Area of Law: Wills, Estates and Powers of Attorney
Answer # 161
Medically assisted death (MAID)Region: Ontario Answer # 161
What is the law in Canada regarding medical assistance in dying?
In June 2016, the Federal Government created new legislation that makes it legal for eligible individuals to request medical assistance in dying (MAID). Since then, there have been about 3,000 medically assisted deaths in Canada. Cancer was the most frequently reported underlying medical condition associated with 63% of the all assisted dying cases. Although the age range of patients was from 18-90+, the average age of those who received assistance in dying was 73.
An Act to amend the Criminal Code and to make amendments to other Acts (medical assistance in dying) became law on June 17, 2016. The Act also makes a person not guilty of a criminal offence if they provide or assist in providing medical assistance in dying according to the conditions and safeguards in the law.
The Act sets out the rules regarding:
- who is eligible for medical assistance in dying,
- who can administer the medical assistance,
- procedural safeguards,
- regulations and guidelines, and
- the punishment for failure to comply with the safeguards and regulations.
What is medical assistance in dying?
Medical assistance in dying is also known as euthanasia, assisted suicide, or death with dignity. Under the Act, medical assistance in dying means:
(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death (sometimes called euthanasia); or
(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death (sometimes called assisted suicide).
A medical practitioner is defined as “a person who is entitled to practise medicine under the laws of a province.”
A nurse practitioner is a “registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner — or under an equivalent designation — and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients.”
Who is eligible for medical assistance in dying?
The Act sets the criteria for who is eligible to receive medical assistance in dying. An individual is eligible only if they meet all of the following:
- they are eligible for health services funded by a government in Canada (territory, province or federal);
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that was not made as a result of external pressure or influence; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
To be approved for a medically assisted death, the individual must pass fairly onerous thresholds with respect to the severity of their medical condition. Under the Act, an individual has a grievous and irremediable medical condition if:
- they have a serious and incurable illness, disease or disability;
- they are in an advanced state of decline that cannot be reversed; and
- they are enduring unbearable physical or mental suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.
What does informed consent mean?
Informed consent means the person has given permission to medical assistance in dying after receiving all of the information they need to make their decision. This includes:
- a medical diagnosis,
- available forms of treatment, and
- available options to relieve suffering, including palliative care.
Mental illness and physical disability
Those with a mental illness or a physical disability may also be eligible for medical assistance in dying. Eligibility is assessed on an individual basis, however, all the eligibility criteria must be met.
Who can provide medical assistance in dying and who can help
Those who legally can provide medical assistance in dying services are:
- nurse practitioners (in provinces where this is allowed)
Those who can help provide medical assistance in dying include:
- family members or other people that you ask to help,
- health care providers who help physicians or nurse practitioners.
These people can assist in the process without being charged under criminal law. However, physicians, nurse practitioners and other people who are directly involved must follow:
- the rules set out in the Criminal Code, and
- applicable provincial and territorial health-related laws, rules and policies.
The legislation does not require any person to provide or help to provide medical assistance in dying.
There are 2 types of medical assistance in dying available in Canada. They each must include a physician or nurse practitioner who:
- Directly administers a substance that causes death, such as an injection of a drug. This process was previously known as voluntary euthanasia, and is now becoming known as clinician-assisted medical assistance in dying; or
- Provides or prescribes a drug that the eligible person takes themselves, in order to bring about their own death. This process was previously known as medically assisted suicide or assisted suicide, and now is becoming known as self-administered medical assistance in dying.
Obtaining medical assistance in dying
Any Canadian who is eligible can request medical assistance in dying. The specifics regarding how and where it is offered depends on the province or territory, and the health professionals’ regulatory body and medical institutions in that jurisdiction.
For instance, in most provinces, a person can request medical assistance in dying regardless of where they live, such as:
- their home,
- a hospital,
- a hospice or palliative care facility, or
- a long-term care home.
Application process & safeguards
The Act sets out a number of procedural safeguards to ensure the safety of the individual during the application process and before a medical practitioner or nurse practitioner provides a person with medical assistance in dying.
Offences under the Act
The Act sets out the punishment for failing to comply with the legislation or its regulations. Offences include:
- failure to comply with safeguards,
- forgery of a request for medical assistance in dying,
- destruction of documents related to a request,
- failure to file required documents with appropriate body, and
- not providing information or providing false information to be included on death certificate.
Depending on the offence, punishment can include imprisonment from 18 months up-to five years.
The legislation regarding medical assistance in death is a federal law. However, additional health-related laws, or rules may be created by provinces and territories, and policies and procedures may vary.
For instance, provincial and territorial laws may address:
- if specific forms are required,
- any special medical training for providers of the service,
- how information and data on the service are provided,
- rules or requirements for the two types of medical assistance in dying.
In May 2017, Ontario passed the Medical Assistance in Dying Statute Law Amendment Act to provide more protection and greater clarity for patients, their families, health care providers and health care institutions.
The Medical Assistance in Dying Law ensures:
- Benefits, such as insurance payments and workplace safety and insurance benefits, are not denied only because of a medically assisted death.
- Physicians and nurse practitioners, those who assist them, and care provider institutions, are protected from civil liability when lawfully providing medical assistance in dying, except in cases of negligence.
- Identifiable information about individuals and facilities that provide medical assistance in dying are protected from disclosure under access to information requests.
- Effective ongoing reporting and monitoring by the Chief Coroner of Ontario for cases of medical assistance in dying.
Ontario’s MAID Care Coordination Service
The Ontario Ministry of Health and Long-Term Care has also established the MAID Care Coordination Service which:
- assists patients and caregivers in accessing additional information and services for medical assistance in dying and other end-of-life options, including information on hospice care and palliative care options;
- provides information, tools and training to support patients, caregivers and health care providers on medical assistance in dying-related matters; and
- connect patients and caregivers to doctors or nurse practitioners who can provide medical assistance in dying services, including eligibility assessments and administering drugs .
The Care Coordination Service telephone line at 1-866-286-4023 is open 24 hours a day, 7 days a week, and is available in English and French. Services can be provided in other languages if requested. Visit Ontario.ca for more information on MAID in Ontario and the Care Coordination Service.
Medical assistance in death outside Canada
Although the new legislation makes it possible for Canadians to seek assistance in dying, it is still quite difficult for many patients to get approved. In response, some stop eating and drinking to hasten death, others have committed suicide by drug overdose or other, and often violent means. And still others who can afford it, have arranged to end their lives at facilities in Switzerland, such as Dignitas, which allows foreigners to receive an assisted death.
Other jurisdictions, including the U.S. state of Oregon and the Netherlands, not only legalized the process, they also keep detailed statistics. Their records concluded that:
- vulnerable people were not being coerced into ending their lives;
- the number of assisted deaths constituted a minute proportion of annual mortality figures; and that, indeed,
- palliative care improved because asking for medical help in dying required an end-of-life conversation between patient and doctor about values and choices.
Bill-C7 receives Royal Assent, amending MAID
On February 24, 2020, the Minister of Justice and Attorney General of Canada introduced a bill proposing changes to provisions on medical assistance in dying (MAID) in the Criminal Code. The Bill received Royal Assent in the Senate on March 17, 2021. As per the Department of Justice, the new law:
- removes the requirement for a person’s natural death to be reasonably foreseeable in order to be eligible for MAID
- introduces a two-track approach to procedural safeguards based on whether or not a person’s natural death is reasonably foreseeable
- existing safeguards are maintained and, in some cases, eased for eligible persons whose natural death is reasonably foreseeable
- new and strengthened safeguards are introduced for eligible persons whose natural death is not reasonably foreseeable
- temporarily excludes eligibility for individuals suffering solely from mental illness for 24 months, and requires the Ministers of Justice and Health to initiate an expert review tasked with making recommendations within the next year on protocols, guidance and safeguards for MAID for persons suffering from mental illness
- allows eligible persons whose natural death is reasonably foreseeable, and who have a set date to receive MAID, to waive final consent if they are at risk of losing capacity in the interim
- allows for expanded data collection and analysis through the federal monitoring regime to provide a more complete and inclusive picture of MAID in Canada
For more information on medical assistance in dying and federal law, visit canada.ca.
For information about Wills, visit the Ontario Ministry of the Attorney General website.
Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
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