This document sets out the requirements for Medical Assistance in Dying (MAID) that are based in legislation. Much of the language in this document is taken directly from the Criminal Code1 (ss. 241.1 to 241.4), the Regulations for the Monitoring of Medical Assistance in Dying,2 and the Coroners Act3 (s. 10.1).
Section 241.2 (2.1) of the Criminal Code specifically excludes a mental illness as an illness, disease, or disability that makes an individual eligible for MAID.4 This exclusion will remain in place until March 17, 2027, at which time it is expected to be repealed.
Physicians may want to seek independent legal advice if they have questions about meeting the legal requirements. In the case of any inconsistency between this document and any applicable legislation, the legislation will always prevail.
Providing MAID
Nothing in the Criminal Code compels physicians to provide, or assist in providing, MAID. However, where a physician provides MAID, it must be provided with reasonable knowledge, care, and skill.
Eligibility Criteria for MAID
To be eligible for MAID, a patient must:
- Be eligible – or, but for any applicable minimum period of residence or waiting period, would be eligible – for health services funded by a government in Canada.
- Be at least 18 years old and capable of making decisions with respect to their health.
- Have a grievous and irremediable medical condition, meaning:
- they have a serious and incurable illness, disease, or disability that is not a mental illness;
- they are in an advanced state of irreversible decline in capability; and
- their illness, disease, disability, or state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable.
- Make a voluntary request for MAID that, in particular, was not made as a result of external pressure.
- Give informed consent to receive MAID after having been informed of the means available to relieve their suffering, including palliative care.
Safeguards for MAID
The federal legislation sets out safeguards that must be met before MAID is provided. The applicability of some safeguards depends on whether the patient’s natural death is reasonably foreseeable.5
Natural Death Reasonably Foreseeable |
Natural Death Not Reasonably Foreseeable |
Before a MAID provider administers a substance that causes a patient’s death, or prescribes or provides a substance for a patient to self-administer to cause their own death,6 the MAID provider must: |
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If the patient is unable to sign and date the request, another person may do so in the patient’s presence, on the patient’s behalf and under the patient’s express direction, if the person:
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An independent witness is someone who is at least 18 years old, and who understands the nature of the request for MAID. A person may not act as an independent witness if they:
A MAID provider and MAID assessor may not act as an independent witness. |
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5.1 If neither the MAID provider nor the MAID assessor has expertise in the condition that is causing the patient’s suffering, the MAID provider must ensure that they or the MAID assessor consult with a physician or nurse practitioner who has that expertise and must share the results of that consultation with each other. |
The MAID provider and MAID assessor are independent if they:
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Final Consent – Waiver
Patients whose natural death is reasonably foreseeable have the option of entering into a written arrangement with the MAID provider, waiving the requirement that they give express consent immediately before receiving MAID in the event they lose capacity to consent.
MAID can only be provided without meeting the requirement for final express consent set out in safeguard 11 above if:
- the patient’s natural death is reasonably foreseeable;
- before the patient lost capacity to consent to receive MAID:
- the patient met the eligibility criteria and all relevant safeguards;
- the patient and the MAID provider entered into a written arrangement that the provider would administer a substance to cause the patient’s death on a specified day;
- the MAID provider informed the patient of the risk of losing capacity to consent to receive MAID prior to the day specified in the written arrangement; and
- the written arrangement provides the patient’s consent for the provider to administer a substance to cause their death on or before the day specified in the arrangement if they lose their capacity to consent prior to that day;
- the patient has lost the capacity to consent to receiving MAID;
- the patient does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration; 9, 10 and
- the MAID provider administers the substance to the patient in accordance with the terms of the written arrangement.
Advance Consent – Self Administration
Patients who choose to self-administer MAID have the option of entering into a written arrangement with a MAID provider, permitting the MAID provider to intervene to administer MAID if self-administration does not result in death within a specified period and the patient loses capacity to consent after attempting self-administration.
Advance arrangements relating to self-administration are available regardless of whether or not the patient’s natural death is reasonably foreseeable.
MAID can only be provided to a patient who has unsuccessfully attempted self-administration, and who has lost capacity to consent, without meeting the requirement for final express consent set out in safeguard 11 above if:
- before the patient lost their capacity to consent to receive MAID, the patient and MAID provider entered into a written arrangement that states the MAID provider will:
- be present when the patient self-administers the first substance; and
- administer a second substance to cause the patient’s death, if after self-administering the first substance, the patient loses their capacity to consent to receive MAID and does not die within a specified period;
- after the patient self-administers the first substance, the patient loses capacity to consent to receive MAID and does not die within the time period specified in the written arrangement; and
- the MAID provider administers the second substance to the patient in accordance with the terms of the written arrangement.
Reporting MAID11
Reporting to the Office of the Chief Coroner for Ontario (OCC)12
In cases where the MAID provider either administers a substance or prescribes or provides a substance for the patient to self-administer, and the MAID provider becomes aware that the patient has died from MAID, the MAID provider must report to the OCC within one business day13 after becoming aware that the patient has died.14
However, MAID providers must call the OCC immediately after a death occurs to report the death if any of the following circumstances were involved:
- history of recent injury;
- history of remote injury that led to conditions that prompted the request for MAID; or
- the MAID provider lists an injury as the immediate cause of death or as a contributing condition to the death.
Reporting to Health Canada15
Report Always Required
In cases where a MAID provider prescribes or provides a substance for self-administration and does not know if the person has died, the MAID provider must report to Health Canada between 90 days and 1 year after the substance was provided or prescribed.16
Report Required Unless Exception Below Applies
In cases where a physician carries out an eligibility assessment or receives a written request for MAID, and determines that the person is ineligible for MAID, the physician must report to Health Canada within 30 days after making the determination.17
In cases where a physician received a request for MAID (in any form)18 and a medically assisted death has not occurred, the physician must report to Health Canada within 30 days if any of the following has occurred:
- the physician becomes aware that the person withdrew the request for MAID;19
- the physician becomes aware of the person’s death from a cause other than MAID;20 or
- the physician determines that the person is eligible to receive MAID, but does not provide MAID because they determine that a safeguard has not been met.
Exception
In the case of a patient whose natural death is reasonably foreseeable, if any of the above occurs after 90 days of receiving the request, no report is required.
In the case of a patient whose natural death is not reasonably foreseeable, if any of the above occurs after 2 years of receiving the request, no report is required.
Endnotes
2. SOR/2018-166, enacted under the Criminal Code.
4. For clarity, a patient whose sole underlying medical condition is a mental illness (and who otherwise meets all eligibility criteria) is not currently eligible for MAID, but a patient with a mental illness may also have a serious and incurable illness, disease, or disability that makes them eligible for MAID provided all of the other eligibility criteria are met.
5. For more information on the meaning of “reasonably foreseeable natural death”, see CPSO’s Advice to the Profession: Medical Assistance in Dying.
6. Before any pharmacist dispenses a substance for MAID, the MAID provider must inform the pharmacist that the substance is intended for MAID.
7. The federal legislation does not require that a patient be informed that they have a grievous and irremediable medical condition in the context of an eligibility assessment for MAID (e.g., another physician may have already informed the patient that they have a grievous and irremediable medical condition).
8. See the Final Consent – Waiver and Advance Consent – Self-Administration sections below for exceptions to this requirement.
9. Involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance.
10. Once the patient demonstrates, by words, sounds, or gestures refusal or resistance to its administration, MAID can no longer be provided on the basis of the patient’s consent in the written arrangement.
11. For information in relation to reporting, see the Regulations for the Monitoring of Medical Assistance in Dying, SOR/2018-166 and s. 10.1 of the Coroners Act.
12. See https://forms.mgcs.gov.on.ca/dataset/on00413 for the form to use when reporting to the OCC. The OCC will collect information from physicians on all medically assisted deaths, and will report to the federal Minister of Health (i.e., Heath Canada) on their behalf.
13. The OCC form sets out that physicians must submit the report within one business day.
14. Health Canada has stated that physicians are never required to actively seek out information regarding whether the person has withdrawn their request for MAID or has died.
15. Physicians are required to use the Canadian MAID Data Collection Portal to make their report to Health Canada.
16. See footnote 14.
17. This provision also applies if the physician determined that the person initially met the eligibility criteria but subsequently determined that the person did not meet one or more of those criteria.
18. The request for MAID that triggers these reporting requirements to Health Canada can be made in any form, including a verbal request, email or text message. It does not have to be the formal written, signed and witnessed request required under the Criminal Code. It must, however, be more than an inquiry or a request for information about MAID.
19. See footnote 14.
20. See footnote 14.