Medical Assistance in Dying Amendment Bill Tabled
28 February 2020
By Sara Pon
Canada introduced medical assistance in dying (MAID) in 2016. To be eligible for MAID, an adult must:
- Be eligible for health services in their jurisdiction;
- Have the capacity to make health care decisions;
- Make a voluntary written request for MAID;
- Give informed consent after receiving information on their diagnosis, treatment, and options to relieve suffering; and
- Have a “grievous and irremediable medical condition” which is serious, cannot be reversed, is causing intolerable suffering, and “their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.” (Criminal Code s 241.2).
To receive MAID:
- The request must be signed by two independent people who are not relatives or giving personal or health care to the person;
- The person must be assessed by two independent doctors or nurse practitioners to determine they meet the eligibility requirements;
- There must be a 10-day waiting period before the procedure is administered; and
- The person must give a final consent immediately before the procedure is administered.
In 2019 the Quebec Superior Court ruled the reasonably foreseeable natural death (RFND) criterion was unconstitutional, and gave the government 6 months to amend the legislation before the ruling comes into effect (Truchon v Attorney General of Canada, 2019 QCCS 3792). This period is set to expire on March 12, 2020, although the federal government has requested a 4 month extension.
The federal government is in the process of amending the Criminal Code provisions on MAID. A public consultation was held in January and February of 2020 to get feedback from the public and stakeholders on what changes they would like to see to the MAID laws. Over 300,000 people and organizations submitted feedback. The results of this consultation have not been published yet.
To amend the MAID provisions, the federal government tabled Bill C-7 An Act to amend the Criminal Code (medical assistance in dying) on February 24, 2020. This blog will describe the proposed changes to the MAID laws contained in Bill C-7.
Proposed Request Structure
Bill C-7 proposes to create two tracks for applying for MAID.
- The RFND track, for people whose death is reasonably foreseeable, would lessen some of the current safeguards and make the process easier.
- The not RFND track would allow people who have a grievous and irremediable medical condition but whose deaths are not reasonably foreseeable to access MAID. The proposed safeguards for this track would be more rigorous than the current MAID safeguards.
The RFND track is based on the current MAID provisions. To make access easier for people whose natural death is reasonably foreseeable, three of the current safeguards have been eased. The eased safeguards are only for people applying under the RFND track.
- The number of independent witnesses would be reduced from 2 to 1. This witness could be a paid personal or health care worker. At the press conference, the ministers stated feedback commonly reflected that some people had difficulty obtaining independent witnesses. They may only have contact with family and personal/health care workers, who are currently ineligible to be witnesses.
- The 10-day reflection period would be removed.
- The final consent requirement could be waived in certain circumstances. This would address circumstances where a person qualifying under the RFND track is at risk of losing capacity before they would want to receive the MAID procedure. The final consent waiver will be discussed below in the capacity section.
Not RFND Track
To make the MAID legislation comply with the Truchon ruling, the government is proposing to create a request track for people who have a grievous and irremediable condition, but their natural death is not reasonably foreseeable. The bill states that a mental illness on its own will not be an illness, disease, or disability that qualifies someone for either track of MAID. A mental illness could co-occur with another condition that does qualify someone to receive MAID.
In the not RFND track, the safeguards have been increased from what they currently are.
- Some of the current requirements would apply to the not RFND track, including requiring having a grievous and irremediable condition, making a request in writing, having informed consent, and being able to withdraw consent at any time.
- There must be one independent witness, and this can be a paid personal or health care worker, matching the RFND track.
- Two doctors or nurse practitioners would need to assess eligibility, but under the not RFND track, one of these practitioners must have expertise in the person’s medical condition.
- The informed consent requirements are higher. The person must be given information on counselling services, mental health supports, disability support services, community services, palliative care, and offered consultations with service providers.
- The practitioner would need to determine the person knows about the available services and treatments for their condition, and the person has seriously considered these options.
- There would be a 90-day period required during which the eligibility assessment occurs, although this can be shortened if the person is losing their decision-making capacity.
- The person would need to give final consent immediately before the MAID procedure is administered. The not RFND track would not allow a waiver of final consent. The person would need to have decision-making capacity at the time the procedure is administered.
Capacity and Advanced Consent
Currently, a person must give a final consent immediately before the MAID procedure is administered. This means the person receiving MAID must have decision-making capacity the entire time. The government noted at the press conference that feedback strongly reflected that this final consent requirement was causing suffering. Some people were having the MAID procedure sooner than they would have liked because they were concerned they would not have capacity at the date they wished to have the procedure. Others stopped taking medication that would relieve suffering because it reduced their decision-making capacity to a level that they would not have been able to give the required final consent.
To help prevent this suffering, the bill proposes to allow people under the RFND track only to waive the final consent requirement. People applying under the non RFND track could not waive the final consent, so they must have decision-making capacity at the time the procedure is administered.
To waive final consent for practitioner-provided MAID, the person would need to make a written arrangement with the health care practitioner who is going to administer the procedure stating the person consents to the procedure and they know they are at risk of losing their decision-making capacity. However, this waiver would be invalid if the person shows through verbal means or behaviour that they are resisting the provision of MAID.
For self-administered MAID under either track, the person could waive final consent in the circumstances that the procedure had complications and did not work correctly, and the person lost decision-making capacity due to the complication. In this circumstance, the person could agree the practitioner would administer MAID after they lost capacity.
The proposed amendments to MAID would not allow true advanced consent to MAID. The government has stated that they will be conducting a parliamentary review of the whole MAID legislation, and they will likely consider advanced consent and the inclusion of mental illness.
The proposed amendments may still cause hurdles for people living with dementia or other conditions which lead to losses of decision-making capacity accessing MAID under both tracks:
- The RFND track would allow for waiver of the final consent, but death must be reasonably foreseeable in order for the person to qualify, and the person must have decision-making capacity at the point when death is reasonably foreseeable. For people living with dementia, if their death is not reasonably foreseeable at the time immediately before they lose decision-making capacity, they would not be eligible for the RFND track.
- The not RFND track does not require a reasonably foreseeable death. However, the person must have capacity when the procedure is administered. The person living with dementia, if qualifying for MAID, would have to have the procedure before they lost capacity, which may be sooner than they would have wanted.
In the press conference, the government said they will be considering the issue of advanced consent during the parliamentary review, as it was too complex to address within the timeframe of the Truchon case suspension, and the consultation feedback was divided. In the consultation feedback, doctors reported that people living with dementia often anticipate a desire to have MAID around the time of diagnosis, but sometimes changed their mind further into the dementia journey. Doctors reported people often start out with incorrect assumptions and fears about the experience of dementia. These doctors were concerned about how to protect people who change their mind about having the procedure around the time they are losing decision-making capacity. The government decided the issue of advanced consent requires further consideration.
To find out more about the proposed changes to MAID legislation, see the government’s website.