By Jennifer Katz - Wills and Estates Lawyer
On Wednesday, March 17, 2021, the Canadian Senate passed Bill C-7, which then received royal assent. Bill C-7 expands access to medically assisted dying for Canadians. Most notably, Bill C-7 will now provide Canadians suffering intolerably, whose natural death is not immediately foreseeable, the right to seek medical assistance in dying (“MAID”).
Who can access MAID under Bill C-7?
The Criminal Code sets out the eligibility requirements for accessing MAID as follows: individuals have to be at least 18 years of age, be capable of making decisions about their health, and be eligible for government health services.
Further, individuals seeking MAID must make a voluntary request that is without external pressure and must provide informed consent, after being informed of all alternative means available to relieve their suffering.
Finally, individuals must have a grievous and irremediable medical condition. Prior to the enactment of Bill C-7, a person with a grievous and irremediable medical condition is someone who:
- has a serious and incurable illness, disease, or disability;
- is in an advanced state of irreversible decline in capability;
- is experiencing enduring and intolerable suffering that cannot be relieved under conditions acceptable to them; and
- their natural death has become reasonably foreseeable.
Bill C-7 amends the Criminal Code to permit MAID for individuals whose natural death is not reasonably foreseeable.
MAID where natural death is reasonably foreseeable
Bill C-7 relaxes some of the MAID requirements for people whose natural death is reasonably foreseeable. As long as these individuals provide advance consent for MAID, they are no longer required to give final consent immediately before the end-of-life procedure is performed. This revision is intended to ensure that someone who has been approved for MAID will not be denied if they lose mental capacity before the procedure is carried out. Bill C-7 also removes the “10-day reflection period” requiring a person to wait 10 days after being approved for an assisted death before receiving the procedure. Further, the patient’s written request for MAID would only have to be signed by one independent witness, down from two independent witnesses.
MAID where natural death is not reasonably foreseeable
For individuals whose natural death is not reasonably foreseeable, there are a few more hurdles. These individuals face a minimum 90-day assessment period for their request for MAID. They must have a second eligibility assessment by a practitioner with expertise in the condition causing the person’s suffering. The individual must be informed of available counselling services, mental health and disability support services, community services, and palliative care, as appropriate to the individual’s situation. They must be offered consultation with professionals who provide those services. Further, the individual and their practitioners have to agree that reasonable and available means of alleviating the person’s suffering had been discussed and seriously considered before MAID could be provided.
What about those with mental illness?
Bill C-7 continues to prohibit individuals from accessing MAID, where their sole underlying medical condition is a mental illness. Originally, the government intended to impose a blanket ban on MAID for people suffering solely from mental illnesses. However, due to pressure from senators who believed that this exclusion was unconstitutional, the government has implemented a “sunset clause” of two years to address the issue of whether such individuals should be given the same rights to access MAID.
Between now and then, the government has committed to setting up an expert panel to advise on the safeguards and protocols that should apply to people with mental illnesses.
The government also rejected a Senate amendment to allow people who fear losing mental competence to make advance requests for an assisted death.
As MAID becomes more accessible in Canada, it is increasingly important to stay up-to-date regarding its developments and to communicate end-of-life preferences and wishes with loved ones. We will continue to share notable updates as they become available.
If you have any questions or would like information on estate planning or disputes, contact wills and estates lawyer Jennifer Katz at firstname.lastname@example.org.