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Canada is about to change who is eligible for a medically assisted death

Overview

Medical assistance in dying ("MAID") became legal in Canada several years ago. But legalization does not mean that the law is fully settled.

There have been numerous ongoing legal disputes about who gets access, where MAID is performed, and whether health professionals should be allowed to refuse involvement.

When Parliament first drafted MAID laws, it acknowledged that the law was just a starting place and that more complex issues, like whether a person with dementia should be able to give advance consent to MAID, would be revisited in the future.

After consultation with stakeholders, commissioning of expert reports, and some lawsuits stating that aspects of the current law are unconstitutional, the time to update Canada's MAID laws has finally arrived.

The first draft (Bill C-7) was just released. It passed first reading on February 24, 2020.

Parliament's updated position

Parliament has evolved and clarified its position on various aspects of MAID.

Mental Illness

The first version of the law, released in June 2016, said that Parliament will revisit whether individuals whose sole underlying medical condition is mental illness should be eligible for MAID. Parliament has now proposed that the law be clarified to state that "persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying".

It seems likely that this may be subject to legal challenge as the proposed language says the following:

for the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability

In other areas of law, mental illness is well established as a disability and to suggest otherwise runs the risk of a constitutional lawsuit claiming the law is discriminatory.

Reasonable Foreseeability of Death

Parliament has moved away from requiring that a person's death be "reasonably foreseeable" (a vague phrase that caused significant confusion and seemed at odds with what the Supreme Court of Canada said in the lawsuit that first made MAID legal).

Under the proposed changes, if MAID will be provided to someone whose death is not reasonably foreseeable, then additional safeguards would have to be followed. For one, there would have to be a written opinion from someone who is an expert in the individual's condition confirming that the person meets all of criteria to be eligible for MAID. The person seeking MAID would also have to be informed about other options to relieve their suffering "including, where appropriate, counselling services, mental health and disability support services, community services and palliative care".

There would also be a new 90 day waiting period between the day the person is first assessed for MAID and when it can actually occur. However, this timeframe could be shortened if the person is likely to lose their capacity to provide consent. The 90 day waiting period would not apply if a person's death was reasonably foreseeable.

Finally, just before MAID is provided, the person would be given a final opportunity to withdraw their request and consent to MAID.

Advance Consent

Currently a person who wants MAID must be mentally capable of consenting at two intervals: when they request MAID and when MAID actually happens. This has been criticized because some medical conditions rob people of their capacity to make decisions. Individuals with dementia, for example, may choose death sooner than they actually desire in order to pass the test for capacity.

Parliament has decided that advance consent should be permissible, after all:

"Parliament considers it appropriate to permit dying persons who have been found eligible to receive medical assistance in dying and are awaiting its provision to obtain medical assistance in dying even if they lose the capacity to provide final consent, except if they demonstrate signs of resistance to or refusal of the procedure"

It appears advance consent will only be available to people who are dying.  In contrast, a person whose death is not reasonably foreseeable would have to be capable at the time MAID occurs.

The advance consent would be invalidated if the person demonstrates "by words, sounds or gestures...refusal to have the substance administered or resistance to its administration". In such case, MAID would not be performed.

Whether these proposals will become law depends on whether Bill C-7 passes through the various stages of the legislative process. For now, the current MAID laws still apply.

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