Medical assistance in dying (MAID) in Canada continues to evolve. A 2019 Québec court decision invalidated the previous requirement under the Criminal Code of Canada that a patient’s death be reasonably foreseeable, and, in Québec, that the patient be at the end of life.1 The decision required legislative changes to the MAID provisions in the Criminal Code of Canada. Since October 30, 2024, Québec’s end-of-life legislation allows advance requests for MAID in that province, under certain conditions.
The evolving rules and expectations may add to existing uncertainty about the rights and obligations of patients and physicians, and the processes to be followed. Even experienced physicians need to understand the current framework and continue to thoroughly assess each request based on a patient’s individual circumstances. Physicians involved in MAID should consider contacting the CMPA for information and case-specific advice.
In addition to carefully considering and applying the eligibility criteria and safeguards in the Criminal Code of Canada, physicians must also be aware of and comply with provincial or territorial laws and regulations, reporting requirements, and policies of their medical regulatory authority (College) and hospital.
In Québec, MAID is also governed by the Act respecting end-of-life care. Physicians in Québec must continue to be vigilant in ensuring compliance with both the provincial MAID legislation and the federal Criminal Code of Canada. Special considerations, however, apply to advance requests for MAID, which are permitted in Québec, but not under the Criminal Code of Canada.
Case example: Patient with ALS requests MAID
A 45-year-old patient with ALS requests MAID. She lives in a rural community where few physicians are comfortable being involved in MAID.
She is not yet at the “end of life”—her treating physicians believe she could live another four years. However, she is concerned she could choke on her saliva and die at any time. She is not currently experiencing intolerable physical suffering, but is suffering severe psychological distress.
She has questions about preparing an advance request for MAID in the event her pain medication affects her capacity to consent later.
Her husband supports her request, but her daughter opposes her mother’s choice.
Eligibility and safeguards
The case study illustrates the challenges physicians may face in determining eligibility for MAID. While many of the eligibility requirements and safeguards have not changed, the updated federal MAID provisions expand eligibility to include patients whose natural death is not reasonably foreseeable, provided additional safeguards are met.
Current eligibility requirements and safeguards for all MAID requests
To qualify for MAID, the patient must meet all of the following:
- be a mentally capable (competent) adult of at least 18 years of age
- be eligible for government-funded health services
- make a voluntary request in writing
- be able to give informed consent
- suffer from a “grievous and irremediable medical condition” (excludes patients suffering solely from a mental illness)
Currently, a mental illness is not considered an illness, disease, or disability for the purpose of eligibility to MAID.
Definition of a grievous and irremediable medical condition
The Criminal Code of Canada states that a person has a grievous and irremediable medical condition if they have a serious and incurable illness, disease, or disability; are in an advanced state of irreversible decline in capability; and their condition causes intolerable suffering that cannot be relieved under conditions acceptable to them. In Québec, as of March 7, 2024, individuals who have a “serious physical impairment causing significant and enduring disabilities” are eligible for MAID provided additional safeguards are satisfied. Prior to that date, a more restrictive requirement applied — instead of a “serious and incurable illness, disease, or disability,” eligibility in Québec was limited to a “serious and incurable illness.”
All requests for MAID must be in writing, signed, and dated by the patient in front of one independent witness. Previously, two witnesses were required. The patient must be informed that they can withdraw their request at any time.
Two independent medical or nurse practitioners must provide a written opinion confirming the patient meets all the eligibility criteria. In Québec, as of December 7, 2023, nurse practitioners are permitted to assess a patient’s eligibility and provide MAID. Before that date, only medical practitioners could do so.
Where death is not reasonably foreseeable
If the physician in the case example concludes the ALS patient meets all of the eligibility requirements, it is still necessary to determine whether the patient’s natural death has become “reasonably foreseeable.”
Where natural death is not reasonably foreseeable, the patient may still be eligible for MAID, but additional safeguards will apply. For example, such a patient must wait at least 90 days to receive MAID, beginning on the date the first eligibility assessment begins. Neither the day the first assessment begins nor the day MAID is provided are included in calculating the 90-day period. However, the assessment period can be shortened if the patient is expected to lose capacity imminently.
If neither of the assessors has expertise in the medical condition that is causing the person’s suffering, one of the assessors must consult with a medical or nurse practitioner who has such expertise. Whether someone has the necessary expertise will depend on factors such as the nature of the patient’s condition and the practitioner’s education, training, or experience.
The patient must also be informed of available means to relieve their suffering and access supports. The MAID practitioners must ensure the patient has seriously considered such options.
Where death is reasonably foreseeable
Patients whose natural death is reasonably foreseeable are no longer required to wait 10 days following their request for MAID.
If the patient’s natural death is reasonably foreseeable and the other eligibility criteria and safeguards have been met, the patient can enter into a written arrangement to receive MAID even if they lose capacity before it is scheduled to be administered. The Criminal Code of Canada mandates the contents of such written arrangements. Waiver of final consent is also permitted in Québec, provided the conditions under Québec’s legislation are met.
A waiver of final consent is not allowed where the patient’s natural death is not reasonably foreseeable.
If after losing capacity, the patient demonstrates by words, sounds, or gestures that they refuse or resist MAID, the waiver is no longer valid and MAID cannot proceed. The words, sounds, or gestures that will be sufficient to constitute resistance or refusal are not defined in the legislation. Physicians must use their judgment based on the individual circumstances of each case. Further guidance may be coming from sources such as regulatory authorities, the government, or medical specialty associations.
The waiver of final consent is different from an “advance request” for MAID. An “advance request” refers to an arrangement where a person is not currently seeking or eligible for MAID. The request is intended to apply to future circumstances under which the patient wants to receive MAID if incapable of asking or consenting. Advance requests are not permitted under existing federal or provincial law, except in Québec.
As of October 30, 2024, advance requests are permitted in Québec provided all the requirements under an Act respecting end-of-life care are met. While the Criminal Code of Canada still prohibits advance requests, Québec’s Minister of Justice and Director of Criminal and Penal Prosecutions issued prosecutorial guidelines and directives stating it is not in the public interest for prosecutors to authorize the filing of criminal charges related to a death that occurred in the context of MAID, or to allow a private prosecution to be pursued, if the evidence establishes that MAID was provided in compliance with the person’s free and informed wishes, taking into account Québec’s end of life legislation. Physicians considering being involved in an advance request for MAID in Québec should contact the CMPA for case-specific advice.
Self-administration
In all jurisdictions except Québec, eligible patients who chose to self-administer oral MAID medications can enter into a written arrangement in advance to allow the MAID practitioner to complete the administration of MAID if the self-administered medication results in the loss of capacity, but not death. The details of such an arrangement and the content of the written documentation are set out in the Criminal Code of Canada. For example, the practitioner must be present at the time of self-administration for the written arrangement to be implemented.
Self-administration of MAID continues to be prohibited in Québec.
Conscientious objection
Some physicians object to MAID on moral or religious grounds. While physicians continue to have no obligation to provide MAID, they also have a pre-existing obligation not to abandon their patients.
Most Colleges have policies that attempt to reconcile the rights of patients and physicians. These policies differ between jurisdictions, including on what is required from a conscientiously objecting physician by way of a referral. Physicians should comply with their College’s requirements, while respectfully following their personal views.
Reporting requirements
Physicians receiving a written request for MAID or conducting a MAID assessment may need to file a report with Health Canada or a designated recipient, even if they are not involved in delivering MAID. Physicians may also have other reporting obligations, including to the coroner or medical examiner, hospital or health authority, or others (e.g. Commission on end-of-life care in Québec).
Physicians are encouraged to consult Health Canada’s website, their College, and/or other applicable MAID policies and regulations for further details on their reporting obligations. The information to be reported, the organization to which the report is made, and the timeline for reporting continue to evolve and may vary depending on the case and jurisdiction.
Physicians with questions about reporting requirements should consider contacting the CMPA.
Practical challenges
In some communities, patients may experience challenges finding healthcare providers able or willing to be involved in MAID. In certain regions, services are available to help connect patients with MAID providers.
The case example also highlights challenges that can arise when family members disagree with the patient’s request. To minimize difficulties that can arise after a patient’s death, physicians should, to the extent possible, encourage patients to involve their family in MAID discussions with the understanding that a request is the patient’s decision.
Medico-legal risks
Unlike most other healthcare services, MAID is governed by criminal law. This means that a physician participating in MAID who does not ensure the required eligibility criteria, safeguards, and reporting requirements are met could be charged with a criminal offence. If found guilty, the physician could face imprisonment of up to 14 years. The physician could also be subject to College sanctions, civil legal actions, or both.
To mitigate these risks, it is important that physicians considering being involved in MAID be familiar with the requirements under the Criminal Code of Canada, provincial/ territorial legislation and their College’s Policy/Standard. They may also consult with resources such as the Canadian Association of MAID Assessors and Providers (CAMAP) Canadian MAID Curriculum and Government of Canada publications on MAID.
When considering a request for MAID
- Know your obligations under the current laws and regulations, in particular the requirements in the Criminal Code of Canada, as well as College and hospital policies. In Québec, be aware that some of the provincial legislative requirements differ from those under the Criminal Code of Canada.
- Assess each request on its own merits based on the facts and circumstances of the case.
- Document carefully in the medical record the processes and discussions around MAID, paying particular attention to the safeguard requirements, especially where death is not reasonably foreseeable.
- While respectfully following your personal views, comply with College expectations regarding conscientious objection.
- Consider consulting with colleagues for support and contact the CMPA for medico-legal advice.
References
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Truchon c. Procureur général du Canada, 2019 QCCS 3792 (CanLII)
