Medical assistance in dying: Implementing the framework

The waiver of final consent arrangement intends to prevent assessed and approved people from choosing a date to receive MAID sooner than they need to. They may be afraid of losing capacity to consent and no longer be able to receive MAID.

This option should not be used as a form of an advance request. Advance requests for MAID aren't permitted under the law. It's one of the topics being considered by a parliamentary review.

The waiver of final consent arrangement must include consent from the patient that they agree to receive MAID on or before the day specified in the arrangement if they lose their capacity to consent to receive MAID prior to that day.

The patient is the only one who can determine the date of provision, assuming the date is acceptable to the provider.

The legislation does not:

• pronounce on specifying alternative dates
• impose a time limit on the specified date to receive MAID

A patient and their MAID provider should enter into a new arrangement for the waiver of final consent if the patient wishes to change their original specified date.

The medical community may develop guidance on timelines for specifying dates under a waiver of final consent arrangement.

The arrangement for a waiver of final consent could include consent from the patient to receive MAID sooner than the specified date if they've lost capacity before then. The patient should set out the parameters describing:

• what should happen
• how to determine the date of provision

Many regulatory bodies would recommend that, to the degree possible, the practitioner and patient:

• discuss various potential scenarios, including those that might result in an acute loss of capacity
• document the patient's wishes in the written arrangement
• include the patient's family and loved ones or inform them of these discussions to avoid potential conflicts regarding the date of provision

You do not need a new arrangement if a patient consents to receive MAID earlier than their specified date due to loss of capacity.

MAID legislation requires the arrangement to include the following details:

• the name of the practitioner to administer MAID
• the date that MAID is to be administered
• explicit patient consent for the administration of MAID:
  • on the date
  • prior to that date, upon loss of capacity (only if the patient wishes to include this in the arrangement)

The legislation doesn't prohibit the use of alternative practitioners to be named in the arrangement (for example, in case the original practitioner is suddenly unavailable). However, in all cases, the practitioner who provides MAID must:

1. have personally assessed the patient and found them eligible while the patient still retained capacity to provide informed consent
2. personally ensure that all the safeguards have been satisfied
3. be named in the arrangement
4. agree to enter into the arrangement with the patient

The legislation requires that the arrangement specifies a date. However, the arrangement can describe specific conditions or circumstances where the patient could receive MAID on an earlier date, if they:

• consented in the written agreement
• have lost capacity before their originally specified date

The legislation and the provisions on the waiver of final consent do not impose any legal duty on the practitioner to provide MAID. Even if earlier they agreed to do so, they do not have to provide MAID.

Declining to fulfill the terms of a waiver of final consent could result in a situation where the patient, who has subsequently lost capacity to consent:

• cannot enter into a new arrangement with an alternate provider
• cannot receive MAID unless they regain capacity to consent

Practitioners should advise the patient as soon as possible if they feel they can't fulfill the terms of the arrangement, for any reason.

The legislation doesn't specify that the written arrangement for a waiver of final consent be signed and dated by the patient or practitioner. It also doesn't require witnesses to the written arrangement.

Provinces, territories and professional regulatory bodies may establish guidance for written arrangements for the waiver of final consent that could include:

• requirements for both the patient and the provider to sign the written agreement
• whether a proxy for the patient can sign on their behalf

Practitioners may wish to encourage the patient to share their intentions and involve their family or loved ones in discussions about receiving MAID. This way, family and friends will be aware of the patient's wishes and more likely to respect them.

A patient's family or loved ones may attempt to prevent a practitioner from administering MAID to the patient under the terms of a waiver of final consent arrangement. This would be a matter of health law, medical ethics or medical practice, which is a matter of provincial or territorial responsibility.

The written arrangement becomes permanently invalidated if 'a person demonstrates, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration'.

Involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance.

Medical regulators would expect practitioners to:

• use their professional medical judgement to determine whether a person is demonstrating refusal
• document their basis for concluding that the patient did or did not demonstrate resistance and/or refusal

Assessors may feel they have insufficient knowledge and experience in the condition causing the individual's greatest suffering for them to:

• complete their assessments
• meet the procedural safeguards for applicants whose death is not reasonably foreseeable

In this event, they must consult with a practitioner with expertise.

The consultation must be related to the aspect of suffering that is:

• most unbearable to the patient
• driving their request for MAID

Assessors may not need to consult a practitioner with expertise if:

• the condition causing the patient's unbearable suffering is within one of the assessors' scope of practice
• one of the assessors has the knowledge, skill and judgment to treat that condition, including being aware of reasonable and available treatments that may relieve that suffering

In this case, an assessor may have the necessary expertise.

Only one assessor is required to consult with the practitioner with expertise. However, that assessor must share the information with the other assessor.

Practitioners with expertise should consider providing their information in writing. This way assessors can share the information as the practitioner with expertise originally expressed it.

The practitioner with expertise does not assess a patient's eligibility for MAID.

The 'condition that is causing the person's suffering' is a broader concept than the person's 'medical condition'. In most cases, the condition causing the unbearable suffering will be the 'serious and incurable illness, disease or disability'. However, it can also be:

• their state of advanced decline in capability
• their generalized pain associated with their multiple morbidities
• a broader concept involving psychological, existential or psychosocial suffering that flows from their:
  • state of decline or
  • illness, disease or disability

The assessor needs to assess the greatest source of suffering to determine what expertise is required.

The expertise consult should provide information on the unbearable suffering that the patient is experiencing. Assessors need this information to complete a fully informed assessment of the patient.

The consultation may include advice on the:

• reasonable and available types of services and treatment options that might relieve the patient's unbearable suffering
• medical aspects of the patient's illness or disease, such its:
  • state
  • stage
  • nature
• status of the patient's state of decline based on their knowledge of the medical condition's trajectory

The patient may have had a consultation with another practitioner with expertise prior to being assessed for MAID. To decide if this consultation qualifies as an "expertise consultation" as required under the law, the assessor should consider:

• how long ago the prior consultation took place
• whether the prior consultation adequately addresses the assessors' questions about the:
  • patient
  • nature of their unbearable suffering
  • reasonable and available options for relieving that suffering

If a prior consultation is recent and comprehensive, the assessor may meet the safeguard by having a discussion with the practitioner that did the prior consultation and reviewing the practitioner's relevant written records.

The medical community may develop guidance on prior consultations in the context of its:

• completeness or current nature
• adequacy in the context of a request for MAID

The legislation does not expressly require that the practitioner with expertise in the condition causing the suffering personally meet with the patient.

The steps required in any given case will depend on:

• the practitioners involved in the case
• guidance and practice standards developed by the medical professional community, which could include:
  • the type of information the assessors need
  • whether the practitioner with expertise can adequately respond to the assessors without seeing the patient in person

For example, if the assessors only need information on local support services, the practitioner with expertise may not need to meet the patient. In some cases, they may only need to examine the patient's chart to respond to the assessor's questions.

The medical community may develop guidance advising on whether a virtual consultation with the patient is appropriate. This could address circumstances where distance and availability pose a barrier to the assessment process.

The legislation does not require the practitioner with expertise to provide the information in a specific manner.

If only one assessor is consulting a practitioner with expertise, that assessor must share the feedback with the other assessor. Written information would be the easiest and most accurate method for sharing. It also lets the assessor see the information as originally expressed by the practitioner with expertise.

In the event of comorbidities, assessors must consult with a practitioner with expertise in the medical condition that is:

• most responsible for the patient's suffering
• the reason for the patient's request for MAID

Some areas, such as rural and remote situations, may not have easy access to practitioners with expertise.

Some provinces and territories have established care coordination services to help:

• coordinate access to MAID services
• facilitate access to practitioners with the necessary expertise
• facilitate telehealth or virtual consultation services

Provinces and territories may wish to identify consulting experts for medical conditions that assessors find more challenging to assess. A list of experts may facilitate the process in cases where a person's unbearable suffering is primarily a function of the medical aspects of their condition.

Assessors should not assume that they need expertise in a particular illness or disease if the patient has that illness or disease. The particular nature of the person's unbearable suffering, not their illness or disease, is what must determine the necessary expertise.

'Expertise' does not necessarily imply a specialist. They may be a practitioner with extensive knowledge of the patient's history and the progression of their suffering, such as a family physician. In this case, they might not be on a list of local experts.