Proposed changes to Criminal Code provisions for medical assistance in dying will expand access

The federal government has announced proposed changes to the Criminal Code’s provisions on medical assistance in dying (MAID) that will expand access for Canadians.

Two significant changes proposed in “An Act to amend the Criminal Code (medical assistance in dying)” are that the reasonable foreseeability of natural death criterion has been repealed, and eligibility for individuals suffering solely from mental illness has been excluded.

The bill was announced in a joint press conference on Monday by David Lametti, Minister of Justice and Attorney General of Canada; Patty Hajdu, Minister of Health; and Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion.

It would also introduce what the government calls “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 will be introduced for eligible persons whose death is not reasonably foreseeable.

In addition, it will allow waiver of final consent for eligible persons whose natural death is reasonably foreseeable and who may lose capacity to consent before MAID can be provided, and it will expand data collection through the federal monitoring regime to provide a more complete picture of MAID in Canada.

Where natural death is not reasonably foreseeable, the bill proposes that one of two healthcare practitioners assessing a person’s eligibility for MAID must have expertise in the condition that causes the person’s suffering; and the assessment period must last a minimum of 90 days, which can be shortened if loss of capacity is imminent and assessments are complete.

The requirement for a 10-day "reflection period" has also been removed.

The government’s proposed bill comes in response to a Quebec Superior Court decision in September, Truchon c. Procureur général du Canada, 2019 QCCS 3792, in which Justice Christine Baudouin found that the provisions in the existing federal and provincial assisted-dying laws that require death to be "reasonably foreseeable" are an infringement of section 7 of the Charter of Rights and Freedoms, which provides for the right to life, liberty and security of the person. Although the ruling applied only in Quebec, Justice Beaudoin called on the federal government to amend its legislation within six months’ time.

The Truchon challenge had been brought by two Montrealers suffering from debilitating conditions. The new legislation also addresses the case of Audrey Parker, a Halifax woman with Stage 4 breast cancer who died with medical assistance in November 2018. Because the law as it stands dictates those approved for medically-assisted death must be conscious and mentally sound at the moment they gave their final consent, Parker chose to end her life earlier than she would otherwise for fear of losing her ability to give consent.

“No one should be faced with such an impossible choice,” Minister Lametti said at the press conference. “That's why we are introducing an amendment that will allow patients who are dying to choose to receive made even if they have lost their capacity to finally consent at the time of the procedure.”

The proposed amendments to the Criminal Code would address this situation by allowing those who have been approved for MAID and made arrangements with their healthcare practitioner to give consent in advance, or arrange for MAID on a particular date in the future. The requirement that a patient provide final consent has therefore been waived.

For the purposes of MAID eligibility, a mental illness is not a “serious and incurable illness, disease or disability,” and so may not be the sole criterion for MAID.

The current system also requires that two independent witnesses confirm that the person who has signed a request for MAID is who they claim to be, and that no fraud has occurred, such as someone forging a signature, Minister Hajdu said during the news conference.

“During our consultations, we heard that this requirement was a barrier for many people at the end of their life. Some might not know anyone outside of their family or their care providers. We've heard that this requirement definitely blocks access. As such, we propose requiring only one witness and allowing this witness to be a care provider.”

Minister Qualtrough noted that the “second track” of the proposed legislation, which provides for new and modified safeguards for eligible persons whose death is not reasonably foreseeable, “bolsters safeguards to ensure consent is truly voluntary,” which has been a concern for disability rights activists.

“People have to be informed of options available to them: disability support, palliative care, counselling services. That's what disability rights advocates were calling for, to make sure that decisions were informed. And I think that that has been achieved in this law.”

In January and February the government undertook extensive consultations with Canadians, according to the government’s news release, and took lessons from the previous four years, since the country’s assisted dying laws came into effect in June 2016. Since then, the government reports, there have been over 13,000 reported MAID deaths.

Reports of the Council of Canadian Academies on MAID for mature minors, advance requests and requests where mental disorder is the sole underlying condition were tabled in December.

“Along with my colleagues Ministers Hajdu and Qualtrough, we have consulted practitioners, academics and advocates at 10 roundtables held across the country,” Lametti said. “We also met directly with disability groups, indigenous partners, and others with important insights into these critical questions.

“More than 300,000 Canadians provided their own views through online public consultation. This provided important direction to our work and demonstrated just how much our opinion but also medical practice has evolved in the past four years since medical assistance in dying was made available in Canada.”

A parliamentary review and a study of the state of the palliative care in Canada is required by June 2020, five years after MAID laws took force in Canada.