The information below reflects some of the common questions that we received following the passage of Bill C-7. Throughout the FAQ, we will also incorporate information shared by The Honourable David Lametti, Minister of Justice and Attorney General of Canada, during a webinar he did with DWDC in April 2021.
If you prefer to view this content in video format, the full webinar recording can be accessed here.
When did the new law, Bill C-7, come into effect?
Bill C-7 received Royal Assent and became law on March 17, 2021.
What are the two tracks under Bill C-7?
People who request MAID and whose natural deaths are considered reasonably foreseeable would be able to move forward according to the Track 1 requirements.
Track two, for those whose natural death is not reasonably foreseeable, has additional safeguards in place.
Under both tracks, a person must be in an advanced state of decline that cannot be reversed, must be suffering intolerably and must have a disease, illness or disability.
For more information on eligibility, please see the Health Canada website on MAID.
Capacity, advance requests and advance consent
What are the new rules regarding capacity and MAID?
In limited cases, an individual who loses capacity prior to their MAID procedure will still be able to move forward with MAID. For this to be an option, the following must be true:
- The person applying for MAID must have a natural death that is reasonably foreseeable
- The person has gone through the mandatory assessments and has been approved for MAID by at least two independent assessors
- The person is at risk of losing decision-making capacity prior to their preferred date
- The person must have completed a written agreement with their MAID provider. This written agreement (known as a waiver of final consent) must include a date on which the person wants to have MAID
The waiver of final consent is not available to people whose death is not reasonably foreseeable.
The waiver of final consent will not be valid if the person shows any signs of refusal or resistance such as gestures or sounds, when MAID is being administered. For further clarity, according to Health Canada, involuntary movements or reflexes would not be considered refusal or resistance.
This option to waive final consent through an agreement with one’s MAID provider is commonly known as Audrey’s Amendment, in honour of Audrey Parker.
Who was Audrey Parker?
Audrey Parker was a 57-year-old Halifax woman with metastasized cancer, and who had been assessed and approved for MAID. In 2018, she had wished to experience one more Christmas with her family before her scheduled MAID procedure. Due to her fear of losing capacity to provide consent at the time of the MAID procedure as the law required, she instead died earlier than she wanted with medical assistance on November 1 of that year. In her final weeks, she fiercely advocated for the option for Canadians to consent in advance to MAID so that they could live as long as possible without fear of missing their window for MAID.
How far away can the date on your waiver of final consent be?
There is no fixed period in the law. In our webinar with him in April 2021, Minister Lametti said that this was a deliberate decision so that the MAID provider and patient can decide together.
The law is new and we expect to learn more about how the waiver of consent is being used in the coming months.
What are the differences between an advance request (which is not allowed under the current law) and advance consent (which is allowed)?
Advance consent is outlined above. It is synonymous with the waiver of final consent or Audrey’s Amendment. There are specific requirements for this, most notably that one has a natural death that is considered reasonably foreseeable.
Minister Lametti offered two types of advance requests that could be envisioned. He spoke of a scenario-based advance request (for example, “When I can no longer recognize my family, I want MAID”). Some refer to such example as “special circumstances.” He also spoke of a scenario where someone might decide in writing on conditions (not necessarily attached to a known prognosis) that would cause them to want MAID.
Neither of these options are permitted currently. Advance requests are not allowed under the current MAID law, but will be studied in the upcoming review by a joint committee of Parliament.
What does this mean for people with dementia?
People are not excluded from either track in the law because of a neurocognitive condition, such as Alzheimer’s, Parkinson’s or Huntington’s disease.
A person with dementia could qualify for MAID so long as they meet all the requirements. It is also possible that a person with a dementia diagnosis could complete a waiver of final consent under the current law. For this to be an option, the person must meet all the criteria in the law, including being assessed and approved and having a natural death that is considered reasonably foreseeable. This is a clinical decision that is made by MAID assessors and providers.
What is not permitted is the option of writing a document expressing a wish for MAID far in the future (For example, a 40-year-old saying “If I get dementia in the future and I no longer recognize my family, I want MAID”). This person has not been assessed and approved for MAID, so they would not have this option. Further, waivers of final consent are a joint document that is filled out with both the patient and the providing clinicians, after being assessed and approved for MAID. It is not something that one can fill out on their own.
What can I write in my Advance Care Plan to ensure I have MAID at a future date?
Under the current law, it is not possible to request MAID in an Advance Care Plan (ACP). This would be a form of an advance request and is not currently permissible.
While including a request for MAID at a later date in your Advance Care Plan will not affect the validity of your ACP, it will also not be honoured under the current law.
DWDC encourages you to complete an Advance Care Plan if you have not done so. As a means of stating your wishes for medical or non-medical care, it is intended to ensure that your end-of-life wishes are respected in the event that you become unable to make decisions for yourself. You can find more information here.
Can my Substitute Decision-Maker* consent to MAID on my behalf, if I’m not capable of doing so?
No, this is not permitted under the current law.
*The term used for Substitute Decision-Maker may be different depending on the province or territory in which you live. All of this is outlined in DWDC’s Advance Care Planning Kit.
Mental illness and MAID
What is the status of MAID for people with a mental illness?
Having a mental illness does not exclude a person from qualifying for MAID. For example, a person may have a history of depression and may be dying of cancer. If it is determined that the individual meets all the criteria in the law, including having the capacity to make their own health care decisions, then the person would be able to move forward with MAID.
However, the changes made to Canada’s MAID law under Bill C-7 restrict access to MAID to those whose sole underlying condition is a mental illness until March 17, 2023. Over the next two years, the Government of Canada will hear from experts and develop safeguards and protocols for people who seek access to MAID, but whose sole underlying medical condition is a mental illness.
During the webinar with Minister Lametti, he acknowledged the seriousness of the issue and the fact that parliament recognizes mental illnesses as valid illnesses. He shared that more expert study is needed and the issue will be explored in depth.
How many Canadians support MAID for those with a mental illness as their sole condition?
According to 2021 national survey conducted by Ipsos, two in three Canadians support access to MAID for those whose sole underlying medical condition is a mental illness, if they meet all other criteria and have the capacity to provide informed consent.
Is dementia considered a mental illness?
Under the assisted dying law, dementia and other neurocognitive disorders (Alzheimer’s, Parkinson’s, Huntington’s) are not considered a mental illness. People with dementia who meet all the criteria in the law have the option of choosing MAID if they wish.
What reviews of the law are taking place?
There are two separate reviews of the MAID law that will be taking place shortly.
There will be an independent review carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests for MAID by persons who have a mental illness.
These expert recommendations will be presented to Parliament one year from now (roughly April 2022). This is a professional panel that will be made up of those with expertise in MAID, psychiatry, law and ethics. The panel members themselves will make decisions on how the panel will be run, however Minister Lametti expressed that they will likely want to hear from other experts and members of the general public. Their final report will be tabled in the House of Commons and will be made public upon its completion.
There will also be a Parliamentary review which will be made up of members of the House and the Senate. The Joint Committee will be studying issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities. Minister Lametti predicts that this committee will also seek input from the general public.
With the results of these two panels in mind, it will be up to parliamentarians to put together draft legislation. Legislation would be required to go through the usual stages (readings and committee work) in both the House and the Senate which will also provide amble opportunities for Canadians to weigh in both individually or as parts of groups.
How will parliament ensure that persons with disabilities are represented in the discussion during the independent review?
In the lead up to the Bill C-7 passing, legislators consulted with the leadership of the disability community. With the inclusion of a stringent set of criteria for those whose natural deaths are not reasonably foreseeable, it is not possible for the decision for MAID to be made quickly or lightly.
Minister Lametti expressed that there are opportunities for better dialogue because of Bill C-7 and in the upcoming reviews.
Why will there be increased collection of race-based data under the new law?
Minister Lametti expressed that there are gaps in data within the health sector. Although unintentional, there is the potential for systemic racism built into systems that might disproportionately impact some groups of people.
By gathering better data (about who is accessing MAID, who is facing barriers when trying to access MAID, etc.), we will have a better understanding of the system and what changes may need to be made.
Why is our MAID legislation found in the Criminal Code?
Aiding and abetting suicide is still a criminal offence and this is part of the Criminal Code. The medical assistance in dying legislation carved out exceptions to this rule which, as a result, are also found in the Criminal Code.
Will an election impact Bill C-7?
Minister Lametti expressed that an election would not impact the independent review by experts of mental illness. The Joint Committee conducting the parliamentary review would likely pause during an election and there is the possibility that some members might change if a committee member is not reelected.
Why are the MAID request forms online not yet representative of Bill C-7?
MAID request forms are generally created by the provincial and territorial Ministries of Health or other regional health regulators. For a list of provincial and territorial MAID teams, please see our Navigating a Request for Medical Assistance in Dying page.