Planning ahead

Five years after Canada’s first legislation permitting medical assistance in dying (MAiD) passed, access was broadened in March of last year when Bill C-7 came into effect. While the changes introduced by Bill C-7 did not go as far as some had hoped, they did increase the situations in which a person can apply for medical assistance in dying.

The initial legislation required a person seeking a planned end to their life to be facing a “reasonably foreseeable death.” That is no longer the case. Anyone who has a grievous and irremediable medical condition can now apply for MAiD, whether or not their death is reasonably foreseeable. Three conditions are required for a condition to be determined grievous and irremediable:

  • The illness, disease or disability must be serious
  • The person must be in an advanced state of decline that cannot be reversed
  • There must be unbearable mental or physical suffering that cannot be relieved under conditions the person considers acceptable

Mental illness is now included as a grievous and irremediable medical condition; however, Parliament imposed a two-year delay in allowing access to MAiD where it is the sole condition, during which time experts will develop specific safeguards and protocols for those circumstances.

MAiD includes many safeguards to ensure that people are making decisions of their own free will, that they fully understand the implications of their decisions and that they have plenty of opportunities to change their mind. New and strengthened safeguards have been introduced for those who seek MAiD when their death is not reasonably foreseeable.

Final consent

Also changed as a result of Bill C-7 is the matter of providing final consent. Prior to March 2021, a person seeking MAiD had to have the mental capacity to consent at the time of the medically assisted death. This created a barrier for people with deteriorating cognitive capacity: if someone, for instance, had applied and been approved for MAID because they had a brain tumour or were in the early stages of dementia, but lost capacity before they could have a medically assisted death, they would lose that opportunity.

Audrey Parker’s is just one of many poignant stories about people who found themselves making the decision to die earlier than they needed to because they feared losing capacity if they waited any longer. In other equally disturbing situations, people have had to watch family members live on in intolerable conditions, even though they had already been approved for MAiD, because they had lost capacity to give final consent.

Bill C-7 now permits an individual, while they have capacity, to sign a waiver of final consent so, if they lose capacity after having already been approved for MAID, their death can go ahead.

More is still needed

The recent changes are important steps in the right direction, but further expansion of MAiD is still needed. Of particular interest to many is the issue of advance directives, which are currently not permitted.

The new waiver of final consent provision only assists a limited number of individuals: those who already have the grievous and irremediable medical condition that lies at the heart of their desire to have a planned death. It is of no help to those who wish to plan for the possibility of various medical conditions.

For example, if I had dementia now but were still competent, I could apply and be approved for a medically assisted death, which would proceed even if I lost my capacity to consent later. However, because I do not have dementia now, even if I write an advance directive saying that, if I get dementia later and lose my capacity, I wish to have MAiD, I would not be allowed to have such a death. It’s not just dementia that is ruled out, but any medical condition the person is not already suffering from: brain tumour, debilitating stroke, brain injury from a car accident and so on.

In my mind, this is illogical law. A power of attorney (POA) for personal care allows someone to grant another person the power to make decisions about medical treatment and care. Continuing with my example, my POA for personal care can (and does) list a wide range of circumstances in which I do not want to receive any of a long list of possible treatments, and the person to whom I have given this power is legally obligated to follow my wishes.

Under Canada’s current MAiD legislation, even though I have written an advance directive indicating that I wish to have a medically assisted death if I develop advanced dementia or other irremediable medical conditions and cannot consent, I cannot have such a planned death; one that would provide me with a dignified exit and spare those who care for me having to watch me slowly deteriorate.

However, my POA allows – indeed, requires — my chosen person to, for instance, let me die slowly, possibly painfully and almost certainly without dignity, because I have indicated I do not want to receive treatment in certain situations.

In my books, this is just plain screwy. With safeguards in place to ensure that people know what they are signing up for and that they have not been unduly influenced by someone with ulterior motives, Canadians who choose to do so should be allowed to write advance directives that have legal authority even after they lose their capacity.

If you agree with me, call on the Prime Minister, Minister of Justice, Minister of Health and your MP to reinstate the Special Joint Committee on MAID to complete the long overdue parliamentary review of Canada’s assisted dying laws so that further amendments speaking to advance directives and other issues can be introduced and passed.

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