Proposed amendments to medically-assisted dying rules

On February 24, 2020, the Government of Canada presented to the House of Commons proposed legislative amendments to the country’s Criminal Code[1] via Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)[2](Bill C-7). The Bill passed second reading, but now appears to have stalled, like so many things, due to the COVID-19 pandemic.

The proposed amendments under Bill C-7 would:

1. repeal the provision that requires a person’s natural death to be reasonably foreseeable in order for them to be eligible for medical assistance in dying (MAID);
2. specify that persons whose sole underlying medical condition is a mental illness are not eligible for MAID;
3. create two sets of safeguards that must be respected before MAID may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
4. permit MAID to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before MAID is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
5. permit MAID to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing MAID in order to cause their own death.[3]

The amendment would also expand data collection through the federal monitoring regime to provide a more complete picture of MAID in Canada.[4]

The legislation that currently governs MAID was enacted in 2016 following the landmark decision issued by the Supreme Court of Canada on physician-assisted dying in Carter v Canada (Attorney General).[5] In this decision, the Court unanimously declared the provisions of the Criminal Code which make it a crime to assist another individual in dying, to be unconstitutional 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. As a result, the offending Criminal Code provisions were declared to be of no force or effect.

In response to the Supreme Court’s decision in Carter, the Government amended the Criminal Code.[6] The amendments require a person to meet all of the following criteria to receive MAID:

1. be eligible for publically funded health services in Canada;
2. be at least 18 years of age and capable of making decisions with respect to their health;
3. have a grievous and irremediable medical condition, meaning,
   • a serious and incurable illness, disease or disability,
   • an advanced state of irreversible decline in capability,
   • enduring physical or psychological suffering, caused by the medical condition, that is intolerable to them and that cannot be relieved under conditions that they consider acceptable, and
   • natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining;
4. have voluntarily requested medical assistance in dying, which request was not made as a result of external pressure; and
5. provide informed consent to receive medical assistance in dying.

The requirement for capacity to give informed consent at the time MAID is being administered has precluded Canadians from pre-authorizing MAID in an advance health care directive.  Bill C-7 would provide limited opportunity to access MAID if capacity is lost; however, the proposed legislation does not appear to allow a broad advance directive for MAID, nor to allow a health care agent to consent to MAID on behalf of someone who has lost capacity.

Bill C-14 required a parliamentary review of the Criminal Code amendments, as well as the state of palliative care in Canada, by one or more committees by June 2020.[7] In January and February 2020, the Government of Canada engaged with provinces, territories, Canadians, Indigenous groups, experts, practitioners, and stakeholders to receive feedback on expanding Canada’s MAID laws. Bill C-7 is informed by these opinions, as well as the past four years of experience with MAID in Canada.

Bill C-7 also responds to a recent decision of the Superior Court of Quebec, by allowing individuals who are not nearing the end of life to be eligible to receive MAID.

In Truchon c Procureur général du Canada,[8] Justice Baudouin declared parts of both the federal and provincial laws on MAID unconstitutional because they are too restrictive. The individuals in this case suffer from serious health problems that cause persistent and intolerable suffering, yet their deaths are not imminent. The Court held that provisions requiring death to be “reasonably foreseeable”, or (in Quebec) that the individual be in an advanced state of “irreversible decline”, are an infringement on the right to “life, liberty and security of the person” under section 7 of the Canadian Charter of Rights and Freedoms.[9] The federal and provincial governments had until July 11, 2020 to revise the legislation.  As Bill C-7 is not yet law, the offending provisions of the Criminal Code are now struck down, unless an extension of this deadline is granted by the Court.

Further parliamentary review of MAID legislation was set to begin before the onset of the COVID-19 pandemic. The current legislation and proposed amendments do not address outstanding concerns, such as advance requests for persons newly diagnosed with a condition that could affect their decision-making capacity in the future, eligibility for persons suffering solely from mental illness, and eligibility for mature minors. These issues will likely be a topic of discussion when the parliamentary review re-commences.

[1] Criminal Code, RSC 1985, c C-46 [Criminal Code].

[2] Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 1st Sess, 43rd Parl, 2020.

[3] Ibid, summary.

[4] Government of Canada, News Release, “Government of Canada proposes changes to medical assistance in dying legislation” (24 February 2020), online: Government of Canada <https://www.canada.ca/en/department-justice/news/2020/02/government-of-canada-proposes-changes-to-medical-assistance-in-dying-legislation.html> [GOC News Release].

[5] Carter v Canada (Attorney General), 2015 SCC 5 [Carter].

[6] Bill C-14, An Act to amend the Criminal Code of Canada and to make related amendments to other Acts (medical assistance in dying) (“Bill C-14”).

[7] GOC News Release, supra note 4.

[8] Truchon c Procureur général du Canada, 2019 QCCS 3792.

[9] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.