On March 17, 2021, several amendments to the Criminal Code modified the eligibility requirements for access to medical assistance in dying ("MAID"), building on the assisted dying framework first implemented in the Criminal Code in 2016. While the topic has its basis in criminal law, the implications of MAID are relevant to estate planning and other aspects of legal practice.
Over the past decade, and particularly since the 2021 amendments to the Criminal Code, assisted dying has been a topic of interest and debate among legal professionals and the public alike.
The MAID provisions of the Criminal Code (from sections 241.1 to 241.4) apply to medical practitioners or nurse practitioners who, at the request of a person:
- administer a substance to them that causes their death; or
- prescribe or provide a substance to them so that they may self-administer it and in doing so cause their own death.1
Under the Criminal Code, a person is eligible to receive MAID if they:
- are eligible for Canadian health services;
- are at least 18 years of age and have capacity to make health decisions;
- have a grievous and irremediable medical condition;
- make a voluntary request for MAID; and
- provide informed consent.2
Canadian case law has also provided guidance on an eligible person's constitutional right to seek MAID, including the seminal 2015 decision of the Supreme Court of Canada in Carter v Canada (Attorney General).3
- Eligibility for Canadian health services
A person may be eligible for MAID if they are covered by provincial health care or would be so covered upon completing any applicable waiting period. In general, MAID is not available to visitors to Canada.4
- Capacity
In order to receive MAID, a person must be at least 18 years of age and must have the capacity to make decisions with respect to their health. Unlike testamentary capacity, which is assessed by a lawyer, medical capacity for the purposes of receiving MAID, is assessed by a medical practitioner or nurse practitioner.
- Grievous and irremediable medical condition
To qualify to receive MAID, a person must have a grievous and irremediable medical condition. This requirement is only satisfied if each of the following circumstances exist:
- the person's medical condition must be serious and incurable (this must be a physical condition, although it need not necessarily be fatal or terminal);
- the person's capability must be in an advanced state of irreversible decline (although natural death need not necessarily be reasonably foreseeable); and
- the person's condition or state of decline must cause them enduring, intolerable suffering (e., their condition cannot be relieved under conditions they deem acceptable).5
Presently, "a mental illness is not considered to be an illness, disease or disability" for the purposes of determining MAID eligibility.6 As a result, a person who suffers solely from a mental illness and no other physical health condition is presently precluded from receiving MAID.
At the time of the 2021 Criminal Code amendments, the exclusion of eligibility on the basis of mental illness was scheduled to be repealed as of March 17, 2023. The proposed changes stem from the Superior Court of Quebec's 2019 decision in Truchon c Procureur général du Canada,7 in which that Court held the "reasonable foreseeability of natural death" eligibility criteria in the Criminal Code to be unconstitutional. On March 9, 2023, however, the exclusion period was extended until March 17, 2024, to ensure the proper framework and safeguards will be in place to address mental illness-based requests for MAID.8
- Voluntary request
The request for MAID must be voluntary and must not be made as a result of external pressure.9
- Informed consent
A person must give informed consent to receive MAID. This requirement includes that the person must have received all information needed to make their decision, including with respect to their medical diagnosis and available treatment options (including the option to receive palliative care). After informed consent has been given, it can be withdrawn at any time and in any manner.
In general, a person must provide informed consent both when requesting MAID and immediately before receiving it. If, however, a person's natural death is foreseeable at the time of their initial request for MAID, the requirement for consent immediately before receiving MAID may be waived under the specific circumstances contained in subsections 241.2(3.2) to (3.5) of the Criminal Code.
Ultimate Decision-making Autonomy
Courts have recognized MAID as a constitutionally protected right. In Sorenson v Swinemar, the Nova Scotia Court of Appeal held that once a person is determined to be eligible to receive MAID, they are "constitutionally entitled to take [that] course of action."10 "Preventing or delaying an eligible person from receiving MAID is a violation of their s 7 Charter rights."11 This builds on the Supreme Court of Canada's ruling in Carter, the case that led to the eventual enactment of initial assisted dying laws in 2016. In Carter, the Court held that the provisions of the Criminal Code then in place which prohibited physician-assisted death "unjustifiably infringe[d]" on the recipient's Charter rights.12
In Sorenson, the Court also held that the wife of a man seeking MAID did not have private interest standing to challenge her husband's MAID eligibility on the basis of her status as his spouse. "[P]ersonal autonomy in medical decision-making [is] to be respected and protected. Permitting [her] standing to question the outcome of the MAID assessment because of her status as his spouse would fail to acknowledge this fundamental right of her husband."13
An eligible person's right to receive MAID is, however, subject to the expertise and discretion of MAID providers. In Carter, the Supreme Court of Canada held that "it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity."14 The Nova Scotia Court of Appeal expanded on this reasoning in Sorenson, holding that the determination of a person's eligibility for MAID is not a justiciable issue – it "is [a decision] that should be left to approved healthcare assessors."15
Other MAID Considerations
Although the scope of this article is restricted to the state of the law regarding MAID eligibility, the 2021 Criminal Code amendments notably also introduced procedural safeguards for the administration of MAID in Canada and modified the requirements for data collection and monitoring. The procedural safeguards are relevant to both the processes by which an individual can apply for and receive MAID in Canada.
A companion piece to this article, exploring the application process, procedural safeguards and data requirements applicable to MAID, is scheduled for publication in 2024.
Anticipated Developments and Implications
The anticipated inclusion of mental illness-based MAID eligibility in March of 2024 will likely cause assisted dying to maintain its status as a relevant topic for the foreseeable future.
The estate planning process often prompts individuals to consider the topic of MAID when evaluating their options; they may wish to seek clarification with respect to MAID eligibility and the application process from an estate planning lawyer. Conversely, individuals considering MAID are encouraged to consult with an estate planning lawyer to ensure the accuracy and adequacy of their estate documents (i.e., wills and powers of attorney).
In any case, anyone interested in exploring the availability of MAID should consult with their physician.
Footnotes
1. Criminal Code, RSC 1985, c C-46, s 241.1 “medical assistance in dying” [Criminal Code].
2. Ibid, s 241.2(1).
3. 2015 SCC 5 [Carter].
4. Government of Canada, “Medical
assistance in dying” (2 Feb 2023)
5. Criminal Code, supra note 1, ss 241.2(1),(2).
6. Ibid, s 241.2(2.1).
7. 2019 QCCS 3792.
8. Government of Canada, supra note 4.
9. Criminal Code, supra note 1, s 241.2(1)(d).
10. 2020 NSCA 62, Bourgeois JA at para 29 [Sorenson].
11. Ibid at para 152.
12. Carter, supra note 3 at para 147.
13. Sorenson, supra note 10 at paras 152, 110.
14. Carter, supra note 3 at para 116.
15. Sorenson, supra note 10 at para 101.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
