MAID

Medical Assistance in Dying (MAiD): An Update

Dr. Robert M. Gordon

As most practitioners will be aware, federal legislation in the form of amendments to the Criminal Code of Canada (i.e., the Medical Assistance in Dying Act, S.C. 2016 c.3) that allow the provision of medical assistance in dying (MAiD) has been in place in Canada since 2016.

The procedure has been used across the country. In the period up to November 1, 2019, at least 6749 adult Canadians have chosen that way to end their lives. In the vast majority of cases, assistance has been provided by physicians and (to a lesser extent) nurse practitioners, with a minimal number of (permissible) self-administered deaths using prescribed medications.

There has been a steady rise in MAiD deaths as a percentage of all deaths in the country but British Columbia stands out as the province with the highest percentage of such deaths each year. By 2018, the B.C. percentage of such deaths stood at nearly 2.5 percent compared with the national average of 1.5 percent.

The age range of participants was 56 to 90 years (the average age was 72), and they were almost evenly split along gender lines (51 percent were men). Cancer-related illnesses were the most frequent reason for seeking MAiD but some participants had neuro-degenerative disorders (e.g., Alzheimer disease) and some were suffering from severe circulatory/ respiratory conditions.

There has been a steady rise in MAiD deaths as a percentage of all deaths in the country but British Columbia stands out as the province with the highest percentage of such deaths each year.

So far, the impact on Notarial practice does not appear to have been great but this will change dramatically if the federal government moves to legislate in favour of what are referred to as “advance requests,” and the provinces and territories follow suit with local changes to the legislation governing advance health care directives and equivalent planning documents.

As readers will be aware, in B.C. this is a reference to the provincial health care consent, etc., legislation, and probably more important, the legislation governing the creation and use of Representation Agreements for health care and personal care decision-making. It is highly likely that the latter instrument will be favoured by those making advance requests in the Province because of the numerous safeguards built into the legislation and the widespread popularity among users and both medical and legal practitioners.

This issue of advance requests (not to be confused with advance directives) has been addressed by the federal government that, wisely, commissioned the independent Council of Canadian Academies to create expert panels to examine and provide reports (but not recommendations) in three important and controversial areas: • whether MAiD should be available to “mature minors”; • the situation affecting individuals who are suffering from mental disorders who seek MAiD; and • the issue of advance requests, especially in the case of mentally competent adults in the early stages of, for example, neurodegenerative disorders such as

Alzheimer disease or Amyotrophic

Lateral Sclerosis.

The commissioned work was completed, the required reports were submitted to the federal government at the end of 2018, and the hope was that those (and other) issues would be addressed as part of the mandatory

review of MAiD in the Spring of 2020. No one anticipated the impact of the COVID-19 pandemic that has frustrated a number of legislative and policy initiatives at both the provincial and the federal levels.

At the time of writing (August 2020), the MAiD review appears to be at a standstill, hopefully only temporarily.

When the review restarts, it is highly likely that advance requests will be a priority item (because of the apparent popularity of the option) and that there will be a fusion of existing provincial personal-planning legislation with the new federal provisions governing MAiD.

In B.C. that will not be as simple as adding MAiD provisions to existing statutes such as the Representation Agreement Act. The federal legislation requires that a person seeking MAiD be an adult, i.e., at least 18 years of age. The relevant provincial legislation in B.C. (and some other jurisdictions) sets the age of adulthood at 19 and that affects both Representation Agreements and health care directives. The B.C. provincial legislation sets out a rebuttable presumption of capacity (or capability) in the case of adults (i.e., those who are 19 or older) and may require qualification in the case of MAiD applications to ensure appropriate protections for adults with diminished capacity.

Similarly, the existing statutory test of incapacity (incapability) in health care matters and the procedure for assessing incapacity will undoubtedly have to change, in as yet unknown ways. That may involve a new test of capacity (as opposed to incapacity) specifically for MAiD applicants.

A second noteworthy change to the federal legislation is currently on the table in the House of Commons in the form of Bill C-7. The Bill ground to a halt following the First Reading stage at the beginning of the COVID pandemic and it could die completely with the recent prorogation of Parliament. While less impactful for Notaries, when compared with the issue of advance requests, the Bill (if it survives in its current form) clarifies, in part, the definition of those who are eligible for MAiD. It does so by addressing the vexed issue of the “reasonable foreseeability” of natural death, a criterion that must be satisfied before MAiD can be provided (see, section 241.2 of the Criminal Code in particular).

No one anticipated the impact of the COVID-19 pandemic that has frustrated a number of legislative and policy initiatives at both the provincial and the federal levels.

In 2019, the provision was deemed to be unconstitutional by the Quebec Superior Court in Truchon and Gladu v. the Attorney General [Canada] and the Attorney General [Quebec] 2019 QCCS 3792 and the Court has ordered both Governments to change their offending legislation initially by March 2020, then (because of the COVID pandemic) by July 2020, and most recently by December 18, 2020. The Court held that the provisions violated sections 7 (life, liberty, and security of the person) and 15 (equality) of the Charter and could not be justified under section 1. Bill C-7 is the federal government’s attempt to satisfy the Quebec Superior Court’s requirements.

Bill C-7 is far from straightforward and, if the First Reading exchanges are an indication of what is to come, there is likely to be a heated and protracted debate when Parliament resumes in full.

Just to remind readers, adults can receive MAiD if they satisfy five criteria: • they must be eligible for health care services in Canada; • they must be at least 18 and capable of making health care decisions; • their request for MAiD must be voluntary; • they must give informed consent; and • they must have a grievous and irremediable medical condition (section 241.1). Applicants for MAiD are deemed to have such a medical condition if they can satisfy four criteria: • the condition is serious and incurable; • their condition is in an advanced state of irreversible decline; • they are experiencing enduring physical or psychological suffering intolerable to them that cannot be relieved in a manner acceptable to them; and • their natural death has become reasonably foreseeable, taking into account all of their medical circumstances but without a prognosis necessarily having been made as to the specific length of time the adult has remaining (section 241.2). In a nutshell, the Bill proposes a new two-tier system with associated procedures; • one that affects those for whom death is reasonably foreseeable; • the other for whom death is not reasonably foreseeable.

The first system is a simplified version of the current procedure; the second is not, and reflects the federal government’s attempt to ensure appropriate safeguards are in place especially to protect adults with disabilities.

At the same time, the legislation tries to balance safeguards with improved access. For example, in cases where death is reasonably foreseeable, a final consent to MAiD will not be required if the adult could lose the capacity to make decisions before MAiD can be provided.

Significantly, the Bill blocks eligibility in the case of those who suffer from mental disorders that, as discussed above, is 1 of the 3 controversial issues studied in depth by expert panels assembled by the Council of Canadian Academies.

Practitioners are likely to benefit significantly from a relatively close monitoring of developments, especially with respect to advance requests and especially over the next 12 months.

Whether that is to be read as an early [and perhaps premature] dismissal of this potential category of MAiD users, remains to be seen.

Clearly, medical assistance in dying is an extremely active area of Canadian law and practice. Practitioners are likely to benefit significantly from a relatively close monitoring of developments, especially with respect to advance requests and especially over the next 12 months. Further Reading Council of Canadian Academies, 2018, Medical Assistance in Dying: The State of Knowledge on Medically Assistance in Dying for Mature Minors, Advance Requests, and Where a Mental Disorder is the Sole Underlying Medical Condition. Council of Canadian Academies. Ottawa. Gordon, R.M. 2020. The Annotated British Columbia Incapacity Planning, Adult Guardianship, Medically Assisted Dying, and Related Legislation. Toronto, Thomson Reuters; especially Chapter 4. It is also helpful to monitor the online journal “Policy Options” for the work of Professor Jocelyn Downie from the Health Law Institute at Dalhousie Law School, and especially the related end of life project (see, eol.law.dal.ca). Practitioners should also be aware of the information about MAiD procedures in B.C. that is available on the provincial Ministry of Health website. s Dr. Robert M. Gordon is a Professor in the School of Criminology, Simon Fraser University.

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