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 violated the Canadian Charter of Rights and Freedoms.
Fourteen months later, MPs in Parliament passed an assisted dying law in response to the Supreme Court’s decision. Bill C-14 formally legalized assisted dying and laid out new rules for how it could be accessed. The government called its legislation “a responsible first step” and says that Bill C-14 complies with the Canadian Charter of Rights and Freedoms.
Critics of the law, including a number of legal scholars, argued that some of the restrictions in Bill C-14 may be unconstitutional and would inevitably be challenged in court. They were right. Nearly two weeks after the law received royal assent, Julia Lamb, a 25-year-old B.C. woman, along with the British Columbia Civil Liberties Association, launched a Charter challenge against aspects of the federal assisted dying law. One year later, two Montrealers suffering from debilitating chronic illnesses launched a similar challenge in the province of Quebec.
As the leading organization defending Canadians’ end-of-life rights, we at Dying With Dignity Canada have been closely examining the rules in Bill C-14 and their impacts on people across the country. To help you navigate what this law means for your right to die with medical assistance, we’ve assembled a list of Frequently Asked Questions about Canada’s law on medical assistance in dying (MAID).
What types of MAID are permitted in Canada?
In Canada, two types of MAID are allowed:
- A physician or nurse practitioner can directly administer a substance that causes the death of the person who has requested it, and
- 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 under Canadian 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 for MAID, a person must satisfy all of the following eligibility criteria. They must:
- Be eligible for government-funded health insurance in Canada;
- Be 18 years of age or older;
- Have a grievous and irremediable condition, as defined by Section 244.2, para. 2 of the Criminal Code;
- Have made a voluntary request for MAID that was not made as a result of external pressure;
- Give informed consent to receive MAID after having been informed of the means that are available to relieve their suffering, including palliative care.
In order to have a “grievous and irremediable medical condition,” as defined by Bill C-14, a person must satisfy all of the following requirements:
- Have a serious and incurable illness, disease, or disability;
- Be in an advanced state of irreversible decline in capability;
- Endure physical and psychological suffering that is intolerable to them; and
- Their natural death has become reasonably foreseeable.
Patients must also be capable of providing informed consent at the time that MAID is provided.
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 and nurse practitioners able to refuse to participate in MAID?
Bill C-14 does not compel physicians or nurse practitioners 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
Does someone have to have a terminal illness in order to qualify for medical assistance in dying
No. Unlike assisted dying laws in some other jurisdictions, Bill C-14 does not put a specific timeline on who is eligible for assistance in dying. However, to qualify for assisted dying in Canada, a person’s natural death must be “reasonably foreseeable.” This controversial criterion has created confusion for suffering people and clinicians alike. Some clinicians interpreted the “reasonably foreseeable” rule to mean that a person must be terminally ill, even though the government specifically stated that that isn’t the case.
A June 2017 court ruling in Ontario has helped to clarify the meaning of “reasonably foreseeable.” In his decision in AB v Canada, Ontario Superior Court Justice Paul Perell ruled that a person doesn’t need to have a terminal or fatal illness in order for their death to be deemed “reasonably foreseeable.” In addition, he wrote, it is not necessary for a doctor or nurse practitioner to estimate how long a patient has left to live when assessing that person’s eligibility for MAID
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.
Another procedural safeguard contained in Bill C-14 is the requirement that two independent witnesses sign the person’s request for MAID. In order to qualify as an independent witness under the law, a person:
- Must be 18 years of age or older;
- Must understand the nature of a request for MAID;
- Must not be an owner or operator of the healthcare facility or home where the applicant is being cared for or resides;
- Must not be directly involved in providing health or personal care to the person making the request;
- Must not know or believe that they are named in the person’s will or stand to receive any financial or material benefit resulting from the person’s death.
Though clearly well-intentioned, the independent-witness requirement has produced unexpected challenges for suffering people. In some cases, a person applying for MAID is not in contact with anyone who is not involved in their care or who isn’t named in the person’s estate. That’s why, in 2016, Dying With Dignity Canada started training volunteers who could sign a person’s request for MAID in cases where no other eligible witnesses could be found. As of July 2018, DWDC volunteers had served as witnesses in a total of 700 cases.
Can one make an advance request for assisted dying?
An advance request for assisted dying is when a person makes a formal request for MAID that could be carried out after a person loses the capacity to provide consent. This option is available in some countries where assisted dying is legal, though the rules vary from jurisdiction to the next.
In Canada, advance requests for assisted dying are not allowed. It is forbidden for a clinician to proceed with administering MAID without first obtaining final consent from the patient. This rule has major impacts for different groups of Canadians who wish to exercise their right to end their life with the help of clinician.
The ban on advance requests has had serious implications for individuals who have been approved for MAID and plan to die in the next days or weeks. In some cases, patients choose to reduce or even refuse pain medication out of fear that they will be too impaired to provide final consent for MAID. For some, the pain associated with their medical condition is too great, and they must effectively abandon their request for MAID in order for their pain to be kept under control.
The ban on advance requests also affects the rights of people who want to create a written declaration for MAID that could be honoured months or years in the future — for example, a person with early-stage dementia who wants to make a request for MAID that could be carried out after they have lost capacity. For a person in this position, the ban on advance requests could effectively deny them the option of assisted death, or it may lead them to access MAID earlier than they would have wanted. The issue of assisted dying access for people with dementia is addressed in more detail in the next section.
The federal government has asked the Council of Canadian Academies, an independent, non-profit research institute, to examine the impacts of “permitting or prohibiting” advance requests for MAID. The panel of researchers is set to report its findings to the government before the end of 2018.
Can a person with dementia qualify for assisted dying?
Yes. A person with dementia can access assisted dying as long as they satisfy all the requirements laid out in the federal law.
That being said, the eligibility criteria in Bill C-14, combined with the ban on advance requests for MAID, significantly limit the circumstances in which a person with dementia could qualify for access. A person with a capacity-eroding condition such as dementia might lose capacity before they satisfy one or more of the other eligibility criteria in the law. For example, the person might already be suffering intolerably, but they may not be in an advance state of irreversible decline, or their natural death may not yet be “reasonably foreseeable.” By the time they have reached an “advanced state of irreversible decline,” they may no longer be capable of providing consent for MAID.
The ban on advance requests has also led people to access assisted dying earlier than they would have wanted. Without the option to make an advance request, a person who qualifies for MAID now may choose to die sooner out of fear that they will lose capacity before it’s too late. This dilemma can create additional intense stress and trauma for the people who request MAID, their loved ones and their clinicians.
Can a person with severe mental illness access MAID?
Yes. A person with severe mental illness can access MAID, as long they satisfy all the requirements laid out in the federal law. However, only under extremely rare circumstances would a person whose sole underlying condition is a mental illness be found 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 primarily from a condition that is psychiatric at its root, because their natural deaths won’t be considered “reasonably foreseeable.”
The federal government has asked the Council of Canadian Academies, an independent, non-profit research institute, to examine the impacts of “permitting or prohibiting” access to MAID for individuals with severe mental illness. The panel of researchers is set to report its findings to the government before the end of 2018.
Can mature minors qualify for MAID?
No. Only adults 18 years of age or older are eligible for MAID. The government has tasked the Council of Canadian Academies to study the legal, medical and ethical issues related to allowing mature minors to access MAID. The CCA’s reports are due to the government by the end of 2018.