Medical Assistance in Dying – Where are We Now?

by: Richard Bell

MAID Version 2.0 passes Parliament and the Senate.

First a bit of history.

Section 241 (b) of the Criminal Code previously created criminal liability for those who committed suicide or attempted suicide. In 1972 suicide was decriminalized in Canada, however assisted suicide remained a criminal offence. Anyone found guilty of counselling or assisting a suicide was liable to imprisonment of up to 14 years.

In 1991 a group in Victoria founded the Right to Die Society. Since then many other organizations such as Dying with Dignity, individuals and politicians across the country have worked relentlessly to create a societal and legal shift in the rights of individuals to determine the timing of their deaths.

In 1993 Sue Rodriguez, suffering from ALS went to the Supreme Court of Canada to have the legislation overturned to enable her to have a physician help her die. The Court dismissed her appeal in a 5-4 decision. In February 1994 Sue Rodriguez, assisted by an unknown doctor, died in her home in Victoria.

The debate continued with various court applications and private member bills all of which failed to significantly change the legal position until February 6, 2015 when the Supreme Court of Canada unanimously overturned the legal ban on doctor assisted suicide. The Court gave the federal government 12 months to develop legislation in response to their decision.

After an extension from the Court, on June 17, 2016 Parliament passed the Medical Assistance in Dying (MAID) Act. The legislation provided that a person with a “grievous and irremediable medical condition” that causes “enduring physical or psychological suffering that is intolerable” could request MAID if they were in an “advanced state of irreversible decline” and their “natural death has become reasonably foreseeable”.

The legislation also required that the person needed to be competent at the moment the drugs were being administered. For many this was seen as a barrier to fulfilling the dying person’s expressed wishes.

Fast forward to January 2019 when two Montrealers challenged the federal and provincial legislation on medical assisted dying arguing that the requirement that natural death be “reasonably foreseeable” was unconstitutional. In September 2019 the Superior Court of Quebec agreed that the provision was unconstitutional and set a deadline of 6 months for the federal and provincial governments to respond to the decision. In March 2020 the Quebec government dropped the requirement.

In February 2020 the Liberal government introduced Bill C-7, which would eliminate the requirement that “natural death has become reasonably foreseeable”. The Bill passed in the House of Commons on December 10, 2020 and was then forwarded to the Senate.

On February 17, 2021 the Senate passed amendments that significantly changed the Bill to include provisions that would enable people who fear being diagnosed with dementia to make an advance request for medical assisted dying. In addition the amendments provided access to medical assisted dying for those who were mentally ill in certain situations.

On March 17, 2021 Parliament passed amendments to the legislation. Parliament rejected amendments that would have enabled an advance request for those who feared being diagnosed with dementia.

Three key take a ways from the amendments:

1) Death does not need to be reasonably foreseeable but the person must still have a grievous and irremediable medical condition and meet all the following criteria:
a. Have a serious illness, disease or disability,
b. Be in an advanced state of irreversible decline in capability,
c. Have an enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable.

2) MAID will be available to those who are mentally ill but there is a two year delay in access. During the interim the government will consult with experts to develop “protocols, guidance and safeguards” that should apply to requests for assisted dying from people with mental illness.

3) Final consent is not required where person becomes incompetent if:
a. The person’s death is reasonably foreseeable,
b. They have been assessed and approved for MAID,
c. A date has already been scheduled for the MAID procedure, and
d. They have made in consultation with their MAID provider a written agreement to receive MAID on the scheduled day if they are no longer able to provide consent on that day.

The changes likely satisfy neither proponents nor opponents but for the proponents these changes will be viewed as another step forward. And for the opponents a concerning step down a perilous path.