Can one person be eligible for medical assistance in dying in Ontario and another person, in the exact same circumstances, be ineligible in Quebec? There is considerable and understandable confusion and concern about this in Quebec.

This is because the federal and the Quebec laws don’t say the same thing and, in May, the Quebec Commission sur les soins de fin de vie (CSFV) – the commission on end-of-life care – recently issued a narrow interpretation of the Quebec law. The federal law says that to be eligible for MAiD, a person must, among other things, “have a serious and incurable illness, disease or disability.” The Quebec law says that to be eligible for MAiD, a person must, among other things, “suffer from a serious and incurable illness.” Eligibility under the Quebec law is therefore narrower than eligibility under the federal law (being limited to illness and not including disease or disability).

The recent Quebec CSFV guidance on the meaning of “serious and incurable illness” under the Quebec law says that to be eligible, a person needs to be “on a death trajectory, predictable or not.” It says that the following do not meet the eligibility criterion of “serious and incurable illness”:

  • “A symptom or set of symptoms”
  • “Pathologies or conditions frequently associated with ageing, particularly in very old age, which can lead to an advanced and irreversible decline in capacity as well as significant suffering”
  • “Imminent death, if no serious and incurable disease could be identified”
  • “Disability unless it is caused by a serious and incurable disease (for example, the sequelae of a stroke caused by a cerebrovascular disease”

Eligibility under the CSFV guidance is thus narrower than eligibility under the federal law. For example, someone with a disability caused by an accident could be eligible under the federal but not the Quebec law. Someone with advanced frailty could be eligible under the federal but not the Quebec law.

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The recent statement from the CSFV could have a chilling effect on access to MAiD in Quebec. It might be taken to be saying that a person should not be found eligible for MAiD in Quebec unless they meet this narrow interpretation of the narrow Quebec law. However, fortunately, all is not as it at first appears.

Seemingly recognizing (but without acknowledging) that there is an inconsistency between the federal and provincial laws, the Commission advises physicians “faced with complex situations” to “refer to the College of Physicians of Quebec.” So physicians and patients seeking MAiD must turn to the College.

Furthermore, in Quebec, physicians must report to the CSFV all cases in which they administer MAiD. The CSFV then assesses compliance. Then, if two-thirds or more of the members present are of the opinion that section 29  of the Quebec MAiD law was not complied with, the Commission sends a summary of its conclusions to the Collège des médecins du Québec. In addition, “[a]ny person who notes that a physician has contravened this section must bring the breach to the attention of the Collège des médecins du Québec so that it can take appropriate measures.” This, then, places enforcement of compliance on the shoulders of the Collège des médecins.

Therefore, how the Collège understands the relationship between the federal and Quebec laws is critical. Fortunately, it has already clarified this. Back in May 2021, the Collège acknowledged that the federal and Quebec laws are not the same with respect to the “serious and incurable” eligibility criterion. It also issued “a clear clinical direction” to physicians to alleviate uncertainty about how to proceed:

  • The Collège is of the opinion that Quebecers, like Canadians from other provinces, have the right to the same access to end-of-life care and medical assistance in dying;
  • The Collège reaffirms that physicians who practice MAID in accordance with the provisions of federal law or the current LCSFV (the Quebec law), will not be subject to disciplinary citation by the Collège, if they have rigorously observed one law or the other, in compliance with ethical and deontological rules.

So what does this mean for eligibility in Quebec? What are clinicians and patients to do in the face of the inconsistency between the federal and Quebec laws (as recently interpreted by the CSFV)?

Well, thankfully, despite the recent statement from the CSFV, and despite the appearance of MAiD eligibility being narrower in Quebec than in the rest of Canada, the Collège May 2021 statement, makes it clear that clinicians are actually free to rely upon the federal criteria, and patients can ask for that. Patients in Quebec can receive MAiD if they have a serious illness, disease, or disability, and the CSFV’s list of excluded conditions need not restrict access to MAiD. Clinicians and patients need to know this so that patients are not wrongfully denied access to MAiD.

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Jocelyn Downie
Jocelyn Downie is a professor emeritus in the Faculties of Law and Medicine at Dalhousie University, member of the Dalhousie University Health Justice Institute, and adjunct professor at the Australian Centre for Health Law Research at Queensland University of Technology.

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