Agnes looks at the person asking her kindly to extend her arm. She does not remember when she arranged to end her life through medical assistance in dying. Nor does Agnes know right now what all the fuss is about. “Why are you two back here again?” she asks her children. Their faces are so familiar but she cannot place them. “We’re here to be with you as you receive medical assistance in dying, Mom. Today is the date you chose.” Agnes rolls up her sleeve. “Well, let’s get on with it, shall we? I don’t want to miss my show.”

This scene has yet to play out in Canada. If Bill C-7, an act to amend the Criminal Code on medical assistance in dying (MAiD) currently before Parliament, is passed in its present form, it soon will. Right now, only legally capable patients can consent to their own deaths. Having the capacity to give or withdraw consent at the moment of provision is the lynchpin of the system of safeguards governing MAiD in this country. In other words, receiving MAiD requires contemporaneous, not advance or implied, consent. This protects people from having their lives ended against their will.

Bill C-7 allows patients to consent in advance to MAiD – currently prohibited by the contemporaneous consent requirement – so long as their natural death has become “reasonably foreseeable.”

Under the proposed legislation, eligible patients may, like Agnes, receive MAiD whether or not they continue to express a wish to die. Once approved, the only prerequisite is that they have scheduled a date for the provision with their provider. Since no time limit is set out in the legislation, there is nothing preventing the patient and provider from arranging a provision date not simply days, but weeks, months, even years into the future.

The bill establishes some limits but these are not nearly adequate given what is at stake. It provides that “the medical practitioner or nurse practitioner may administer a substance to a person to cause their death…if the person does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration.”

The bill specifies that “involuntary words, sounds or gestures made in response to contact” do not count as refusal. The bill does not say what the MAiD provider must do if the patient does refuse or resist. Do they simply wait and try again later?

The bill notes that the substance will be “administered to the person in accordance with the terms of the arrangement.” Does that mean multiple dates can be specified, just in case? It seems that after launching us all into uncharted waters, the legislation stops short of providing the direction needed to work out the vital details.

Bill C-7 enables two groups of patients to receive MAiD who under the current law do not qualify: first, those patients at the very end of life who lose capacity while awaiting the 10 clear days before their MAiD provision. Second, other patients approved for MAiD whose natural death is still some time away and who are experiencing cognitive decline.

The first kind of situation will become less common, especially in Quebec, as patients continue to access MAiD sooner in their illness trajectory than the terminal phase. The law already permits provision to take place immediately if the MAiD assessors determine that the patient’s death or loss of capacity is imminent. Permitting MAiD provision for a dying patient who unexpectedly loses capacity during the 10-day waiting period would provide a suitably narrow, definite and precise exception to the contemporaneous consent requirement. But Bill C-7 scraps the 10-day waiting period, while diminishing the role of contemporary consent in the regulatory system.

When it comes to the second group, it is important to note that some Alzheimer’s patients qualify as eligible under the current MAiD law because clinical interpretation of eligibility has evolved considerably in the four years since MAiD was legalized in Canada. This includes people with years left to live.

Under Bill C-7, those who are eligible but are not ready to die yet would then be able to receive MAiD on a specified date in the future. Advocates of the MAiD consent waiver argue these patients will thereby be spared the “cruel choice” of either ending their lives when they still have capacity or enduring the passage through advance dementia to death.

And yet there is an element of cruelty built into any law that makes the compassionate termination of one’s suffering hinge on filling out the requisite paperwork. Witnessing an apparently contented Agnes receive MAiD may make it hard to see why another patient, appearing to suffer more and expressing their wish to die, would not also be able to receive the same consideration.

Evidence of a patient’s wishes or values both prior to and after losing capacity may seem just as sound a basis to provide them with an assisted death as a formally approved advance MAiD request.  Any statutory effort at distinguishing permissible versus impermissible forms of non-voluntary euthanasia is going to be rife with difficulty – not least, one as under-specified as the proposed legislation. The contemporaneous consent requirement offers a clearer, more certain and predictable threshold of legality.

In tampering with that, Bill C-7 signals a major legal change with untold ramifications for Canadian society and our woefully inadequate long-term residential care system. The bill is being rushed through Parliament to meet a December deadline the government could have avoided if it had appealed Truchon.

Jean Truchon was one of two Quebecers who successfully fought to expand medically assisted dying laws. He was born with cerebral palsy but didn’t qualify for MAiD under the existing legislation because he didn’t meet the “reasonably foreseeable natural death” requirement under the federal legislation or the “end of life” requirement exclusive to Quebec’s provincial MAiD regime.  In September 2019, the Quebec Superior Court struck down both provisions as unconstitutional. Truchon died with MAiD this past April. The government has until December 18, 2020, before the court’s declaration takes effect and those MAiD eligibility criteria become void in Quebec. The ruling incorrectly assumed the reasonably foreseeable natural death requirement in the federal legislation is identical to the end of life criterion in the corresponding provincial statute.

Meanwhile, empirical research on clinical practice reveals that they are not. At any rate, the provisions dealing with advance requests have nothing to do with complying with the Truchon decision. Keeping the contemporaneous consent requirement intact – even making an exception in the case of a patient who has lost capacity during the 10-day waiting period – would be wiser than forging ahead with a legislative proposal that raises so many important questions.

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Thomas McMorrow is an associate professor of Legal Studies and program director of Liberal Studies at Ontario Tech University. He earned his doctorate in law from McGill University.

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