Since the introduction of medical assistance in dying (“MAID”) in 2016, the laws and regulations continue to evolve. My fellow blogger recently provided a concise history of MAID laws, ending with a brief update on Bill C-7, which was passed by the Senate on March 17, 2021. Bill C-7: An Act to amend the Criminal Code (medical assistance in dying) creates a new two-track system for applying for MAID. It also expands the definition of “reasonably foreseeable death” and creates exceptions for “final consent.”

By way of reminder, people applying for MAID were required to have a “grievous and irremediable medical condition that renders death reasonably foreseeable,” get obtain two independent assessments confirming their eligibility for MAID, and, both when applying for MAID and at the time the death was scheduled, have the capacity to consent (see ss. 227 and 241.1 of the Criminal Code). Once the amendments come into force, there will now be a two-track system for applying for MAID.

MAID for those whose natural death is reasonably foreseeable

For those whose death is reasonably foreseeable, the eligibility requirements are relaxed. Only one independent assessment is now required. In addition, an exception is created for “final consent” which will allow patients who provided advance consent for MAID. If advance consent is provided, then lost capacity immediately before the procedure, the patient may still receive MAID (unless by word or gesture the consent is withdrawn at the time of the procedure).

MAID for those whose natural death not reasonably foreseeable

The new, second stream, is available to individuals whose death is not reasonably foreseeable. However, new and greater restrictions are imposed on these individuals.

• There will be a 90 day assessment period for their MAID request
• The patient will require two independent eligibility assessment by practitioners with expertise in the condition causing the person’s suffering
• The patients must be directed to other resources. For example, the patient must be informed of counselling services, mental health, and disability support services available to him or her and offered consultations with those professionals
• The patient and their practitioners must agree that the other available means of alleviating the person’s suffering have been discussed and seriously considered

In other words, in order to access this second stream of MAID, the patient must show that he has explored and seriously considered all other pain relieving options before applying for MAID.

MAID and Mental Illness

MAID remains unavailable for those whose only underlying condition is mental illness. While the intent was to continue this blanket ban, there was pressure from senators who believed this exclusion is unconstitutional. As a result, the ban on providing MAID to patients whose only underlying condition is mental illness is now temporary – there is a two year “sunset clause” in place. During this time, the government has committed to setting up an expert panel to advise on whether a policy can be put in place that both protects individuals with mental illness and allows them to access MAID. In particular, what safeguards and protocols should be put in place.

What’s Next

Once the changes to the Criminal Code come into effect, the provinces will need to update their policies and procedures for applying for and implementing MAID (recall that, while the Criminal Code creates the framework for MAID, the provinces regulate healthcare and thus the administration of MAID). In addition, we can expect further revisions to the Criminal Code when the two-year sunset clause on the prohibition of providing MAID to patients whose only underlying condition is mental illness expires.

The role of the courts in determining questions about MAID, in particular eligibility for MAID, is also slowly being established. The Nova Scotia Court of Appeal’s 2020 decision in Sorenson v. Swinemar, 2020 NSCA 62 (CanLII) confirmed that eligibility for MAID is a medical question, not a legal one, and should be resolved by medical practitioners. However, individual provinces could create a review board specializing in resolving disputes about eligibility for MAID, similar to the way that Ontario’s Consent and Capacity Board was created to resolve questions about capacity. Whether there is an appetite to create such a review board, or place any of the decision-making about MAID in the hands of the courts, has yet to be seen. However, based on the decision in Sorenson v. Swinemar, the courts themselves are likely not looking to expand their jurisdiction.