Advance assisted dying allowed after incapacity

Summary#

This bill changes Canada’s Criminal Code rules for medical assistance in dying (MAID). It would let some people who later lose decision-making capacity use a prior written plan to receive MAID, even if their natural death is not reasonably foreseeable. It also creates a new “declaration” option that lists observable conditions that would allow MAID if capacity is lost. All existing eligibility rules and safeguards must still be met before capacity is lost (Criminal Code s.241.2(3.2)).

• Extends the waiver of final consent to people whose death is not reasonably foreseeable, if they met all eligibility and safeguards before losing capacity (s.241.2(3.2), (3.1)(k)).
• Creates a written declaration option that lists clear, observable conditions tied to a diagnosed serious and incurable illness; valid for up to 5 years (s.241.2(3.22)(a)-(c)).
• Requires two independent witnesses and a physician’s certification of the declaration’s clarity, observability, and witness independence (s.241.2(3.22)(d)-(e), (5)).
• Keeps a stop rule: MAID cannot proceed if the person shows refusal by words, sounds, or gestures at the time (s.241.2(3.4), (3.2)(c)).
• Aligns federal law in part with Quebec’s advance request model noted in the preamble, while still requiring that all federal safeguards be met before capacity is lost (Preamble; s.241.2(3.2)).

What it means for you#

• Households

  • If you have a serious and incurable illness and worry about losing decision-making capacity, you could sign a written arrangement with your MAID provider for a set day. If you lose capacity before that day, MAID could still occur on or before that date, if you met all safeguards first (s.241.2(3.21), (3.2)).
  • You could also make a written declaration after diagnosis, listing specific, observable conditions related to your illness that would allow MAID if you later lose capacity. The declaration must be no older than 5 years at the time of MAID (s.241.2(3.22)(a)-(c)).
  • MAID cannot proceed if, at the time, you show refusal or resistance by words, sounds, or gestures (s.241.2(3.4), (3.2)(c)).
  • This bill does not allow MAID unless you were already eligible and all safeguards were satisfied before you lost capacity, even if you have a declaration (s.241.2(3.2)).

• Workers (Health professionals)

  • You could provide MAID without final contemporaneous consent for both “reasonably foreseeable death” and “not reasonably foreseeable death” cases, but only if all eligibility criteria and safeguards were met before capacity loss and there is a valid arrangement or declaration (s.241.2(3.2), (3), (3.1)).
  • For declarations, you must confirm the listed conditions are clearly identified and observable by a practitioner, and that witnesses are independent, before proceeding (s.241.2(3.22)(e)).
  • You must stop if the person shows refusal or resistance at the time of administration (s.241.2(3.4)).

• Caregivers and substitute decision-makers

  • A person’s valid arrangement or declaration can authorize MAID after capacity is lost, if all safeguards were already met. Your consent is not a substitute for the person’s prior arrangement or declaration (s.241.2(3.2), (3.21), (3.22)).
  • You should expect providers to verify the document age (≤5 years for declarations), signatures of two independent witnesses, and the physician certification (s.241.2(3.22)(b)-(e)).

• Health systems and facilities

  • Policies will need to support storage, retrieval, and verification of arrangements and declarations, including witness independence and physician certification (s.241.2(3.22)(d)-(e)).
  • Workflows must ensure all other safeguards for the applicable track were completed before capacity loss, including assessments and waiting periods where required (s.241.2(3.2), (3), (3.1)).

• Timing

  • Effective date: Data unavailable.

Expenses#

Estimated net cost: Data unavailable.

• No direct appropriations or funding provisions are included in the bill text.
• Federal or provincial implementation costs, if any, are not provided.
• Administrative, training, or documentation costs: Data unavailable.

Proponents' View#

• Expands access fairly by allowing waiver of final consent in cases where natural death is not reasonably foreseeable, avoiding loss of access due to capacity loss after all safeguards have been met (s.241.2(3.2), (3.1)(k)).
• Adds a declaration pathway with strict conditions: diagnosis required, clear and observable symptom triggers, two independent witnesses, physician certification, and a 5‑year limit to keep wishes current (s.241.2(3.22)(a)-(e)).
• Maintains protections: MAID must stop if the person shows refusal by words, sounds, or gestures, preserving contemporaneous choice at the time of administration (s.241.2(3.4), (3.2)(c)).
• Keeps all existing eligibility and safeguard standards, since MAID can proceed only if those were completed before capacity loss, limiting use to fully assessed cases (s.241.2(1), (3), (3.1), (3.2)).
• Harmonizes in part with Quebec’s advance request approach noted in the preamble, while fitting within federal safeguards (Preamble; s.241.2(3.2), (3.22)).

Assumptions to flag: That practitioners can reliably observe and verify the listed conditions and witness independence as required (s.241.2(3.22)(a), (e)).

Opponents' View#

• Applies MAID without final contemporaneous consent, which some view as weakening the consent standard, even with a stop rule for refusal gestures (s.241.2(3.2), (3.4)).
• Risk of misinterpretation of declarations: “observable conditions” may be subjective in practice, creating variability across providers and settings (s.241.2(3.22)(a), (e)).
• The 5‑year validity window may not reflect changed preferences; renewals are not addressed in the text beyond making a new declaration, which could be burdensome (s.241.2(3.22)(b)).
• Implementation complexity: verifying two independent witnesses and physician certification, and documenting completion of all safeguards before capacity loss, may increase administrative load; no funding is provided (s.241.2(3.22)(d)-(e); Expenses: Data unavailable).
• Limited practical effect for some patients: because all safeguards must be completed before capacity loss (including Track 2 waiting periods), some individuals may still become ineligible if they lose capacity earlier (s.241.2(3.2), (3.1)).

Assumptions to flag: That health systems can standardize verification and documentation without added errors or delays; that patients will consistently refresh declarations within 5 years (Data unavailable).