Update on Medical Assistance in Dying in Canada

Update on Medical Assistance in Dying in Canada

September 7, 2021

BY Monika Steger

Introduction

Medical Assistance in Dying (“MAiD”) has a long history in Canada. Previously known as assisted suicide, it made Canadian headlines in 1993, when the landmark case of Rodriguez v British Columbia (AG) 3 SCR 519 was decided. Sue Rodriguez challenged the Criminal Code provision that prevented assisted suicide, but in a 5-4 decision the Supreme Court upheld the Canadian Criminal Code provision. 22 years later in 2015, the Court in Carter v Canada (AG) 2015 SCC 5 unanimously struck down the Criminal Code provision preventing MAiD.

Legislation was created in June 2016 to legalize MAiD. Since that time there have been more than 13,000 reported MAiD deaths in Canada, where 82% of those cases were individuals who had previously received palliative care services. These numbers are in-line with other countries’ statistics for percentages of MAiD deaths.[1]

Current Law and Recent Amendments

In a post-Carter world, there have been multiple amendments to the MAiD law. In 2016, amendments were made to the Criminal Code in order to decriminalize MAiD. This was done through Bill C-14, which allowed people to receive MAiD from a medical practitioner or a nurse practitioner. The Bill also outlined criteria and safeguards that must be followed in order to qualify for MAiD. The Bill identified that new offences were needed in order to address non-compliance with safeguards.

Following the Truchon decision from Quebec, the Government of Canada consulted with the public and industry experts from January-February 2020. In October 2020, they introduced Bill C-7, which proposed changes to Canadian MAiD law.

On March 17, 2021, there were further changes to the MAiD provisions in the Criminal Code. These changes occurred following the Government of Canada’s consultation on MAiD.[2] These changes broadened the eligibility requirements, and updated assessment processes.[3]

While MAiD is allowed, it is not mandatory for all physicians to perform it. This dynamic can limit access; however, resources have been set up for people interested in MAiD whose doctor is unwilling to perform it.

Currently there are two options for MAiD within Canada:

1. Clinician-administered MAiD—Where a physician or nurse administers a substance that causes death; and
2. Self-administered MAiD—Where the individual is prescribed a drug and takes it themselves to cause death.

In terms of eligibility, the recent amendments make the following changes to MAiD law:

1. They remove the requirement for the individual’s natural death to be reasonably foreseeable. This change came about in response to the decision in Truchon.
2. They provide a two-lane approach for procedural safeguards. Some safeguards are eased for eligible individuals whose natural death is reasonably foreseeable; other changes strengthen the safeguards for those individuals whose natural death is not reasonably foreseeable.
3. They establish that people suffering solely from a mental illness cannot access MAiD until 2023.
4. They allow individuals whose natural death is reasonably foreseeable and who have a set date for MAiD to waive final consent if there is a chance that they will lose capacity in the interim.
5. They create an updated framework for data collection by the federal government[4]

The Government has published an infographic that highlights key changes to MAiD law.

Recent Work by the Canadian Bar Association (CBA)

The CBA’s End-of-Life Working Group has been advocating for MAiD amendments since prior to the Carter decision. The CBA indicates that “the legal framework surrounding medically assisted death in Canada is consistent with the principles guiding the CBA’s advocacy on the matter, including dropping the requirement that one of the two physicians signing off on a person’s eligibility to MAID be a specialist of the particular illness or condition a person suffers from.”[5]

In January 2020 the CBA’s End-of-Life Working Group participated in the ministerial round-table discussion, and subsequently provided a written submission. The Working Group explained that they support the Truchon decision in that MAiD is not about proximity of death but rather preventing intolerable suffering. The Working Group’s explained that “the response to vulnerability issues in MAID is to ensure informed consent, and those assessments can be made on a case-by-case basis by the physicians involved”. The working Group also submitted that “federal legislation should allow advance requests for MAiD–in certain circumstances and with adequate safeguards,” and “recommend[ed] additional consultations to define the relevant parameters and safeguards for advance requests.”

On November 12, 2020 the CBA appeared before the House Standing Committee on Justice and Human Rights. The CBA’s submission included its support for the End-of-Life Working Group’s submission on Bill C-7 and reiterated its support for the approach taken by the court in the Truchon decision.

The CBA’s written submission to the Standing Committee states that mental illness should not be excluded from MAiD legislation. The CBA points out that there was a MAiD parliamentary review planned which could provide opportunity to consider this issue and make recommendations. It has since been decided that MAiD will continue to be unavailable to this community until March 17^th, 2023.

In recent years, the CBA has passed a number of resolutions in relation to MAiD:

• Clarifying-Law-About-End-of-Life-Decision-Making (2015)
• Physician-Assisted-Dying (2015)
• Advance Requests (2016)
• Psychiatric Conditions (2016)
• Competent Minors (2016)

Moving forward, the CBA Working Group has created sub-committees to consider the issues not yet decided.

Recent Court Cases

Truchon v Canada (AG), 2019 QCCS 3792.

In this decision the Superior Court of Quebec declared that the MAiD provision requiring a “reasonable foreseeability of natural death” was unconstitutional. The Court ruled that this eligibility criteria violated section 7 of the Charter and section 15 of the Charter. It is important to note that while this decision was only binding in Quebec, it significantly influenced the amendments to the Criminal Code.

Y. v Swinemar, 2020 NSCA 56.

This Nova Scotia decision concerned a patient whose spouse had applied for a permanent injunction preventing the patient’s access to MAiD. The Plaintiff argued that the patient should not be able to access MAiD and did not meet eligibility requirements. The Plaintiff’s request for a permanent injunction was denied. The Court concluded that the courts have no role in reviewing MAiD eligibility. These questions should be left to physicians and legislative policy that have outlined standards. The decision discussed how the Plaintiff was attempting to relitigate issues related to MAiD that had been decided by the Supreme Court of Canada and Parliament, which was improper.

Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393.

In this case a number of physicians and organizations representing Ontario physicians brought an application challenging the policies of the Ontario College of Physicians and Surgeons that require physicians who object to providing certain medical procedures, including MAiD, on the basis of their religious beliefs, to provide an “effective referral”. The physicians argued that providing this effective referral impeded their religious freedom. The Divisional Court found that the policies did infringe the applicants’ freedom of religion contrary to s. 2(a) of the Charter but that the infringement was justified under s. 1 of the Charter. The court found that there was no violation of s. 15(1) of the Charter. The physicians appealed. The Appeal was subsequently dismissed with the Court finding that the Divisional Court had not erred in their findings.

Comparison across the Country

Implementation of MAiD varies across the Country.

British Columbia

In British Columbia, in addition to complying with federal safeguards, has implemented further provincial safeguards. These include:

• “A regulated health professional must witness an eligibility assessment conducted via the Telehealth videoconferencing system.* (A Telehealth assessment would be arranged by the doctor or nurse practitioner.)
• If one or both doctors or nurse practitioners are concerned about an individual’s capability to provide informed consent, they will request a incapability assessment from a third doctor or specialist.
• The pharmacist must dispense the drugs directly to the prescribing doctor or nurse practitioner and the prescribing doctor or nurse practitioner must return any unused drugs to the pharmacy.*
• The doctor or nurse practitioner must be present with the person during the self-administration or administration of MAiD and remain with the person until death is confirmed. This task may not be delegated to another person or professional.

* These safeguards have been temporarily eased during the COVID-19 public health emergency in BC to ensure that people continue to have access to medical assistance in dying”.[6]

The province has also ensured every BC health authority has a designated person to assist in facilitating information and planning for MAiD. They also will connect individuals with a medical professional who can provide guidance.

Ontario

In Ontario, unlike BC, there are no additional provincially regulated safeguards. Ontario follows the federal government’s eligibility criteria. As demonstrated by the Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, there is a demonstrated duty that physicians provide an effective referral for a patient if they are unwilling to provide MAiD.

Alberta

In contrast to Ontario, Alberta in their Alberta Health Services Medical Assistance in Dying Policy, state that “Health care providers may follow their beliefs and values when deciding whether or not to participate in medical assistance in dying”. It is later clarified that the Alberta Health Services shall “take reasonable steps to facilitate self-referrals, referrals of patients from Physicians or Nurse Practitioners who decline to participate in medical assistance in dying, and referrals from AHS-contracted service providers for those patients intending to access medical assistance in dying”. The term “reasonable” seems to differ from Ontario’s requirement of an “effective referral”.

Other Resources and Opinions

Sarah Gupta,“Medical Assistance in Dying after Carter: Developing a “Trialogue Theory” Framework” (2020) 40:2 NJCL 111.

Mary J. Shariff & Mark Gingerich, “Endgame : Philosophical, Clinical and Legal Distinctions between Palliative Care and Termination of Life” (2018) 85 SCLR 225.

Rose M. Carter & Brandyn Rodgerson, “Medical assistance in dying: Journey to medical self- determination” (2018) 55:3 Alta L Rev 777 – 803.

Trudo Lemmons, Heesoo Kim & Elizabeth Kurz, “Why Canada’s Medical Assistance in Dying Legislation Should Be C(h)arter Compliant and What It May Help to Avoid” (2017) 11:1 McGill JL & Health S61.

Matthew Ponsford, “Chronic, Irremediable Depression Constituting Mental Disability: Expanding Legal Rights to Euthanasia in Canada” (2018), 82 SCLR 237.

L. W. Sumner, “Conscientious refusal to provide medically assisted dying” (2021) 71:1 UTLJ 1.

James Falconer et al. “Perceptions and intentions toward medical assistance in dying among Canadian medical students” (2019) 20 BMC Med Ethics.

Jocelyn Downie, In A Nutshell: An Attempted Assault On Access To Maid (2020), online: Impact Ethics <impactethics.ca/2020/10/22/in-a-nutshell-an-attempted-assault-on-access-to-maid/>.

[1] “New Medical Assistance in Dying Legislation Becomes Law” (nd) online: Department of Justice Canada <www.canada.ca/en/department-justice/news/2021/03/new-medical-assistance-in-dying-legislation-becomes-law.html>.

[2] “Medical Assistance in Dying” (nd) online: Department of Justice Canada <www.justice.gc.ca/eng/cj-jp/ad-am/index.html>.

[3] “Medical Assistance in Dying” (nd) online: Government of Canada <www.canada.ca/en/health-canada/services/medical-assistance-dying.html>.

[4] Supra note 3.

[5] “CBA INFLUENCE ON MEDICAL ASSISTANCE IN DYING RESULTS IN ADEQUATE BALANCE BETWEEN AUTONOMY AND PROTECTION” (2021) online: The Canadian Bar Association <cba.org/Our-Work/cbainfluence/Public-Policy-and-Advocacy/2021/April/CBA-influence-on-medical-assistance-in-dying-resul>.

[6] “Medical Assistance in Dying” (nd) online: Government of British Columbia <www2.gov.bc.ca/gov/content/health/accessing-health-care/home-community-care/care-options-and-cost/end-of-life-care/medical-assistance-in-dying>.