Frequently Asked Questions: The future of MAID in Canada

This blog post answers some of the questions asked before, during, and after DWDC’s webinar, “Looking Forward: The future of MAID in Canada.” If you prefer to view this content in video format, the full webinar recording can be accessed here.  

Update – Bill C-7 passed on March 17, 2021. Please note that the answers to the questions below may evolve over time, and we encourage you to contact us for more information.

The parliamentary review is going to look at the issue of advance requests, but Bill C-7 proposes the waiver of final consent. What is the difference between the two? 

An advance request is when someone makes a request for assisted dying that could be honoured at a later date, after they lose the capacity to make medical decisions for themselves. Advance requests are allowed in some jurisdictions where assisted dying is legal, including the Netherlands, Belgium and Luxembourg. Under the current legislation in Canada, advance requests are not available.

The waiver of final consent is a component of Audrey’s Amendment. It allows an individual who has been assessed and approved for medical assistance in dying (MAID), has set a date for their provision in consultation with their clinician, but has lost capacity prior to their scheduled date to move ahead with the procedure. If, at the time of the provision, the individual expresses either verbally or physically that they do not want to proceed, the physician or nurse practitioner will not administer the medications.

This amendment addresses situations like that of Audrey Parker, who made the difficult decision to end her life earlier than she had originally planned, because of concern that she would lose the capacity to consent before she could access her peaceful death.

DWDC is grateful to Audrey Parker for her advocacy on this issue and appreciates that the government has acknowledged the unnecessary pain that has been caused to individuals like Audrey.

What are the key differences between an Advance Care Plan and an advance request? 

Think of an Advance Care Plan as a way to communicate your values, beliefs, and preferences for future health care in the event that you cannot speak for yourself. By completing an Advance Care Plan, and sharing it with your Substitute Decision-Maker, loved ones, and health care providers, you are defining what is preferable and acceptable to you – and easing the future burden of decisions that might be made under difficult circumstances by those who love and care for you.

What you write in your Advance Care Plan is not legally binding in all provinces, and the decisions ultimately come down to your Substitute Decision-Maker. This is why it is so important to communicate your wishes. By comparison, an advance request would be a formal request that specifies a date for medical assistance in dying, regardless of whether or not the person has capacity to consent at the time of the provision. Under current legislation in Canada, advance requests are not permitted.

You can learn more about Advance Care Planning and download a copy from DWDC here.

Can a person with dementia access medical assistance in dying?

In some cases, an individual with mild or moderate dementia may qualify for medical assistance in dying, if they meet the eligibility requirements and have the capacity to make their own medical decisions.

Bill C-7 states that, before a medical or nurse practitioner can provide MAID to a person whose natural death is not reasonably foreseeable, one of them must have expertise in the condition that is causing the person’s suffering. Will this limit access to medical assistance in dying for people whose death is not reasonably foreseeable?

The requirement that one of the assessors have expertise in the condition of the patient is of potential concern. Care coordinators and clinicians suggest that this may cause a barrier to access, particularly in rural and remote areas, if there are few practitioners available who have the required expertise. The government has since clarified that this requirement is for expertise, not for opinions of experts or specialists. DWDC calls on the government to change this requirement so that, where one of the assessors does not have expertise in the condition of the patient, documentation of appropriate consultation with a health care provider who does have expertise will be accepted. Practitioner members of DWDC’s Clinician Advisory Council have indicated that this type of consultation is already common practice in more complex MAID cases.

Will Dying With Dignity Canada be advocating for the removal of problematic aspects of Bill C-7, such as the 90-day wait period?

Yes. DWDC is concerned that the 90-day assessment period for those whose natural death is not reasonably foreseeable will unnecessarily prolong intolerable suffering. We call on the government to revise this clause to provide for an assessment period of 30 days. This timeframe would allow for full assessment, consideration of the enduring nature of the patient’s request for MAID, review of all possible interventions and supports already considered by the individual and the possibility for the individual to accept any new interventions and supports without surrendering their right to access MAID, should they meet the eligibility criteria.

What is Dying With Dignity Canada’s position on mature minors and the express exclusion of those whose sole underlying medical condition is a mental illness?

In many jurisdictions across Canada, mature minors already have the right to make important decisions regarding their care. This includes the right to consent to, or refuse, life-saving medical treatment. Recognizing that special eligibility criteria and safeguards may be required, DWDC believes the allowance of MAID for mature minors who are otherwise eligible, should be considered.

While we are hopeful that the proposed amendments in Bill C-7 will ensure more Canadians experiencing enduring and intolerable suffering have access to dignified end of life options, we are opposed to the express exclusion of those with mental illness and believe these measures to be stigmatizing, discriminatory and likely unconstitutional.

Are there other countries in the world that allow medical assistance in dying for individuals with mental illness?

Assisted dying for people with a mental illness as the sole underlying condition is legal in the Netherlands, Belgium and Switzerland – with unique eligibility criteria in each jurisdiction.

What will the parliamentary review process look like and when might it begin?

Bill C-14 specified that, after four years, a review of Canada’s experience with medical assistance in dying would take place and address the three areas not included in the original legislation: Mature minors, advance requests, and mental illness. The review will also look at the state of palliative care in Canada.

Since the pandemic happened, and parliament was prorogued – delaying the passage of Bill C-7 – we are waiting for the government to announce the start of the parliamentary review. We expect that the review will begin in early 2021.

According to Senator James Cowan, Chair of the DWDC Board of Directors: “What form [the parliamentary review] will take, we don’t know. It could be a standing committee, one of the existing committees, either the House or the Senate. It could be a special committee set up, established by parliament in either House, or it could be a joint committee of the Senate and the House of Commons. Our recommendation is to combine the expertise in both Houses, and have a joint committee of Senators and Members of Parliament to look specifically at our MAID regime in Canada, and what could or should be done to make it better with particular reference to mature minors, advance requests, and mental illness.

What can supporters do to ensure that Bill C-7 passes, and that the parliamentary review is a priority?

We encourage supporters of Dying With Dignity Canada to engage with their Members of Parliament and request a meeting. Resources are provided in our 2020 Toolkit and Action Guide, which can be downloaded on our website.

What does this mean for Quebec?

Justice Christine Baudouin struck down the reasonably foreseeable death requirement in Bill C-14 and Bill 52, Quebec’s provincial assisted dying law. When that decision was made, it became legal for someone in Quebec to access medical assistance in dying without a reasonably foreseeable death.

The Government of Canada has until December 18 to pass Bill C-7 in line with the Quebec ruling. If, by December 18, the federal government does not pass the legislation, then there will be two regimes in Canada: One for Quebec and one for the rest of Canada.

This would be an undesirable situation.

Currently, if someone would like to access medical assistance in dying in Quebec, and their death is not reasonably foreseeable, they would apply for an exemption from the court – which has been granted in a limited number of cases. This option is not available in the rest of Canada.