MAID in Canada: An update on how changes have affected patients and practitioners
News & Updates | November 4, 2022 | Drs. Stefanie Green and Ellen Wiebe
Dying With Dignity Canada hosted the World Federation of Right to Die Societies International Conference in Toronto from November 3 – 6, 2022. Drs. Stefanie Green and Ellen Wiebe led a session on MAID in Canada: An update on how changes have affected patients and practitioners. This is a summary of the content they presented.
Canada’s model of assisted dying has evolved, and recent changes have impacted both patients, their families, and clinicians.
Canada’s allowance of assisted dying came from a Supreme Court decision that determined that the prohibition of assisted dying infringed on some patients’ constitutional rights. The original decision, known as the Carter decision, determined that what would be required for access to assisted dying was an adult patient, suffering intolerably from a grievous and irremediable condition. There was no requirement for terminal illness and no explicit exclusion of any diagnosis. The government responded to this ruling by legislating the practice of assisted dying in Canada and adding some more restrictive criteria including that the person be in “an advanced state of decline in capability” and that their death be “reasonably foreseeable.” This last requirement was immediately challenged in the courts by several individuals living with disabilities who believed it was unconstitutional.
The Canadian Association of MAiD Assessors and Providers (CAMAP), a national organization and charity, was founded in 2016 to support the team of professionals that provide this care in Canada. It has provided valuable support, and ongoing education and continues to lead in developing clinical guidance in the practice of medical assistance in dying (MAID) in Canada.
By 2019, Canada had a provincial court decision determining that a family cannot legally obstruct a person’s request for MAID (Y v Swinemar). While this clarity has helped clinicians better understand the limits to the role of family members who might disagree with a person’s decision to proceed with MAID, it has also led to frustration in loved ones who continue to believe strongly that their input be required and respected. A different Ontario court decision (CMDSC v CPSO) clarified that any physician who is asked for MAID – even if they conscientiously object to MAID – is professionally obligated to make an effective referral of care. This decision has been simultaneously hailed as an important patient-centered policy to help facilitate access to care and an ongoing cause of much consternation among clinicians who allow their faith or personal values to dictate their professional duties.
Also in 2019, an important court challenge – the Truchon case in Quebec – determined that the requirement for a ‘reasonably foreseeable natural death’ was unconstitutional and struck it from the law. The federal government chose not to appeal this decision and committed to harmonizing federal law with this provincial ruling. They did so in 2021 through the passage of Bill C-7.
The significant change introduced at the same time was the creation of two distinct pathways to access MAID. Track 1, if your death is reasonably foreseeable and Track 2, if your death is not reasonably foreseeable. Each requires different procedural safeguards to be met; the safeguards for Track 2 are significantly more arduous. In our experience, patients on Track 2 are often those with poorly understood illnesses, have often been poorly treated or marginalized by the medical system, and are less optimistic that any new interventions might be of help or are worth waiting for. This has, at times, created ethical dilemmas in clinicians who wish to assist those who meet the medical and legal criteria for MAID but for whom we wish further trials of treatment options might be accepted.
Importantly, the amended legislation in 2021 also created an exception to the requirement of providing final consent immediately prior to the administration of medication. A waiver of final consent may be arranged in advance of a scheduled assisted death and invoked in the case of a loss of capacity. For example, a cancer patient with metastases in the brain who is scheduled to have an assisted death in two weeks but has an unexpected brain bleed irrevocably removing their capacity to consent to the death on the scheduled day. For people who have already been assessed and fully approved for MAID in Track 1, who are at risk of losing the capacity to give consent immediately before their MAID provision, and who have already set a date to proceed; they can sign a waiver of final consent. This important option has been of tremendous value to patients and families who no longer need to live in fear that they will lose their ability to proceed with an assisted death if something unexpected interferes with their decision-making capacity (stroke, trauma, sudden illness progression). Clinicians have also been relieved to be able to offer this new tool but have encountered some unexpected challenges in its practical application. Invoking a waiver after someone has lost capacity has given insight to clinicians about the challenges we may face if advance requests are ever made legal, such as who decides when criteria have been met, and what it feels like to proceed with MAID without consent being provided at the moment of administration.
Looking forward, we fully expect the exclusion of those whose sole underlying condition is a mental health disorder to expire in March 2024. This will no doubt increase the number of people seeking care, although data from other jurisdictions suggests few will qualify or go on to proceed. This will create a significant amount of complex new work in an already strained system with too few clinicians, thereby affecting all those applying for MAID. The Canadian public is hopeful our leaders will tackle the issue of advance requests for MAID in the upcoming years and we predict movement on this topic within the province of Quebec within a year. As in the past, if such a change takes place in Quebec, it will possibly pressure the federal government to consider changes more widely, and we’ll be happy to update you on this and other matters in the future.