On November 18, 2020, we blogged about medical assistance in dying (“MAID”) accessibility. We discussed Bill C-7 and the government’s proposal to expand eligibility for assisted death. The government’s proposal was accepted by the Senate on March 17, 2021 and, as such, Bill C-7 is now in effect.
Our previous blog post largely centered on arguments in support of increasing MAID accessibility. What it did not consider was the controversy sparked by Bill C-7, especially in marginalized communities such as the disabled community.
Bill C-7 was initially proposed after a 2019 Superior Court of Quebec decision held that it was unconstitutional to limit MAID to those at the end of their lives. Accessibility to MAID has now been expanded as some of the more onerous conditions have been alleviated. Those eligible to receive MAID now include individuals suffering intolerably from severe illnesses and disabilities with no cure.
Those with disabilities and advocates of this community are concerned that MAID will disproportionately be accessed by individuals with disabilities who do not otherwise have access to adequate social supports. Proponents of the amendments to the legislation argue that there are safeguards in place to protect the floodgates from opening and to protect against legislative abuse. For example, patients who request MAID but are not nearing the end of their life will be informed of various social and communal supports which can assist in alleviating their suffering. However, there is no requirement necessitating those considering MAID to actually access these supports. Further, Bill C-7 requires medical professionals to conclude that the person applying for MAID has given “serious consideration” to their decision. Opponents of the Bill question the subjectivity and ambiguity of this loose requirement … what would actually amount to “serious consideration”?
Are there enough protective measures in place? Are these proposals encouraging ableism and fueling already pervasive stereotypes in our society?
Disability-rights organizations would answer the former in the negative and the latter in the affirmative. On February 24, 2021, over 125 Canadian organizations signed an open letter urging the government to reconsider the amendments proposed in Bill C-7. The letter states that “Bill C-7 sets apart people with disabilities and disabling conditions as the only Canadians to be offered assistance in dying when they are not actually dying.” Studies have shown that individuals with disabilities have higher rates of depression and more frequent occurrences of suicidal thoughts in comparison to the general public. Those who oppose Bill C-7 argue that the underlying causes of suffering must be addressed, such as the institutional and social problems causing suffering. They argue that these problems often outweigh any physical suffering.
Of course, not all individuals with disabilities find Bill C-7 to be offensive. For some, the expansion of MAID represents hope and the prevention of intolerable suffering. Suffering is subjective and individuals will now be able to decide when/if their suffering becomes too intolerable. For these people, MAID is a humane exit from a life that is too unbearable to be endured.
Thank you for reading, and enjoy the rest of your day,
Suzana Popovic-Montag and Tori Joseph
Dying with Dignity (DWD) Canada, a not-for-profit organization, has noted a rise in calls from Canadians inquiring about medical assistance in dying (MAID) since the start of the pandemic.
The individuals calling DWD are largely concerned about the prospect of dying an uncomfortable death from Covid-19. Since MAID is only available to a small group of individuals who meet the rigorous conditions set out in Canada’s assisted dying law, Helen Long, CEO of DWD Canada, urges people to complete an advanced care directive to ensure their end of life wishes are met. Advanced care planning advice, and specifically how it relates to Covid-19, can be found on the Dying with Dignity website.
Other DWD callers express concerns about the difficulty of accessing the healthcare system during the Covid-19 pandemic. These callers worry about whether they will be able to in fact access MAID programs when needed. For example, in March of 2020, some MAID services were shut down in Ottawa and Hamilton to prevent the spread of Covid-19 and to preserve health-care resources. However, other regions have deemed MAID to be an essential service and have implemented safety protocols to ensure adequate protection for clinicians conducting this service.
Some long term care homes reject MAID on religious grounds and, therefore, will not allow the services to be conducted on their property. It is clear that MAID has become increasingly difficult to access for many people.
Currently, Bill C-7 is before the House of Commons. Bill C-7 contains the government’s proposal to expand eligibility for assisted death. One way that the government seeks to do so is by modifying the current stringent requirement of a “reasonably foreseeable death.” Although Bill C-7 would maintain the general notion of a reasonably foreseeable death as a precondition to accessing MAID, it would establish more lenient eligibility requirements for those who are near death. Bill C-7 seeks to make MAID more accessible by alleviating some of the more burdensome conditions that presently need to be met.
Under the current assisted dying regime, 6,465 medically assisted deaths are expected in Canada in 2021. This legislation would enable almost 1200 more medically assisted deaths. These were the numerical predictions expected prior to the pandemic. The exact number of additional requests for MAID due to Covid-19 remains to be seen.
Thanks for reading … Enjoy the rest of your day.
Suzana Popovic-Montag & Tori Joseph
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,
In many respects the law of Quebec differs from that of other provinces. In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.
In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable. The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable. The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed. The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome. Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.
The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms. While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.” Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.
Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter. The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”
The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional. The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.
Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional. Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect. Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.
As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.
Thank you for reading,
Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.
Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history. Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.
As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria. Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered. Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.
In some parts of the country, MAID is already accessed at significant levels. In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.
Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.
Thank you for reading,
Other blog posts that may be of interest:
As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.
Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:
1) directly administer the substance that causes death (e.g. an injection of a drug); or
2) provide or prescribe a drug that is self-administered to cause death.
In order to be eligible for MAID, one must meet all of the following criteria:
- be eligible for publicly-funded health services in Canada;
- be at least 18 years of age and capable of making their own health care decisions [emphasis added];
- have a grievous or irremediable medical condition;
- make a voluntary request for MAID; and
- give consent to receive MAID after being provided with all of the information necessary to make the decision.
For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.
Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.
Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.
In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.
By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.
According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.
This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.
To learn more about Mr. Garlock’s story, please see CBC’s recent article here.
Thanks for reading!
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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):
- 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;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- 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.
Other blog entries that may be of interest: