Recent Amendments to Canada’s Medical Assistance in Dying (MAID) Legislation – The Good, the Bad and the Ugly

Contributed by Laiba Asad

Introduction

Medical assistance in dying has long been debated in Canada. The recent amendments made to Canada’s medical assistance in dying (MAID) regime on March 17, 2021 have been met with varying opinions. This blog post will discuss the original MAID legislation, the Superior Court of Québec’s decision in Truchon v. Attorney General of Canada which challenged this legislation and subsequent amendments made to MAID legislation. Finally, it will discuss how these amendments have been received by various groups.

The Original Medical Assistance in Dying Legislation

With the Supreme Court of Canada’s decision in Carter v Canada (2015), provisions in the Criminal Code prohibiting medical assistance in dying (paragraph 241(b) and section 14) were ruled to be unconstitutional under s.7 of the Canadian Charter of Rights and Freedoms, which guarantees life, liberty, and security of the person. As a result, in June 2016, the Parliament of Canada passed federal legislation – the Medical Assistance in Dying Act (MAID Act) – allowing eligible Canadian adults to access medical assistance in dying. MAID legislation allowed for two legal medical practices as seen in section 241.1 of the Criminal Code: administration of a substance directly by a physician or a nurse practitioner that causes death of a patient and prescription of a substance by a physician or a nurse practitioner that can be self-administered by the patient.

This new legislative scheme imposed restrictive eligibility requirements for people requesting MAID. They needed to:

  • be eligible for government funded health services in Canada,
  • be at least 18 years old with the capacity of making decisions concerning their health,
  • have a grievous and irremediable medical condition (serious and incurable illness) with their natural death being reasonably foreseeable,
  • have made a voluntary request for MAID free of any external pressure, and
  • give informed consent to receive MAID after having been presented with all the necessary information, such as means available to relieve their suffering (palliative care), forms of treatment, among others.

Additionally, MAID legislation was further restricted by procedural safeguards including:

  • checking that people requesting MAID are aware that they can withdraw their request at any time,
  • making sure that two medical professionals confirm through written opinions that the individual in question fulfils all eligibility requirements, and
  • ensuring that final consent is given before MAID is administered.

Truchon v. Attorney General of Canada (2019) and amendments to MAID law

Soon after coming into effect, eligibility criteria in the MAID Act were challenged on the basis that they were unconstitutional. In September 2019, the applicants in Truchon v. Attorney General of Canada, Jean Truchon and Nicole Gladu, took issue with the validity of s.241.2(d) of the MAID Act and s.26(3) of Quebec’s Act Respecting End of Life Care. Truchon, who had cerebral palsy and Gladu who had post-polio syndrome, claimed that the provisions, which had prevented them from accessing MAID, were too restrictive. The applicants argued that the requirement under s. 241.2(d) of the MAID Act that their “natural death must be reasonably foreseeable” violated principles set out in the Charter, as well as s.7 (rights to life, liberty, and security) and s.15 (right to equality) of the Charter.

At the Superior Court of Québec, Justice Baudouin concluded that the requirement that “natural death must be reasonably foreseeable” infringed on the applicants’ right to life under s.7 of the Charter seeing that it “exposes individuals such as Mr. Truchon and Ms. Gladu, to a heightened risk of death” [522]. She goes on to explain how the requirement also violates their rights to liberty and security under s.7 of the Charter because it “directly interferes with their physical integrity, causes them physical and psychological pain and deprives them of the opportunity to make a fundamental decision that respects their personal dignity and integrity” [534]. As for s.15 of the Charter, Justice Baudouin concluded that the requirement violated the applicants’ right to equality since it created a distinction based on the nature of a disability (cerebral palsy and post-polio syndrome) which sustained disadvantage and prejudice for them. She further stated that this infringement of rights was not justified since the restriction imposed by the requirement of reasonable foreseeability of death had damaging effects on people in similar situations to the applicants, which were disproportionate to the benefits of the requirement. Finally, Justice Baudouin concluded that s.241.2(d) of the MAID Act was overly broad and disproportionate to its object of protecting people from ending their life in a moment of vulnerability, thus making it incompatible with the principles of fundamental justice.

Even though the declaration of invalidity in Truchon is only applicable in Quebec, the federal government decided to respond to the court’s decision by bringing amendments to the MAID Act. Consequently, in February 2020, Bill C-7 : An Act to Amend the Criminal Code (Medical Assistance in Dying) was presented in Parliament. After having received royal assent, Bill C-7 became law on March 17, 2021.

The new medical assistance in dying legislation

The changes made to Canada’s MAID legislation reflect the decision in Truchon, meaning that the legislation presently expands MAID to those whose deaths are not reasonably foreseeable, potentially expanding the class of people now eligible for MAID. People whose deaths are reasonably foreseeable are still eligible for MAID, while the other eligibility criteria from the original legislation remain. 

The amended law provides for two approaches to procedural safeguards depending on whether the individual’s death is reasonably foreseeable or not. For those whose death is reasonably foreseeable, additional and strengthened safeguards have been put in place such as eligibility assessments that must take at least 90 days unless the individual is losing their capacity to make decisions relating to their health. On the other hand, those whose death is reasonably foreseeable are subject to eased and existing safeguards in that final consent is no longer required or can be waived in certain circumstances before the administration of MAID for example.

With the original MAID legislation, requests for MAID solely on the basis of mental disorder generally didn’t fulfil the reasonable foreseeability of death requirement. However, since this requirement is now repealed, the new MAID legislation will also enable individuals to request MAID solely on the basis of a mental disorder. This will come into effect in two years. During these two years governments and medical bodies are expected to decide on guidelines and safeguards regarding these requests.

The new MAID legislation will also enable individuals to request MAID solely on the basis of a mental disorder.|| (Source: pixabay // Tumisu/1028 images)

How the new MAID legislation has been received

The possibility that MAID might be available to individuals solely on the basis of mental disorder remains a contentious topic among psychiatrists, with many doubting whether MAID in that context can ever be carried out safely. Some have contended that MAID for individuals with mental disorders would only be limited to a small number of people such as those who have had prolonged mental illness and have received various treatments. Others have said that since prognosis of mental illness is always unsure, the focus should be on psychiatric palliative care for severe cases instead. Advocates from Canada’s Black and Indigenous communities have also argued that the possibility of requesting MAID solely on the basis of a mental disorder could put vulnerable people at risk. For instance,  Indigenous people  often live in conditions linked to higher rates of mental illness and suicide and often don’t feel safe requesting medical services due to stigma and discrimination. Advocates would rather the federal government tackle anti-Indigenous and anti-black racism in the healthcare system before expanding MAID. 

Furthermore, many have argued that the new MAID legislation will particularly affect people with disabilities. For instance, the Council of Canadians with Disabilities contends that the bill will push people with disabilities towards MAID since there is a continued lack of appropriate support and services available to them. On the other hand, the Canadian Association of MAiD Assessors and Providers emphasizes that medical professionals take great care in assessing the vulnerability of an individual requesting MAID.

The possibility that MAID might be available to individuals solely on the basis of mental disorder remains a contentious topic among psychiatrists, with many doubting whether MAID in that context can ever be carried out safely.|| (Source: pixabay // Bru-nO/5419 images)

Conclusion

The new MAID legislation expands the class of people who can now access MAID by removing the reasonable foreseeability of death requirement, making it so that individuals can request MAID solely on the basis of mental disorder. It remains to be seen if advance requests for MAID – where a competent person makes a request for MAID that could be honoured in the future after they lose their capacity to make their own medical decisions – will be accepted as part of Canada’s MAID regime in the future.

Laiba Asad is a Junior Online Editor with the McGill Journal of Law and Health. She is in her first year of the BCL/JD program at McGill University’s Faculty of Law. Prior to beginning law school, she completed her DEC in Health Science (IB) at Collège Jean-de-Brébeuf. 

Virtual Health Expansion: Challenges and Changes

Contributed by Dylan Yan

Introduction

The COVID-19 pandemic has caused a drastic shift in Canadian healthcare. Since the onset of the pandemic, several new digital technologies, medical licensing schemes and privatized services were introduced into the Canadian healthcare ecosystem, each altering the way Canadians receive healthcare. Since the first wave of COVID infections, one of the greatest changes has been inpatient care, which has since shifted from in-person visits to virtual services, with over half of all Canadian healthcare being delivered virtually. This is a stark contrast to pre-pandemic averages, with less than 1 in 10 Canadians polled reporting use of virtual healthcare. While this virtual shift is necessary to slow the spread of the virus and save Canadian lives, it also bring about new problems like higher prices, uninsured payments and gaps in coverage that our legislature must address.

This article seeks to outline the growing privatization of virtual healthcare and elucidate how Canada’s health laws must adapt to these novel challenges.

The Expansion of Virtual Healthcare

During the COVID-19 pandemic, physician home-care visits have dropped, in-person hospital screenings have declined, and fewer patients are visiting their doctor’s office. Even the volume of emergency department visits have declined. So where are Canadians getting their healthcare?

This decline of inpatient care has been offset by a surge of activity in new healthcare media; more Canadians are following the increasing trend towards using virtual services. Family doctors can now be booked for a phone consult. Dermatologists can be found online. Even specialized conditions, like musculoskeletal disorders, can have preliminary assessments completed virtually.

This digital shift of healthcare has created new technological interfaces: individualized portals for patient records, electronic prescription transmission and self-assessment tools. As patients adapt, so must healthcare practitioners. Provinces like Ontario have created new billing regimes specific to virtual care. Private companies like the Maple Corporation have created online platforms on which physicians can provide care.

These changes have clear advantages. Virtual care increases the accessibility of patient services, allowing treatment to be readily provided in remote areas, across borders and to those with mobility concerns. Online platforms are also incredibly convenient; Canadians can easily access test results, schedule appointments and refill prescriptions on their smartphone or personal computer. Most significantly, virtual services prevent the transmission of COVID-19, avoiding physical contact and allowing the patient to be treated from the safety of their home.


Even specialized conditions, like musculoskeletal disorders, can have preliminary assessments completed virtually.|| (Source: pixabay // mohamed_hassan)

Public Latency and Private Expansion

Despite the massive benefits of virtual healthcare, public virtual infrastructure in Canada remains limited. Those services that do exist, like Ontario’s Telehealth Network, are suboptimal, suffering from long wait times and devastating system crashes.

To make matters worse, very little legislation covers virtual healthcare. While provinces like Ontario have legislated some areas of virtual care, and others have implemented strategies to combat perceived issues in virtual healthcare, many jurisdictions have inadequate laws regarding virtual services. Provinces like Quebec have been slow to adapt to match the requirements of this evolving landscape, creating “holes” of unregulated healthcare policy

In this policy vacuum, with little public competition, privatized healthcare has flourished. A rush of virtual private providers, including Maple Corporation and Dialogue Health Technologies have seen rapid growth and massive profits. In the year following the onset of the COVID pandemic, Maple Corporation went from taking a few hundred appointments per day to several thousand and saw its profits quadruple. Dialogue has recently gone public with its company shares, resulting in gross proceeds of roughly 100 million dollars.

Validating Critiques of Private Virtual Care

The growing privatization of virtual healthcare has created a new set of problems and drawbacks for Canadians. Private providers frequently have patients pay out-of-pocket for their virtual appointments. Other private services write extensive warrantees that release the company from responsibility for the quality of healthcare services rendered on their own platform. Critics of these private processes argue that the industry operates in a legislative “gaps” and “violat[es] the core tenets of medicare in Canada” by making Canadians pay for medical necessities that are covered by provincial health insurance.

How is it possible for Canadians to be charged for healthcare that is already covered? Provincial insurances (like RAMQ in Quebec and OHIP in Ontario) have general provisions that pay out public healthcare professionals directly. “Non-participating healthcare professionals” operating in the private sector are not covered. Thus, a patient using private virtual services cannot claim for reimbursement with RAMQ. They either need to pay out-of-pocket or file a claim with private insurance. Ultimately, many Canadians who want virtual care are forced to balance the inaccessibility and long wait times of the public sector with the costly timeliness of the private services.

Even creative solutions for virtual healthcare oversight, like Ontario’s new billable coding system which covers phone and online healthcare, have gaps in coverage. The system only regulates phone-call appointments and certain types of online care, leaving several virtual tools unregulated  – including text message, Facetime and Skype. This allows private providers like Maple to skirt billing restrictions by offering expensive services in unregulated formats, such as pricey text-message appointments.

How accurate are these concerns? A report by the Canadian Medical Association in 2019 raised many issues similar to those of contemporary critics. Findings in the report advocate for restrictions on privatized virtual care: a pressing need for regulatory framework that ensures the affordability and quality of virtual services, a comprehensive increase to bodies that regulate virtual physician licensing, and restrictive caps on as-of-yet unregulated billable processes, like text-message appointments.

Private Billing Models and the Principles of Canadian Healthcare

Cofounder and CEO of Dialogue Cherif Habib defends the integrity of his company’s billing policy by pointing out that Dialogue operates only through group and employer insurance. In other words, the patient must access Dialogue through previously-compatible private insurance plan, and are not billed by Dialogue directly. However, Dialogue is the only private healthcare service in Canada to follow this insurance-billing model. The rest of the private industry still allows for out-of-pocket payments. Furthermore, by Dialogue’s own terms of service, patients are still responsible to pay for “services that are not included in your [private insurance] plan.”

Most importantly, these private insurance plans are still paid for by the patient. By providing a publicly-available healthcare service on private insurance, the patient to pay twice: once in taxes and again for private coverage. The operation of privatized healthcare providers like Dialogue in practice appears to be at odds with the preamble of the Canada Health Act, which aspires to “continued access to quality healthcare without financial or other barriers.”

Conclusion: Filling in the Gaps

The transition to virtual healthcare is inevitable, especially with the advent of COVID-19. Virtual care presents clear benefits in terms of accessibility, convenience and safety. However, Canada’s limited public virtual care and lack of legislative coverage has allowed privatized actors to flourish in the field. While these actors provide necessary and desired services, these services come at the direct expense of Canadians. This for-profit model of healthcare is fundamentally at odds with the ethos of the public healthcare system. Canada’s public healthcare policymakers need to address these service and policy oversights in a timely manner, or they risk having more of the public system usurped by further privatization.


Canada’s public healthcare policymakers need to address these service and policy oversights in a timely manner, or they risk having more of the public system usurped by further privatization.|| (Source: flickr // bastamanography)

Although such a Canadian framework would be uniquely adapted to solve Canadian healthcare concerns, policymakers can look to other countries with universal healthcare for inspiration. For example, the National Healthcare Service of the United Kingdom created a long-term plan that includes a massive virtual overhaul of healthcare platforms. France and Australia have also both enacted comprehensive legislative reforms for digitized care. It is up to Canada to follow the same path.

Dylan Yan is a Junior Online Editor for the McGill Journal of Law and Health. Dylan is a recent transfer BCL/JD student at McGill University’s Faculty of Law.

Previously, Dylan studied law at Osgoode Hall Law School, where he was awarded the Ivan Cleveland Rand Prize and the Samuel Rubinoff Prize for Legal Research and Writing. During his time at Osgoode, Dylan was a student caseworker for Mahdi Weinstock LLP and Community Legal Aid Service Providers, focusing on immigration and refugee practice.

Dylan also attended McGill’s Faculty of Science, in which he holds a bachelor’s degree in Microbiology and Immunology and the J.W. McConnell Entrance Scholarship. During his undergraduate studies, Dylan conducted research as part of the Lady Davis Institute. His efforts there focused on HIV enzymes, characterizing the effects of HIV drugs in order to optimize combination HIV therapies.