Medical Assistance in Dying (MAID): New Developments

It was heartbreaking to learn that Jean Truchon, who fought so valiantly to expand assisted-dying laws in Canada, felt forced to advance his medically assisted death procedure from June 2020 to early April. He chose to do so because of the COVID-19 pandemic and his inability to spend time with loved ones prior to his scheduled date for medically assisted death.

In late February, the federal government announced proposed changes to the legislation on Medical Assistance in Dying (“MAID”) in the wake of the Superior Court of Quebec’s decision in Truchon v Procureur in September 2019, where Jean challenged Canada’s existing MAID legislation for restricting people who were not near death from accessing medically assisted-dying. The Quebec Court agreed with his position and declared parts of the federal and Quebec laws on assisted dying unconstitutional and tasked the federal and Quebec legislature with revisiting the relevant provisions on access to MAID and to pass new legislation.

There have been more than 13,000 reported medically assisted deaths in Canada since MAID became available almost four years ago in June 2016, a number that may surprise you. MAID is something that will likely touch all Canadians, either personally or a family member or friend, if it has not already.

As a refresher, to be eligible for MAID, a person must be eligible for health services, at least 18 years old, mentally competent, have a grievous and irremediable medical condition, make a voluntary request for MAID, and give informed consent to receive MAID.

To be considered as having a grievous and irremediable medical condition, a person must have a serious illness, disease or disability, be in an advanced state of decline that cannot be reversed, experience unbearable physical or mental suffering from his or her illness, disease, disability or state of decline that cannot be relieved under conditions that are considered acceptable, and be at a point where natural death has become reasonably foreseeable.

For a comprehensive discussion of MAID and other issues relevant to advance care planning, please refer to our advisory, “Advance Care Planning”.

Key to the discussion below, a person must be able to give informed consent at two different stages. First, after having received all the information needed to decide at the time of the request for MAID. Second, immediately before MAID is provided.

The second stage of consent is intended as a safeguard but it has unintended consequences. You may remember the news stories from late 2018 about Audrey Parker, a woman from Nova Scotia with advanced stage breast cancer, who chose medically assisted death earlier than she would have wished for fear of losing capacity and jeopardizing her ability to give consent at the final stage.

In response to Truchon v Procureur, the federal government has proposed to remove the requirement for a person’s natural death to be reasonably foreseeable to be eligible for MAID. This will allow individuals who are not nearing the end of their lives to be eligible to receive MAID. In Jean Truchon’s case, Jean had cerebral palsy which caused him to suffer and caused a total loss of autonomy. Procedural safeguards include that the request must be fully informed and considered, and eligible individuals making the request must have given serious consideration to reasonable and available treatment options such as disability supports, counselling and palliative care.

The proposed legislative changes would also amend the consent requirement to allow a waiver of final consent for eligible persons whose natural death is reasonably foreseeable and who may lose capacity to consent before MAID is provided. This addresses the concern for people who may lose cognitive ability, for example from a degenerative disease, or from the administration of pain medication and who would not be able to give final consent immediately prior to life-ending drugs. The waiver of final consent would however be rendered invalid if after having lost decision-making capacity, a person demonstrates refusal or resistance to life-ending drugs.

While the government is taking affirmative steps to address some of the open issues, we are still left with concerns with regard to the ability to provide advanced consent and eligibility for MAID for mature minors and persons suffering solely from a mental illness. It will be interesting to see how the legislation will continue to evolve as new ground continues to be broken on these issues, and how the courts will deal with the complex array of legal and ethical issues. The federal government has committed to commencing a parliamentary review of the relevant provisions on access to MAID, as well as the state of palliative care in Canada, by June 2020, although this review may not happen by such date in light of the current pandemic and likely shifting priorities.

As the population continues to age, the pool of people who seek assisted dying as a legal option will likely expand. It is critical that the government continue to address the uncertainties and shortcomings in this legal regime as they are better identified based on experience to ensure clarity for those involved, including for the person who is seeking MAID, his or her family members and medical professionals.

— Marly Peikes

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.
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