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Legal Requirements: Medical Assistance in Dying

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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eligible for MAID.4 This exclusion will remain in place until March 17, 2024, at which time it is expected to be repealed.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:

  1. 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.
  2. Be at least 18 years old and capable of making decisions with respect to their health.
  3. 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.
  1. Make a voluntary request for MAID that, in particular, was not made as a result of external pressure.
  2. 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:

  1. Be of the opinion that the patient has met all of the eligibility criteria.
  1. Ensure that the patient’s request for MAID was (i) made in writing, and (ii) signed and dated by the patient after the patient was informed by a physician or nurse practitioner that they have a grievous and irremediable medical condition.7

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:

  • is at least 18 years old;
  • understands the nature of the request for MAID; and
  • does not know or believe that they are a beneficiary under the will of the patient, or a recipient, in any other way, of a financial or other material benefit resulting from the patient’s death.
  1. Be satisfied that the request for MAID was signed and dated before an independent witness who then also signed and dated the request.

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:

  • Know or believe that they are a beneficiary under the patient’s will, or are a recipient in any other way of a financial or other material benefit resulting from the patient’s death.
  • Are an owner or operator of any health care facility at which the patient is being treated or any facility in which the patient resides.
  • Are directly involved in providing health care services or personal care to the patient, unless they provide the services or care as their primary occupation and are paid to provide that care to the patient (e.g., a personal support worker who is a paid employee).

A MAID provider and MAID assessor may not act as an independent witness.

  1. Ensure that the patient has been informed that they may, at any time and in any manner, withdraw their request.
  1. Ensure that a MAID assessor assessed the patient and provided a written opinion confirming that the patient meets all of the eligibility criteria.

 

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.

  1. Be satisfied that they and the MAID assessor are independent from each other and from the patient.

The MAID provider and MAID assessor are independent if they:

  • Are not a mentor to the other, or responsible for supervising the other’s work;
  • Do not know or believe that they are a beneficiary under the will of the patient, or a recipient, in any other way, of a financial or other material benefit resulting from the patient’s death, other than standard compensation for their services relating to the request; and
  • Do not know or believe that they are connected to each other or to the patient making the request in any other way that would affect their objectivity.

 

  1. Ensure that the patient has been (i) informed of the means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care, and (ii) offered consultations with relevant professionals who provide those services or that care.

 

  1. Ensure that the MAID provider and MAID assessor have (i) discussed with the patient the reasonable and available means to relieve the patient’s suffering, and (ii) agree with the patient that the patient has given serious consideration to those means.

 

  1. Ensure that there are at least 90 clear days between the day of the first eligibility assessment for MAID and the date MAID is provided or — if the assessments have been completed and the MAID provider and MAID assessor are both of the opinion that the loss of the patient’s capacity to provide consent to receive MAID is imminent — any shorter period that the MAID provider considers appropriate in the circumstances.
  1. If the patient has difficulty communicating, take all necessary measures to provide a reliable means by which the patient may understand the information that is provided to them and communicate their decision.
  1. Give the patient an opportunity to withdraw their request immediately before providing MAID and ensure that the patient gives express consent to receive MAID.8

 

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:

  1. the patient’s natural death is reasonably foreseeable;
  2. before the patient lost capacity to consent to receive MAID:
    1. the patient met the eligibility criteria and all relevant safeguards;
    2. 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;
    3. 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
    4. 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;
  3. the patient has lost the capacity to consent to receiving MAID;
  4. the patient does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration; 910 and
  5. 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:

  1. 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:
  1. be present when the patient self-administers the first substance; and
  2. 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;
  1. 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
  2. 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:

  1. history of recent injury;
  2. history of remote injury that led to conditions that prompted the request for MAID; or
  3. 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:

  1. the physician becomes aware that the person withdrew the request for MAID;19
  2. the physician becomes aware of the person’s death from a cause other than MAID;20 or
  3. 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

1. R.S.C. 1985, c. C-46.

2. SOR/2018-166, enacted under the Criminal Code.

3. R.S.O. 1990, c. C.37.

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.