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Changes to Consent to Medical Assistance in Dying

On March 17, 2021, a number of changes to the legislation regarding Medical Assistance in Dying (MAiD) were enacted via Bill C-7[i]. An important change is that to be eligible for MAiD the law no longer requires a person’s natural death to be reasonably foreseeable. For persons with a grievous and irremediable medical condition there are now two pathways for MAiD: one for those where death is reasonably foreseeable; and one for those where death is not reasonably foreseeable. Changes to the consent procedure include the following:

For those whose death is reasonably foreseeable:

  • The 10-day reflection period following the date of the written request is no longer required. Only one witness (rather than two) is required for the consent.
  • MAiD may be provided to a person on the basis of a prior written agreement entered into with the medical practitioner or nurse practitioner despite the person losing the capacity to confirm consent again immediately before MAiD is provided. The final consent just prior to providing MAiD can be waived. This includes permitting MAiD to be provided to a person who loses the capacity to consent because of the self-administration of a substance that was provided to them under the provisions governing MAiD in order to cause their own death.
  • However, under these circumstances, MAiD may only be provided if the person does not demonstrate by words, sounds, or gestures, refusal to have the substance administered or resistance to its administration. For greater certainty, involuntary words, sounds, or gestures made in response to contact do not constitute a demonstration of refusal or resistance.

The reason for the change in the consent requirement immediately prior to providing MAiD is the potential for the dying person to develop delirium, a very common experience. Delirium is referred to as acute confusion or acute brain failure. Delirium is characterized by disturbances in attentiveness, consciousness, orientation, memory, thought, perception, and behaviour, of acute onset and fluctuating course. The change in behaviour caused by delirium can be classified as hyperactive, hypoactive, or mixed depending on the rate of thinking and level of activity of the patient.

In hyperactive delirium, patients show disorganized thinking and speech. Behaviour may be agitated, restless, frightened, and even aggressive to self or others due to fear. Patients may suffer hallucinations, typically visual (visions of animals, insects, people) and may develop suspiciousness and paranoid thinking.

In hypoactive delirium, patients show a reduced rate of thinking and speech. Their level of alertness and activity is reduced and display lethargy, drowsiness, inattentiveness, indifference, and apathy. The hypoactive form of delirium is more common in seniors.

In mixed cases, symptoms of both hyperactive and hypoactive forms are present.

In a delirium, it is possible to have so-called “lucid moments”, but typically decision-making capacity would be lost.

For those whose death is not reasonably foreseeable, additional safeguards have been put into place. They include: a 90-day period cooling off period from initiation of assessments and consultation with a practitioner who has expertise in the medical condition that is causing suffering.

As before, consent via an advanced directive for a future state of a grievous and irremediable medical condition is not permissible. For example, a patient in a mild stage of dementia cannot provide consent to MAiD being provided in a later, advanced stage of dementia. Nor is consent permissible by a substitute decision maker.

Persons whose sole underlying medical condition is a mental illness remain ineligible for MAiD, but this is undergoing a two-year consultation before a final decision on eligibility is confirmed.

[i] Government Bill (House of Commons) C-7 (43-2) – Royal Assent – An Act to amend the Criminal Code (medical assistance in dying) – Parliament of Canada

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

  1. Ms. Doris C. E. Bonora LL.B., STEP

    July 27, 2021 - 1:38 pm

    Excellent article thank you

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