sets out specific criteria that must be met for a medical condition to be considered grievous and irremediable. Specifically, an individual must:
have a serious and incurable illness, disease or disability;
be in an advanced state of decline in capability that cannot be reversed;
be enduring physical or psychological suffering from the illness, disease or disability that is intolerable to him or her and that cannot be relieved under conditions that he or she considers acceptable; and
be at a point where his or her natural death has become reasonably foreseeable, taking into account all of his or her medical circumstances.
As it stands, therefore, visitors to Canada, minors and mentally incompetent individuals are ineligible for MAID. Individuals with a mental illness may be eligible for MAID, so long as they meet the criteria set out above and their suffering is not attributable only to a mental illness, their death is reasonably foreseeable, and their mental illness does not hinder their ability to make medical decisions.
The MAID Process
The MAID process begins when an individual raises the issue with his or her physician or nurse practitioner and indicates that he or she wishes to obtain MAID. Following a request for MAID, the following series of steps must be taken:
The physician or nurse practitioner must be satisfied that the individual meets all of the eligibility criteria for MAID.
The individual must sign and date a written request for MAID, which must also be signed by two independent witnesses who are at least 18 years of age and understand the nature of the request for MAID. To be independent, the witnesses must not: (a) benefit (financially or otherwise) from the individual’s death; (b) be an owner or operator of a health care facility where the individual lives or is receiving care; or (c) be directly involved in the provision of health or personal care to the individual.
If the individual is unable to sign the request, another adult can sign the request on his or her behalf as long as they are 18 years of age, understand what it means to request MAID and will not benefit from the individual’s death.
The physician or nurse practitioner must inform the individual that he or she may withdraw his or her request for MAID at any time.
Another physician or nurse practitioner must provide written confirmation that the individual meets the eligibility criteria. This physician or nurse practitioner must be independent from the physician or nurse practitioner who is providing MAID, in that he or she must not: (a) be a mentor or supervisor of the other practitioner; (b) benefit from the individual’s death; or (c) know or believe that they are connected to the other practitioner or to the person making the request in any other way that would affect their objectivity.
There must be a period of 10 full days between the day on which the request was signed and the day on which MAID is provided, unless both health care providers believe that a shorter period is appropriate in the circumstances due to their opinion that the individual’s death or the loss of individual’s capacity to provide informed consent is imminent.
Immediately before providing MAID, the physician or nurse practitioner must give the individual an opportunity to withdraw their request and ensure that the person gives express consent to receive MAID.
A physician or nurse practitioner who provides MAID in contravention of the requirements set out in Bill C-14 is guilty of an offence and could spend up to five years in prison if convicted.
Conclusion
The passage of the new MAID legislation marks the beginning of a significant change in the landscape of end-of-life care in Canada. It is possible that further amendments will be made in the future if the courts, when faced with a legal challenge, find the legislation to be constitutionally invalid. Until such time, however, the process and safeguards set out in the legislation must be adhered to. As noted above, physicians and nurse practitioners are also required to comply with any provincial and territorial laws, regulations or policies.
For further information regarding MAID or for assistance in ensuring that you are in compliance with your obligations as a health care practitioner, please contact us.
