Changes in Medical Assistance In Dying (MAID): What You Need to Know

Posted on 28 April 2021 Back to News

 

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Since 2016 Canadians have had the right, in certain circumstances, to engage medical assistance to end their natural lives. The history of the movement to permit medical assistance in dying in Canada reflects changing societal values, not just in Canada, but globally.

As of March 17, 2021 Canada’s medical assistance in dying legislation has been amended to expand access to the procedure to those whose natural death is not reasonably foreseeable. This change in the legislation will enable those who have a severe life-limiting illness or disability which may not be imminently fatal, to choose the timing and manner of their death. As well, the legislation introduces the ability for persons to give consent in advance of their possible incapacity. Other changes to the legislation, including procedural safeguards and an expansion of data collection and monitoring of MAiD cases, are discussed below.

Brief History

Between 1892 and 2016, assisted suicide was illegal in Canada under section 241(b) of the Criminal Code. While suicide was decriminalized in 1972, assisted suicide remained illegal. Anyone found guilty of counselling someone to take their own life, or aiding someone to take their own life, was guilty of culpable homicide and liable to imprisonment for up to 14 years.

The continued criminalization of assistance in dying put the right to end one’s own life out of reach of many, particularly those persons too disabled to commit the act without assistance.

In 2015, after decades of various legal challenges, the Supreme Court of Canada decided unanimously to allow physician-assisted suicide, resulting in the passing of the Medical Assistance in Dying Act in June 2016. The MAID Act establishes eligibility criteria and procedural safeguards for medically-assisted suicide procedures.

Objectives of the MAID Act

The stated aim of the legislation is to ensure that the law reflects the evolving needs of individuals, to support their autonomy and freedom of choice while protecting those who may be vulnerable.

The MAID ACT prior to amendment

Eligibility

  • those eligible have to be at least 18 years of age, with a “grievous and irremediable medical condition” that causes “enduring physical or psychological suffering that is intolerable” to them.
  • patients must be in an “advanced state of irreversible decline,” in which their “natural death has become reasonably foreseeable.”

Safeguards

The law included a number of safeguards:

  • the physician or nurse practitioner had to confirm that the person met all eligibility criteria for medical assistance in dying (MAID).
  • a second assessment had to be done by an independent practitioner.
  • the request had to be made in writing after the patient was informed that their natural death was reasonably foreseeable.
  • the request had to be signed and dated in the presence of two independent witnesses.
  • patients had to be informed that they could withdraw their request at any time. There had to be a period of at least 10 days between the written request and the provision of MAID.
  • finally, the practitioner had to confirm the person’s consent immediately before providing assistance.

Amendments to the MAID Act (March 2021)

Expanded Eligibility

As of March 17, 2021, the law no longer requires a person’s natural death to be reasonably foreseeable as an eligibility criterion for MAID. Persons who wish to receive MAID must satisfy the following eligibility criteria:

  • be 18 years of age or older and have decision-making capacity.
  • be eligible for publicly funded health care services.
  • make a voluntary request that is not the result of external pressure.
  • give informed consent to receive MAID, meaning that the person has consented to receiving MAID after they have received all information needed to make this decision.
  • have a serious and incurable illness, disease or disability (excluding a mental illness until March 17, 2023).
  • be in an advanced state of irreversible decline in capability.
  • have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable.

As MAID is now available to persons whose natural death is not reasonably foreseeable, the legislation provides two regimes of safeguards: on the one hand,  some easing of the safeguards for those whose natural death is reasonably foreseeable, and on the other hand, new and strengthened safeguards for those whose natural death is not reasonably foreseeable.

Safeguards for those whose death is reasonably foreseeable.

    • the request for MAID must be made in writing: a 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,” (Note: 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 (Note: this “final consent” requirement can be waived in certain circumstances).

Waiver of 10 day reflection period for those whose natural death is reasonably foreseeable

The requirement for a minimum 10-day reflection period is now removed. Individuals whose natural death is reasonably foreseeable no longer have to wait 10 days between the approval of their MAID request and receiving MAID.

Changes to final consent requirements for those whose natural death is reasonably foreseeable

The revised law now allows the waiver of the requirement to provide final consent immediately before receiving MAID for patients whose natural death is reasonably foreseeable, where:

  • the person has been assessed and approved to receive MAID.
  • the person is at risk of losing decision-making capacity before their preferred date to receive MAID, and has been informed of that risk.
  • the person makes an arrangement in writing with their practitioner to waive final consent, and according to which the practitioner will administer MAID on their preferred date if they have lost the capacity to provide final consent at that time.

The agreement to waive final consent will be invalid if the person, after having lost decision-making capacity, demonstrates a refusal or resistance to the administration of MAID by words, sounds or gestures. Reflexes and other types of involuntary movements, such as a response to a touch or to the insertion of a needle, do not constitute refusal or resistance.

Allowing the waiver of final consent for persons in these circumstances, is a legislative response to the concerns that were raised by those persons who chose to receive MAID earlier than they wanted to out of fear of losing decision-making capacity to give informed consent immediately before the procedure.

Safeguards for persons whose natural death is not reasonably foreseeable

    • the request for MAID must be made in writing: a 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,” (Note: 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.
    • if neither of the two practitioners who assesses eligibility has expertise in the medical condition that is causing the person’s suffering, they must consult with a practitioner who has such expertise.
    • the person must be informed that they can withdraw their request at any time, in any manner.
    • 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 they must agree that the person has seriously considered those means of alleviating suffering.
    • the eligibility assessments must take at least 90 days, but this period can be shortened if the person is about to lose the capacity to make health care decisions, as long as both assessments have been completed.
    • immediately before MAID is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent.

Final consent for persons who choose to self-administer substance for MAID

In addition, persons approved to receive MAID who choose to self-administer the substance for MAID can now make an arrangement in writing with their medical practitioner if complications arise after the ingestion of the substance, causing loss of decision-making capacity, but not death.

Such arrangements allow the person to provide their consent to practitioner-administered MAID in advance, in the event of complications with self-administration, and if the practitioner is present at the time of self-administration. All persons who choose to self-administer a substance for the purpose of MAiD can make such an arrangement with their practitioner, regardless of their prognosis.

Changes to the data collection and monitoring regime

The revised law enhances the federal MAID monitoring regime by extending data collection and reporting to provide a more comprehensive picture of how MAID is being implemented in Canada, including under the new provisions.

Changes in the new law related to data collection include:

  • allowing for the collection of data on all assessments following a person’s request for MAID.
  • modifying the Minister of Health’s regulation-making power to expand data collection related to race, Indigenous identity and disability, and to seek to determine the presence of individual or systemic inequality or disadvantage in the context of or delivery of MAID.

Further changes still under consideration

Canadians whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, will not be eligible for MAID until March 17, 2023. During this deferral period, the Ministers of Justice and Health are required to initiate an expert review, which will include the consideration of protocols, guidance and safeguards for MAID for persons suffering from mental illness. The recommendations are to be made by March 17, 2022.

Further matters such as consideration of the eligibility of mature minors, advance requests, mental illness, palliative care and the protection of Canadians living with disabilities, will be considered during a Parliamentary review of the MAID legislation during this session, with a report to Parliament within a year.

Conclusion

Medical assistance in dying legislation has generally been well-received in Canada. The legislation is not without controversy, however. While the MAID Act has provided much needed relief from suffering for those with terminal illnesses, disability rights groups continue to raise concerns that each expansion of the applicability of the procedure to persons not previously covered by MAID, increases the risk that having a disability could become an acceptable reason for “state-provided suicide”. As ever, finding the balance between legitimate needs to relieve suffering, while protecting those in our society who are most vulnerable remains a formidable challenge.

 

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The information in this article is current as of April 28,2021 and is intended for general information purposes only. Nothing in this article is intended to provide legal advice. Readers with concerns about how this affects particular situations or transactions should obtain the independent review and advice of legal counsel.

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