"Not having to die is a desire that's as old as humankind itself. Even if life expectancy has increased and medicine has made tremendous progress, every life must come to an end at some point... Dying, death and grief are things that are very personal and intimate, and yet they are also aspects of our lives as a community. The way we as individuals deal with these existential situations and emotions is shaped by the way society itself deals with death." (German Hygiene Museum, Dresden, Germany)
How society deals with death is changing. The passing of Bill C-14 (June 2016) and subsequent amendments in Bill C-7 (March 2021) made legal that which had previously been illegal. In 2022, in Canada, 13,241 individuals (accounting for 4.1% of all deaths) had MAID (Table 3.1; Chart 3.2). The average age of MAID recipients was 77 (Section 4.2), and cancer-related illnesses were the most commonly reported underlying medical condition (63%). The primary reasons cited for seeking MAID were loss of ability to engage in meaningful activities (86.3%), inability to perform daily activities (81.9%), and concerns about pain control (59.2%) (Section 4.3). As MAID enters its eighth year of legalization, society's navigation of one of the most significant shifts in healthcare practice and end-of-life law continues on multiple fronts.
The Role of the Courts in Assessments
What happens if a family member disagrees with an individual's choice to seek MAID and/or the MAID assessors' opinions? This situation came forward in Nova Scotia in 2020 when a spouse applied for both a permanent and interlocutory injunction to stop a medically assisted death. Justice Rosinski dismissed the interlocutory injunction application, and Justice Van den Eynden declined to grant a subsequent stay of the lower court order pending appeal. In October of 2020, the Nova Scotia Court of Appeal concluded, "there is no role for courts in the review of MAID eligibility assessments…[and] further, the courts do not possess the institutional capacity to review MAID eligibility assessments in a manner that respects section 7 Charter rights of persons who have been approved (Results, para 3 & 4)." This ruling underscores that, despite the complexities and family disagreements that may be involved, court intervention is not considered appropriate in MAID requests and eligibility assessments.
Mental Disorder as Sole Underlying Medical Condition (MD-SUMC)
Bill C-7 (March 2021) specifies "that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying." This limitation was to be repealed on the second anniversary of Royal Assent. However, the Government of Canada passed Bill C-39, delaying the expansion, citing needing additional time to prepare practitioners for assessment and to consider the Special Joint Committee on MAID Report (Tabled February 15, 2023). This report, in addition to three other reports, highlight the complex considerations when considering MAID MD-SUMC. These considerations include capacity and capacity assessments, the question of what is irremediable in the context of mental illness, structural vulnerability and autonomy, lack of healthcare practitioner consensus, access to mental healthcare and treatment, and suicidality versus a MAID request. Legal counsel for the Criminal Law Policy Section of the Department of Justice noted there are "considerations supporting the constitutionality of both prohibiting and permitting" MAID for MD-SUMC (p. 15). Specifically providing vulnerable populations with Criminal Code protections against death and violating the rights of equality, liberty and security for those with mental disorders. On February 29, 2024, expansion was delayed three years, and MAID for those with MD-SUMC remain ineligible.
Religious Institutions Exemptions
Bill C-14 clearly states nothing in the Act affects the guarantee of freedom of conscience and religion (Preamble, para.11), and professional associations and employers have been operationalizing conscientious objection pathways since then. The Report of the Special Joint Committee on Physician-Assisted Dying February 2016 recommended the Government of Canada work with the provinces/territories to ensure that all publicly-funded healthcare institutions provide MAID (pg. 36).
A Charter challenge was filed on June 17, 2024, involving Providence Health Care Society and Vancouver Coastal Health at the BC Supreme Court. This case, brought forward by the family of an individual transferred for MAID, an end-of-life physician, and Dying with Dignity Canada, raises complex questions and may address critical questions such as: Can an institution have a conscience? Does freedom of religion extend to decisions on legally available, publicly funded healthcare? What is the role of religion in publicly funded healthcare? Is it reasonable for all institutions to provide all legally available services? What happens when the institution's beliefs differ from the individual or healthcare practitioner? Daphne Gilbert, Faculty of Law at the University of Ottawa, has penned a deep dive into religious and conscience objections to MAID for additional reading.
Advanced Requests for MAID
Confusion remains among individuals and families regarding advanced requests (not legal in Canada) versus advanced consent (a written arrangement with a MAID provider to complete the assisted death if there are complications after the medications have been self-administered) and waiver of final consent (Track 1 individuals who are assessed and approved for MAID, may receive MAID on their chosen date, even if they have lost the capacity to provide final consent at the time of MAID). Some believe advanced requests may be on the horizon, with at least one Senator advocating for the same. However, at present, advanced requests for MAID are part of advanced care planning, advanced directives, and proxy decision-makers are not legal.
Conclusion
Individuals and their families often seek information and legal counsel regarding end-of-life planning. The legal and healthcare communities must keep abreast of end-of-life law and healthcare changes to provide individuals and families with accurate information to support individual autonomy at the end-of-life.
Dr. Janine Brown, RN, Ph.D., CCNE (she/her), is an Associate Professor and an Associate Dean with the Faculty of Nursing at the University of Regina. She has an active program of research in end-of-life and MAID.