The current Canadian legal landscape regarding medical assistance in dying (MAiD) has a variety of requirements for an individual to be eligible. One of the most widely discussed is the ability to make advance consent (as opposed to advance requests). If an individual’s death is reasonably foreseeable, a MAiD applicant can provide advance consent and waive the final consent that is generally required immediately before receiving MAiD. This allows an individual who loses capacity before receiving MAiD to still have the opportunity to go through with the procedure. However, if an individual’s death is not reasonably foreseeable, and they are unable to provide express consent or lack decision-making capacity, they will be ineligible for MAiD.
Advance Requests (which are not currently law) would make MAiD available to those who are required to provide final consent to the procedure but are unable to or do not have the decision-making capacity to do so. An advance request for MAiD would allow an individual, while they still have capacity, to write a letter outlining the circumstances under which they would like to receive MAiD in an advance request. The advance request would eliminate the requirement for express consent at the time of the MAiD Procedure.
Currently, if a health care professional were to provide MAID when a patient lacks capacity based on a prior directive, they would be violating the Criminal Code. It is important to note that one difficulty that could arise with the use of Advance Requests is that it could create uncertainty for those responsible for ensuring that the request for MAiD is done, as the patient will not be required to consent. This puts the onus on the health care professional, family members, or substitute decision-makers to determine if the patient still wishes for MAiD.
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