Analysis on proposed changes to Bill C-7: Canada’s medical assistance in dying legislation (MAiD) – Pertaining to Advance Care Planning

About CHPCA
CHPCA is the national leader in the pursuit of quality hospice palliative care in Canada through public policy, education, knowledge translation, awareness, and collaboration. CHPCA strives towards contributing to an environment in which all Canadians have access to quality hospice palliative care. Established in 1991, its volunteer Board of Directors is composed of hospice palliative care workers and volunteers from Canadian provinces and territories as well as members-at-large.

The national ‘Speak Up’ Advance Care Planning (ACP) in Canada initiative is led by the Canadian Hospice Palliative Care Association (CHPCA).  The initiative aims to help people living in Canada prepare for their future and personal health care. The project involves a series of public awareness campaigns, supports community-based ACP programs, and promotes ACP resources and guides.

Preamble
In June 2016, the Federal Government enacted Bill C-14 legalizing assisted death under certain circumstances and adopted the term ‘medical assistance in dying’ (MAiD). As implemented in Bill C-14 (2018) medical assistance in dying includes both euthanasia (“the administering by a physician or nurse practitioner of a substance to a person, at their request, that causes their death”) and assisted suicide (“the prescribing or providing by a physician or nurse practitioner of a substance to a person at their request, so that they may self-administer the substance and in doing so cause their own death”) (s. 241.2 -241.4 of the Criminal Code).

On October 5, 2020, the Minister of Justice and Attorney General of Canada reintroduced a bill, which proposes changes to the Criminal Code’s provisions on medical assistance in dying (MAiD). The proposed changes follow extensive consultations with Canadians, experts, practitioners, stakeholders, Indigenous groups, provinces and territories, and an online questionnaire that received over 300,000 responses. The reintroduced changes are the same as those previously proposed by Bill C-7 in the previous parliamentary session.

The proposed changes to Bill C-7 would amend the Criminal Code to allow MAiD for eligible persons who wish to pursue a medically assisted death, whether their natural death is reasonably foreseeable or not. The proposed changes stem from controversy regarding Bill C-7, resulting in legal action in Quebec.

CHPCA’s Position on MAiD
Within the Hospice Palliative Care sector, the role that hospice palliative care plays in relation to MAiD has not been defined and is therefore unclear. CHPCA’s MAiD position statement published in 2019 and approved by CHPCA’s board of directors was developed to address hospice palliative care, in MAiD, within a legal framework across Canada.

Based on the World Health Organization (WHO) definition of palliative care, the CHPCA strongly advocates for universal access to high quality hospice palliative care to address the suffering experienced by patients with life-threatening illness and their families.

This document explores the proposed changes to Bill C-7 in relation to Advance Care Planning.

Analysis and projections of the proposed changes
An Advance Care Plan is about having your values and wishes known. Increasing the accessibility of MAiD will increase usage, therefore potentially reducing the number of people who may otherwise complete an Advance Care Plan. The fewer ACPs being created, the greater the chance that family members may not know their loved one’s end of life wishes.

Substitute Decision Makers
With the proposed changes to legislation, Substitute Decision Makers would be capable of making end-of-life decisions for individuals who are pursuing MAiD but are no longer able to consent to decisions due to health issues such as Dementia. In August 2020, a Nova Scotia Court of Appeal judge denied a request to shelve a lower court decision that effectively allows a man to go ahead with a medically assisted death, in spite of his wife’s efforts to stop him. “Katherine Sorenson acknowledged her husband’s suffering, but she said it was mental, not physical. She opposed his request for MAiD because she said his wish to die was rooted in anxiety and mental delusions. She has also said she has a moral opposition to MAiD.” (CBC. 2020) Her husband has since died by accessing MAiD. The proposed changes could create challenges moving forward for Substitute Decision Makers and individuals interested in pursuing MAiD. It is important to understand end-of-life wishes and values, and to feel trust in your Substitute Decision Maker. If a sudden accident were to occur, it is important to be able to instill trust in your Substitute Decision Maker if you no longer have capacity to provide consent. The examples listed above are important to keep in mind when looking at a future if the proposed changes to legislation are approved.

Eased Safeguards
The proposed changes to legislation would allow MAiD to be administered to persons whose natural death is not reasonably foreseeable. The 10-day reflection period has been removed, now allowing eligible persons to make a same-day decision. These removed safeguards make it easier for eligible persons to access MAiD rather than explore other treatment options.

Previous to the new proposed legislation, the persons would have to forgo an alternative solution, thus likely having an ACP in place in order for their loved ones to know their end of life wishes.

In terms of what to tell people who ask how this new proposed legislation will affect Advance Care Planning, it appears that MAiD being more accessible to Canadians may cause an increase in individuals accessing MAiD rather than pursuing other treatment options; they may feel like an Advance Care Plan is unnecessary, as they can communicate to their loved ones prior to MAiD being administered.

Moving forward, MAiD will likely receive more attention/use while Advance Care Planning receives less. ACP is facing exiting barriers: general awareness, acceptance, and education. An increase in accessibility for MAiD creates yet another barrier. In order to address the added anticipated challenges to the Advance Care Planning access, innovative ways to promote and help Canadians navigate the process of ACP will be needed. For those who are suffering, or are struggling with a severe health condition, MAiD may seem very appealing. We need to look at how to make Advance Care Planning a vessel to persevering. Start the conversation; don’t stop until you know for sure where you want to be.

CHPCA Key Messages

  1. CHPCA adopts the WHO definition of palliative care. ACP and hospice palliative care strive to reduce suffering, not to intentionally end life; therefore, CHPCA believes that no patient should choose MAiD because of lack of access to ACP and hospice palliative care
  2. Hospice palliative care must remain focused on effective symptom management and psychological, social, and spiritual interventions, while meeting individual cultural needs to help people live as well as they can until their death.
  3. Patients with life threatening conditions have a right to high quality hospice palliative care regardless of their end-of-life choice, including MAiD.
  4. Provision of MAiD is a practice separate and distinct from hospice palliative care and Advance Care Planning.
  5. Individuals working in hospice palliative care who do not wish to participate directly or indirectly in MAiD should have their integrity and fundamental freedoms, including freedom of conscience, protected.

Important Links and Documents:

References

Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts(medical assistance in dying), s.241.2=241.4 (2018). Retrieved from https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c14-e.pdf.

N.S. woman trying to stop husband from medically assisted death denied stay motion. CBC. (2020) Retrieved from https://www.cbc.ca/news/canada/nova-scotia/medically-assisted-death-wife-loses-appeal-1.5712579.