Medical Assistance in Dying

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The Federal House of Commons passed Bill C-14 in 2016 which amended the Criminal Code to provide an exemption to the law that made it a criminal offence to assist someone to commit suicide. The impetus for the introduction of this Bill, was the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 which found the criminal prohibition of physician assisted dying invalid provided the person affected clearly consents to the termination of life and has a “grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual”. The government was given 1 year to implement new legislation, however an extension was granted.

Originally the change provided that a medical practitioner, nurse practitioner or someone aiding the medical practitioner or nurse practitioner was not guilty of an indictable offence pursuant to the Criminal Code provided certain criteria are met. The individual making the request for medical assistance in dying (MAiD) must meet all of the following criteria:

  1. They are eligible for health services funded by a government in Canada;
  2. They are at least 18 years of age and capable of making decisions with respect to their health;
  3. They have a grievous and irremediable medical condition;
  4. They have made a voluntary request for medical assistance in dying that was not made as result of external pressure; AND
  5. They give informed consent to receive medical assistance in dying.

A person has a “grievous and irremediable medical condition” if:

  1. They have a serious and incurable illness, disease or disability;
  2. Are in an advanced state of irreversible decline in capability;
  3. That person’s illness, disease or disability causes them physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that person considers acceptable; AND
  4. Their natural death has become reasonably foreseeable, taking into account all of their medical circumstances (a prognosis of remaining time need not have been made).

There was much debate that the federal government had not gone far enough (not allowing persons with mental illness or persons under the age of 18 to take advantage of this law) or has gone too far or that the legislation is not clear enough (what is meant by the person’s death being “reasonably foreseeable” or that the disease must be the cause of the foreseeable death).

In 2021, further changes were made to the MAiD provisions of the Criminal Code. The most significant was the repeal of the fourth criteria for determining “grievous and irremediable medical condition”, i.e. that death was reasonably foreseeable. However, if a person is in a situation where their natural death is reasonably foreseeable, then the process is different than if their natural death is not foreseeable.

If the person’s natural death is reasonably foreseeable, then the medical practitioner must:

  1. be of the opinion that the person meets the criteria for MAiD;
  2. ensure the request was in writing signed by or on behalf of the person after getting medical advice;
  3. an independent person witnessed the signing;
  4. ensure the person knows they can withdraw the request for Maid;
  5. ensure a second medical practitioner also determined the person met the criteria;
  6. both medical practitioners must be independent;
  7. immediately before administering MAiD, give the person a chance to withdraw their request for MAiD.

Where the natural death is not reasonably foreseeable, then the medical practitioners must meet all of the above requirements, plus:

  1. ensure the person is informed of other services available to relieve their suffering;
  2. ensure they discuss the options to relieve suffering and that the person has given serious consideration to them;
  3. wait 90 days between the date of the first medical assessment and the date for administering MAiD.

This is a very polarizing topic. The federal government has indicated that MAiD will eventually be available for those persons suffering from a mental illness. Others argue that in such cases, MAiD cannot be a substitute for persons that simply need more support. As well, the issue of an advanced consent or substitute consent to medically assisted death has been raised, but is not dealt with in the law at present. This is an evolving area of the law.