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Medical Assistance in Dying (MAID) and Personal Directives in Alberta

Posted 11/12/2016

In June 2016, new federal legislation came into force dealing with medical assistance in dying (MAID) in Canada. Medical assistance in dying (MAID) has been a controversial issue and a hot topic of discussion for some time. This issue has also been referred to as: voluntary euthanasia, assisted suicide, assisted dying, physician assisted suicide, physician assisted death, etc. For the purposes of my blog post, I will be referring to this issue as medical assistance in dying (MAID). MAID provides patients, who meet certain eligibility criteria, with the option to end their life with the assistance of a doctor or nurse practitioner.

I am not writing this blog post to start a debate on this topic. I want to provide a summary of the progression of the law dealing with MAID and MAID’s impact on Personal Directives in Alberta. I intend to be as objective as possible in my explanations of MAID. We all have our own personal opinions, views, values, and beliefs. Some people are in support of MAID and others are against it. The important point is that this legislation is in force and it is important to know of its existence and impact.

Section 241 of the Criminal Code of Canada stated that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 said that no person may consent to death being inflicted on them. Together, these two sections of the Criminal Code prohibited MAID in Canada. In February 2015, the Supreme Court of Canada released its decision in the case of Carter v. Canada (Attorney General), [2015] 1 SCR 331. The Court found that the prohibition on MAID violates the right to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. Sections 241(b) and s. 14 of the Criminal Code of Canada were determined to be void insofar as they prohibit MAID 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” (at para. 127 and 147).

The Supreme Court of Canada’s declaration of invalidity of those sections of the Criminal Code of Canada was suspended for twelve (12) months to give the government time to revise existing laws and draft new laws. In December 2015, the federal government requested a six (6) month extension to the suspension of the declaration of invalidity, however they were only granted an additional four (4) months to make changes to the laws. During this suspension of the declaration of invalidity, individuals across Canada could access MAID by applying to a Court for authorization if they met the criteria set out in the Carter decision.

The federal government eventually introduced new legislation. An Act to Amend the Criminal Code and to Make Related Amendments to other Acts (Medical Assistance in Dying), SC 2016, c 3 became law on June 17, 2016. According to this new law, a Canadian can request MAID when they meet certain eligibility criteria. Section 241.2(1) states:

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

(a) they are eligible  —  or, but for any applicable minimum period of residence or waiting period, would be eligible  —  for health services funded by a government in Canada;

(b) they are at least 18 years of age and capable of making decisions with respect to their health;

(c) they have a grievous and irremediable medical condition;

(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

To be considered as having a grievous and irremedial medical condition, a person must meet all of the following criteria (s. 241.2(2)):

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their 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.

There are additional procedural details set out in the legislation.

In drafting the new legislation, the federal government took a conservative approach to the application of the Carter decision. There are various other complex issues that are not addressed in the legislation. These issues include: (1) mature minors under the age of 18 requesting MAID; (2) people who suffer from mental illness only; and (3) advance requests for MAID to be carried out when a person is no longer able to make their own health care decisions and express their wishes. These issues pose unique challenges and need further research. The new legislation requires further studies to be conducted in an effort to examine the legal, medical, and ethical questions. Once this further research advances, the legislation will likely be reviewed and amended.

Now, with all that information on the progression of the law on MAID, how does this new law affect Personal Directives in Alberta? In one of my previous blog posts, we learned all about Personal Directives. As a quick refresher, a Personal Directive is a written, signed, dated, and witnessed document that gives someone else the authority to deal with your personal, non-financial matters, and medical care if you become mentally incapable of making those decisions for yourself. According to my interpretation of the new legislation with respect to MAID, you are not currently able to give your agent the authority to request MAID on your behalf in a Personal Directive. The legislation is clear that you must be capable of making decisions with respect to your health at the time of receiving MAID. Someone else cannot make the request for MAID on your behalf. If a Personal Directive has taken effect, and your agent is making your personal and health care decisions, you are no longer capable of making those decisions for yourself. It is true that at the time of signing the Personal Directive you were competent and capable of making your own decisions. However, when the Personal Directve takes effect this is no longer the case. You cannot receive MAID if you cannot make health care decisions for yourself.

This issue of MAID and its impact on Personal Directives is one of the issues that requires further examination and research. At some point in the future, the legislation may clearly state that advance requests for MAID written into a Personal Directive are valid and enforceable. Due to the way the legislation is currently drafted and my interpretation of the legislation, I do NOT draft advance requests for MAID clauses in Personal Directives. You may be able to find lawyers who have changed their practise with respect to Personal Directives, and who will draft MAID clauses into the document. Without clear permission in the legislation, I think that those clauses will be void and unenforceable. Likely, the rest of the document will still be valid and the document would be read as if the MAID clauses were removed. It is very prospective thinking to include advance requests for MAID clauses in Personal Directives.

Obviously, it is important to keep your estate planning documents up to date. Therefore, with a change in the laws, it may be necessary to update your estate planning documents. For those of you who are pro-MAID and who would like an advance request for MAID clause in your Personal Directive, I suggest you wait and see if the law changes in that regard. If it becomes clear that advance requests are permissible, then update your documents. I will begin drafting advance requests for MAID in Personal Directives in accordance with clients’ instructions once the law is clear that advance requests for MAID in Personal Directives is permissible.

Yours truly,

Crystal Schening