Legal and regulatory proceedings
Medical assistance in dying and the law: One year later
Originally published June 2017
Healthcare has undergone remarkable changes since June 2016 when the federal government amended the Criminal Code of Canada to allow medical assistance in dying (MAID) in certain circumstances.1 Canadians now have access to MAID, and healthcare providers wanting to provide the service have a legal framework in which to do so.
As the country gains experience with MAID, it is apparent Canadians want the service. Reports suggest that between June 17 and December 31, 2016, at least 803 Canadians received MAID.2 Yet, questions are being asked about a range of issues around MAID including eligibility criteria, consent, conscientious objections, and safeguards. Despite the federal legislation, and Québec’s 2015 An Act Respecting End of Life Care, which governs end-of-life issues in that province,3 some physicians are uncertain about how to apply the rules, and their legal and professional rights and obligations. Some are also wary of potential medical-legal risks and seek to reconcile these risks with providing appropriate patient care.
The CMPA continues to receive requests from members for advice concerning MAID, and is monitoring developments by governments, regulatory authorities, and medical associations and federations as the situation evolves. With the one-year anniversary of the federal legislation this month, it is a good occasion to take stock of the current state of MAID in Canada and the medical-legal impacts on physicians.
Eligibility criteria and access
It is sometimes difficult to determine who is eligible, and patients in some parts of the country may have problems finding a healthcare professional willing to provide the service.
The Criminal Code states that patients may be eligible if they are mentally capable (competent) adults, eligible for government-funded health services, have made a voluntary request, are able to give informed consent, and suffer from a "grievous and irremediable medical condition."4 Questions remain around how to apply some of the criteria, for example, how to interpret the term "grievous and irremediable medical condition,"5,6 which is not defined by the Criminal Code.
Some suggest the current federal legislation impedes particular Canadians’ access to MAID,7 including those under the age of majority and those suffering from some mental illnesses. The legislation is currently facing a constitutional challenge in British Columbia on the basis that the requirement for a patient’s natural death be reasonably foreseeable is too restrictive and violates constitutional rights.8 Another court challenge is underway in the province of Québec.9
The federal government has started an independent review of the legislation to provide information. This will allow an informed dialogue to take place on the possibility of expanding the current legislation to include Canadians suffering strictly from mental illnesses, as well as mature minors, and to allow advance requests for MAID.7 The Québec government also indicated its intention to examine issues related to its MAID legislation.10
Physicians have a duty to obtain informed consent for end-of-life care from patients or their substitute decision-maker. When it comes to MAID, however, only the patient can request and consent to it; substitute decision-makers do not have this authority. To the extent possible, physicians should encourage patients to consent to including their family in MAID discussions. This can help ensure everyone is on board with the decision and minimizes the risk of issues arising after the patient’s death.
The Criminal Code requires that the health practitioner providing MAID confirm the patient’s capacity and consent immediately before providing MAID, thereby precluding "advance requests" for assisted dying.11 There has been interest in providing for advance requests, which would allow individuals to prepare directives addressing their wishes to receive MAID in the future once certain criteria will have been met.12
Some physicians object to medical assistance in dying on moral or religious grounds. While the law is clear that physicians have no obligation to provide MAID, there continues to be discussion on whether conscientiously objecting physicians should be required to provide referrals for patients who request MAID.
The Supreme Court of Canada recognizes a physician’s right to refuse to help a patient to die based on freedom of conscience. However, neither the Court nor federal legislation specifically address whether physicians are required to provide a referral for MAID.13 Most doctors who have indicated they would not be willing to provide MAID are similarly uncomfortable referring patients to a colleague.14 They view such a referral as morally equivalent to personally assisting patients to die.
In response to these issues, the regulatory authorities (Colleges) have developed policies and guidelines on MAID aimed at reconciling the Charter rights of patients and physicians.1 These guidelines differ from one jurisdiction to another and reaction to them has varied.
In 2016, faith-based medical groups and individual physicians launched a legal action in Ontario, arguing that the College of Physicians and Surgeons of Ontario policy violates their Charter rights.15 In another development, some Catholic hospitals are opting not to provide MAID within their facilities and are instead transferring patients who request an assisted death.16, 17
Conscientious objection to MAID will likely remain a contentious issue, as the regulations try to strike the appropriate weighting between the rights and convictions of doctors while ensuring they uphold their duty of care.
The legislation’s safeguards, which are aimed at protecting vulnerable patients from abuse of the MAID provisions, can be hard to apply in certain circumstances.
For example, to complete the MAID request form, patients must find witnesses that meet the legislation’s strict requirements for independence. This can be a struggle. Challenges have also been encountered when trying to determine the independence of the two practitioners involved in providing MAID.16 And issues have surfaced about the application and shortening of the 10-day period of reflection.
Despite concerns about applying some of the safeguards in specific situations, a number of physicians are now developing a special interest and experience in MAID.16 Some hospitals and health authorities have policies and resources to assist physicians and other healthcare providers with the processes around MAID, including interpreting and complying with the various safeguards. However, other hospitals and health authorities have not yet implemented any policies, which can present additional challenges for physicians caring for patients who request MAID within that facility.
Unlike other healthcare services, MAID is governed by criminal law. If the safeguards and eligibility criteria for MAID are not met, it could result in criminal charges against a physician and imprisonment of up to 14 years.1 This is in addition to the usual risks associated with medical care, which may result in College sanctions and civil legal actions.
Because the Québec legislation is generally more restrictive than the federal legislation, physicians providing assistance in dying in Québec should act in accordance with both the Criminal Code and provincial legislation, adhering to whichever requirements are more restrictive.
Tips when considering a request for MAID
When patients request assistance in death, physicians should consider the following:
- Become familiar with your obligations as set out in the federal legislation, provincial or territorial laws and regulations, and College and hospital policies.
- Treat each request for assisted death as unique. Assess it on its own merits based on the facts and circumstances of the case.
- Document carefully in the medical record the processes and discussions around MAID, especially assessments on eligibility and mental capacity (competence), informed consent discussions, consultations with other healthcare professionals, and, if appropriate, discussions with family members.
- Consider consulting with colleagues for support in dealing with end-of-life care and requests for MAID.
- Contact the CMPA if you have medical-legal questions or concerns about MAID.
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), S.C. 2016, c. 3, amending R.S.C., 1985, c. C-46). Available from: http://laws-lois.justice.gc.ca/eng/acts/C-46/
- Government of Canada. Interim update on medical assistance in dying in Canada June 17 to December 31, 2016 [Internet]. Ottawa (ON): Government of Canada; 2017 April 17 [cited 2017 Apr 28]. Available from: https://www.canada.ca/en/health-canada/services/publications/health-system-services/medical-assistance-dying-interim-report-dec-2016.html
- An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001. Available from: https://www.canlii.org/en/qc/laws/stat/rsq-c-s-32.0001/latest/rsq-c-s-32.0001.html
- Medical assistance in dying. Government of Canada. 2016 [cited 2017 Feb 2]. Available from: https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html
- Government of Canada. Legislative Background: Medical Assistance in Dying (Bill C-14) [Internet]. Ottawa (ON): Government of Canada, Department of Justice; 2016 [cited 2017 Apr 28]. 55 p. Available from: http://www.justice.gc.ca/eng/rp-pr/other-autre/ad-am/ad-am.pdf
- Government of Canada [Internet]. Legislative Background: Medical Assistance in Dying (Bill C-14) –Addendum. Ottawa (ON): Department of Justice (Canada); 2016 July 15 [cited 2017 Feb 28]. Available from: http://www.justice.gc.ca/eng/rp-pr/other-autre/addend/index.html
- Laucius J. Reviews on expanding assisted dying to mature minors, those with mental illness, to begin in new year. Ottawa Citizen [Internet] 2016 December 28 [cited 2017 Feb 7]; National: [about 4 screens]. Available from: http://ottawacitizen.com/news/national/reviews-on-expanding-assisted-dying-to-begin-in-the-new-year
- Lamb v Canada: the Death with Dignity case continues [Internet]. Vancouver (BC), [cited 2017, Feb 28]. Available from: https://bccla.org/our-work/blog/lamb/ British Columbia Civil Liberties Association.
- D’Amico et Saba c. Procureure générale du Québec, Dec. 1, 2015. Court File 500-17-082567-143 (C.S.Q.)
- Government of Québec [Internet]. Élargissement de l'aide médicale à mourir - Le ministre Barrette propose des mesures pour alimenter la réflexion : Québec (PQ); Government of Québec; 2017 March 24 [cited 2017 Apr 28]. Available from: http://www.fil-information.gouv.qc.ca/Pages/Article.aspx?aiguillage=ajd&lang=fr&idArticle=2503243228
- Criminal Code, RSC, 1985, c. C-46, ss 241.2 (1)(b)(3)(h)
- Government of Canada. Government of Canada Initiates Studies Related to Medical Assistance in Dying [Internet]. Ottawa (ON): Government of Canada; 2016 Dec 13 [cited 2017 Apr 28]. Available from: http://news.gc.ca/web/article-en.do?nid=1167919&tp=1&_ga=1.199899374.1575693374.1480427381
- Canadian Medical Protective Association [Internet]. Conscientious objection to medical assistance in dying: Protecting Charter rights. Ottawa (ON):CMPA; June 2016. [cited 2017 Feb 8]. Available from: https://www.cmpa-acpm.ca/en/legal-and-regulatory-proceedings/-/asset_publisher/a9unChEc2NP9/content/conscientious-objection-to-physician-assisted-dying-protecting-charter-rights
- Canadian Medical Association [Internet]. Results of the CMA Member Survey on Medical Assistance in Dying. Ottawa (ON);CMA; June 2016. [cited 2017 Feb 6]. Available from: https://www.cma.ca/Assets/assets-library/document/en/advocacy/maid-survey-summary-june-2016-english.pdf
- Fine S. Christian doctors challenge Ontario’s assisted-death referral requirement. The Globe and Mail [Internet] 2016 June 22 [cited 2017 Jan 31]; National: [about 4 screens]. Available from: http://www.theglobeandmail.com/news/national/christian-doctors-challenge-ontarios-assisted-death-referral-policy/article30552327/
- Grant K. Incomplete stats paint fuzzy picture of assisted-death impact in Canada. The Globe and Mail [Internet] 2016 October 6 [cited 2017 Jan 31]; National: [about 4 screens]. Available from: http://www.theglobeandmail.com/news/national/despite-assisted-dying-law-barriers-still-remain-doctors-say/article32286253/
- Cross B. Low number of doctor-assisted deaths may be due to good palliative care. Windsor Star [Internet] 2016 October 16 [cited 2017 Jan 31]; Local News: [about 4 screens]. Available from: http://windsorstar.com/news/local-news/low-number-of-doctor-assisted-deaths-may-be-due-to-good-palliative-care