The Future of MAID in Canada

• Author: Omar Ha-Redeye
• Date: November 27, 2016

When Bill C-14 received Royal Assent on June 17, 2016 Medical Assistance in Dying (MAID) became law in Canada. But the debate over the limits of MAID are far from over.

Bill C-14 includes a number of review mechanisms. The entire scheme is subject to a 5-year review, with a report to be submitted with recommendations.

Specific portions of the Bill are subject to a shorter-term review, for “requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.” These issues were inadequately resolved at the time that the law was needed to come into effect. The reviews must be initiated within 180 days after receiving royal assent, and must produce a report no later than 2 years after the review is initiated.

The existing scheme is already being constitutionally challenged in British Columbia. Within 10 days of the new law being passed, Julia Lamb filed a constitutional challenge. The main problem with the legislation has been the reasonable foreseeable death requirement for the definition of a grievous and irremediable medical condition,

241.2(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

…

(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

The rationale for this provision was to strike what the government found to be an appropriate balance between the autonomy of individuals and the interests of society and vulnerable persons in need of protection,

The criterion of reasonable foreseeability of death is intended to require a temporal but flexible connection between the person’s overall medical circumstances and their anticipated death. As some medical conditions may cause individuals to irreversibly decline and suffer for a long period of time before dying, the eligibility criteria do not impose any specific requirements in terms of prognosis or proximity to death (e.g., a six month prognosis as the U.S. states’ medical assistance in dying laws require). The medical condition that is causing the intolerable suffering does not need to be the cause of the reasonably foreseeable death either. In other words, eligibility is not limited to those who are dying from a fatal disease. Eligibility needs to be assessed on a case-by-case basis...