Medical Assistance In Dying : Changes in the Law Set to Arrive March 17, 2023

Medical Assistance in Dying: Changes in the Law Set to Arrive March 17, 2023

The law regarding Medical Assistance in Dying (or MAiD) has undergone several significant changes in the last decade, and another significant change is currently scheduled to take place on March 17, 2023. While language in estate planning documents setting out instructions regarding medical assistance in dying are not legally enforceable, estate planners should be aware of these upcoming changes to understand how they might impact clients, and to give some thought to how the law might continue to develop in the future.

The History of Medical Assistance in Dying

Until the 2015 Supreme Court decision of Carter v Canada (Attorney General),[1] medical assistance in dying was federally prohibited. In this case, the Supreme Court declared that the relevant Criminal Code provisions were of no force and effect to the extent they prohibit physician-assisted death if person seeking it:

  1. Was an adult;
  2. Clearly consented to the termination of life; and
  3. Had a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Until Parliament passed its legislative response to Carter it was up to lower courts to apply the law.

One particularly prescient Albertan case, Canada (Attorney General) v EF[2] confirmed medical assistance in dying was available both to non-terminally ill applicants and applicants whose medical conditions originate from a psychiatric condition. This case involved a 58-year-old woman experiencing chronic and intolerable suffering as a result of “severe conversion disorder” creating involuntary muscle spasms resulting in chronic pain, immobility, and blindness. Her condition was a psychiatric one, but her capacity to make informed decisions was unimpaired.

Parliament’s first legislative response to Carter was Bill C-14, An Act to Amend the Criminal Code and Making Related Amendments to Other Acts (Medical Assistance in Dying).[3] Departing from EF,Bill C-14 prohibited medical assistance in dying if death was not reasonably foreseeable or if the applicant exclusively suffered from psychiatric illness.

However, the reasonable foreseeability requirement was again found to be unconstitutional in Truchon c. Procureur général du Canada,[4] which heavily relied on EF. In this case two applicants were deemed ineligible to receive medical assistance in dying as their natural deaths were not reasonably foreseeable. One applicant was completely paralyzed except for their right arm, and the other was paralyzed on her left side and suffered from severe scoliosis and degenerative post-polio syndrome. While both experienced chronic pain, death was not reasonably foreseeable.

In direct response to Truchon, Bill C-7, An Act to Amend the Criminal Code (Medical Assistance in Dying)[5] permitted medical assistance in dying to be administered even in circumstances where death is not reasonably foreseeable.

Importantly, while Bill C-7 continues to prohibit medical assistance in dying when the sole underlying condition is a mental illness, this prohibition is scheduled to end March 17, 2023.

The Law of Medical Assistance in Dying Today

The law regarding medical assistance in dying is complicated and constantly evolving in response to new case law and legislation.

However, the law as it currently stands can be summarized as follows:

  1. No person can consent to someone else ending their life, and it is illegal for someone to counsel or assist someone to die by suicide unless it is a medical practitioner or nurse practitioner providing medical assistance in dying;
  2. The person applying for medical assistance in dying must:
    1. Be eligible (or would be eligible but for applicable waiting periods) for health services funded by the Canadian government;
    1. Be at least eighteen years of age and capable of making health decisions;
    1. Have a “grievous and irremediable medical condition” which includes the following;
      1. A serious or incurable illness, disease or disability;
      1. An advanced state of irreversible decline in capability; and
      1. That illness, disease, disability or state of decline causes enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions they consider acceptable;
    1. Make a voluntary request for medical assistance in dying that was not made as a result of external pressure; and
    1. Have given informed consent to receive medical assistance in dying after having been informed of the means available to relieve suffering including palliative care.

Importantly, the procedures to request medical assistance in dying are significantly different if natural death is “foreseeable”. If not, the most significant difference is that a ninety-day waiting period will apply.

At this time, the Criminal Code expressly sets out that a mental illness is not considered an “illness, disease or disability.” This means that someone suffering exclusively from a mental illness cannot be found to have an illness, disease, or disability to qualify for medical assistance in dying.

So, an important question is: who is unable to receive medical assistance in dying? While applications may be denied for any number of reasons, the following broad categories provide some guidance:

  1. Minors;
  2. Anybody who is incapable of making health decisions; and
  3. People suffering from mental illness as a sole underlying condition.

There do not appear to be any concrete plans to alter the law to allow either minors to receive medical assistance in dying or to allow individuals to give advance consent in their estate plans.

While the Federal Government has recently voiced an intention to delay any change to the law, medical assistance in dying is currently scheduled to become available to individuals suffering solely from a mental illness on March 17, 2023. This timetable is intended to provide the Federal Government time to gather information and enact changes to the law (if any) to best protect individuals who may be vulnerable from abuse. A Final Report of the Expert Panel on MAiD and Mental Illness authored by Health Canada was released May 13, 2022,[6] with an interim report by the Special Joint Committee released June 2022[7] discussing this very issue.

While these reports focus on individuals suffering solely from a mental illness, Health Canada’s nineteen recommendations apply regardless of the requester’s diagnosis. None of these recommendations necessarily call for legislative change, and instead seek to establish practice standards to guide medical practitioners and establish sufficient medical infrastructure to prevent abuse.

As it stands, the law regarding medical assistance in dying will fundamentally change on March 17, 2023 (subject to legislative extension). Estate planners should be ready for questions these changes might bring, who may qualify for medical assistance in dying, and who does not.

[1] 2015 SCC 5.

[2] 2016 ABCA 155 [EF].

[3] Assented to on June 17, 2016.

[4] 2019 QCCS 3792.

[5] Assented to on March 17, 2021

[6] Final Report of the Expert Panel on MAiD and Mental Illness

[7] Medical Assistance in Dying and Mental Disorder as the Sole Underlying Condition: An Interim Report