On March 17, 2021, the federal Government passed Bill C-7: An Act to amend the Criminal Code (medical assistance in dying), which legally expands access to medical assistance in dying (“MAID”) in Canada.

The bill was introduced in October 2020 following the decision of the Superior Court of Quebec in Truchon c. Procureur général du Canada, ,2019 QCCS 3792 (CanLII). It has received Royal Assent and the changes to Canada’s medical assistance in dying (MAID) law are now in effect.

How did we get there?

MAID first became legal in Canada in 2016, following the Supreme Court of Canada’s decision in ,Carter v. Canada, [2015] 1 SCR 331, which revisited its prior decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.

In a unanimous decision, the Supreme Court of Canada held in Carter that sections 241(b) and 14 of the Criminal Code unjustifiably infringed section 7 of the ,Canadian Charter of Rights and Freedoms. In particular, the Court found that the prohibition against medical assistance in dying would no longer be valid to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

In response to the Carter decision, the Parliament of Canada passed Bill C-14 in June 2016, which permitted eligible adults to request medical assistance in dying and set out a process for how MAID could be accessed. According to the 2016 version of the law, to qualify for MAID a person must have a grievous and irremediable medical condition fulfilling the following criteria, all of which had to be met:

1. They have a serious and incurable illness, disease or disability;
2. Their medical condition is characterized by an advanced state of irreversible decline in capability;
3. They are subject to enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable; and
4. Their natural death has become reasonably foreseeable.

In Truchon c. Procureur général du Canada,, 2019 QCCS 3792, the Superior Court of Quebec considered whether it is permissible, in the absence of coercion or constraint, for a capable, adult person who is seriously ill with no chance of improvement, in an advanced state of irreversible decline in capability, and enduring constant and intolerable suffering to receive MAID even though he or she is not approaching death?,[1]

For brief background, the Applicants, Mr. Truchon and Ms. Gladu, had been declared ineligible for MAID and argued that the legislative requirements for their natural death to be reasonably foreseeable violated their section 7 and 15 rights under the Charter and the principles set out by the SCC in the Carter decision. The Superior Court of Quebec agreed. It concluded that the legislative provision requiring a reasonably foreseeable natural death unjustifiably infringed sections 7 and 15 of the Charter. The Court’s original six months suspension of the declaration of invalidity was later extended.

In response to the Truchon decision, the federal Government introduced Bill C-7 to amend the Criminal Code and enable access to a medically assisted death to individuals whose natural death is not reasonably foreseeable, but who otherwise meet the requirements.

Bill C-7 is now the Law: What has changed?

Under the new legislative scheme brought in by Bill C-7, we now have two different sets of safeguards for those whose natural death is reasonably foreseeable and for those whose death is not reasonably foreseeable.

For individuals whose natural death is reasonably foreseeable, the prior safeguards set out by the 2016 version of the law continue to apply subject to two modifications. First, the patient’s written request for MAID only needs to be signed by one independent witness, rather than two. Second, the 10-day reflection period is eliminated. See Criminal Code, s. 241.2 (3).

Individuals seeking MAID whose natural death is not reasonably foreseeable are also subject to four new or clarified safeguards, which include: a minimum 90-day assessment period, a second eligibility assessment by a practitioner with expertise in the condition that is causing the person’s suffering, and two clarifications on informed consent. See Criminal Code, s. 241.2 (3.1).

Bill C-7 also created two exceptions to the requirement for “final consent” at the time of the MAID procedure for persons whose natural death is reasonably foreseeable and who have entered into an advance consent arrangement, as well as for cases of failed self-administration. See Criminal Code, ss. 241.2 (3.2) and (3.5) for the full set of requirements.

For nurses involved in providing MAID or who have received a request from a patient for MAID, the College of Nurses of Ontario (CNO) has released a ,guidance document clarifying nurses’ roles in the process.

What about Individuals with mental illness?

Bill C-7 did not extend eligibility for MAID to individuals whose sole underlying medical condition is a mental illness. Individuals who suffer solely from mental illness are temporarily excluded from eligibility and the issue remains under review.

Bill C-7 requires the Ministers of Justice and Health to initiate an expert review tasked with making recommendations within the next year on protocols, guidance and safeguards for MAID for persons suffering from mental illness. See S.C. 2021 c.2, s. 3.1(1). Further changes may well be on the horizon in this area.

,What about healthcare providers’ freedom of conscience and religion?

Bill C-7 broadens the situations in which medical assistance in dying is available and concerns remain about the interaction between the legislated MAID scheme and healthcare provider’s freedom of conscience and religious rights under section 2(a) of the Charter.

Physicians, of course, remain subject to the standards and policies of the CPSO, which include the provision of effective referrals to patients who request access to a medically assisted death. Nurse Practitioners (NPs) who receive a patient request for MAID are also required to provide a referral if they are not prepared or able to assist themselves.

The Courts have endorsed the College’s effective referral policies. In The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, ,2018 ONSC 579 (CanLII), the Ontario Divisional Court upheld the Effective Referral Provisions of the Policies and the Emergency Referral Provision of the ,Human Rights Policy of the College of Physician and Surgeons of Ontario (CPSO). The appeal was dismissed, see ,2019 ONCA 393 (CanLII).

The issue however remains a hot topic of discussion. In February 2021, Kelly Block, MPP for Carleton Trail – Eagle Creek introduced a private member’s bill, Bill C-268, An Act to amend the Criminal Code (intimidation of health care professionals) addressing these concerns. She recently spoke to the private member’s bill in Parliament on April 20, 2021, noting that conscience rights are fundamental freedoms protected by the Charter and their rights are being severely undermined for medical professionals in relation to medical aid in dying.

Ongoing Debate and Review

Amongst those who see the most recent changes to the MAID scheme as problematic some disability rights advocates. See for example this story published by TVO. Others welcome the changes as an expansion of rights and individual freedoms.

The Government of Canada has recognized that there remain outstanding issues related to MAID that must still be explored. In a ,press release of March 17, 2021 announcing the legislative changes, the Government noted:

“Medical assistance in dying (MAID) is a complex and deeply personal issue. The Government of Canada is committed to ensuring our laws reflect Canadians’ evolving needs, support their autonomy and freedom of choice, and protect those who are vulnerable.”

As part of Bill C-7, the Government of Canada committed to a federal monitoring regime

to provide for a reliable national dataset that would promote accountability under the law governing MAID and foster transparency in its implementation.

Bill C-7 also provides that a comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application must be undertaken by a Joint Committee of both Houses of Parliament and initiated within 30 days of Royal Assent. The review will cover a variety of issues including the application of medical assistance in dying to mature minors, advance requests, mental illness, palliative care in Canada, and the protection of Canadians with disabilities. See S.C. 2021 c.2, s. 5.

With Bill C-7 now having received Royal Assent, we have entered the next era of medical assistance in dying in Canada, but surely not the last.

[1] The Quebec Act respecting end-of-life care, ,CQLR, c. S-32.0001 (”provincial statute” or “Quebec statute” or “Bill 52”), required that “the person be at the end of life, be suffering from a serious and incurable illness, be in an advanced state of irreversible decline in capability, and experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.”

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Carina Lentsch is an Ontario health lawyer and an advocate. She helps health professionals navigate regulatory College, privacy and human rights matters.

Carina writes about legal issues relevant to health professionals. Her articles are intended as an informational resource and are not legal advice. If you need help with a situation you are facing, ,contact Carina directly for a consultation. To learn more about her law practice, ,click here. You can subscribe to Carina’s newsletter and follow her on ,Facebook for updates @aclhealthlaw.