Medical Assistance in Dying (MAID) Laws
In February 2015, the Supreme Court ruled that s. 241 (prohibiting physicians from assisting in ending life) and s. 14 of the Criminal Code infringed s. 7 of the Charter and were not justified under s. 1. They were held to be of no force and effect, to the extent that they “prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition … that causes enduring suffering that is intolerable to the circumstances of his or her condition.” Parliament passed federal legislation in June 2016 amending the Criminal Code and other Acts to allow eligible Canadian adults to request MAID.
There are two types of MAID available to Canadians: clinician-administered medical assistance in dying (previously known as voluntary euthanasia) and self-administered medical assistance in dying (previously known as medically assisted suicide). In the first type, the physician or nurse practitioner directly administers the substance causing death. In the second type, the physician or nurse practitioner provides or prescribes the substance and the eligible person takes it themselves.
The issue of the availability of MAID itself is still hotly debated, as are the requirements for eligibility.
The federal legislation passed in June 2016 amending the Criminal Code and other Acts to allow eligible Canadian adults to request MAID included several eligibility criteria which all had to be met for MAID to be granted. One of these was that the person’s “natural death had become reasonably foreseeable, taking into account all of their medical circumstances” but not requiring a specific prognosis as to the length of time remaining.
September 2019 Ruling
In September 2019, the Quebec Superior Court struck down this requirement, as well as Quebec legislation with a similar effect, as infringing the s. 7 rights to life, liberty, and security of the person and the s. 15 right to equality in a manner not justified under s. 1. Essentially, the court found that “the reasonably foreseeable natural death requirement is overbroad and disproportionate, such that it is inconsistent with the principles of fundamental justice and infringes … rights protected by section 7”. It also infringes the s. 15 right to equality because it creates a distinction based on physical disability, and “perpetuates prejudice and disadvantage for the applicants and the physically disabled” since it “does not consider the applicants’ personal circumstances, characteristics and actual needs in a manner that respects their value as human beings as compared to other people to whom the law grants medical assistance in dying”.
While Justice Christine Baudoin gave the federal government six months to bring the law into compliance with her ruling, the courts have granted multiple extensions, permitting a long delay.
March 2021 Changes
This month, changes to MAID legislation finally became law.
The criterion of “reasonable foreseeability of natural death” has been replaced with the requirement that the applicant “be in an advanced state of irreversible decline in capability” and “have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable”. Additional procedural safeguards have been added which apply only to applicants whose natural death is not reasonably foreseeable.
Waivers of final consent are now available under certain circumstances for those whose natural death is reasonably foreseeable. They are never available for those whose natural death is not reasonably foreseeable (essentially creating a two-track program).
Finally, people with solely mental illness are excluded from eligibility until at least March 17, 2023. This exclusion is limited to mental illness that is “primarily within the domain of psychiatry” and does not include neurocognitive and neurodevelopmental disorders. The reason for the temporary nature of this exclusion? Apparently, the federal government needs more time for an expert review by the Ministers of Justice and Health, to ensure safe provision of MAID and appropriate safeguards for individuals in this category.
A Government of Canada infographic outlining the differences between the previous state of the MAID laws, and the changes introduced this month can be found on the Government of Canada website.
Controversy
Justice Christine Baudoin gave the federal government six months to bring the law into compliance with her ruling, but the court granted three extensions. The government cited last fall’s election and the COVID-19 pandemic as the reasons behind the repeated delays. The changes were finally passed on March 17 – about a year past the 6-month deadline.
Some critics argue that the government ought to have appealed the matter to the SCC or ought not to have asked for so many delays despite the circumstances of the pandemic (a complaint that has been exacerbated by the government’s further delay in fully addressing the mental health exclusion). Others are concerned about the potential impact of the changes on individuals with mental illness or worried that the changes risk making a value judgment about quality of life and when life is “not worth living”.