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A Short Introduction to Canada's Medical Assistance in Dying Legislation

Canada's Medical Assistance in Dying legislation ("MAID") came into effect on June 16, 2016.  According to my recollection, most of the media coverage focused on the June 6th, 2016, deadline to pass legislation imposed by the Supreme Court of Canada in Carter v. Canada (Attorney General) [1] and the drama surrounding Justin Trudeau's "manhandling" of opposition whip Gord Brown before a debate of the legislation.  Relatively little attention was paid to the legislation itself. 

 

Set out below is a short introduction to the MAID legislation.    

 

A candidate for medically assisted death must be an adult resident of Canada who suffers from a "grievous and irremediable medical condition".  Pursuant to subsection 241.2(2) of the Criminal Code, a person is considered to have a "grievous and irremediable medical condition" if they meet all of the following criteria: 

  1.  they have a serious and incurable illness, disease or disability;
  2.  they are in an advanced state of irreversible decline in capability;
  3.  that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable;
  4.   their 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.

The medical practitioners who administer medically assisted deaths are the gatekeepers of the process.  A medical practitioner may be a licensed physician or, in some provinces, a nurse practitioner.  A patient initiates the process by submitting a written request to a medical practitioner.  According to subsection 241.2(3) of the Criminal Code, the medical practitioner must satisfy themselves:

  1.  That the written request has been signed by two independent witnesses;  
  2.  That the patient has been informed that he or she may withdraw the request at any time;
  3.  That the candidate meets all of the criteria of a "grievous and irremediable medical condition"; and
  4.  That another independent medical practitioner has provided a written opinion confirming that the candidate meets all of the criteria of a "grievous and irremediable medical condition". 

After the request in writing is made, the medical practitioner must wait 10 clear days before administering a medically assisted death.  Immediately before performing the procedure, the medical practitioner must give the patient an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

 

Informed consent of the patient is the cornerstone of the MAID legislation.  The MAID legislation does not allow, for example, someone with a power of attorney for personal care to request a medically assisted death on behalf of another.  The MAID legislation also prohibits a medically assisted death if the patient loses the capacity to give informed consent before the procedure is administered.  Currently, the MAID legislation does not allow a patient to authorize a request for a medically assisted death in advance, although this is the topic of an independent review announced by the government on December 13, 2016. 

 

The MAID legislation is still in its infancy.  Time will tell whether it strikes the right balance between death with dignity, on the one hand, and preventing abuses, on the other. 

 

[1]  Carter v. Canada (Attorney General), 2015 SCC 5

 

Steve Grant is a lawyer at Madorin, Snyder LLP, a full service law firm serving Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.  The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

 

 

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