All About Estates

Advance Directives and Medical Assistance in Dying

An advance directive is a document setting out an individual’s wishes for future medical treatment, most often for treatment in the event of incapacity or unconsciousness.  For example, individuals can outline their wishes with respect to withdrawing, withholding, or providing lifesaving treatment (such as feeding tubes or “Do Not Resuscitate” orders).  One limit to what an individual can ask for in an advance directive is medical assistance in dying (MAID).

MAID entails a physician or nurse practitioner administering, prescribing, or providing to a patient, at the patient’s request, a substance that will cause the patient’s death.  While previously illegal, the Criminal Code has been revised such that MAID is now legal in Canada, albeit with conditions and restrictions.

The Supreme Court of Canada, in its 2015 decision in Carter v Canada (Attorney General), unanimously struck down the Criminal Code provisions that criminalized euthanasia (where a physician administers drugs to end a patient’s life) and physician-assisted dying (where a physician provides a patient with the means to end their own life).  The Supreme Court of Canada limited access to MAID, however, to “competent adults who clearly consent to the termination of life, and who have a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”  The Supreme Court of Canada suspended the effect of its decision until June 2016, providing the Federal government sufficient time to put guiding legislation in place.

In April 2016, the Federal Government introduced Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).  Bill C-14 received royal assent in June 2016, and is already subject to a constitutional challenge.

Bill C-14 outlines the eligibility criteria to request and receive MAID.  To be eligible for MAID, an applicant must:

  • be eligible for health services funded by the federal government, a province or territory;
  • be at least 18 years old and capable of making decisions with respect to their health;
  • have a grievous and irremediable medical condition;
  • make a request for MAID that is not the result of outside pressure or influence; and
  • give informed consent to receive MAID. This means that the applicant has to consent to MAID after having been informed of the means that are available to relieve their suffering, including palliative care.

Bill C-14 further notes that, for an applicant to be recognized as having a “grievous and irremediable medical condition”, the following conditions must be met:

  • the applicant has a serious illness, disease or disability;
  • the applicant is in an advanced state of decline that cannot be reversed;
  • the applicant’s illness, disease, disability or state of decline causes the applicant enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
  • the applicant’s natural death has become “reasonably foreseeable”, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Bill C-14 does not extend eligibility for MAID to patients suffering from a degenerative disease (such as those suffering from Alzheimer’s disease or dementia) who wish to prospectively consent to MAID in an advance directive.  This issue remains the topic of heated discussions.  One difficulty with permitting patients suffering from a degenerative disease to prospectively consent to MAID is determining at what stage of their illness the patient is still cognitively competent to give advance consent.

In passing Bill 52, An Act Respecting End-of-Life Care, in 2014, Québec became the first Canadian province to permit euthanasia.  Québec is once again taking a lead in expanding access to MAID.  In March 2017, Québec’s Minister of Health announced plans to potentially broaden the eligibility criteria for MAID, including the possibility of allowing patients with a degenerative disease to provide advance consent to end their lives.  This announcement came one month after a Montreal man was charged with second-degree murder after his wife (who was suffering from Alzheimer’s disease) asked him to end her life.  Québec will also turn to the courts to clarify Bill C-14’s requirement of a “reasonably foreseeable” death.

This move by the Québec government comes less than one year after Bill C-14 came into effect.  Canada is again faced (as it was during the drafting of Bill C-14) with queries that those with a degenerative disease be permitted to sign advance directives authorizing doctors to end their lives at a specified point in time.  This writer will definitely stay tuned as this controversial debate continues.

 

About Anna Alizadeh
Anna was called to the Ontario Bar in June 2016. Prior to joining de VRIES LITIGATION LLP, she articled at a full service firm where she developed a strong background in litigation and alternative dispute resolution. Anna also worked on estate litigation files and estate planning matters, and co-authored a chapter on Physician Assisted Dying for Key Developments in Estates and Trusts Law in Ontario, 2015-2016 edition. She obtained her Honours Bachelor of Science in Psychology, with a minor in Biology, from York University, and her Juris Doctor from the University of Ottawa. While in law school, Anna participated in an exchange program in Paris, France, where she obtained her Certificate in French and European Union Law. Anna practices in the areas of estates, trusts and capacity litigation. She is fluent in Farsi and has a professional working proficiency in French. Email: AAlizadeh@devrieslitigation.com

1 Comment

  1. Charolette

    May 17, 2017 - 7:42 pm
    Reply

    Thanks for the excellent advice, it actually is useful.

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