by Written on behalf of Wise Health Law April 12, 2019 3 min read

Suicide had been a crime in Canada since its colonization. It was also considered immoral and sinful in many religions. In 2016 the Supreme Court of Canada (SCC) decided it could no longer be a crime. Legislation soon followed making it legal under certain conditions, now known as Medical Assistance in Dying (MAID). Our blog has written extensively in the past on this subject. What follows is an update on some of the ongoing legal developments occurring across Canada.

Doctors Disposition to MAID

We know that there are doctors opposed to having any involvement with MAID. Their numbers are not known. However, McGill University recently published a national survey of 1,200 graduating physicians on their willingness to perform MAID. The result was that overall, 71% of the respondents would be open to providing MAID. The graduates from the province of Quebec were the most supportive at 85%, and those from Alberta were the least supportive at 63%. Religious belief was the main reason cited for non-support amongst the respondents.

Constitutional Challenge

Jean Truchon and Nicole Gladu are asking the Quebec Superior Court to rule that the federal and provincial MAID requirements are too restrictive and constitutionally invalid. Nicole had polio as a child and has since developed post-polio syndrome. She suffers from a lack of mobility and function due to her deteriorating muscles and relies on an electric wheelchair. Jean has cerebral palsy and has lost the use of all of his limbs. Although these conditions will progressively worsen, it is not a certainty that their lives will end soon naturally. They both wish to end their lives through MAID, with Gladu stating that for her, living is mere existence, and not a life with real quality or meaning. Both Gladu and Truchon have undergone evaluations which concluded that they are competent and do not suffer from any condition that would affect or impair their judgement.

To be considered eligible for access to MAID at the federal level, the applicant's natural death is imminent and foreseeable. The provincial legislation in Quebec goes a step further, requiring that the applicant is at the end of their life. The thrust of their argument is that the SCC, in their Carter decision, gave the right to MAID for all patients with a grievous and irremediable medical condition. There was no additional requirement imposed that the person must also be close to death or that their death was foreseeable. These requirements in the legislation are subjective and dependent on the assessment of doctors and not the patients. The counterargument is that these provisions protect the vulnerable patient who although seriously ill, is not close to death. The results of Gladu and Truchon's federal challenge would apply nationally, subject to appeal.

Other Ongoing MAID Developments

There is also an ongoing debate and study on the following issues:

  • Should access to MAID be extended to minors, or more likely, mature minors who are just below the age of majority in their province of residence?
  • Should access to MAID be available through an advance request? This would function like existing 'do not resuscitate' instructions from clients. It would simply be a standing instruction that should they lose capacity and be close to death that they want to proceed with MAID.
  • Should access to MAID be available to the mentally ill despite their death not be foreseeable because of their ailment.

At Wise Health Law,we are passionate about helping healthcare organizations, regulated health professionals, and regulated health professional associations understand and protect their legal rights. We follow developments in the law and are consistently at the forefront of change and innovation. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.



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