New MAID legislation a ‘step forward’

With the Senate passage of Bill C-7 on Wednesday night and royal assent received, Canadians now have expanded rights to medical assistance in dying (MAID).

The new legislation “was expected,” says Montreal private client lawyer Troy McEachren.

Revisions to the original MAID legislation, which dates back to 2016, were “very much expected when the legislation was introduced” following the Supreme Court of Canada’s 2015 decision in Carter v. Canada (Attorney General), says McEachren.

“It's very telling that some of the constitutional commentators correctly identified that what the government enacted in the Criminal Code was much more restrictive and did not comply with the Carter decision,” which gave Canadian adults who are mentally competent and suffering intolerably and enduringly the right to a doctor's assistance in dying.

The pursuant legislation, though, resulted in only patients suffering from incurable illness whose natural death was 'reasonably foreseeable' to be eligible for a medically assisted death.

What the Supreme Court saw as constitutionally permissible was not what was enacted in amendments to the Criminal Code in 2016, McEachren says, or what was seen in Truchon c. Procureur général du Canada, 2019 QCCS 3792, in which Justice Christine Baudouin ruled that the provisions in the existing federal and provincial assisted-dying laws that require death to be "reasonably foreseeable" were an infringement of section 7 of the Charter of Rights and Freedoms.

Although the ruling applied only in Quebec, Justice Baudouin called on the federal government to amend its legislation within six months’ time. The reasonable foreseeability of natural death criterion has now been repealed from the Criminal Code.

The amended MAID legislation appears to be much more in line with what the Supreme Court found to be constitutionally permissible within the Carter decision, says McEachren, a partner in Miller Thomson LLP in Montreal. Imposing a requirement to be “imminently near death was a far greater restriction on access to end-of-life assistance than the current the Constitution requires.”

As the federal government first announced last year, it has now introduced into the Criminal Code a “two-track approach” to procedural safeguards based on whether or not a person’s natural death is reasonably foreseeable:

1. existing safeguards will be maintained and certain ones will be eased for eligible persons whose death is reasonably foreseeable;
2. new and modified safeguards have been introduced for eligible persons whose death is not reasonably foreseeable.

An amendment to “An Act to amend the Criminal Code (medical assistance in dying),” which was introduced in February 2020, means that eligibility for individuals suffering solely from mental illness has been excluded not permanently, but for a period of 24 months, during which the federal ministers of justice and health will initiate an expert review to make recommendations within the next year on protocols, guidance and safeguards for MAID for persons suffering from mental illness.

While capacity to consent can be affected by mental illness, one can still have a full exercise of civil rights with mental illness, says McEachren, who sees this amendment as in line with the Supreme Court ruling in Carter.

For individuals whose death is reasonably foreseeable, certain safeguards have now been modified, says Victoria Mitrova, an associate and corporate-commercial lawyer with a focus on health care at Fasken Martineau DuMoulin LLP in Toronto.

“Some modifications that have been eased are for those whose death is reasonably foreseeable,” says Mitrova. There was a 10-day waiting period between when a request for the procedure was made and when the actual procedure could occur; that waiting period has now been eliminated.

Another change is in the requirement for two independent witnesses to sign the request by an individual seeking MAID; now, only one person needs to sign it. The independent witness definition has also been amended to include health-care providers or personal support workers who provide care to the individual seeking medical assistance in dying.

For those seeking MAID whose death is not reasonably foreseeable, there are added safeguards, Mitrova says. “There’s a requirement that individuals speak with health care providers about possible other means to relieve their suffering, whether it be through medical or non-medicinal manners, and the individual has to advise and agree with those health care providers that they have considered those needs and given serious thought to them,” she says.

“There's also a 90-day waiting period now between when they're first assessed for the procedure [of MAID] to see if they are eligible, and then when the procedure occurs.”

Another important change to the legislation, says McEachren, is that consent to the right to medically assisted death is maintained even after someone has lost the capacity to consent. “If in the interim [before the specified date for the procedure] I lose my capacity to consent, then that doesn't mean that my original consent is removed,” he says. “I think it's a real step ahead.”

Europe had had MAID legislation on the book for decades, he says, and fears and concerns people may have with respect to vulnerable populations being taken advantage of have not been born out, he says. “It is possible to design a system with mechanisms that are protective, and that are respectful; that slippery slope that we fear” of  coercion “doesn't seem to bear out,” as Justice Baudouin also concluded in her decision in Truchon.

Finally, since the provinces administer healthcare, the Criminal Code is merely a framework in which individuals, family members and medical professionals may act, he adds. “In practice, we're going to see how it gets implemented, and how the provinces respond.”

Medical assistance in dying is a sensitive topic, and there are wide-ranging opinions on how this legislation should be implemented, and what safeguards should be put in place, says Mitrova.

“This legislation indicates that the government has responded to the Quebec Superior Court decision on the issue of the death being reasonably foreseeable,” she says; “but it also indicates … a more forward-thinking mindset as well, in the sense that there are clearly some other issues that the government will be examining through these committees and potentially addressing within a year or two.”