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On March 17, 2021, the federal government brought into force changes to the law regarding medical assistance in dying. These changes are effective immediately.

The major change is the removal of the requirement that a person’s natural death be reasonably foreseeable in order to be eligible. The changes also introduce a two-track approach with different procedural safeguards depending on whether the person’s natural death is reasonably foreseeable or not.

All individuals seeking medical assistance in dying must meet the following criteria:

  • Be at least 18 years old and have decision-making capacity
  • Be eligible for publicly funded health care services
  • Make a voluntary request that is not the result of external pressure
  • Give informed consent to receive MAID
  • Have a serious and incurable illness, disease or disability
  • Be in an advanced state of irreversible decline in capability
  • Have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable.

The process remains largely the same for individuals whose natural death is reasonably foreseeable. The patient must still make a written request for medical assistance in dying. A doctor or nurse practitioner can determine if the eligibility requirements are met, and then a second doctor or nurse practitioner must complete second assessment to confirm that the patient meets the requirements. The changes to the legislation eliminate the ten day waiting period between the request for the procedure and when the procedure can occur has been eliminated, and only one independent witness needs to sign the request where previously two witnesses were required. Independent witnesses can also now include health care providers or personal support workers who provide care to the person.

For those whose natural death is not reasonably foreseeable there are new and modified safeguards in place including:

  • the person has a grievous and irremediable medical condition and has made the request for medical assistance in dying after being informed of this condition
  • the request must be made in writing and signed and dated before an independent witness who also signed and dated the request
  • the person must be informed that they may, at any time and in any manner, withdraw their request
  • a second independent medical practitioner or nurse practitioner must provide a written opinion that the person meets all of the criteria
  • the person must have been informed of other means available to relieve their suffering as appropriate and the medical practitioner who provides the written opinion must agree that the person has given serious consideration to those means
  • there is a 90-day waiting period between the first assessment and the day on which medical assistance in dying is provided. This time period may be shortened if the assessments have been completed and the medical practitioner believes there is a risk of imminent loss of capacity to consent.
  • Immediately before the substance is administered, the person must be given an opportunity to withdraw their request and must provide express consent to receive medical assistance in dying.

Individuals who suffer solely from mental illness do not meet the definition required for a grievous and irremediable medical condition, but this part of the legislation will be reviewed after 24 months.

One final major change to the legislation is that the procedure may still be undertaken in the event that a person whose natural death is reasonably foreseeable loses capacity to consent between the time the procedure was requested and the time it is carried out. Previously, the person had to be capable of consenting at both points in time. This is no longer required provided that all of the other criteria were met and the person entered into a written arrangement with the medical practitioner that the substance would be administered on a specified day and in that written arrangement the person consented to the administration of the substance even in the event that they had lost capacity in the meantime, the substance may still be administered so long as the person does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration. However, a person whose natural death is not reasonably foreseeable must still be capable at both points in time and it remains the case that a substitute decision maker, such as an attorney for personal care, cannot consent to the procedure on the person’s behalf.

Laura Geddes practices with the Siskinds Wills & Estates department. If you have questions about the information contained within this article or any other questions about your will or estate, please write to [email protected] or call 519.660.7714.

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