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Dare to Choose: Update on Medical Assistance in Dying (MAID)

On the heels of Canada Day, what are the things that make Canada distinctive? Well, on the estate and advance planning front, one significant difference is that Canadians have the ability to choose to end their life with medical assistance that many residing in other countries do not have. We have had legislation legalizing MAID since June 17, 2016, when the Criminal Code was amended to allow MAID if certain criteria are met and safeguards followed by the medical professionals involved.

Eligibility for MAID

In order to be eligible for MAID, a person must:

  • be at least 18 years of age and capable of making decisions with respect to their health;
  • have requested MAID voluntarily and not as the result of external pressure or under influence;
  • have provided informed consent to receive MAID, after having been informed of other options to alleviate suffering, including palliative care;
  • be eligible for publicly funded health care services in Canada;
  • have a serious and incurable illness, disease, or disability (which excluded mental illness until March 17, 2023, but this date has now been extended);
  • be in an advanced state of irreversible decline in capacity; and
  • have an illness, disease, or disability or be in a state of decline that causes them to endure physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

Please see our Advisory “Advance Care Planning” for an overview of MAID and other advance care planning issues.

The Canadian Experience

In Canada, we have now had several years of experience with MAID. Over time, attitudes have changed and there is a growing acceptance and desire for it. A 2022 lpsos poll showed 86% of the Canadian population supports MAID.

Between 2016 to 2021, with five full years of access to MAID, there were 31,664 MAID deaths. The number of deaths using MAID continues to grow steadily: an increase of 34.3% for 2020 over 2019, and 26.4% for 2019 over 2018. In 2021, 10,064 MAID deaths surprisingly accounted for 3.3% of all deaths in Canada.

The average age for persons receiving MAID is 76.3 years, and about 5% more men than women have received MAID. The most common underlying medical condition is cancer at 65.6%, followed by cardiovascular conditions at 18.1%.

There is a shift away from hospitals to more familiar settings, and 44% of MAID deaths took place in private residences.

Changes were made to the MAID framework in 2021, which included a temporary exclusion from eligibility for individuals suffering solely from mental illness for two years until March 17, 2023, but in early 2023, the Minister of Justice extended this timeline to allow for further training and study.

There is significant controversy, including in the Canadian psychiatric community, on how the criteria for eligibility will be applied. For example, what is a grievous and irremediable mental illness? Only three other countries in the world allow for assisted death based on mental illness alone: Belgium, Luxembourg, and The Netherlands.

To keep up-to-date on Canadian developments on MAID and mental illness, click on the Department of Justice website.

Estates, Advance Care Planning and MAID 

Our clients, particularly those in their senior years, have a keen interest in MAID, and many have now had life experiences of family members or friends having received it.

Our role as estate planning lawyers continues to evolve in facilitating open discussions on end-of-life issues, often in conjunction with preparing Letters of Wishes to provide guidelines to attorneys for personal care. As an example, in a Letter of Wishes you can set out a desire for MAID, and that your attorney for personal care assist in making an application if the criteria under the legislation are met, although only you can provide the necessary informed consent required under the existing legislation.

MAID is a sensitive topic, and an important one, and everyone may have different views and beliefs. The genesis of Canada’s MAID legislation is our Charter of Human Rights and Freedoms, and the Supreme Court of Canada ruling that the prior law against assisted dying is invalid to the extent it prohibited physician-assisted death in certain circumstances, rooted in the Charter protecting “life, liberty, and security of the person”.

It will be interesting to see how MAID will continue to evolve in the next few years, not only in Canada, but in other countries which adopt it, which can look to the Canadian experience for guidance on this very challenging and complex issue.

— Margaret O’Sullivan

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.