The Medical Assistance in Dying (MAID) policy sets out physicians’ professional obligations regarding MAID and the Legal Requirements: MAID companion resource sets out the key legal obligations physicians have. This companion Advice to the Profession document provides additional information and guidance on interpreting and applying physicians’ obligations.

The MAID policy and Legal Requirements document refer to MAID providers and MAID Assessors. What is the difference between them?

“MAID provider” refers to a physician or nurse practitioner who assesses the patient requesting MAID to determine if they meet the eligibility criteria, ensures that the procedural safeguards have been met, and if so, provides MAID.

“MAID assessor” refers to the physician or nurse practitioner who provides a written opinion to the MAID provider confirming that the patient meets the eligibility criteria.

When and how do I bring up MAID as an option with patients?

The appropriate timing of discussions regarding MAID is determined by the clinical context and the specific circumstances of the patient. Physicians will have to use their professional judgment to determine if, when, and how to discuss MAID with their patients, keeping in mind that not all patients will be aware that MAID is a legally available option for them.

It is important for physicians to keep the physician-patient power dynamic in mind, approach discussions regarding MAID from a place of respect and trust and allow for sufficient time to have these sensitive conversations. When advising patients of their potential eligibility for MAID, it is important that physicians do not coerce, induce, or pressure patients to either pursue, or not pursue, MAID.

Eligibility

Can requests for MAID be made through an advance directive or substitute decision-maker?

No. The Criminal Code specifies that only patients who are capable of making decisions with respect to their health can request MAID.

What are some considerations to keep in mind when assessing capacity in the MAID context?

It is important for physicians to be aware of situations in which a capacity assessment requires additional knowledge and experience and, in those cases, seek assistance by consulting with colleagues. This is particularly true for decisions with greater complexity or risk (e.g., patients with mental health concerns).

In addition, in some cases, it may be necessary to undertake more than one assessment of a patient’s decision-making capacity in order to have enough information to make a determination as to whether a patient has capacity.

If the requester has mental health concerns and there is a risk of suicidality, physicians will also want to ensure the request for MAID is rationally considered by the patient during a period of stability, and not when the patient is having a mental health crisis.

For more information on assessing capacity, see guidance from the Canadian Association of MAID Providers and Assessors.

What does it mean to make a voluntary request?

As set out in the Criminal Code, physicians must be satisfied that the patient’s decision to request MAID is voluntary and not a result of external pressure, which means it has been made freely, without undue influence (contemporaneous or past) from family members, health care providers, or others. External pressure can also stem from social or societal sources, such as perceived health care or supportive care costs.

In assessing a patient’s request, it is best practice for physicians to speak with the patient alone in order to ask questions that will help identify undue influence, such as interpersonal dependencies that may leave the patient vulnerable, or express concerns. In situations where partners are simultaneously requesting MAID, it may be prudent to use separate and independent assessors and providers for each individual.

Determining voluntariness may require more than one assessment to gain insights into such issues as the consistency of the request, state of ambivalence, etc. When appropriate to do so, physicians can obtain different perspectives to enhance understanding of the voluntariness of the request (e.g., family members, primary care provider with long-standing relationship).

When there are communication barriers, it is helpful to use an independent person (e.g., formal translation services) or process (e.g., communication aides) to support the communication process.

What is a grievous and irremediable medical condition?

A patient must have a grievous and irremediable medical condition to be eligible for MAID. As set out in the Criminal Code, a patient has a grievous and irremediable medical condition if:

1. They have a serious and incurable illness, disease, or disability that is not a mental illness;
2. They are in an advanced state of irreversible decline in capability; and
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.

Health Canada has clarified that:

• ‘Incurable’ means there are no reasonable treatments remaining, where reasonable is determined by the clinician and patient together.
• ‘Capability’ refers to a patient’s functioning (e.g., physical, social, occupational), not the symptoms of their condition.
• ‘Advanced state of decline’ means the reduction in the patient’s functioning is severe.
• ‘Irreversible’ means there are no reasonable interventions remaining, where reasonable is determined by the clinician and patient together.

For the purposes of determining that the suffering criterion for MAID is met, it is important for physicians to:

• explore all dimensions of the patient’s suffering (physical, psychological, social) and the means available to relieve their suffering;
• explore the consistency of the patient’s assessment of their suffering with the patient’s overall clinical presentation and expressed wishes over time; and
• respect the subjectivity of suffering.

Are there unique considerations to raise with patients when obtaining informed consent?

As always, physicians will have to discuss any possible complications as part of obtaining informed consent. In the MAID context, this includes:

• informing patients of the possibility that death may not occur; and
• informing patients who prefer self-administration that if their death is prolonged or not achieved, it will not be possible to intervene and administer medication causing the patient’s death unless:
  • the patient is capable and can provide consent immediately prior to administering; or
  • the patient has entered into a written arrangement providing advance consent for physician-administered MAID.

For more information on obtaining informed consent, see the CMPA website.

Safeguards

How do I determine if a patient’s natural death is reasonably foreseeable or not reasonably foreseeable?

Some of the safeguards for MAID depend on whether or not the patient’s natural death is reasonably foreseeable.¹

Physicians can rely on the following guidance provided by the Court² to inform their assessment of whether a patient’s natural death is reasonably foreseeable:

• natural death does not need to be imminent;
• the question is patient-specific; and
• physicians do not need to determine the specific length of time a patient has remaining in their lifetime.

What if my patient’s death is not reasonably foreseeable and I do not have expertise in the condition causing their suffering?

One of the safeguards for patients whose death is not reasonably foreseeable is that one of the two practitioners confirming eligibility has expertise in the condition that causes the patient’s suffering. In cases where neither practitioner has expertise, a practitioner with that expertise must be consulted.

A ‘practitioner with expertise’ is not required to have a specialist designation. Rather, expertise can be obtained through medical or nurse practitioner education, training, and/or substantial experience in treating the condition causing the person's suffering.

If a patient’s death is not reasonably foreseeable, there needs to be “90 clear days” between the date of the first eligibility assessment and the date MAID is provided. How is “90 clear days” calculated?

The federal government has clarified that the 90-day period begins on the day the patient starts to undergo their first MAID eligibility assessment (e.g., the day on which a MAID provider/assessor first considers or reflects on information that forms part of a MAID assessment, such as reviewing the patient’s file or meeting with the patient). The federal government has explicitly stated that the assessment period can begin before the assessor receives the official request form signed by the patient.

If a patient has difficulty communicating, physicians need to ensure the patient understands the information that is provided to them. What does this mean?

This safeguard is specifically referring to communication barriers rather than capacity issues. For example, if the patient speaks another language physicians may require a translation service or if the patient is deaf, an interpreter may be needed.

General

What do I do with unused MAID drugs?

The Chief Coroner for Ontario sent a communiqué on January 31, 2023, reminding all MAID providers of their responsibility to properly manage and handle medications prescribed for MAID. Specifically, the communiqué reminded MAID providers that medications must only be dispensed under the patient’s name and that unused drugs are to be returned to the pharmacy or dispensing physician for appropriate disposal.

How do I complete a medical certificate of death in the MAID context?

The Vital Statistics Act³ requires physicians who have been in attendance during or have sufficient knowledge of the last illness of a deceased person to complete and sign a medical certificate of death immediately following the death (usually interpreted as within 24 hours following death⁴), unless there is reason to notify the coroner.⁵

In accordance with the government’s Handbook on Medical Certification of Death, the illness, disease, or disability leading to the request for MAID is to be recorded as the cause of death. In addition, the certificate cannot include any reference to MAID or the medications administered.

Can I use virtual care for MAID?

Virtual care technology may be used to conduct patient eligibility assessments, witness requests for MAID, and for other aspects of the MAID process (e.g., consultations with practitioners who have expertise in the condition causing the patient’s suffering, written arrangements for waiver of final consent).

Physicians will have to exercise their professional judgment when determining the appropriateness of using this modality on a case-by-case basis, ensuring they can meet their legal and professional obligations as set out in CPSO’s Virtual Care policy.

What triggers a reporting obligation to Health Canada?

A request to receive MAID triggers an obligation to report to Health Canada. If a patient merely inquires or asks for information about MAID, this kind of exploratory conversation would not trigger an obligation to report.

Endnotes

^1. For more information, see the process maps on the Centre for Effective Practice website.

^2. A.B. v. Canada (Attorney General), 2017 ONSC 3759. 

^3. Section 35(2) of the R.R.O. 1990, Reg. 1094, General, enacted under the Vital Statistics Act, 1990; R.S.O. 1990, c. V.4. The certificate must state the cause of death according to the International Statistical Classification of Diseases and Related Health Problems, as published by the World Health Organization, and be delivered to the funeral director.

^4. This may be extended on weekends, holidays and under unusual or special circumstances.

^5. Section 10 of the Coroners Act, R.S.O. 1990, c. C.37 requires physicians to immediately notify a coroner or police officer if there is reason to believe that an individual has died: as a result of violence, misadventure, negligence, misconduct or malpractice; by unfair means; during pregnancy or following pregnancy in circumstances that might be reasonably attributed to the pregnancy; suddenly and unexpectedly; from disease or sickness for which they were not treated by a legally qualified medical practitioner; from any cause other than disease; or under circumstances that may require investigation.