Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.

Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):

1. they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
2. they are at least 18 years of age and capable of making decisions with respect to their health;
3. they have a grievous and irremediable medical condition;
4. they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
5. they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

The criteria do not feature any mechanism for providing advance consent to MAID.  Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.

As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent.  In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.

Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.

According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating.  At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.

Thank you for reading.

Nick Esterbauer

Other blog entries that may be of interest:

• Impact of Physician-Assisted Death on Estate and Insurance Planning
• Seeking Exemptions to the Prohibition Against Physician-Assisted Death
• Billing Physician Assisted Deaths
• An Update on Medical Assistance in Dying