Published: June 20, 2016/ Revised October 2019
In a landmark decision, Carter v. Canada, the Supreme Court of Canada unanimously declared the criminal prohibition against physician-assisted dying (now called medical assistance in dying (MAID)) unconstitutional.1 The Court suspended the decision to give Parliament and the provincial legislatures time to enact legislation, and medical regulatory authorities (Colleges) and medical associations time to develop policies and guidelines.
On June 17, 2016, amendments to the Criminal Code came into force rendering MAID legal everywhere in Canada provided certain conditions are met.2 The Criminal Code now provides an exception to the criminal prohibition against medical assistance in dying for individuals who are eligible for health services funded by a government in Canada, who are at least 18 years of age and capable of making decisions about their health, have a grievous and irremediable medical condition, have made a voluntary request for MAID, and who provide informed consent. Individuals have 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 them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable. In addition, the medical condition must be such that the patient’s natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time they have remaining. In those circumstances, only a medical practitioner or nurse practitioner can provide assistance in dying.
The Criminal Code also provides for a number of safeguards, including the requirement that the request be made in writing, signed and dated by the patient before two independent witnesses, that another independent medical or nurse practitioner has provided a written opinion confirming that the patient meets all of the eligibility criteria, that the patient has been given the opportunity to withdraw the request, and that the patient benefited from a reflection period of 10 clear days between the day the request was made and the day assistance in dying is provided. Further safeguards have also been adopted in the form of reporting obligations. Provincial legislation, and College and hospital policies may supplement the safeguards provided in the Criminal Code.
In Québec, legislation addressing end-of-life care, including MAID in specific circumstances, came into effect on December 10, 2015.3 Helpful guidelines on end-of-life care were also issued by the College in Québec.4 The Québec end-of-life legislation provides for its own eligibility criteria and safeguards that are similar to those set out in the Criminal Code. One notable difference is that under the Québec legislation, only physicians can administer aid in dying; it is not possible for a physician to prescribe the medication to be self-administered by the patient, and nurse practitioners could not administer aid in dying. The court in Québec recently found the requirement in the Criminal Code that death be reasonably foreseeable and the end-of-life requirement in the Québec legislation to be unconstitutional.5 The court gave the federal and Québec governments until March 2020 to amend their legislation. Until that time, physicians should continue to apply the requirements in the legislation as currently worded.
The Criminal Code expressly recognizes a physician’s right to refuse to assist a patient to die based on freedom of conscience. Colleges have established appropriate frameworks that aim to reconcile the Charter6 rights of patients and physicians.
Colleges and medical associations have developed policies and guidance documents on MAID. The CMPA is continuing to work with stakeholders to ensure that physicians’ medical-legal interests are protected, and that physicians are aware of their responsibilities and rights in this area.
Members with questions on MAID are encouraged to contact the Association, including for case-specific medical-legal advice on questions such as what to do when requested to provide MAID, when there is disagreement with a patient, family member, or substitute decision-maker on the recommended treatment plan.
- Carter v. Canada (Attorney General), 2016 SCC 4.
- An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) (formerly Bill C-14), 1st Sess, 42nd Leg, Canada, 2016 (assented to June 17, 2016).
- An Act Respecting End-of-Life Care, RSQ 2014, c S-32.0001.
- Collège des médecins du Québec. Practice Guide: Medical aid in dying [Internet]. Montréal (QC): le Collège; September 2015 [cited 2015 Dec 24]. Available from: http://www.cmq.org/publications-pdf/p-1-2015-09-10-en-aide-medicale-a-mourir.pdf?t=1450967914917. Please note that this guide is only available in the secured website of the CMQ.
- Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.