On Feb. 6, 2015, the Supreme Court of Canada sent a powerful message heard around the world.
In a unanimous decision, the justices of the high court struck down the federal prohibition on physician-assisted dying, arguing that the old law violates the Canadian Charter of Rights and Freedoms. The decision, which reflects the cherished Canadian values of compassion and individual freedom, has already started to reshape the way we think about death and dying.
Unfortunately, the top court’s inspired ruling did not translate into equally patient-centred legislation. The federal government’s new assisted dying law, which received royal assent on June 17, 2016, is evidence that many barriers remain for some of Canada’s most critically ill individuals. The new law, Bill C-14, threatens to rob tens of thousands of desperately ill Canadians of their rightful choice to assistance in dying
To help you navigate these uncharted waters, Dying With Dignity Canada answers your Frequently Asked Questions about our nation’s new assisted dying law.
What types of MAID are permitted in Canada?
In Canada, two types of MAID are allowed:
1. A physician or nurse practitioner can directly administer a substance that causes the death of the person who has requested it, and
2. A physician or nurse practitioner can give or prescribe to a patient a substance that they can self-administer to cause their own death.
Who is eligible for MAID in Canada under the new law?
Under Bill C-14, two independent health care professionals need to evaluate an individual in order to determine whether he/she qualifies for MAID. To qualify, an individual must be 18 years or older and meet the following four eligibility criteria:
1. Have a serious and incurable illness, disease, or disability;
2. Be in an advanced state of irreversible decline in capability;
3. Endure physical and psychological suffering that is intolerable to them; and
4. Their natural death has become reasonably foreseeable.
Patients must also be capable of providing informed consent at the time that MAID is provided.
How does the new law differ from the Supreme Court’s Carter decision?
Bill C-14 is much more restrictive than the Carter decision. The Carter decision made assisted dying available to any consenting, competent adult suffering intolerably from a grievous and irremediable medical condition. However, the new law includes two provisions that are much narrower in scope. To qualify for assisted dying under Bill C-14, an individual must be in an advanced state of irreversible decline and their natural death must be “reasonably foreseeable.” The vague language of the eligibility criteria — specifically this “reasonably foreseeable” clause — makes the new law ambiguous at its best and unconstitutional at its worst.
Despite assurances from the federal government that individuals do not have to be terminal in order to qualify, medical practitioners will ultimately have to interpret the eligibility criteria for themselves. There is a strong chance that many providers will interpret the “reasonably foreseeable” clause to mean that only those individuals whose deaths are imminent will qualify for MAID. In fact, some Canadian doctors have already been advised by lawyers to err on the side of caution and to only provide MAID to those who are terminally ill.
This means individuals who were granted the right to a peaceful death by the Supreme Court may now found themselves barred from access. For example, patients with excruciating conditions like ALS, Multiple Sclerosis, and Parkinson’s disease are at risk of being denied a dignified death because their deaths may not be imminent. Other individuals, like those who have endured a serious stroke or a series of strokes, may also be trapped in intolerable suffering with no natural end in sight. For many of these individuals, this intolerable suffering can persist for years, and to force them to continue languishing in agony is exactly the kind of fate the Supreme Court ruled against.
What procedural safeguards are required in Bill C-14?
If the individual meets all the eligibility requirements and has clearly consented to an assisted death without any external coercion, they must submit a written request in the presence of two independent witnesses. Once the patient’s doctor (or nurse practitioner) determines that the patient is eligible for MAID, a second doctor or nurse practitioner — independent of both the first doctor and the patient — is required to give a second opinion on the patient’s eligibility. If both agree that the patient is eligible, MAID can be granted.
There is a mandatory reflection period of at least 10 days that needs to occur between the day the patient signed the written request and the day MAID is provided. However, if death or loss of capacity to provide informed consent is imminent, the reflection period may be reduced.
Could a person with dementia qualify for MAID?
Under the new law, advance requests for dying are not permitted. This means Canadians with diagnoses of competence-eroding conditions like Alzheimer’s and Huntington’s disease will not be granted the right to consent while they are still of sound mind to an assisted death that would be carried out at a later time.
Without advance requests, these individuals will most certainly be found ineligible for MAID because they will likely lose competence before they reach the required “advanced state of irreversible decline” outlined in the eligibility criteria.
The government has initiated an independent review to study advance requests, but there is no guarantee that access to MAID through advance requests will ever be allowed under the law. That means individuals with conditions like dementia may never qualify for MAID.
Do mature minors qualify for MAID?
No, only adults 18 years or older are eligible for MAID. However, the government has initiated an independent review to study the legal, medical and ethical issues related to MAID for mature minors.
Are individuals whose suffering stems from a severe mental illness eligible for MAID?
Bill C-14 doesn’t explicitly ban the option of assisted dying for individuals whose sole underlying condition is a severe mental illness. But in practice, the law will often exclude Canadians whose suffering results from a condition that is psychiatric at its root. Their natural deaths won’t usually be considered “reasonably foreseeable,” and thus they won’t satisfy the eligibility criteria set out in Bill C-14. However, it is important to note that some people with mental illness as a sole underlying condition can sometimes qualify.
Who can provide MAID? Who can assist the providers and assessors?
Both physicians and nurse practitioners are able to provide MAID.
Other health providers who assist with the process of assessing eligibility or administering MAID are also protected from liability. These practitioners include, but are not limited to, pharmacists, social workers, psychologists, therapists, hospital lawyers and nurses.
Are doctors able to refuse to participate in MAID?
Bill C-14 does not compel physicians to assist a patient in dying or to refer a patient to another medical practitioner. However, a number of provincial regulatory authorities have issued guidelines that strongly encourage medical practitioners who are unwilling or unable to provide MAID to refer their patients to other institutions or providers. Others require a transfer of care or referral. In Ontario, for example, objecting providers must make an “effective referral” to an available, accessible physician or agency that is willing to facilitate a request for assisted dying.
Dying With Dignity Canada recognizes the rights of providers to conscientiously object to the provision of MAID, but not to transferring care to a provider willing to assess the patient and, if eligible, provide MAID. Suffering patients must never be abandoned.
Dying With Dignity Canada rejects the claim that publicly-funded institutions have the right to refuse MAID on their premises.