Advance Consent and Medical Assistance in Dying (MAiD)

12 September 2017

By Allison Curley

The Carter Decision

In February 2015, the Supreme Court of Canada released a landmark decision with respect to a person’s right to medical assistance in dying (“MAiD”). Historically, it had been a crime for any person to assist another person in ending their own life. In the Carter decision, the appellants challenged the constitutionality of the Criminal Code provision that criminalized the actions of anyone who aided or abetted another person to end their life (section 241(b)). Section 14 of the Criminal Code was also challenged, as it disentitled a person from consenting to their own death. The appellants, Ms. Taylor, Ms. Carter, Ms. Johnson, Mr. Shoichet, and the British Columbia Civil Liberties Association (“BCCLA”) argued that these Criminal Code provisions violated section 7 rights under the Canadian Charter of Rights and Freedoms. Section 7 provides that every person has the right to life, liberty, and security of the person.

The Supreme Court concluded that, “the laws prohibiting a physician’s assistance in terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter.” The remedy that the Supreme Court elected was a declaration that s. 241(b) and s. 14, “are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” The declaration of invalidity was suspended for a period of 12 months, essentially giving Parliament time to enact legislation that would comply with the decision.  

Parliament’s Response to Carter and Bill C-14

Bill C-14 received royal assent on June 17, 2016. Passed by the Parliament of Canada, the Act defines medical assistance in dying as,

  1. the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
  2. the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.

Certain criteria are set out in the Act that, if met, make a person eligible for MAiD:

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible – or, but for any applicable minimum period of residence or waiting period, would be eligible – for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

There are three identified circumstances in which someone is presently unable to end their life through MAiD: (a) requests by mature minors, (b) advance requests, and (c) requests where mental illness is the sole underlying medical condition. On December 13 2016, the Government of Canada announced in a news release that the Council of Canadian Academies would be reviewing these situations, and that they “will compile and assess information and evidence to inform the ongoing policy discussion on the issues related to assistance in dying in these three circumstances.”

According to a Government of Canada website, these reviews, “will be tabled in Parliament and available to the public by December 2018.” Of note is that the reports will not provide recommendations.

Advance Consent

Advance care planning refers to when a person considers their values, beliefs, and wishes about future health care treatment options. The process may involve that person expressing their wishes about health care decisions to the people they trust most in their life. It may also include that person writing down their wishes so that it becomes an Advance Care Plan. An Advance Care Plan is summarized by a Government of BC website as, “a written summary of a capable adult’s wishes or instructions to guide a substitute decision maker if that person is asked by a physician or other health care provider to make a health care treatment decision on behalf of the adult.”

As discussed above, Canadian MAiD legislation (Bill C-14) does not address the circumstances in which a person could elect to undergo MAiD in advance. A person might express in advance a wish to undergo MAiD when disease or illness progresses or health degenerates to a specific status, but at present, there is no avenue for a person to identify MAiD as a health service of choice and include it in an Advance Care Plan.

In February 2016, the Special Joint Committee on Physician-Assisting Dying (“the Committee”) released, “Medical Assistance in Dying: A Patient-Centred Approach,” (“MAiD Report”). Honourable Kelvin Kenneth Ogilvie and Robert Oliphant serve as Joint Chairs of the Committee.

The MAiD Report suggests that, “[w]ith respect to advance requests for MAID, witnesses and briefs outlined diverging opinions, from recommending not to allow such requests, to allowing them only after an individual is diagnosed, to allowing advance requests to be written prior to any illness.” The MAiD Report notes, however, that there was a general agreement that a person must have capacity and be competent at the time the advance request is made.

Three different situations were identified by the Committee as when an advance request could be considered:

  • where a person’s request has been accepted but the individual loses competence before MAID takes place;
  • where a person has been diagnosed with a grievous and irremediable condition but is not yet experiencing enduring and intolerable suffering; and
  • prior to diagnosis.

A number of stakeholders contributed their perspectives on these three situations, and whether advance requests should be permitted or not. The Committee acknowledged the concerns raised by stakeholders, but indicated their reluctance to exclude certain individuals from accessing MAiD. With respect to the concerns raised by stakeholders, the Committee noted that recommendations should be considered to “minimize the risk of abuse and error.” However, the Committee stated that they were confident that advance requests, “can and must be done to ensure the autonomy of Canadians and the protection of the vulnerable.”

The Commission made the following recommendation:

That the permission to use advance requests for medical assistance in dying be allowed any time after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable. An advance request may not, however, be made, prior to being diagnosed with such a condition. The advance request is subject to the same procedural safeguards as those in place for contemporaneous requests.  

The Alzheimer Society of Canada’s Stance on Advance Consent and MAiD

In their Position Statement on MAiD and advance consent, the Alzheimer Society of Canada (“the Society”) makes note of the Committee’s recommendation, and subsequently made the following statement:

The Alzheimer Society of Canada believes that because we cannot predict future suffering, providing advance consent for MAID should not be possible for people with dementia. The Alzheimer Society believes that people with dementia need to be safeguarded as they will be extremely vulnerable at the end of their life. People with dementia do not have the capacity to make an informed decision and consent to end their life at the later stages of the disease. [emphasis in original]

The Society indicates that because dementia is a progressive disease, wishes, values, and beliefs could change and a person’s ability to make decisions can be reduced. In view of their position cited above, the Society, “urges those who develop the new legislation to take into account the complex circumstances and vulnerability of people with dementia and limit the harm and risk that MAID could represent.”

Dying with Dignity’s Stance on Advance Consent and MAiD

Dying with Dignity Canada (“DWDC”) is an organization that advocates for a person’s right to consent in advance to MAiD. In their recent publication, “Challenges to Choice: Bill C-14 One Year Later,” DWDC states, “[b]y design, the law excludes individuals who satisfy the eligibility criteria laid out in Carter but who are not yet on a course towards death.” DWDC suggests that some of the safeguards laid out in the legislation have been effective in protecting vulnerable Canadians. However, DWDC notes that, “Bill C-14 contains a number of problematic safeguards that pose negative consequences – some expected and others not – for Canadians who want to access their right to MAID.”

With respect to advance requests, DWDC states that, “Bill C-14’s explicit ban on advance requests for MAID came as a crushing disappointment for many Canadians, especially supporters of DWDC.” To illustrate their point, the DWDC provides an example:

Consider, for example, Maria, a 60-year-old woman in the early stage of Alzheimer’s disease. Still active in her community, she wants to access MAID in the future – after she has lost capacity but before her condition renders her bed-bound, incontinent and unable to express herself. Aware that making an advance request is not an option, Maria now fears she will never be able to access MAID, despite being competent and having a diagnosis for a “grievous and irremediable medical condition.” Because of the nature of her illness, there is a strong chance that the sun will set on Maria’s capacity to consent before she reaches “an advanced state of irreversible decline” or before her natural death becomes reasonably foreseeable. In effect, her right to MAID appears to be as out of reach today as it did before the Supreme Court announced its ruling in Carter.

DWDC asserts that Bill C-14 discriminates against Canadians with certain chronic medical conditions that “rob them of mental capacity as a matter of course.” It is further noted that, “[f]or some, the combined effects of the safeguard banning advance requests and Bill C-14’s eligibility criteria mean that they will never qualify for MAID.”

The Lamb Case: Another Charter Challenge

On June 27 2016, only ten days after the federal MAiD legislation was released, the BCCLA launched a court challenge to Bill C-14. The Charter challenge also includes Ms. Lamb as a complainant, a 25-year-old woman with spinal muscular atrophy.

DWDC indicates on their website that, “[a]t the heart of the lawsuit is Bill C-14’s restrictive eligibility criteria, which allows medical assistance in dying to only those individuals whose natural deaths are ‘reasonably foreseeable.’”

The Charter challenge was launched in the Supreme Court of British Columbia, and the relief sought by the complainants is a declaration that the impugned laws unjustifiably infringe upon section 7 and 15 Charter rights. The latest update on BCCLA’s website is that the BCCLA has filed documents with the BC Supreme Court to add another plaintiff to the action. Ms. Moro is a 68-year-old woman living with Parkinson’s and who is deeply motivated to access MAiD.

Continue the Discussion at the 2017 Canadian Elder Law Conference

Advance consent to MAiD is a delicate and complex issue requiring thoughtful consideration. There are divergent views among stakeholders as to whether advance consent to MAiD should be permitted by law or not. MAiD is such an important elder law topic that we decided to feature two panels on MAiD at this year’s Canadian Elder Law Conference.

Panel 1 (November 2)

On November 2 2017, Dr. Heidi Oetter and Dr. Ellen Wiebe will be discussing “Physician Experiences on the Ground.” Dr. Heidi Oetter is the Registrar and Chief Executive Officer of the College of Physicians and Surgeons of British Columbia, and Dr. Ellen Wiebe is a Clinical Professor for the Department of Family Practice who has assisted many patients to end their lives under the new legislation. The presentation will encompass MAiD regulations, monitoring MAiD, assessments and provisions of MAiD, challenges that providers and patients face, what lawyers need to know when they are advocating for their clients, and how conscientious objection is operationalized.

Panel 2 (November 3)

On the second day of the conference, November 3 2017, we will be discussing advance consent and MAiD. The presentation entitled, “Medical Assistance in Dying (MAiD)—Is True Advance Consent Possible?” features Jay Aubrey, Counsel for BCCLA, Maria Howard, Chief Executive Officer of the Alzheimer Society of BC, and Graham Webb, Executive Director of the Advocacy Centre for the Elderly. The panel will address the following issues:

  • criteria for eligibility for MAID under the federal law
  • how the Lamb case relates to the issue of advanced consent to MAID
  • how the progression of dementia can make advance consent problematic
  • access to MAID and communication barriers for people living with dementia
  • whether excluding people with dementia from MAID raises discrimination issues
  • vulnerability of people living with dementia to undue influence and abuse in relation to access to MAID

We hope you will attend the conference and join the discussion. You can check out the full conference agenda online. Registration is through our conference partner the Continuing Legal Education Society of BC.

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