Proposed changes to Canada’s medical assistance in dying legislation

Note: This webpage presents a simplified, accessible version of the contents of this webpage and should not be considered a legal document.

Infographic: Medical Assistance in Dying in Canada

On October 5, 2020, a bill was reintroduced by the Minister of Justice and the Attorney General of Canada. The bill recommends changes to the Criminal Code conditions on medical assistance in dying (MAID). Medical assistance in dying is when doctors or nurse practitioners help people, who are very sick and have extreme suffering, to die.

The proposed changes follow consultations with Canadians. The federal government consulted with provinces and territories, experts, health care professionals, stakeholders, and Indigenous groups. An online survey on MAID received over 300,000 responses.

The reintroduced changes are the same than the ones that were introduced by Bill C-7 in the previous parliamentary session.

The Bill would change the Criminal Code. It would mean that people who have extreme suffering, but are not expected to die, will be able to receive MAID.

The proposed changes will mean fewer Canadians will suffer. The changes will give people more independence and choice. The changes will continue to protect vulnerable people.

Response to Truchon v. Attorney General of Canada

There was a recent legal case in Quebec, Truchon v. Attorney General of Canada. The Superior Court of Quebec made a ruling on the case on September 11, 2019. They found a condition in the Criminal Code to be unlawful because it went against the Constitution (and so the law cannot continue to work). The province of Quebec also has a law on MAID. The court also found a similar condition in Quebec’s Act respecting end-of-life care to be against the Constitution. The conditions are about the “reasonable foreseeability of natural death.”

The Attorney General of Canada requested more time so that Parliament could make changes to the law for everyone in Canada. The court agreed. The court ruling will now come into effect on February 27, 2021.

The changes in the Bill would allow people who are suffering, but are not expected to die, to get MAID. This means removing “reasonable foreseeability of natural death” in some areas of the law. But the idea of “reasonable foreseeability of natural death” would be kept in another area of the law. This would help doctors and nurse practitioners know which safeguards to apply to requests. Safeguards are protections in the law to make sure it is used properly. The Bill would make some safeguards easier for people who are expected to die. There will be new safeguards for people who are suffering, but not expected to die.

Proposed amendments to the Criminal Code

Eligibility

Right now, people who want medical help to die have to meet certain requirements to be eligible. The requirements are as follows:

  • they must be 18 years old or older
  • they must be covered by a province or territory’s health care plan. Or they must be covered by a federal health care plan
  • they must be able to make health care decisions for themselves
  • they have to ask for MAID for themselves, without pressure from anyone. They cannot be pressured into it by their doctor or a family member. No one else can make the request for them
  • they must be given all of the information they need in order to give informed consent. This includes diagnoses, options for treatment, and palliative care options
  • they must have a “grievous and irremediable medical condition.” This means:
    • they have a disease, disability or illness that is serious and can’t be cured
    • they are getting less and less capable and it can’t be reversed
    • they have great physical or psychological suffering from their disease, disability or illness
    • they are at a point where their natural death has become reasonably foreseeable. This means that they are expected to die. This is based on their overall medical situation. The doctor or nurse practitioner doesn’t need to know exactly how long their patient has to live

This Bill would only take out the requirement of “reasonable foreseeability of natural death.” The Bill would also not allow requests for MAID from people suffering from mental illness only.

Safeguards

MAID can be received by two different groups of people. The Bill proposes that these two groups be kept safe in two different ways.

These are the two groups and their safeguards:

  • People who are suffering and are expected to die. Safeguards for those people would be kept in place or made a little easier
  • People who are suffering and are not expected to die. New and stronger safeguards would apply for those people

2016 MAID Legislation (Current Law)

These are the safeguards for all eligible people. These follow the conditions of the 2016 MAID laws:

  • the request for MAID must be made in writing. The written request must be signed by two independent witnesses. This request must be made after the person has been told that they have a “grievous and irremediable medical condition.”
  • two independent doctors or nurse practitioners must provide an assessment. They must confirm that the person meets all of the requirements
  • people have to wait 10 days after they sign their written request to receive MAID. They don’t have to wait if the doctors or nurse practitioners agree that:
    • the person will die of natural causes before 10 days pass
    • the person will lose the ability to make their own decisions before 10 days pass
  • the person who asks for MAID must be told that they can change their mind at any time and say they don’t want it anymore
  • the person must be asked if they changed their mind immediately before receiving MAID. The person must give their consent immediately before receiving MAID

Proposed legislative changes introduced on February 24, 2020

The following safeguards are being kept or made easier for people who are suffering and are expected to die:

  • the request for MAID must be made in writing. The written request must be signed by one independent witness. This request must be made after the person has been told that they have a “grievous and irremediable medical condition.” A paid personal or health care worker can be a witness
  • two independent doctors or nurse practitioners must provide an assessment. They must confirm that the person meets all of the requirements
  • the person who asks for MAID must be told that they can change their mind at any time
  • the person must be asked if they changed their mind immediately before receiving MAID. The person must give their consent immediately before receiving MAID. The requirement for this “final consent” may be waived in certain situations. This means the final consent would not have to be given. This situation described below

The following safeguards are new or strengthened for people who are suffering and are not expected to die:

  • the request for MAID must be made in writing. The written request must be signed by one independent witness. This request must be made after the person has been told that they have a “grievous and irremediable medical condition.” A paid personal or health care worker can be a witness
  • the person who asks for MAID must be told that they can change their mind at any time
  • two independent doctors or nurse practitioners must provide an assessment. They must confirm that the person meets all of the requirements
  • one of the two practitioners doing the assessment must have some experience or expertise in the medical condition that is causing the person’s suffering
  • the person must be told about the available ways they can find relief for their suffering. This could include counselling services, mental health and disability support services, and palliative care. They must be offered time to talk to professionals who provide these services, if they are available
  • the doctor or nurse practitioner and the person must talk about the ways that are available to ease the person’s suffering. The person and their doctor or nurse practitioner must agree that the person has seriously considered ways that are available to ease their suffering
  • the assessments for eligibility for MAID must take a minimum of 90 days. This is true unless the assessments are done and the person is at risk of losing their capacity very soon
  • the person must be asked if they changed their mind immediately before receiving MAID. The person must give their consent immediately before receiving MAID

Waiver of final consent

This Bill would allow a waiver of final consent. This means the person would not be required to give final consent immediately before receiving MAID. To get this option, a person must meet all of the following requirements:

  • a person whose natural death is reasonably foreseeable
  • a person who has been assessed by two doctors or nurse practitioners and approved to receive MAID
  • a person who had made an arrangement with their practitioner for a waiver of final consent. This is because they are at risk for losing their decision-making capacity before their date to receive MAID

In some cases, the Bill would not allow a doctor or nurse practitioner to carry out MAID based on the waiver of final consent. This would happen if the person lost their decision-making capacity and seems to have changed their mind about receiving MAID. The person could indicate they changed their mind through actions that indicate that they are refusing or resisting MAID. These actions would not include automatic reactions by the person to someone touching them or inserting a needle.

Waiver of final consent in the context of self-administration

Some people choose to have MAID by taking the prescription drug themselves, in order to bring about their own death. This is called self-administration. However, it is possible that the drug might not work as expected. The person could be left unconscious and unable to provide final consent to have the procedure completed by a doctor or nurse practitioner. The Bill proposes that these people would not need to give final consent for their doctor or nurse practitioners to follow through with the MAID procedure. This option is available for everyone who is eligible for MAID, whether or not they are expected to die.

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