Advanced MAiD requests

  • January 23, 2024

The End-of-Life Working Group of the Canadian Bar Association has long advocated for the clarification of end-of-life decision-making. In the most recent in a series of letters concerning several aspects of medical assistance in dying, or MAiD, the Working Group comments on Bill S-248, An Act to amend the Criminal Code (medical assistance in dying) and its approach to advance requests, which it supports with appropriate safeguards.

Advance requests, the letter explains, “allow an individual to access MAiD later (in accordance with their prior capable wishes) and addresses existing concerns that the risk of future incapacity may make MAiD inaccessible, resulting in people accessing MAiD earlier than they might want.”

The reason for this is that under the current legislative regime, requests for MAiD must be made by persons who have capacity at the time of the request. Someone in cognitive decline, fearing an eventual incapacity if they wait to request MAiD, may resort to asking for assistance in dying earlier than they would prefer to avoid the scenario where they are ultimately refused MAiD due to their incapacity and live many years in a state of cognitive decline they wanted to avoid.

As currently formulated in Bill S-248, the CBA letter says, advance requests for MAiD respect individuals’ rights to security of the person and the sanctity of personal autonomy.

In particular the Working Group supports the Bill’s provisions saying advance requests are only permitted after a diagnosis of a grievous and irremediable condition, with a written Declaration for the advance request that includes clear triggering conditions for MAiD. As well, the Bill allows persons to revoke consent using words, gestures or any other method – regardless of that person’s capacity at the time of revocation of consent.

“We also support the waiver of final consent in Bill S-248 for individuals whose death is not reasonably foreseeable and who have met the qualifying conditions for MAiD should they lose capacity,” the letter adds.

The Working Group is concerned that certain administrative provisions of the Bill, specifically a registry as well as time limits for Declarations, could make the process difficult to access and keep current. And to ensure effective implementation, the CBA letter recommends adding provisions detailing the prescribed form and content for the Declaration, which would include the appointment of a MAiD Agent, clear delineating the triggering conditions and signature of both the applicant and witnesses.

As well, the Bill should make clear that the Declaration is revocable using a prescribed form and that the requirements for a revocation should be included in the Criminal Code, making sure to include that a lower capacity is needed to revoke than to make an advance request. And the Bill should add a provision for a default authority, such as a legislative appointee or government body, with the power to act as a decision-maker of last resort to give effect to an advance request if a MAiD Agent is unable or unwilling to act.