On October 5, 2020, the Ministry of Justice and Attorney General of Canada reintroduced a Bill which proposes changes to the current MAID (medical assistance in dying) legislation. Under the proposed changes, eligible persons would be able to receive MAID whether or not their natural death is reasonably foreseeable. The Bill would also introduce a new approach to safeguards that supports greater autonomy for eligible persons while protecting those who may be vulnerable to external pressure.
Eligibility:
Currently, persons who wish to pursue a medically assisted death must:
- Be 18 years of age or older
- Be eligible for health services funded by the federal, provincial, or territorial government
- Be able to make healthcare decisions for themselves
- Request MAID voluntarily free of any external pressure
- Give informed consent after having received all of the information required to make their decision, including medical diagnosis, available treatment, and options to relieve suffering
- 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 irreversible decline in capabilities
- experiences unbearable physical or physiological suffering 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
The Bill would retain all existing criteria but remove the requirement for “reasonable foreseeability of natural death”. Though removed from eligibility criteria, this factor would remain relevant in determining the procedural safeguards to be applied to MAID requests.
The Bill would also expressly exclude persons suffering solely from mental illness.
Safeguards:
Under the current legislation, there is one set of safeguards for all eligible persons:
- 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
The newly proposed safeguards follow a two-track approach based on whether a person’s natural death is reasonably foreseeable. Existing safeguards will be maintained and eased for those whose death is reasonably foreseeable. For eligible persons whose death is not reasonably foreseeable, new and strengthened safeguards would apply.
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)
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
The current legislation requires all eligible persons to provide final consent before the administration of MAID. The proposed Bill would exempt a person from giving final consent if:
- the person’s natural death is reasonably foreseeable
- the person has been assessed and approved to receive MAID
- the person has made an arrangement with their practitioner for waiver of final consent because they were at risk of losing decision-making capacity before their chosen date to receive MAID
This waiver of final consent is 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 a needle insertion, would not constitute refusal or resistance.