Tuesday June 29 2021

General publication

Medical Assistance In Dying And Its Modified Criterion

The term Medical Assistance in Dying (“MAiD”) refers to the administering by a physician or nurse practitioner of a substance to a person, at their request, that causes their death. The term also refers to the prescribing or providing by a physician or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and, in doing so, cause their own death.

In early 2015, a case was appealed to the Supreme Court of Canada on the grounds that the prohibition on physician-assisted dying found in s. 241(b) of the Criminal Code violated the rights under ss. 7 and 15 of the Charter. The purpose of the claim was to illustrate how the constitutional right to life, liberty and security of the person protected under s. 7 of the Charter and the right to equal treatment under s. 15 of the Charter would be violated rights by depriving assistance to competent adults who are suffering due to a grievous and irremediable medical condition.

The appeal was accepted, and a list of eligibility requirements were put in place. In order to qualify for MAiD, the patient must :

  • be eligible for publicly funded health care services in Canada (or be in the applicable waiting period),
  • be 18 years of age or older,
  • be capable of making health care decisions,
  • have a grievous and irremediable medical condition, which means:

    A. the patient has a serious and incurable illness, disease or disability,

    B. the patient is in an advanced state of irreversible decline in capabilities, and

    C. the patient is enduring physical or psychological suffering, caused by the medical condition or the state of decline, that is intolerable to the person and cannot be relieved under conditions that they consider acceptable,
  • be making a voluntary request, and
  • provide informed consent to MAiD, which means:
A. for a patient whose natural death is reasonably foreseeable, the patient provides consent after having been informed of the means that are available to relieve their suffering, including palliative care.

B. for a patient whose natural death is not reasonably foreseeable, the patient provides consent:
  • after having been informed of other means available to them, including counselling, mental health supports, disability supports, community services and palliative care;
  • after having been offered consultation with relevant professionals, as available and applicable; and
  • after having discussed these means with the medical or nurse practitioner and having given serious consideration to these means.

In 2019, the Quebec Superior Court decision Truchon v. Procureur général du Canada2019 QCCS 3792, the concept of ‘reasonable foreseeability of natural death’ in the Criminal Code, and the ‘end-of-life’ criterion in the Quebec law were declared unconstitutional. Therefore, the National Assembly of Quebec adopted Bill 83. The latter harmonized with the federal Bill C-7 and established a consensus that the discrepancies of each bill lead to unnecessary suffering for patients.

Prior to Bill 83, for a patient to benefit from MAiD, a second lucid consent was required before the actual administration of the assistance by a Quebec physician. In the case where a patient falls into a coma or becomes incapacitated due to being under heavy sedation, the initial consent was deemed insufficient in the eyes of the Quebec College of Physicians, and thus the patient’s last wishes were not honoured.

With this newly enacted bill, the requirement for final consent can be waived in certain circumstances. It is no longer necessary for each patient who had initially consented to MAiD to voice their consent one last time before the administration of the exercise.

In fact, if a patient’s natural death is reasonably foreseeable, and all the following criteria are met, the patient can have their last wish respected:

  • The person was assessed as eligible for MAiD and satisfied all the relevant safeguards;
  • The person was informed that they are at risk of losing decision-making capacity before the scheduled date to receive MAiD;
  • The practitioner agrees to provide MAiD on the scheduled date if the patient has lost capacity (or earlier, after loss of capacity, if agreed). and
  • The person gives prior consent in writing to receive MAiD on the scheduled date if they are no longer able to consent on that day.

This amendment to Quebec’s Bill 83 allows for a greater number of terminally ill patients to end their suffering in peace all the while having their wishes respected and honoured.

Leana Dermeguerditchian, Law student

Alepin Gauthier Avocats Inc.

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.