Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision
Part IV – Advance Consent for MAID
Advance Consent – Persons whose Natural Death is Reasonably Foreseeable
The proposed legislation would also amend the Criminal Code MAID provisions to allow people whose natural death is reasonably foreseeable to retain their ability to receive MAID if they should happen to lose the capacity to consent to it after they have been approved, but before it is provided. At present, this is not permitted, as one of the safeguards in the Criminal Code requires the person to confirm their consent immediately before they receive MAID (paragraph 241.2(3)(h)).
More specifically, the proposed amendments would allow for the waiver of the requirement for final consent for MAID through an “advance consent arrangement”, if the following conditions are met (proposed subsection 241.2(3.2) of the Criminal Code):
- The person’s natural death is reasonably foreseeable;
- The person has been assessed and approved for MAID in accordance with all applicable safeguards;
- They have indicated their preferred date to receive MAID;
- They have been informed by their practitioner that they are at risk of losing the capacity to consent to MAID before their preferred date; and
- The person has a written arrangement with their practitioner in which the person gives consent in advance to receive MAID on their preferred date if they no longer have the capacity to consent on that date (which has the effect of waiving the requirement for final consent), and the practitioner agrees to provide MAID on that date if the person has in fact lost the capacity to consent at that time (they may also agree that the practitioner will provide MAID earlier than the preferred date, upon loss of capacity, if so desired).
This proposal would respond to circumstances like that of Audrey Parker who was suffering from terminal cancer and was approved to receive MAID but, because she was at risk of losing capacity before her preferred date to receive it, decided to schedule her MAID procedure earlier than she wanted.
The proposed amendments would not enable waiver of final consent for those whose deaths are not reasonably foreseeable.
Patient Resistance
Practitioners would not be allowed to provide MAID through advance consent in cases where the person demonstrates, by words, sounds or gestures, refusal or resistance to the administration of the substance to cause their death (proposed subsection 241.2(3.4) of the Criminal Code). A demonstration of resistance would make the advance consent arrangement invalid going forward. If the person regained capacity at a later date, they could consent to MAID being provided at that time (as long as they continue to meet all eligibility criteria) or could draft a new advance consent arrangement with their practitioner. The law would also make clear that involuntary bodily actions, such as twitching or physical recoiling from contact or insertion of needles, for instance, do not equate to resistance or refusal.
This prohibition would respond to ethical concerns raised by medical practitioners and experts with regard to ending the life of someone who is not capable of withdrawing their consent or confirming it (despite having consented to MAID at an earlier time), and who is actively resisting the MAID procedure.
Meaning of Advance Consent
The proposed measures are being referred to as permitting MAID by “advance consent” because they would involve situations where, in the present, a person’s request for MAID has been assessed and approved, but the person risks losing capacity before the MAID procedure takes place. Therefore, the person would be providing “advance consent” for the MAID procedure as a replacement for the “final consent” that is otherwise required by the law immediately before MAID is provided.
By contrast, the term “advance request” better describes situations where a person is not seeking access to MAID in the present, but outlines the circumstances under which they would want to receive MAID at some point in the future, if certain circumstances arise after they lose their decision-making capacity. In these circumstances, unlike the “advance consent” measures proposed in Bill C-7, the person would not have made request for MAID or been found eligible for MAID at the time when they prepare the document setting out their future wishes. This is appropriately called an “advance request” for MAID since the request would be prepared long in advance of when MAID would actually be desired and provided. Issues relating to advance requests for MAID will be examined during the parliamentary review.
Advance Consent – Failed Self-Administration
The proposed legislation would also enable a person who chooses to self-administer MAID (as opposed to the practitioner administering the substance that ends their life) to create a back-up plan, in the unlikely event that complications arise from the self-administration, leaving them without the capacity to give consent to their practitioner to administer the substance to complete the process. In this case, the provision of MAID by the practitioner would complete the peaceful dying process that the person had chosen and started themselves.
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