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Bulletin

Medical Assistance in Dying - Who is Eligible and What is the Process?

Fasken
Reading Time 5 minute read

Private Client Services Bulletin

In February 2015, the Supreme Court of Canada ruled in Carter v. Canada, 2015 SCC 5, that parts of the Criminal Code would need to change to satisfy the Canadian Charter of Rights and Freedoms. The parts that prohibited medical assistance in dying would no longer be valid.

In June 2016, the federal government passed legislation that allows eligible Canadian adults to request medical assistance in dying. Arguably, the legislation strikes the right balance between personal autonomy for those seeking to end their life and protecting the vulnerable.

Who is Eligible?

In order to be eligible for medical assistance in dying, you must meet all of the following criteria. You must:

  • be eligible for health services funded by the federal government, or a province or territory;
    • Generally, visitors to Canada are not eligible for medical assistance in dying.
  • be at least 18 years old and mentally competent. This means being capable of making health care decisions for yourself;
  • have a grievous and irremediable medical condition;
  • make a voluntary request for medical assistance in dying that is not the result of outside pressure or influence; and
  • give informed consent to receive medical assistance in dying.

What does it mean to have a "grievous and irremediable medical condition"?

To be considered as having a grievous and irremediable medical condition, you must meet all of the following criteria. You must:

  • have a serious illness, disease or disability;
  • be in an advanced state of decline that cannot be reversed;
  • experience unbearable physical or mental suffering from your illness, disease, disability or state of decline that cannot be relieved under conditions that you consider acceptable; and
  • be at a point where your natural death has become reasonably foreseeable.
    • This takes into account all of your medical circumstances and does not require a specific prognosis as to how long you have left to live.

You do not need to have a fatal or terminal condition to be eligible for medical assistance in dying.

What is "informed consent"?

This means you have consented (given permission) to medical assistance in dying after you have received all of the information you need to make your decision, including:

  • your medical diagnosis;
  • available forms of treatment; and
  • available options to relieve suffering, including palliative care.

You must be able to give informed consent both:

  • at the time of your request; and
  • immediately before medical assistance in dying is provided.

You can withdraw your consent at any time and in any manner.

The law is clear that an individual must be capable of making health care decisions in order to be considered eligible for medical assistance in dying. A physician or nurse practitioner will ask the patient to confirm his or her choice immediately before administering medical assistance in dying. As a result, the decision to end one's life cannot be delegated to another individual. Therefore, such a decision does not come within the realm of the decision-making authority of an attorney for personal care or a court-appointed guardian of the person.

Eligibility is assessed on an individual basis, looking at all of the relevant circumstances.

Once You Meet All the Eligibility Criteria, How Do You Obtain Medical Assistance in Dying?

Process for Requesting the Service

The legislation contains safeguards to make sure those who request medical assistance in dying:

  • do so on their own free will;
  • are able to make health care decisions for themselves;
  • are eligible (this means they meet all of the listed criteria); and
  • can and do give informed consent, which includes being informed of all care options available to them to help relieve suffering.

The process requires you to complete the following steps:

1. Talk to your physician or nurse practitioner about end-of-life care options in relation to your medical condition or circumstances.

2. Submit a written request.

  • You must make a written request that says you want to have a medically assisted death. Some provinces and territories may require that you complete a specific form. This form may be provided by your health care provider or available on a provincial or territorial website.
  • If you are unable to write, another adult can sign the request on your behalf under your clear direction. This adult must:
  • You must sign and date your written request before two independent witnesses, who must also sign and date the request.
  • To be considered "independent" means that the witnesses cannot:
    • benefit from your death;
    • be an owner or operator of a health care facility where you live or are receiving care; and
    • be directly involved in providing you with health or personal care.

3.  Undergo medical assessments.

  • Your physician or nurse practitioner must make sure that you are eligible to receive medical assistance in dying according to all of the listed criteria.
  • A second physician or nurse practitioner must also provide a written opinion confirming that you are eligible.
  • You must also be informed that you have the right to withdraw your request at any time.
  • The physician or nurse practitioner providing the original assessment and the one giving the second opinion must be independent.
      • To be considered "independent" means that neither of them:
      • holds a position of authority over the other;
      • could knowingly benefit from your death; and
      •  is connected to the other or to you in a way that could affect their objectivity.

4. Wait a 10-day reflection period to receive the service.

  • You must wait a period of at least 10 clear days after signing your written request before the service can be provided so that you have time to consider your request. If you do decide to proceed after the 10 days, your practitioner can have confidence in your true desire to receive the service.
  • An exception may be made to the 10 clear day reflection period if both your first and second medical or nurse practitioner agree that:
    • your death is fast approaching;
    • you might soon lose your capacity to provide informed consent.

Choosing to Withdraw your Request 

You may choose to withdraw your request at any time in the process and in any manner.  You are not obligated to proceed with medical assistance in dying even if you are found eligible for the service.  If you choose to continue, you must be asked to confirm your consent.  You will also be given a final opportunity to withdraw your request just before receiving medical assistance in dying.

For more information, please contact a member of our Private Client Services Group.

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