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.