The Need for MAID is Growing
With Canada’s rapidly aging population, demand for MAID – medical assistance in dying – is growing. But, with increasing rates of dementia the cognitive ability of patients to consent becomes a barrier. The prevalence of dementia more than doubles every five years among seniors, from less than 1% in those age 65 to 69 to about 25% in those age 85 and older; approximately two-thirds of these are women.
MAID is No Longer A Crime
It was a criminal offence in Canada for a physician to provide MAID. Then the Supreme Court’s 2015 decision in the Carter case held that it is not a crime if a patient has been diagnosed with a serious, incurable illness causing intolerable suffering, provided that the patient requests MAID under the future law that legislators would have to enact. In 2016 Parliament amended the Criminal Code to permit MAID in limited situations, provided that the patient has the cognitive ability to request and consent to it just before the procedure.
Advance Requests
An advance request for MAID would be important for someone diagnosed with a serious, incurable illness (such as Alzheimer’s), knowing that it will eventually destroy their cognitive capacity to request and consent to MAID. This is a major concern for anyone over the age of sixty-five.
The Criminal Code Doesn’t Permit Physicians to Provide MAID on an Advance Request
Acting on an advance request may seem reasonable, but the Criminal Code still prohibits it. The law is cruel, implying that it is acceptable for you to suffer intolerably, so long as you don’t die the wrong way. Yet in a 2023 poll, 82% of Canadians supported advance requests for patients diagnosed with a serious and incurable condition.
But if a Canadian physician does provide MAID to someone who made an advance request but no longer has the capacity to consent, they may be committing a crime. I say “may be” because the constitutionality of this Criminal Code prohibition is doubtful, and it has not yet been tested in the courts.
Québec’s New Advance Requests Law Ignores the Criminal Code
In 2023 Québec enacted Bill 11, a popular provincial law. It authorizes physicians and specialized nurse practitioners to advise patients in creating advance requests, and then, to carry out their requests, subject to a host of new safeguards.
Québec has repeatedly asked Ottawa to amend the Criminal Code to permit Bill 11, for Québec only. Ottawa has thus far refused. Québec has said that it won’t wait any longer and will bring Bill 11 into force on October 30, 2024. Thus, on October 30, this Quebec law becomes inconsistent with the Criminal Code. Thereafter, any Québec physicians and specialized nurse practitioners providing MAID will be violating the Criminal Code. But they won’t be prosecuted.
On September 27, 2024 Québec’s Justice Minister announced that he had asked the Québec prosecutor’s office not to file charges against doctors and nurse practitioners who perform MAID based on advance requests. Also, MAID providers would have a strong defence: acting in the good faith belief that a valid provincial statute authorized their assistance.
After October 30 Which of the Two Laws is Unconstitutional?
As Ottawa can’t amend the Criminal Code by October 30, 2024, when the Québec law comes into force, either the Québec law or the Criminal Code provision will be unconstitutional. Unless and until the constitutional issue is tested in court we won’t know which. But if I were a betting man, I would bet on Québec, not Ottawa. That’s because there is no good reason why, given the prudent safeguards in Québec’s law, on top of safeguards in the federal law, patients should be precluded from making advance requests before their condition renders them incapable of giving consent; and no good reason why physicians should become criminals for honouring their patients’ advance requests.
What Will Ottawa Do?
In the run-up to the federal election, Ottawa will probably do nothing. Ottawa won’t initiate constitutional litigation because that would severely alienate Québec voters, who would see it as another federal intrusion into their provincial rights. And, given legal precedents, Ottawa would probably lose at every level of court, including the Supreme Court.
The Lesson for Ottawa
The lesson for Ottawa is to stop micromanaging the provincially regulated medical profession and the doctor-patient relationship through the federal Criminal Code. That is the wrong instrument and the wrong level of government to regulate medical procedures.
There is a parallel between the legal regime for regulating abortion and MAID. Abortion is regulated under provincial law as a medical procedure, subject to protocols enforced by the medical colleges that regulate physicians and nurses. MAID is also regulated under provincial law and by these same medical colleges.
However, since 1988, there has been no federal law that criminalizes or restricts abortion in Canada. Similarly, Ottawa should fully exempt MAID — get it out of the Criminal Code altogether — and let the medical profession do their work in accordance with provincial regulation and patients’ wishes.
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Categories: Alzheimer's, Constitution, Dementia, Government, MAiD, Medically Assisted Death, Supreme Court, Uncategorized
Andrew's Views 
Do people with dementia and nothing else wrong with them suffer, that keeping them alive until their natural deaths is “cruel”? Or is the suffering all in the eyes of their children?
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First, let me deal with the concept of a natural death. In an age of substantial medical interventions, the idea of a “natural” death as being a good death is no longer useful. A natural death could be good or bad depending on many different circumstances.
Much of medical practice exists to prevent a natural death. For example, when my daughter was a teenager she got appendicitis and would have died a natural death but for emergency surgery. When I authorized that surgery I deprived her of a slow natural death, but I didn’t think my decision was cruel. Smallpox vaccinations deprive millions of people of natural death through smallpox, yet that isn’t cruel. On the other hand, if an elderly person goes to bed one night and dies of natural causes painlessly in their sleep that natural death would not be cruel. Similarly, when an unconscious accident victim who has a Do not Resuscitate mandate is allowed to die naturally, that is sad, but not cruel, because it respects that patient’s autonomy.
Next, let’s consider dementia. Dementia has both degrees and kinds. One of my neighbours, an elderly gentleman, has dementia and keeps forgetting what he is saying or has just said, in the middle of a conversation. He then apologizes for his dementia. Nobody minds this because he’s charming and pleasant. Yet if he applied for MAID today, a MAID assessor may well conclude that he is past the stage where he can demonstrate the capacity to make a fully informed, autonomous decision. Someone further along with advanced Alzheimer’s (the most common form of dementia) may be clearly ineligible to apply for MAID due to lack of capacity. That’s why advance requests have become an important issue.
In the absence of an advance request, by a person when they have full capacity, whatever their children might think or wish is irrelevant. The children have no legal basis for deciding that their parent should be given MAID, unless their parent gave consent through an advance request at a time when the parent had that capacity. Even if a late-stage Alzheimer’s patient wants to die, and it may be considered cruel to deprive them of that wish, at that stage that cruelty no longer matters. It simply too late, absent an advance request, made earlier by a person with capacity. That’s why such a high percentage of the population supports advance requests.
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