Canadian attitudes around medical assistance in dying (MAID) and end-of-life decision-making have shifted significantly since the 1993 SCC decision in Rodriguez v British Columbia (AG)[i] upholding the prohibition on assisted suicide. Although MAID was only first legalized in Canada in June of 2016, the scope of the original legislation was broadened significantly with the Royal Assent of Bill C-7 on March 17, 2021. The recent amendments center around a new perspective on who can and should be able to consent to MAID as well as when and what level of capacity is required to make that consent. This is a rapidly developing area of law of particular relevance to the country’s aging population, as capacity-limiting conditions grow to consume a greater share of healthcare resources and research.
Bill C-7 was introduced in part in response to the September 11, 2019 decision of the Superior Court of Québec in Truchon v Canada (AG) [ii]. The Court ruled that the “reasonable foreseeability of natural death” eligibility criterion contained in the federal MAID legislation, and the “end of life” eligibility criterion contained in Quebec’s Act Respecting End-of-Life Care violated Section 7 of the Charter, which protects against deprivations of life, liberty and security of the person, and Section 15 of the Charter, which guarantees the right to the equal protection and equal benefit of the law without discrimination.
As per its preamble, the main objective of Bill C-7 is to balance several interests and societal values, including respecting the autonomy of persons who are eligible to receive MAID, the equality rights protected by the Charter, the need to protect vulnerable persons from being induced to end their lives, and the recognition of suicide as a significant public health issue.
One of the areas of amendments to the MAID regime contemplated by Bill C-7 that is particularly noteworthy is the introduction of advance consent. These changes permit the administration of MAID based on advance consent for persons whose natural death is reasonably foreseeable and who have been assessed and approved for MAID. Advance consents will be valid for a person who loses the capacity to consent before their preferred date for MAID if they have a written arrangement with a practitioner completed before the loss of capacity. In essence, the requirement for final consent at the time of the MAID procedure would be waived by operation of law if an advance consent is properly made by the recipient.
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