On March 17, 2021, the federal government announced that changes to Canada’s Criminal Code Provisions on Medical Aid for the Death (MAiD) under Law C-7 had received royal approval and would take effect immediately. These changes represent a significant milestone in Canada’s MAiD laws, which have been debated and criticized since the Supreme Court of Canada ruling in Carter v. Canada (“Carter”) that criminal laws prohibiting assisting in dying, restricted the right to life. Freedom and security of person under Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) in a manner that was not demonstrably justified under Section 1 of the Charter. This blog post reviews the legal and legislative history of MAiD in Canada, outlines the major new changes, and discusses some ongoing concerns about MAiD laws.
History of Medical Assistance in Dying in Canada
Prior to Carter, assisted suicide was an offense under p.241 of the Canadian Criminal Code, which provided for the following:
(a) advises a person to commit suicide, or
(b) helps or induces a person to commit suicide,
whether suicide occurs or not, is guilty of a criminal act and is punished with a prison sentence of not more than fourteen years.
s. 14 of the Criminal Code also prohibited the possibility of consenting to death:
No person is authorized to consent to be subjected to death, and such consent does not affect the criminal responsibility of any person who may cause death to the person from whom consent was given.
In 1993, in the landmark decision of the Supreme Court of Canada, Rodriguez v British Columbia (Attorney General), the prohibition of assisted suicide was first challenged as a violation of Sections 7, 12 and 15 (1) of the Sue Rodriguez Charter a 42-. year old woman with ALS. In a 5-4 decision, the Court upheld the provision of the Criminal Code, with the majority finding that S.241 (b) did not violate S.7 of the Charter. There were some differences among the four dissenting opinions: Chief Justice Lamer felt that Section 241 (b) of the Criminal Code was in violation of Section 15, and Judge Cory believed that the right to die was also a protected freedom under Section 7 The Charter is like any other part of life, and Justice McLachlin, along with Justice L’Heureux-Dube, stated that Section 241 (b) of the Criminal Code violates Section 7’s right to personal safety and that the violation does not fall under Section 1 was saved.
Twenty-two years later, in Carter, the SCC repeated the decision in Rodriguez after a protracted legal battle led by the BC Civil Liberties Association in support of end-of-life rights. In Carter, the Court found pp.241 (b) and p.14 to be unconstitutional, concluding that the prohibition on physician-assisted death was void insofar as it withheld that assistance from a competent adult when;
- The person concerned clearly consents to the end of life. and
- The person has a severe and incurable medical condition (including any illness, disease, or disability) that causes persistent suffering that is unbearable for the individual in the circumstances of his or her condition. The Court added that “incurable” does not oblige the patient to undertake treatments that are unacceptable to the individual.
After the Carter decision, the federal government changed the penal code to include MAiD provisions (see 241.1 – 241.4). These provisions of the Criminal Code provide a system by which a doctor or nurse can assist someone in hastening their death and provide exceptions to the prohibition on assisting someone in committing suicide under Section 241. The new MAiD regulations have been criticized inconsistent with the Carter ruling. In particular, the condition that “natural death as a prerequisite for access to MAiD has become reasonably foreseeable”, the exclusion of mental illnesses as a reason for MAiD entitlement and the prevention of mature minors consenting to MAiD were no distinctions from Done in Carter.
On September 11, 2019, the Québec Supreme Court ruled in the Truchon v. Attorney General of Canada that it was unconstitutional to restrict access to MAiD to those near the end of life, stating that “the reasonably foreseeable Natural death requirement robs both individuals and claimants of their autonomy and their choice to end their lives at the right time and in the way they want. “Although it was a Quebec decision, the Truchon ruling was seen as very influential. In Bill C-7, the federal government revised the MAiD approval criteria in response to the Truchon decision.
New medical aid on the dying point under Act C-7
As of March 17, 2021, the law no longer stipulates that a person’s natural death as an admission criterion for medical assistance in the dying must be reasonably foreseeable.
According to the new law, the admission criteria of the person applying for MAiD must observe the following:
- be at least 18 years old and have decision-making authority
- Be eligible for publicly funded health services
- Make a voluntary request that is not the result of external pressure
- Provide a declaration of consent to receive MAiD. This means that the individual has consented to receive MAID after receiving all of the information necessary to make that decision
- have a serious and incurable illness, illness or disability (excluding a mental illness by March 17, 2023)
- are in an advanced state of irreversible decline in performance
- have persistent and intolerable physical or psychological suffering that cannot be alleviated under conditions that the person deems acceptable.
However, the legislation continues to distinguish between those whose death is inherently foreseeable and those whose death is unforeseeable by creating two different safeguards. For persons whose natural death is reasonably foreseeable, the existing protective measures under s. 241 (3) continue to apply and are in some cases replaced by the removal of the requirement for two witnesses’ signatures on the written application for MAiD and the abolition of the mandatory 10-day Thinking time eased.
For people whose natural death cannot reasonably be foreseen, the existing protective measures also apply with the following additional protective measures:
- In Bill C-7, an assessment period of at least 90 days is specified for the eligibility of the individual to MAiD. The minimum assessment period of 90 days could be shortened if both assessing practitioners believe that the person’s loss of capacity is imminent, but only if the eligibility assessment can be completed in a shorter period of time.
- Bill C-7 requires that one of the two mandatory proficiency tests be conducted by a doctor or nurse who has expertise in the condition that is causing the individual’s suffering.
- Bill C-7 introduces two major changes to the requirements for informed consent:
- A specific requirement that the individual be informed of available counseling services, mental health and disability support services, community services and palliative care, as appropriate to the individual’s situation, and that counseling be offered with professionals who provide these services.
- The data subject and practitioners involved must agree that adequate and available means to alleviate the individual’s suffering were discussed and seriously considered before MAID could be deployed.
The entitlement for persons with mental illness is still limited according to Bill C-7. Canadians whose only medical condition is mental illness and who otherwise meet all eligibility criteria will not be eligible for MAID until at least March 17, 2023. According to the Government of Canada website, the criteria for “mental illness” refer to conditions that are “primarily in the field of psychiatry such as depression and personality disorders.” It does not include neurocognitive and neurodevelopmental disorders or other conditions that can affect cognitive abilities. “
The intent behind this “temporary exclusion” is to give the Canadian government more time to investigate how to safely deliver MAiD based on mental illness and to ensure that adequate safeguards are in place to protect these individuals. Consultations are ongoing and recommendations are expected next year.
Other important issues related to MAiD, such as the eligibility of mature minors, pre-filing, palliative care and the protection of Canadians with disabilities, are still under consideration. The recommendations are expected by 2023.
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