Advice to the Profession: Medical Assistance in Dying

MAID Providers and Assessors

• “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.

Bringing up the option of MAID 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.
• Moreover, where a patient appears to be deteriorating (or appears to be at risk of deteriorating) rapidly, early discussion of MAID may ensure adequate opportunity to establish eligibility and meet all relevant safeguards, and may minimize the need to provide MAID on an urgent basis.
• In these discussions, physicians will need to:
  • keep the physician-patient power dynamic in mind;
  • come from a place of respect and trust;
  • allow sufficient time; and
  • ensure they do not to coerce, induce, or pressure patients to either pursue, or not pursue, MAID.

MAID Requests

• The Criminal Code specifies that only patients who are capable of making decisions with respect to their health can request MAID. As a result, requests for MAID cannot be made through an advance directive or substitute decision-maker.
• Physicians must be satisfied that the patient’s decision to request MAID is voluntary and not a result of external pressure. This means a decision must be made freely, without undue influence from others, such as family members or health-care providers.
• 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 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.
• When appropriate, 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.

MAID Capacity Assessments

• 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, patients with dementia, situations in which a patient has declined all reasonable health-care options, etc.).
• In some cases, it may be necessary to undertake more than one capacity assessment 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.

Grievous and Irremediable Medical Conditions

• 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:
  • 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
  • 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.
• Where a requestor has declined all reasonable health-care options, physicians may need to coordinate additional assessments and consultations to assess eligibility.
  • Health Canada has clarified that an individual cannot refuse all reasonable treatment solely to meet eligibility criteria for MAID.
• The Ontario Office of the Chief Coroner MAID Death Review Committee has cautioned that where an individual has refused all forms of care, thereby contributing to the incurability of their condition, practitioners may be unable to confirm incurability or irreversible decline and might need to conclude eligibility cannot be determined.

Consent Considerations in the MAID Context

• 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.

Safeguards

• Some of the safeguards for MAID depend on whether or not the patient’s natural death is reasonably foreseeable.
• Physicians can rely on the following guidance provided by the Court 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.
• When a patient’s death is not reasonably foreseeable, one of the two practitioners confirming eligibility must have 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.
• Eligibility for MAID must be clearly classified as Track 1 or Track 2. Safeguards cannot be “mixed” or used interchangeably.
  • If, for example, a requestor deemed eligible according to Track 2 experiences a change in their clinical condition during the assessment period such that the assessor believes their death has become reasonably foreseeable, the assessor may choose to reclassify the person to Track 1 and ensure the associated Track 1 safeguards are met.
• 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.

90-Day Assessment Period

• 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.
• The minimum 90-day assessment period does not begin with a written or verbal MAiD request; it starts from the day on which the first evaluation of the request is completed by a MAID assessor.
• The intended purpose of the 90-day assessment period is to provide suitable time for the MAID assessors to explore relevant aspects of the requestor’s circumstances and identify potential treatment or service options for their condition or disability.
• The 90-day assessment period is not intended to be a period for a requestor to reflect on whether to proceed with MAiD.
• For information on how to calculate the 90-day period, see the Health Canada website.

Unused MAID Drugs

• Unused drugs are to be returned to the pharmacy or dispensing physician for appropriate disposal.

Medical Certificates of Death in the MAID Context

• When completing a medical certificate of death for a person to whom MAID has been administered:
  • The illness, disease or disability leading to the request for MAID is to be recorded as the cause of death.
  • The certificate cannot include any reference to MAID or the medications administered.

Virtual Care in the MAID Context

• Virtual care technology may be used for various aspects of the MAID process, including (but not limited to):
  • conducting patient eligibility assessments;
  • witnessing requests for MAID;
  • consulting with practitioners who have expertise in the condition causing the patient’s suffering; and
  • preparing written arrangements for waiver of final consent.
• Physicians will have to determine whether virtual care is appropriate for MAID-related care on a case-by-case basis. For more information, see CPSO’s Virtual Care policy.

Waivers of Final Consent

• Federal legislation permits individuals whose death is reasonably foreseeable to waive final consent. Advance requests for MAID are not permitted. While the distinction between the two is not yet defined in law, the MAiD Death Review Committee (MDRC) recommends scheduling MAID within six months of the date the waiver is signed, to avoid the waiver of final consent being interpreted as an unlawful advance directive.
• Physicians are encouraged to use the Ministry of Health’s Clinician Aid D resource in preparing Waivers of Final Consent.
• Health Canada has stated that a Waiver of Final Consent is invalid after the identified date for the provision of MAID is passed.

Obligation to Report 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.

Resources

General

• Technical Guidance (Health Canada)
• Checklist for MAID Providers (Ministry of Health)

Assessing Capacity

• Assessment of Capacity to Give Informed Consent (Canadian Association of MAID Assessors and Providers)

Certification of Death

• Handbook on Medical Certification of Death (Government of Ontario)