Written by Barbara Kimmitt and Barbara Stratton
Recent changes to the "Medical Assistance in Dying" (MAID) provisions in the Criminal Code, allow medical or nurse practitioners in Canada to provide MAID to patients who request assistance in dying, who later lose the capacity to consent at the time MAID is administered. As well, it is no longer a prerequisite to MAID that death be "reasonably foreseeable". However, the law-makers remain undecided about how to treat mental illness in the context of MAID, and have essentially declined to make it available for Canadians diagnosed with dementia.
MAID has been legal in Canada since June 2016, when the federal government made revisions to the criminal law relating to assisted suicide. Those revisions were made in response to the 2015 decision of the Supreme Court of Canada in Carter v Attorney General, 2015 SCC 5. The 2016 law was challenged almost as soon as it was passed because it limited access to MAID where death was "reasonably foreseeable". The Quebec Superior Court in Truchon c. Procureur général du Canada, 2019 QCCS 3792 found this limitation to be contrary to sections 7 and 15 of the Charter of Rights and Freedoms, and ordered the government to revise the law. Bill C-7 is the federal government's response to that direction.
On March 17, 2021, Bill C-7 received Royal Assent, and is now the law in Canada. The legislative revisions include the following:
- They repealed the requirement that death be "reasonably foreseeable" before a person could qualify for MAID. Now, as long as a person suffers from a "grievous and irremediable medical condition", he or she may request MAID. The rules create one procedure for persons for whom death is reasonably foreseeable, and a more stringent process for persons for whom death is not reasonably foreseeable.
- Only one person (rather than two) must act as an independent witness to a written request for MAID. A person who directly provides care and is paid to do so, qualifies as an independent witness. A person who knows or believes he or she might be named in the person's will, or will otherwise receive a financial benefit from the person's death, continues to be disqualified as an independent witness.
- If death is reasonably foreseeable, then the former rule that required a 10-day waiting period no longer applies. Previously, a person could request MAID as long as he or she met all of the requirements of the legislation and was mentally capable at all times, including at the time of the medical procedure. Prior to the passing of Bill C-7, one significant issue was with rapidly deteriorating patients who lost capacity between the time that the patient requested MAID, and the end of the waiting period. Unless the waiting period could be waived, those patients could not receive MAID. Patients who lost capacity would have no recourse, and would die in a manner that they had been actively trying to prevent. Now, a person who qualifies for MAID can enter into a signed advance agreement by which he or she confirms that he or she would like to receive MAID on a specified date. If he or she loses capacity before that date, then the medical or nurse practitioner may still administer MAID.
- If death is not reasonably foreseeable then the medical or nurse practitioner must ensure all of the requirements are otherwise met, and in addition, he or she must:
- ensure that the request for MAID is in writing and properly witnessed;
- ensure that the person is informed that the request can be withdrawn at any time;
- ensure that another medical or nurse practitioner provides a written opinion confirming the person meets all of the criteria;
- refer to a specialist if he or she, or the second medical or nurse practitioner does not have expertise in the patient's medical condition;
- advise the patient of means available to relieve their suffering, including counselling and mental health and disability services; and
- ensure that there are least 90 clear days between the day of the first assessment and the administration of MAID. Therefore, if a person whose death is not reasonably foreseeable requests MAID, and loses capacity during this period, then he or she cannot receive MAID.
- Note that the ability to enter into an advance agreement only applies to persons for whom death is "reasonably foreseeable". Presumably, this means that persons diagnosed with dementia could not receive MAID unless the medical or nurse practitioners providing the two necessary opinions agree that the dementia would result in reasonably foreseeable death. Therefore, while the elimination of the 10-day wait period, and the addition of the "advance agreement" option expands the accessibility of MAID, there remains a significant gap in the law as it relates to dementia.
The law around MAID continues to evolve and requires a careful balancing of the rights of individuals over their own lives, versus the protection of vulnerable persons, and the protection of religious and personal beliefs of all Canadians, including our medical professionals who are called upon to administer MAID. Canadians can expect further revisions to the legislation over the coming year, particularly with respect to the application of the law to mental illness, and to mature minors.