Proposed changes to Canada’s medical assistance in dying legislation

Infographic: Medical Assistance in Dying in Canada

On February 24, 2020, the Minister of Justice and Attorney General of Canada introduced a bill, which proposes changes to the Criminal Code’s provisions on medical assistance in dying (MAID). The proposed changes follow extensive consultations with Canadians, experts, practitioners, stakeholders, Indigenous groups, provinces and territories, and an online questionnaire that received over 300,000 responses.

This Bill would amend the Criminal Code to allow MAID for eligible persons who wish to pursue a medically assisted death, whether their natural death is reasonably foreseeable or not. The proposed changes will reduce unnecessary suffering in Canada. They will also support greater autonomy and freedom of choice for eligible persons, and provide safeguards to protect those who may be vulnerable.

Response to Truchon v. Attorney General of Canada

On September 11, 2019, the Superior Court of Québec found the "reasonable foreseeability of natural death" eligibility criterion in the Criminal Code, as well as the "end-of-life" criterion from Quebec’s Act respecting end-of-life care, to be unconstitutional (Truchon v. Attorney General of Canada).

On March 2, 2020, the Superior Court of Québec granted the request of the Attorney General of Canada for a four-month extension, until July 11, 2020, of the Truchon decision rendered in September 2019. As a result, both criteria will no longer be applicable in the province of Quebec as of July 12, 2020, the date the court’s ruling comes into effect.

While "reasonable foreseeability of natural death" is removed as an eligibility criterion in the proposed legislation, it is kept as a way of deciding which procedural safeguards will be applied to MAID requests.

Proposed amendments to the Criminal Code

Eligibility

Under the current legislation, persons who wish to pursue a medically assisted death must satisfy the following eligibility criteria:

  • be 18 years of age or older
  • be eligible for health services funded by the federal government, or a province or territory (or during the minimum period of residence or waiting period for eligibility)
  • be able to make health care decisions for themselves
  • make a voluntary request for MAID that is not the result of external pressure (for example, from a health care professional, or family member)
  • give informed consent after they have received all of the information they need to make their decision, including their medical diagnosis, available forms of treatment, and available options to relieve suffering (including palliative care)
  • have a "grievous and irremediable medical condition," meaning that a person:
    • has a serious and incurable illness, disease or disability
    • is in an advanced state of decline in capabilities that cannot be reversed
    • experiences unbearable physical or physiological suffering from an illness, disease, disability or state of decline that cannot be relieved under conditions that the person considers acceptable
    • is at a point where their natural death has become reasonably foreseeable, taking into account all medical circumstances, and not requiring a specific prognosis as to how long they have left to live

This Bill would retain all existing eligibility criteria, but would remove the requirement for "reasonable foreseeability of natural death". It would also expressly exclude persons suffering solely from mental illness.

Safeguards

The Bill proposes a two-track approach to procedural safeguards based on whether or not a person’s natural death is reasonably foreseeable. Existing safeguards will be maintained and eased for persons whose death is reasonably foreseeable. New and strengthened safeguards would be applied to eligible persons whose death is not reasonably foreseeable.

2016 MAID Legislation (Current Law)

Safeguards for all eligible persons, according to 2016 law’s eligibility criteria:

  • the request for MAID must be made in writing. This written request must be signed by two independent witnesses, and it must be made after the person is informed that they have a “grievous and irremediable medical condition”
  • two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
  • a 10-day reflection period must elapse between the date of the signed written request and when the person receives MAID, unless death or loss of decision-making capacity are fast approaching
  • the person requesting MAID must be informed of the right to withdraw consent at any time, in any manner
  • the person must be given an opportunity to withdraw consent and must expressly confirm their consent immediately before receiving MAID
Proposed legislative changes introduced on February 24, 2020

Maintained and eased safeguards for persons whose natural death is reasonably foreseeable:

  • the request for MAID must be made in writing. This written request must be signed by one independent witness, and it must be made after the person is informed that they have a “grievous and irremediable medical condition”. A paid professional personal or health care worker can be an independent witness.
  • two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
  • the person must be informed that they can withdraw their request at any time, in any manner
  • the person must be given an opportunity to withdraw consent and must expressly confirm their consent immediately before receiving MAID (this “final consent” requirement can be waived in certain circumstances as described below)

New and strengthened safeguards for persons whose natural death is not reasonably foreseeable:

  • the request for MAID must be made in writing. This written request must be signed by one independent witness, and it must be made after the person is informed that they have a “grievous and irremediable medical condition”. A paid professional personal or health care worker can be an independent witness.
  • the person must be informed that they can withdraw their request at any time, in any manner
  • two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
    • one of the two practitioners who provides an assessment of eligibility must have expertise in the medical condition that is causing the person’s suffering
  • the person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services
  • the person and the practitioners must have discussed reasonable and available means to relieve the person’s suffering, and agree that the person has seriously considered those means
  • the eligibility assessments must take a minimum of 90 days, unless the assessments have been completed and loss of capacity is imminent
  • immediately before MAID is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent

Waiver of final consent

This Bill would allow waiver of final consent only for persons:

  • whose natural death is reasonably foreseeable
  • who have been assessed and approved to receive MAID
  • who made an arrangement with their practitioner for waiver of final consent because they were at risk losing decision-making capacity before their chosen date to receive MAID

The Bill would render this waiver of final consent invalid if the person, after having lost decision-making capacity, demonstrates refusal or resistance to the administration of MAID. Reflexes and other types of involuntary movements, such as response to touch or the insertion of a needle, would not constitute refusal or resistance.

Waiver of final consent in the context of self-administration

The Bill would also allow eligible persons who choose to pursue MAID through self-administration would also be allowed to make arrangements with their practitioner to waiver the need for final consent, to allow for a physician to follow through with providing MAID to the person should self-administration produce complications and cause the individual to lose decision-making capacity. This type of waiver of final consent would be available for all eligible persons, regardless of their prognosis.

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