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Medical Assistance in Dying aka Medically Assisted Suicide

A question we are asked frequently by mesothelioma clients is "what do you know about medically assisted suicide or medically assisted death?" My answer, until now, was not much.

Yes, I was aware that the Supreme Court of Canada fundamentally changed the law on February 6, 2015, by the unanimous ruling in Carter v. Canada (Attorney General) thereby requiring a change in the Criminal Code of Canada to reflect that decision. To allow time for the law to catch up with the Supreme Court the decision was suspended for twelve months and then extended for another four months for the changes required to the Criminal Code to be completed.

On June 7, 2016 it was no longer illegal for medical practitioners to provide medical assistance to terminate life under certain controlled circumstances and on June 17, 2016 the new law received Royal Assent.

I had the opportunity May 31, 2018, to attend a palliative care seminar that included a session on Medical Assistance in Dying (MAiD).

Over 1,300 people in Ontario have opted for Medical Assistance to end their suffering since the law came into effect on June 17, 2016. Statistics from other provinces were not provided. The vast majority of patients seeking medically assisted death are cancer patients. Others include those suffering from ALS or organ failure where the chance of a transplant is impossible due to other health complications.

The MAiD option can be requested by any terminally ill patient, that has capacity, by completing a form which can be obtained on-line or by calling the hotline in your Province of Territory.

Anyone suffering from a fatal disease which will cause their death, and their condition is irreversible and incurable may qualify. Their death does not need to be imminent but foreseeable.

Only persons over the age of 18 may apply. The youngest patient who participated in the program in Ontario was 22 with the oldest being 104. The average age is 74. The split between male and female is even.

Only persons who qualify for the government health plan (OHIP in Ontario) in their Province or Territory are eligible. The Canadian people indicated before this law was enacted that they did not want terminally ill patients flocking to Canada to take advantage of the change in the law.

At the time the request is made to the MAiD program, and at the time the procedure is carried out, the patient must have the mental capacity to understand the implications of their request. Should the patient lack or lose capacity, the whole process is halted. If capacity is in question a psychiatrist will be called in to review the patient. A directive cannot be made in a Power of Attorney or Living Will for medically assisted death.

Two medical assessors must agree that the medical condition from which the patient wishes relief is terminal and that by requesting medical assistance the patient is moving the death date forward to alleviate suffering.

The patient’s family will only be involved should the patient wish them to be. The medical staff involved may only discuss the matter with the patient’s family with the patient’s permission.

The patient does not need to be in hospital to seek medical assistance with death. There are community options which means that should it be the patient’s wish to die at home or in a hospice, arrangements can be made for that to happen.

A minimum 10 day “reflection” period must occur between the request for medical assistance with death and the procedure taking place. During this time period the patient is provided with social workers, counsellors and palliative care specialists. Other options are presented for suffering alleviation methods as an alternative to medically assisted death.

The death certificate of a patient who requests medical assistance in dying will reflect the condition leading to the request for assistance, i.e. breast cancer.

As this topic remains hotly controversial, no medical personnel, including a patient’s primary care physician, are forced to take part should they feel morally unable to do so. They are required, however to direct patients to the MAiD program in the local area.

If you would like more information Health Canada has recently updated their web-site to provide information to Canadians regarding medical assistance in dying, which includes phone numbers for the MAiD program in each Province/Territory.

A summary of notes taken during a seminar on the MAiD program.

For information purposes only, not to be taken as legal advice or as an opinion on the advisability of participation.

Written by Anna Veldhuis, Law Clerk, Brown Law Office.

UPDATE: JANUARY 20, 2022

The MAiD eligibility provisions were formally changed by Royal Assent in the Senate on March 17, 2021 to increase eligibility and add mental health illness as an eligible disease commencing March 17, 2023.

Additionally, it also immediately removed the requirement for a person’s natural death to be reasonably foreseeable in order to be eligible for MAiD. Should death not be imminent, but the condition is terminal, it is now possible to set a date to receive MAiD, and to waive final consent if they are at risk of losing capacity in the interim.

This has been a controversial issue as previously capacity had to be maintained until the time of assisted death or the process was halted. This requirement brought about the deaths of many people who had been diagnosed with a fatal condition but were not yet palliative as they were concerned that if they lost the ability to confirm that they wanted to proceed they would lose the opportunity to die on their own terms. The majority of MAiD requests come after a diagnosis of non-treatable Cancer.

By March 2021, over 13,000 Canadians had chosen MAiD. Persons who do not have a provincial health card cannot apply.

If you, or a loved one, are considering the MAiD program after a history of asbestos exposure, please contact a lawyer immediately. Your family will only receive compensation for your death if the diagnosis of your disease is confirmed. A diagnostics biopsy would be the recommendation from an evidentiary point of view but is painful and invasive. Diagnosis can be done by requesting an autopsy. If a diagnostic autopsy is requested at the time of the MAiD assessments, it can be done immediately following death by the hospital pathologist and your funeral or cremation can proceed as planned.

Please contact us to obtain more information.