It is timely to consider the topic of medical assistance in dying. Since June 17, 2016, three years ago last week, Canadian law has recognized as a fundamental human right to be protected by our Charter of Rights and Freedoms the right to have assisted dying. On that date, Parliament amended the Criminal Code to legalize medical assistance in dying (“MAID”).
Canada joined a small but growing number of jurisdictions which allow either assisted suicide (where a person helps another to end their life but the patient takes their own life), such as prescribing life-ending medication, or voluntary euthanasia where a practitioner administers medication that causes a patient’s death. Assisted dying is also allowed in Belgium, Colombia, Luxembourg, The Netherlands, Germany, Japan, Switzerland, several U.S. states and the State of Victoria, Australia, but only The Netherlands, Belgium, Columbia, Luxembourg and Canada and just last week, the State of Victoria have legalized voluntary euthanasia.
There is a lot of confusion and misinformation about MAID. To summarize, in Canada, to be eligible a person must be a Canadian resident eligible for health services (generally visitors to Canada are not eligible in order to prevent “suicide tourism”), must be 18 years old, mentally competent and have a grievous and irremediable medical condition, make a voluntary request for MAID and give informed consent to MAID.
Additionally, the person must be at a point where death has become reasonably foreseeable. A fatal or terminal condition is not required. As well, they must experience unbearable physical or mental suffering that cannot be relieved under conditions that are considered acceptable.
It is interesting, and perhaps surprising, to observe how many Canadians have requested a physician-assisted death: over 3,700 or about 1% of Canadian deaths since 2016. With our aging population, one may expect these numbers only to grow.
One of the main criticisms of the legislation is that informed consent must be given twice: at the time the request is made and a final consent immediately prior to the administration of life-ending drugs. Where a person is suffering from a disease and they are capable at the time of the request, they may later become incapable, including as a result of pain medication, and not be able to provide an informed consent. In some situations, this has resulted in a person having to choose to have MAID before the date they would otherwise wish or not being able to have MAID at all. In some cases, patients have refused pain medication out of fear they would not be capable to give a final consent. Another criticism is that one cannot give an advance directive for MAID.
As part of estate planning, in preparing powers of attorney for personal care and letters of wishes and advance health care directives, many clients are increasingly concerned about MAID, and some would like to be able to give an advance directive for MAID that would be followed some time in the future. This would be particularly relevant for those who have been diagnosed with dementia, where at a later point they may not be mentally capable to provide consent. At this time, the only jurisdiction that allows for advance requests for assistance in dying is The Netherlands.
It is important to consider that the type of advance health care directive typically given in conjunction with a power of attorney for personal care is really a statement of wishes used as part of decision-making by attorneys for personal care and medical professionals to carry out a person’s wishes for personal care, including at the end of life, and it is not informed consent to a certain course of treatment. A fundamental part of Canadian assisted dying legislation is ensuring informed consent as a protection, including against possible abuse, which disallows as a result advance directives.
It will be interesting to see how the present legislation evolves and how approaches, requirements and attitudes change on this most challenging issue. No doubt, Canada as one of the handful of countries which currently allow MAID will be at the forefront of the legal and ethical debates that will continue for years to come.
-Margaret O’Sullivan
The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. In particular, they are not intended to provide U.S. legal or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.