On September 15, 2021, Dying With Dignity Canada (DWDC) hosted a webinar focused on medical assistance in dying (MAID) six months after the passage of Bill C-7. The webinar was presented by Helen Long, the CEO of DWDC, and Dr. Osmaan Sheikh, a physician and MAID provider from British Columbia.
If you prefer to view this content in video format, you can access the recording here.
Bill C-7 reached Royal Assent on March 17, 2021. The introduction of this new legislation included changes to eligibility for those accessing MAID and altered procedural safeguards. The webinar reflected on the impact of Bill C-7 on Canadians seeking access to MAID, any challenges that have emerged, and what the future of MAID and end-of-life choice in Canada may look like.
What are the most impactful changes that resulted from Bill C-7?
- The removal of the clause that a person’s death must be reasonably foreseeable allows more Canadians who are suffering intolerably to access MAID. This was a direct result of Nicole Gladu and Jean Truchon’s case brought to the Superior Court of Quebec. The Court ruled that the reasonable foreseeability of natural death criterion violates section 7 of the Charter, which protects against deprivations of life, liberty and security of the person, and section 15 of the Charter, which guarantees the right to equal protection and equal benefit of the law without discrimination.
- The addition of the waiver of final consent is often referred to as Audrey’s Amendment. Audrey Parker died sooner than she wanted because she was afraid of losing the capacity to consent before her scheduled MAID provision. This amendment to the law is due to Audrey’s advocacy and will bring peace of mind to many Canadians. See more details below.
- The number of independent witnesses for MAID was reduced from two to one, and the witness can be a healthcare worker. The requirement of two witnesses was a barrier for some patients, in particular those who live rurally or have a small social network.
What are the clear benefits of the changes in Bill C-7?
- Dr. Sheikh commented that before the waiver of final consent, clinicians were playing a game of prediction of when a patient might lose capacity. The waiver of final consent offers peace of mind to the clinicians and especially the patient who no longer has to be concerned about losing capacity before their scheduled MAID date. Even on the day of the provision, there is less stress for everyone involved. The family, friends and patients can focus on their time together and final moments.
- Loosening the restrictions of who can be a witness has been helpful, especially during COVID. A patient in hospital during the pandemic had less access to people who could act as a witness. Being able to have a healthcare worker sign the waiver made this step much easier. Even after COVID restrictions, the witness role is just that, to witness the signing of the request for MAID; a healthcare worker can fulfill this role.
What are some of the challenges of the changes in Bill C-7?
- Dr. Shiekh noted that since March of 2021, there have been more requests for MAID because of the folks who are suffering but whose deaths are not imminent, those who were waiting for the removal of the reasonably foreseeable death clause.
- Many of the cases are now more complex and require more time to assess.
- He also notes that some individuals have come forward since the passing of C-7 since they were under the impression that they would not qualify under the original legislation, only to be told that they likely would have qualified under the old law as well as the new. This speaks to some of the misunderstandings about the legislation and the fact that for many, the only way to truly determine eligibility is to meet with an experienced assessor.
What are some of the misconceptions about Bill C-7?
- MAID for those whose sole underlying condition is a mental illness will be restricted until March 2023. In that time an expert panel will be reviewing the issue and making recommendations for when the restriction is lifted in 2023. However, a patient with a mental illness, who meets the criteria for MAID based on their full medical history, could access an assisted death. The assessor must determine if the patient has the capacity to make the decision.
- A person with dementia can access MAID, however, they need to have capacity during their two assessments. This means that the timing of the request is crucial; if capacity is lost and not regained before the assessments can take place, the person cannot move forward with MAID. For a person with dementia who has gone through both assessments and is considered to have a reasonably foreseeable natural death, they can use a waiver of final consent, in case they lose capacity before their MAID date.
- Advance requests for MAID are not available at this time. This is an agreement that given a specific future health state, a person could receive MAID without final consent.
- Another misconception is that there are no more eligibility requirements for MAID and that it is a simple process that anyone can get at any time. In fact, there are still rigorous guidelines and safeguards in place.
How has access to MAID changed since the new legislation?
- Virtual witnessing has made access easier, especially during COVID and for Canadians who live rurally.
- Clinician capacity is high due to more demand and more complex cases.
- Track 2 - patients whose death is not reasonably foreseeable – is new territory for clinicians. Clinicians’ comfort level with this new track of patients requires time and getting used to.
- The 90-day assessment for track 2 patients is difficult and stressful for patients who are suffering. According to Health Canada, this 90-day period is triggered by the assessor and could start when they first meet with the patient, when they first start reviewing the patient’s medical history, or when they begin reflecting on the case.
- There are issues with compensating nurse practitioners (NP) for MAID provisions in provinces where they are legal providers. For this reason, NPs could be reluctant to offer this service and therefore there is a gap in service available.
What is the waiver of final consent and how does it work?
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 MAID provider and the patient must be in Track 1 whereby their death is reasonably foreseeable. The waiver can only be used by the MAID provider who signed it and it refers to the date selected (or before*) for the MAID provision, not a state of health.
*From the bill: “In the written arrangement, they consented to the administration by the medical practitioner or nurse practitioner of a substance to cause their death on or before the day specified in the arrangement if they lost their capacity to consent to receive medical assistance in dying prior to that day."
In Dr. Sheikh’s practice, most waivers of final consent are set 1-2 weeks in advance unless someone is waiting for a specific event.
The waiver of final consent is only available for patients in Track 1 because there is more chance of these patients losing capacity.
If you are going through the MAID process and have questions about waivers of final consent, please consult with your MAID provider or contact DWDC at [email protected]
What is the purpose of the 90-day waiting period for Track 2 patients?
It is an information-gathering period as some of these cases are more complex than someone whose death is predictably soon.
The physician is required to thoroughly review the case, consult with experts in the primary diagnosis, and gives time to determine if all the appropriate treatments have been considered.
The patient needs to be offered all available treatments, but they do not have to accept or follow through on them. A patient’s right is to be aware of all their options and to give informed consent on treatment.
What’s next? The parliamentary review
Bill C-14, which passed in 2015, referenced a 5-year review of Canada’s medical assistance in dying law. After the passage of Bill C-7 in March 2021, a joint committee of both Houses of Parliament was struck to perform this review.
In June 2021, the committee held two meetings before being paused due to the election. The committee has been assigned to review advance requests, MAID for mature minors and those whose primary condition is a mental illness, the state of palliative care and the protection of people with disabilities.
After the election, Dying With Dignity Canada will be strongly advocating to start the parliamentary review again as soon as possible. The timelines are short and there is a great deal of work to be done.
You can advocate to reconstitute the Special Joint Committee and complete the parliamentary review here.