Originally published May 2021 / Revised June 2021
The information in this article was correct at the time of publishing
Medical assistance in dying (MAID) in Canada continues to evolve. A 2019 Québec court decision invalidated the previous requirement under the Criminal Code of Canada that a patient’s death be reasonably foreseeable, and, in Québec, that the patient be at the end of life.1 The decision required legislative changes to the MAID provisions in the Criminal Code of Canada.2
The evolving rules and expectations may add to existing uncertainty about the rights and obligations of patients and physicians, and the processes to be followed. Even experienced physicians need to understand the current framework and continue to thoroughly assess each request based on a patient’s individual circumstances. Physicians involved in MAID should consider contacting the CMPA for information and case-specific advice.
In addition to carefully considering and applying the eligibility criteria and safeguards in the Criminal Code of Canada, physicians must also be aware of and comply with provincial or territorial laws and regulations, reporting requirements, and policies of their medical regulatory authority (College) and hospital.
In Québec, while the “end of life” requirement no longer applies, the rest of the eligibility requirements and safeguards applicable in that province remain unchanged. Physicians in Québec must continue to be vigilant in ensuring compliance with both the existing provincial MAID legislation and the updated federal Criminal Code of Canada. The Commission des soin de fin de vie recommends that in the event of conflict between the federal and Québec legislation, physicians in Québec follow the more restrictive requirement.3
Case example: Patient with ALS requests MAID
A 45-year-old patient with ALS requests MAID. She lives in a rural community where few physicians are comfortable being involved in MAID.
She is not yet at the “end of life”—her treating physicians believe she could live another four years. However, she is concerned she could choke on her saliva and die at any time. She is not currently experiencing intolerable physical suffering, but is suffering severe psychological distress.
She has questions about preparing an advance request for MAID in the event her pain medication affects her capacity to consent later.
Her husband supports her request, but her daughter opposes her mother’s choice.
Eligibility and safeguards
The case study illustrates the challenges physicians may face in determining eligibility for MAID. While many of the eligibility requirements and safeguards have not changed, the updated federal MAID provisions expand eligibility to include patients whose natural death is not reasonably foreseeable, provided additional safeguards are met.
Current eligibility requirements and safeguards for all MAID requests
To qualify for MAID, the patient must meet all of the following:
- be a mentally capable (competent) adult of at least 18 years of age
- be eligible for government-funded health services
- make a voluntary request in writing
- be able to give informed consent
- suffer from a “grievous and irremediable medical condition” (excludes patients suffering solely from a mental illness)
The Criminal Code of Canada continues to prohibit MAID from being administered to patients solely on the basis of a mental illness. However, this exclusion will be revisited by early 2023 as the federal government has ordered an independent review of MAID for patients suffering solely from a mental illness.
Definition of a grievous and irremediable medical condition
The Criminal Code of Canada states that a person has a grievous and irremediable medical condition if they have a serious and incurable illness, disease, or disability; are in an advanced state of irreversible decline in capability; and their condition causes intolerable suffering that cannot be relieved under conditions acceptable to them. In Québec, a more restrictive requirement applies”—instead of a “serious and incurable illness, disease, or disability,” eligibility is limited to a “serious and incurable illness.”
All requests for MAID must be in writing, signed, and dated by the patient in front of one independent witness. Previously, two witnesses were required. The patient must be informed that they can withdraw their request at any time.
Two independent medical or nurse practitioners must provide a written opinion confirming the patient meets all the eligibility criteria. In Québec, only medical practitioners can provide such opinions.
Where death is not reasonably foreseeable
If the physician in the case example concludes the ALS patient meets all of the eligibility requirements, it is still necessary to determine whether the patient’s natural death has become “reasonably foreseeable.”
Where natural death is not reasonably foreseeable, the patient may still be eligible for MAID, but additional safeguards will apply. For example, such a patient must wait at least 90 days to receive MAID, beginning on the date the first eligibility assessment begins. Neither the day the first assessment begins nor the day MAID is provided are included in calculating the 90-day period. However, the assessment period can be shortened if the patient is expected to lose capacity imminently.
If neither of the assessors have expertise in the medical condition that is causing the person’s suffering, one of the assessors must consult with a medical or nurse practitioner who has such expertise. Whether someone has the necessary expertise will depend on factors such as the nature of the patient’s condition and the practitioner’s education, training, or experience.
The patient must also be informed of available means to relieve their suffering and access supports. The MAID practitioners must ensure the patient has seriously considered such options.
Where death is reasonably foreseeable
Patients whose natural death is reasonably foreseeable are no longer required to wait 10 days following their request for MAID.
If the patient’s natural death is reasonably foreseeable and the other eligibility criteria and safeguards have been met, the patient can enter into a written arrangement to receive MAID even if they lose capacity before it is scheduled to be administered. The Criminal Code of Canada mandates the contents of such written arrangements.
A waiver of final consent is also not allowed where the patient’s natural death is not reasonably foreseeable.
Implications for Québec physicians
There was initial uncertainty in Québec about the ability to waive the final consent to MAID. The province has since amended its legislation to permit the waiver of final consent, provided conditions under that provincial legislation are met.
Other differences between the Québec legislation and the federal Criminal Code of Canada include the requirement that patients in Québec must suffer from a “serious and incurable illness,” which is more restrictive than a “serious and incurable illness, disease or disability” under the Criminal Code of Canada. As was previously the case, only physicians can administer MAID in Québec and self-administration is still not permitted. Physicians involved in MAID in Québec are encouraged to call the CMPA.
If after losing capacity, the patient demonstrates by words, sounds, or gestures that they refuse or resist MAID, the waiver is no longer valid and MAID cannot proceed. The words, sounds, or gestures that will be sufficient to constitute resistance or refusal are not defined in the legislation. Physicians must use their judgment based on the individual circumstances of each case. Further guidance may be coming from sources such as regulatory authorities, the government, or medical specialty associations.
The waiver of final consent is different from an “advance request” for MAID. An “advance request” refers to an arrangement where a person is not currently seeking or eligible for MAID. The request is intended to apply to future circumstances under which the patient wants to receive MAID if incapable of asking or consenting.4 Advance requests are not permitted under existing federal or provincial law.5
In all jurisdictions except Québec, eligible patients who chose to self-administer oral MAID medications can enter into a written arrangement in advance to allow the MAID practitioner to complete the administration of MAID if the self-administered medication results in the loss of capacity, but not death. The details of such an arrangement and the content of the written documentation are set out in the Criminal Code of Canada. For example, the practitioner must be present at the time of self-administration for the written arrangement to be implemented.
Self-administration of MAID continues to be prohibited in Québec.
Some physicians object to MAID on moral or religious grounds. While physicians continue to have no obligation to provide MAID, they also have a pre-existing obligation not to abandon their patients.
Most Colleges have policies that attempt to reconcile the rights of patients and physicians. These policies differ between jurisdictions, including on what is required from a conscientiously objecting physician by way of a referral. Physicians should comply with their College’s requirements, while respectfully following their personal views.
Physicians receiving a written request for MAID or conducting a MAID assessment may need to file a report with Health Canada or a designated recipient, even if they are not involved in delivering MAID. Physicians may also have other reporting obligations, including to the coroner or medical examiner, hospital or health authority, or others (e.g. Commission on end-of-life care in Québec).
Physicians are encouraged to consult Health Canada’s website,6 their College, and/or other applicable MAID policies and regulations for further details on their reporting obligations. The information to be reported, the organization to which the report is made, and the timeline for reporting continue to evolve and may vary depending on the case and jurisdiction.
Physicians with questions about reporting requirements should consider contacting the CMPA.
In some communities, patients may experience challenges finding healthcare providers able or willing to be involved in MAID. In certain regions, services are available to help connect patients with MAID providers.
The case example also highlights challenges that can arise when family members disagree with the patient’s request. To minimize difficulties that can arise after a patient’s death, physicians should, to the extent possible, encourage patients to involve their family in MAID discussions with the understanding that a request is the patient’s decision.
Unlike most other healthcare services, MAID is governed by criminal law. This means that a physician participating in MAID who does not ensure the required eligibility criteria, safeguards, and reporting requirements are met could be charged with a criminal offence. If found guilty, the physician could face imprisonment of up to 14 years. The physician could also be subject to College sanctions, civil legal actions, or both.
When considering a request for MAID
- Know your obligations under the current laws and regulations, in particular the requirements in the Criminal Code of Canada, as well as College and hospital policies. In Québec, be aware that some of the provincial legislative requirements differ from those under the Criminal Code of Canada – it is prudent in these circumstances for physicians to comply with the more restrictive law.
- Assess each request 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, paying particular attention to the safeguard requirements, especially where death is not reasonably foreseeable.
- While respectfully following your personal views, comply with College expectations regarding conscientious objection.
- Consider consulting with colleagues for support and contact the CMPA for medico-legal advice.
Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
An Act to amend the Criminal Code (medical assistance in dying), (formerly Bill C-7), 2nd Sess, 43rd Leg, Canada, 2021 (assented to March 17, 2021)
Énoncé de la Commission sur les soins de fin de vie à la suite de l’adoption du Projet de loi C-7 (April 16, 2021)
Government of Canada, Department of Justice, “Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision” (October 21, 2020). Available from: https://www.justice.gc.ca/eng/csj-sjc/pl/ad-am/c7/toc-tdm.html
A Joint House of Commons and Senate Committee will also conduct a comprehensive review of various issues relating to advance requests, mature minors, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities.
Government of Canada [Internet]. Reporting requirements for medical assistance in dying. 2018 [cited 2021 March 24]. Available from: https://www.canada.ca/en/health-canada/services/medical-assistance-dying/reporting-requirements.html#a5