MEDICAL ASSISTANCE IN DEATH (“MAID”): A LAW IN FLUX
CASE STUDY: Bill and Susan, both retired teachers, are 75 years old. They have three children, Alexandra, Benjamin and Samantha, and several grandchildren.
Sadly, Bill has just been diagnosed with lung cancer after several weeks of unexplained fatigue, weight loss and coughing. He is feeling relatively fine now but knows his prognosis and wants to know how the updated MAID law affects his ability to control the manner and timing of his death and minimize his suffering. He is also quite concerned about becoming a burden to his family. Susan is Bill's substitute decision maker.
Susan is just regaining her balance after 3 intense years of caring for her mother, who recently passed away after a lengthy battle with cancer and dementia. As her mother’s substitute decision maker, Susan struggled to care for her and often felt powerless watching her mother’s suffering. Her mother never really shared her wishes for health care before loosing her mental capacity, so Susan was always guessing what she might want.
MAID LAW TODAY AND IN NEAR FUTURE: Until June 2016 and the implementation of Bill C-14, the Criminal Code had strict prohibitions against physician-assisted death. Prior to this, people experiencing severe suffering and physical incapacity who wanted relief through an assisted death were limited to relying on family or friends to either illegally provide them the means to take their lives, or to take them to a jurisdiction (Switzerland primarily) which legally permits physician assisted death, allowing them relief from a life they considered intolerable due to a severe medical condition.
As a result of the implementation of Bill C-14, MAID has been available in Canada since 2016. Canadian adults experiencing a grievous and irremediably medical condition causing intolerable suffering with death being reasonably foreseeable may voluntarily avail themselves of medical assistance in death, or MAID, provided two physicians or nurse practitioners confirm the legal requirements as stated above are met. The patient must be counselled on treatment options to ensure there is no acceptable alternative treatment. There is a 10-day waiting, or “cooling off” period between the time of the approved MAID application and the provision of MAID. Under Bill C-14, the waiting period could be waived if it appeared, in the opinion of the physicians/nurse practitioners, that the individual would lose capacity prior to the full 10 day waiting period. The patient must be capable immediately prior to the delivery of the treatment.
Since the implementation of Bill C-14, more than 13,000 Canadians have had MAID.
However, since the implementation of Bill C-14 several ancillary issues for parliamentary debate and court challenge have come to the fore, including the availability of MAID for:
· mentally ill persons,
· mentally incapable persons using advanced directives,
· mature minors, and,
· conditions in which death is not reasonably foreseeable.
Furthermore, great confusion has surrounded what the reasonable foreseeability of death, as set out in the legislation, means. Reasonable foreseeability was clarified by the Ontario Superior Court in A.B. V Canada (Attorney General) in 2017 to mean a person who is on a “trajectory towards death because he or she” has a serious and incurable medical issue, is in an advanced state of irreversible decline in capability and is enduring physical or psychological suffering that is intolerable and not possible to alleviate in a manner acceptable to the patient.
This definition is not acceptable for some who wish to see MAID available to them, but death is not reasonably foreseeable. As such, further court challenges have been brought forth, prompting parliament to revisit the legislation in the more recent Bill C-7.
Bill C-7 would repeal s.241.2(2)(d) of the Criminal Code that requires a natural death to be reasonably foreseeable. It would only require one, rather than two physicians or nurse practitioners to approve the MAID application. Where natural death is foreseeable, the 10-day waiting period is eliminated and where natural death is not reasonably foreseeable there must be 90 clear days between the day of the first MAID assessment and the day on which MAID is administered. If, however, the medical practitioner providing MAID believes that the patient may lose capacity to consent to MAID within the 90-day period, they may provide MAID in any shorter period that h/she determines as appropriate.
Bill C-7 confirms that persons whose sole underlying medical condition is mental illness shall not be eligible for MAID. Bill C-7 does not address the issue of mature minors nor the use of advance directives to secure MAID.
To be made law, a bill must pass three readings in parliament and then be presented to the Governor General to receive Royal Assent. It then becomes law. Bill C-7 has passed the three readings in parliament and now awaits Royal Assent.
As stated in parliamentary debate records of December 9th, 2020 by the Minister of Justice, David Lametti, his committee will conduct a further review of the law to investigate advance requests for MAID. As such, we can expect the law on MAID to continue to evolve until these details are completely resolved.
AFFECT OF UPDATED MAID LAW ON GEORGE’S SITUATION: While still mentally capable, Bill would qualify to apply for MAID once he feels that his health situation is grievous and irremediable, causing him intolerable suffering. His death need not be reasonably foreseeable, and only one physician or nurse practitioner must approve his application, but he would be subject to a 90-day waiting period, if his death were not “reasonably foreseeable”. At this time, he would not be able to give Susan, his substitute decision maker, an advance directive allowing her to apply for MAID on his behalf, should he loose mental capacity to apply on his own accord.