Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision
Part III – Safeguards for MAID
Under the current Criminal Code provisions, before a physician or nurse practitioner can provide MAID to a person, the following safeguards must be met (subsection 241.2(3) of the Criminal Code):
- Witness requirement: Patient must make a written request that must be witnessed and signed by two independent witnesses;
- Two assessments: Two independent practitioners must confirm all eligibility criteria;
- Possibility to withdraw consent: Person must be informed that they can withdraw request at any time, by any means;
- Reflection period: Mandatory 10-day reflection period after the written request is signed, unless death or loss of capacity is imminent;
- Final consent: Immediately before MAID is provided, the person must be given opportunity to withdraw their consent, and must confirm consent to receive MAID.
The proposed Criminal Code amendments would create two different sets of safeguards depending on whether the person’s natural death is reasonably foreseeable or not. Specifically, the Bill proposes to use the “reasonably foreseeable natural death” (RFND) standard to determine which set of safeguards apply to someone seeking access to MAID. It would also determine whether a person who has been found eligible for MAID can consent in advance to receiving it even if they have lost decision-making capacity by the date of the procedure (“advance consent arrangement” – see Part IV below). The RFND criterion would no longer apply as an eligibility criterion that could have the effect of excluding a person from accessing MAID.
The Meaning of RFND
RFND is assessed on a case-by-case basis, in relation to the specific person who is seeking MAID, and must consider the whole of their individual and unique medical circumstances. RFND is not limited to those who have an illness that is known to cause death, but can result from a combination of multiple factors relevant to a person’s overall medical circumstances.
RFND requires a temporal, but flexible, connection between the person’s overall medical circumstances and their anticipated death. Individuals may decline toward death along trajectories of greater or lesser predictability. As such, RFND is not defined by a maximum or minimum prognosis, but it does require a temporal link to death in the sense that the person is approaching the end of their life in the near term.
Anticipating how long a person has to live is difficult, and clinical estimation of life expectancy becomes even more difficult the further away death is expected. Many people who have received MAID under the current eligibility criteria requiring RFND were expected to die within a few weeks or months. A person’s death may also be foreseeable in the temporal sense over longer periods, depending on the particular circumstances under consideration. However, having an illness that that will cause death several years in the future would not normally meet the condition of RFND.
RFND allows for clinical judgement while maintaining a temporal link to end of life. It remains a useful and meaningful term in the context of MAID.
Proposed Amendments to Safeguards – Two Sets of Safeguards
The first set of safeguards would continue to be tailored to persons whose natural death is reasonably foreseeable, where risks are reduced and where the potential sources of suffering are most likely linked to the dying process itself. The second set of safeguards would be tailored to persons whose deaths are not reasonably foreseeable, and would therefore reflect the more serious consequences of error in these cases (e.g., providing MAID to a person who could have grown more comfortable with their medical situation, or found a treatment which alleviates their suffering). The Bill proposes additional safeguards to address elevated risks associated with the diverse sources of suffering and vulnerability that could lead a person whose death is not reasonably foreseeable to seek access to MAID, such as loneliness or isolation, lack of adequate supports and hopelessness. Such sources of suffering and vulnerability may be remediable to different degrees.
Proposed Amendments to Safeguards for Persons whose Natural Death is Reasonably Foreseeable
In the cases of persons whose natural death is reasonably foreseeable, it is proposed that some of the existing safeguards be eased. Proposed amendments would require that MAID requests be witnessed by one independent witness instead of two, and would allow individuals who provide either health or personal care as their profession or occupation, and who are paid to provide such care to the person requesting MAID, to act as independent witnesses. It is also proposed to repeal the 10-day mandatory reflection period.
The two proposed changes to the witness requirement aim to respond to concerns raised by health professionals and other stakeholders at the MAID roundtables to the effect that finding two independent witnesses is a challenge for many and, thus, poses an access barrier. The first change would facilitate access to MAID by requiring only one independent witness instead of two. Having only one independent witness would be an adequate safeguard given that the witness is only attesting to the signing and dating of the MAID request and plays no role with respect to the assessment of eligibility or application of other safeguards.
The second change would allow individuals who are paid to provide health and personal care as their profession or occupation to act as independent witnesses, which is currently not allowed. These individuals are likely to be among the limited number of personal contacts persons residing in a care institution may have. Persons who are being paid to provide personal or health care, and who have chosen the provision of care as their profession or occupation, can reasonably be expected to witness a MAID request with integrity and objectivity, and be guided by the interests of the person making the request, rather than by personal, emotional or other self-interested reasons.
These individuals would still be excluded from acting as a witness if they are a beneficiary of the person’s will or if they would receive a financial benefit from the person’s death (under paragraph 241.2(5)(a)). For greater certainty, any medical provider who is involved in the assessment of the person for MAID eligibility or in providing MAID to the person would still be excluded from being able to act as an independent witness.
10-day Reflection Period
During the roundtable discussions held to inform the government’s response to Truchon, there was overwhelming support to remove the 10-day reflection period. Health care providers and other experts indicated that in their experience, patients who request MAID do so after careful consideration, often over a long period of time. In their view, the 10-day waiting period often resulted in prolonging patient suffering because individuals would refuse medications in order to retain capacity to consent to MAID (this concern is also addressed by the proposed change to allow for the waiver of the requirement for final consent – see Part IV on Advance Consent). The proposed removal of the 10-day reflection period would be limited to persons whose natural death is reasonably foreseeable.
The complete set of safeguards that would apply to a person whose natural death is reasonably foreseeable is set out at Annex B.
New and Clarified Safeguards for Persons whose Natural Death is Not Reasonably Foreseeable
In the cases of persons whose natural death is not reasonably foreseeable, safeguards would be based on the current ones, with certain changes, additions and clarifications. The requirements in respect of independent witnesses to the written request for MAID would be eased (as described above) and the following new and clarified safeguards, designed to support fully informed decision-making by persons seeking MAID whose death is not reasonably foreseeable, would apply.
Mandatory 90-day assessment period (New)
The first new safeguard for persons whose natural death is not reasonably foreseeable would require that a minimum of 90 days be taken for the assessments of the person’s eligibility. This assessment period could be shortened if the assessing practitioners agree that loss of capacity is imminent, but only if they are able to complete their assessments in a shorter period of time.
This proposed safeguard would aim to respond to the additional challenges and concerns that may arise in the context of MAID assessments for persons whose natural death is not reasonably foreseeable, including whether the suffering is caused by factors other than the medical condition, and whether there are ways of addressing the suffering other than MAID. The requirement for a minimum of 90 days for such assessments would seek to ensure that enough time is devoted to exploring all the relevant aspects of the person’s situation, including whether there are treatments or services that could help reduce the person’s suffering, such as counselling services, mental health and disability support services, community services and palliative care.
Second Assessment by Practitioner with Expertise (New)
The second new safeguard would require that one of the two mandatory eligibility assessments be conducted by a practitioner with expertise in the condition that is causing the person’s suffering. Involving an assessor with expertise in the medical source of the person’s suffering would help to ensure that all treatment options have been identified and explored, while at the same time avoiding the need for specialist involvement, which could pose a barrier in remote and rural areas where specialists may be in short supply.
Information on Available Supports (Clarification of Informed Consent)
A third change would be a clarification of informed consent that would expressly require that the person be informed of available counselling services, mental health and disability support services, community services and palliative care, as appropriate to the individual’s situation, and be offered consultation with relevant professionals. Most practitioners explore appropriate supports and available treatments in discussions with their patients as part of good medical practice, so this proposed safeguard would reinforce the importance of these discussions. It would also support the final new requirement (see immediately below).
Serious Consideration of Reasonable Means to Alleviate Suffering (Clarification of Informed Consent)
The final change would be a clarification of informed consent that would require the person and the practitioners to agree that reasonable means to alleviate the person’s suffering have been discussed and seriously considered before MAID could be provided. This safeguard would require the practitioner to explore reasonable treatment options with the patient and be satisfied that the person has fully explored and weighed the risks and benefits of available treatment options. At the same time, patients would not be required to undertake treatments that may be unacceptable to them.
The complete set of safeguards that would apply to a person whose natural death is not reasonably foreseeable is set out at Annex B.
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