🛈 As of March 17, 2021, when Bill C-7 received Royal Assent, the law no longer requires a person’s natural death to be reasonably foreseeable to access medical assistance in dying (MAID).
On Wednesday, March 17, 2021, after a year of debate, discussion and delays, Bill C-7 received Royal Assent and became law. This was an important milestone in medical assistance in dying legislation. Much like the original passage of Bill C-14 in 2016, which formally legalized assisted dying in Canada and laid out rules for how it could be accessed, this bill will be remembered as one of enormous change, driven by compassion, an end to suffering and discrimination, and a desire for personal autonomy.
To help you navigate what this law means for your right to die with medical assistance, including the removal of the requirement that one’s natural death be reasonably foreseeable and the inclusion of Audrey’s Amendment, 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?
- Who is eligible for MAID under Canadian law?
- Who can provide MAID? Who can assist the providers and assessors?
- Are doctors and nurse practitioners able to refuse to participate in MAID?
- Does someone have to have a terminal illness in order to qualify for medical assistance in dying?
- What procedural safeguards are required?
- Can one make an advance request for assisted dying?
- Can a person with dementia qualify for assisted dying?
- Can a person with severe mental illness access MAID?
- Can mature minors qualify for MAID?
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, or
- A physician or nurse practitioner can give or prescribe to a patient a substance that they can self-administer to cause their own death.
Two independent health care professionals need to evaluate an individual in order to determine whether they qualify for MAID. To qualify, a person must satisfy all of the following criteria:
- Be eligible for government-funded health insurance in Canada
- Be 18 years of age or older and have decision-making capacity
- Have a grievous and irremediable condition*
- Have made a voluntary request for MAID that was not a result of external pressure
- Give informed consent to receive MAID after having received all information needed to make this decision, including a medical diagnosis, available forms of treatment, and options to relieve suffering (including palliative care).
* In order to have a “grievous and irremediable medical condition,” a person must:
- Have a serious illness, disease or disability (excluding a mental illness until March 17, 2023)
- Be in an advanced state of decline that cannot be reversed
- Experience unbearable physical or mental suffering from an illness, disease, disability or state of decline that cannot be relieved under conditions that the person considers acceptable.
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.
Federal law does not compel physicians or nurse practitioners to assist a patient in dying or to refer a patient to another medical practitioner. A number of provincial regulatory authorities have, however, 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.
No. Unlike assisted dying laws in some other jurisdictions, you do not need to have a fatal or terminal condition to be eligible for medical assistance in dying in Canada.
As of March 17, 2021, safeguards are based on whether one’s natural death is reasonably foreseeable or not reasonably foreseeable. This is often referred to as a dual track system.
Safeguards for ALL medical assistance in dying requests:
The medical assessments
Any request for medical assistance in dying must be assessed by two independent practitioners. Both physicians and nurse practitioners can assess your eligibility based on the listed criteria. They must be independent from one another and confirm your eligibility in writing.
- To be considered “independent,” the assessors must not hold a position of authority over one another, cannot knowingly benefit from your death, and cannot be connected to each other or to you in any way that could affect their objectivity.
A request for MAID must be made in writing. The written request must include your signature. If you cannot write, another adult can sign on your behalf under your clear direction.
- If someone else will be signing for you, they must be at least 18 years of age, understand what it means to request MAID, and not benefit from your death in any way.
A written request for MAID must be signed and dated in the presence of one Independent Witness, who must also sign and date the request.
- The role of an Independent Witness is to confirm the signing and dating of the MAID request by the person requesting it.
- An Independent Witness must be at least 18 years of age, understand what it means to request MAID, and not benefit from your death in any way.
- Paid professional personal or health care workers can act as Independent Witnesses to MAID.
- Unpaid caregivers and owners or operators of health care facilities where you live or receive care CANNOT act as Independent Witnesses to MAID.
You can withdraw your request for medical assistance in dying at any time and in any manner. Even if you are found eligible for MAID, you are not obligated to proceed. You will be given one final opportunity to withdraw your request right before the MAID procedure.
The final consent
Immediately before the MAID procedure, you will be given the opportunity to withdraw consent. You must confirm that you consent to receive medical assistance in dying UNLESS you have signed a waiver of final consent. See below.
The waiver of final consent is only available to individuals whose death is reasonably foreseeable. This is an agreement you enter into with your clinician, after being assessed and approved for MAID.
The waiver of final consent allows someone who has already been assessed and approved for MAID to receive it on their chosen date even if they don't have the capacity to consent at the time of the MAID procedure. This would be based on a signed and dated agreement with their medical practitioner. This amendment is named after Audrey Parker, a Nova Scotia woman who was forced to access MAID earlier than she would have liked, because she was afraid that she would lose capacity and not be able to provide consent at the time of the MAID procedure, which is what the law required.
The revised law now allows the waiver of the requirement to provide final consent immediately before receiving MAID for patients whose natural death is reasonably foreseeable.
If your death is reasonably foreseeable, and you would like to complete a waiver of final consent, please contact us at [email protected]. We will send you the forms and help you navigate the process.
If you are eligible for MAID and choose to self-administer the prescribed medications, you have the option to provide advance consent – a written arrangement with your medical practitioner in the event of complications with self-administration.
For example, if you lose decision-making capacity while self-administering, but it does not cause your death, your practitioner can administer the medications for you (If you have consented in writing in advance). In this situation, your medical practitioner must be present at the time you take the prescription.
Safeguards for when natural death is not reasonably foreseeable:
There are additional safeguards in place for those whose death is not reasonably foreseeable, in addition to the safeguards listed above for all medical assistance in dying requests.
The medical assessments
One of the two practitioners who assess your eligibility for medical assistance in dying must have expertise in the medical condition causing unbearable suffering.
- If neither of the two practitioners has expertise in the medical condition, they must consult with a practitioner who has such expertise.
The person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services.
- You and your practitioners must all agree that you have seriously considered alternative means to relieve your suffering.
The waiting period
The eligibility assessments must take at least 90 days, but this period can be shortened if the person is about to lose the capacity to make health care decisions, as long as both assessments have been completed
The final consent
Immediately before MAID is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent.
The waiver of final consent is not available to individuals whose death is not reasonably foreseeable.
Bill C-7 does not allow a person who does not currently meet the eligibility criteria to describe a future state in which they would want to access medical assistance in dying. The Senate proposed an amendment to allow this – commonly referred to as an advance request – but the government rejected the amendment. Advance requests, which would allow someone to request MAID before a diagnosis of a grievous and irremediable condition, will be studied by a joint committee in the Parliamentary review, which has been triggered now that Bill C-7 has received Royal Assent.
This is not the same thing as advance consent or waiver of final consent. See sections above for information about advance consent and waiver of final consent for individuals whose death is reasonably foreseeable.
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 may significantly limit the circumstances in which a person with dementia could be eligible 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. By the time they have reached an “advanced state of irreversible decline,” they may no longer be capable of providing consent for MAID.
If your sole underlying medical condition is a mental illness, you are not eligible to receive medical assistance in dying. This exclusion will remain in effect until March 17, 2023 (at which point it will be automatically repealed).
The Ministers of Justice and Health will initiate an independent expert review which will consider protocols, guidance and safeguards for MAID for those with a mental illness and will make recommendations by March 17, 2022. This review, and the temporary exclusion, will allow the Government time to study, prepare and ensure that appropriate measures are in place prior to the March 17, 2023 deadline.
This exclusion includes conditions that are primarily within the domain of psychiatry, such as depression and personality disorders. It does not include neurocognitive and neurodevelopmental disorders, or other conditions that may affect cognitive abilities. To be clear, neurocognitive disorders such as dementia, Huntington’s and Parkinson’s are not generally considered mental illnesses and are not included in the two-year restriction.
No. Only adults 18 years of age or older are eligible for MAID.
Parliamentary review of other issues
Issues such as eligibility of mature minors, advance requests, mental illness, palliative care and the protection of Canadians living with disabilities will be considered during a Parliamentary review of the MAID legislation that will commence now that Bill C-7 has received Royal Assent (April 16, 2021).
The committee responsible for the parliamentary review process will be required to submit its report to Parliament no later than one year after the start of the review.