Bill S-248: Scheduling Medical Assistance in Dying

• Maya
  Gordon

  Maya
  Gordon

  view bio

In Carter[1], the Supreme Court of Canada ruled that prohibiting a person with ‘a grievous and irremediable medical condition’ from seeking death with dignity through assisted suicide was unconstitutional, as it violated the Charter right to ‘life, liberty, and security of person[2]’. In June 2016, the Parliament of Canada amended the Criminal Code of Canada to allow people to request medical assistance in dying (“MAiD”). Since then, there have been a number of further legislative changes to address who may apply for MAiD and when.

Current Regime

Under the current regime, a person requesting MAiD must meet all of the following criteria:

1. they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
2. they are at least 18 years of age and capable of making decisions with respect to their health;
3. they have a grievous and irremediable medical condition;
4. they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and,
5. they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.[3]

MAiD cannot be requested for people whose only condition is mental illness[4].

Sections 241(3) and 241(3.1) create a two-tiered safeguard system to address the administration of MAiD for people whose conditions would lead to a ‘reasonably foreseeable’ death (section 241(3)), and those diagnosed with a grievous and irremediable condition that might not lead to natural death (section 242(3.1)). The threshold to obtain MAiD where a grievous and irremediable condition may not lead to natural death is higher, requiring 90 clear days between the first assessment of whether the person qualifies for MAiD and the day on which MAiD is administered unless there is an imminent risk that the person may lose capacity earlier.    

Section 241(3.2) allows for the waiver of final consent prior to the administration of MAiD, even if the person has lost the capacity to consent. This must be evidenced by a written agreement prepared prior to loss of capacity, but when the person meets all requirements for MAiD under section 241.2(1).

There is currently no mechanism to have MAiD administered on a specific day or only when certain conditions occur. The person requesting MAiD must have full capacity from the date of the initial request and up until the date MAiD is actually administered unless they provide a waiver of final consent under section 242(3.2), as discussed above. This effectively means that people would have to request MAiD before they are ready to die, for fear of losing capacity and no longer being able to apply for MAiD at all.  

To address this issue, the Senate in the Parliament of Canada has drafted Bill S-248 (the “Bill”). The Bill proposes certain changes to existing legislation to allow advance requests, where a person who meets all requirements for MAiD under section 241.2(1) may request MAiD on a specified date or when certain conditions occur, even if they have lost the capacity to consent at such time.

Section 242(3.21) addresses MAiD administered for a specific date and requires a written agreement between the person requesting MAiD and the medical practitioner or nurse practitioner.

Section 242(3.22) addresses MAiD administered on certain conditions (“Triggering Conditions”) and requires a Declaration. The Declaration must:

• clearly set out the Triggering Conditions for the administration of MAiD;
• contain a medical practitioner’s confirmation that the Triggering Conditions can be objectively observed by a medical practitioner or nurse practitioner; and
• be signed by two independent witnesses (to avoid suspicions that the person asked for MAiD under external pressure).

Section 242(3.4) provides that in both cases, a person without capacity could revoke advance consent if they showed refusal or resistance to the administration of MAiD. Refusal or resistance does not have to be verbal.

In October 2023, the Canadian Bar Association (the “CBA”) issued a letter in response to the Bill. They agreed with the proposed changes but suggested that Parliament provide more detailed guidance on the form and content of a Declaration.

The CBA also recommended that legislation allow the appointment of a MAiD Agent for the person requesting MAiD. The MAiD Agent would be able to initiate a review of whether the Triggering Conditions had occurred, and confirm whether the person requesting MAiD had demonstrated refusal or resistance to MAiD. Finally, there should be a default authority, such as a government body or tribunal, authorized to act in case the MAiD Agent is unable or unwilling to act.  

Deciding on whether to request MAiD and when are deeply personal, challenging and often time-sensitive questions. As such, please speak with your legal provider to determine what your best course of action would be.

[1] Carter v. Canada (Attorney General), 2015 S.C.C. 5, [2015] 1 S.C.R. 331

[2] Canadian Charter of Rights and Freedoms, section 7

[3] Criminal Code, section 241.2(1)

[4] Criminal Code, section 241(2.1)

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}