Many Canadians recently received an Apple News alert stating that beloved children’s author Robert Munsch had applied for medical assistance in dying (MAID). Although this was not breaking news – Munsch had spoken publicly in 2021 about his dementia diagnosis and decision to pursue MAID – the notification reignited discussion about end-of-life choices.
Traditionally, one of the key safeguards under the federal MAID regime was the requirement that the patient provide final consent immediately before the procedure. This presented challenges in cases where an individual was at risk of losing capacity due to degenerative conditions such as dementia, ALS, or other serious illnesses. Many Canadians feared that they would have to choose between proceeding with MAID earlier than they wished, while still capable of consent, or risk losing access altogether once capacity was gone.
Amendments to the Criminal Code in 2021 by Bill C-7 introduced an important change: under certain circumstances, individuals may waive the requirement to provide final consent at the time of the procedure. Specifically, the procedure can proceed without the individual providing final consent if:
- Before the individual loses capacity to consent to MAID,
- They met all criteria set out in section 241.2(1) (which outlines the general criteria an individual must meet to be eligible) and the safeguards set out in section 241.2(3);
- They entered into an agreement in writing that the medical practitioner would complete the procedure on a certain day;
- They were informed by the medical practitioner of the risk of losing capacity to consent prior to the date of the procedure;
- In the written agreement, they consent to the procedure occurring on or before the day specified if they lost their capacity to consent to the procedure prior to that day;
- The individual has lost the capacity to consent to the procedure;
- The individual does not demonstrate, by words, sounds or gestures, refusal to the procedure occurring; and
- The procedure goes forward in accordance with the terms of the agreement.
This waiver of final consent is a crucial tool for those with progressive illnesses. It provides greater autonomy, allowing individuals to plan with more certainty and avoid the cruel dilemma of having to accelerate the timing of MAID to preserve eligibility.
The ability to waive final consent adds an important layer to discussions about incapacity, advance care planning, and the alignment of personal and estate documents. While advance directives in Canada cannot compel a physician to provide MAID, the waiver mechanism allows for a legally recognized, enforceable arrangement in limited circumstances. Ensuring that clients understand the scope of this option, and its limitations, is now part of a thorough incapacity and end-of-life planning conversation.
Before I end my blog, it is worth pausing to reflect on why this particular news resonated so widely. Munsch’s stories shaped generations of children and families, creating moments of laughter, tenderness, and love. His openness about illness and end-of-life choices brings a deeply human face to the legal issues we encounter in practice. Robert Munsch’s books were never just stories, they were forever gifts, carried in the hearts of the children that grew up with them to love forever and like for always.
Thank you for reading!
Darien Murray