Advance Consent for Assisted Dying Expanded

Summary#

This bill would change Canada’s Criminal Code rules on medical assistance in dying (MAID) to allow some people to waive “final consent” if they later lose the capacity to consent. It adds two paths: a written arrangement for a set day, and a written declaration with specific observable conditions. It extends these options to people whose natural death is not reasonably foreseeable, with added safeguards.

• Lets eligible people set a MAID date in writing and allow MAID “on or before” that date if they lose capacity before then (Bill s. 241.2(3.2), (3.21)).
• Creates an “advance declaration” option with clearly listed, observable conditions, valid for up to 5 years, with two independent witnesses and a doctor’s certification (Bill s. 241.2(3.22)(a)-(e)).
• Requires that all other MAID safeguards for the person’s track—either death reasonably foreseeable or not—were met before capacity was lost (Bill s. 241.2(3.2)(a)).
• Keeps a stop rule: MAID cannot proceed if the person shows refusal or resistance by words, sounds, or gestures at the time (Bill s. 241.2(3.2)(c), (3.4)).

What it means for you#

• Households and patients

  • If you have a serious and incurable illness, disease, or disability, you could make a written declaration after diagnosis to receive MAID if you later lose capacity and meet the listed conditions. The declaration must be less than 5 years old when relied upon and list conditions that are clearly identified and observable (Bill s. 241.2(3.22)(a)-(c)).
  • You could instead sign a written arrangement with your MAID provider for a specified day. If you lose capacity before that day, the provider may proceed on or before that date, if other safeguards were met. You must be told about the risk of losing capacity before the date (Bill s. 241.2(3.21)(a)-(c)).
  • In both paths, MAID cannot occur if, at the time, you show refusal or resistance by words, sounds, or gestures (Bill s. 241.2(3.2)(c), (3.4)).
  • These options are available whether or not your natural death is reasonably foreseeable, but you must first meet all MAID eligibility rules and safeguards in the Criminal Code (Bill s. 241.2(3.2)(a)).

• Health care providers (medical and nurse practitioners)

  • You may provide MAID without final consent at the time of provision if: the person was eligible under s. 241.2(1), all safeguards in the applicable track were met before loss of capacity, the person later lost capacity, there is no resistance at the time, and you follow the arrangement or declaration terms (Bill s. 241.2(3.2)(a)-(d)).
  • For a specified-day arrangement, you must inform the person about the risk of losing capacity before the date (Bill s. 241.2(3.21)(b)).
  • For an advance declaration, you must ensure two independent witnesses signed and dated it, and a medical practitioner has certified the clarity and observability of the listed conditions and the independence of witnesses as defined in s. 241.2(5) (Bill s. 241.2(3.22)(d)-(e)).
  • You must stop if the person shows refusal or resistance, even if a valid arrangement or declaration exists (Bill s. 241.2(3.4)).

• Health system administrators and regulators

  • Documentation processes would need to accommodate written arrangements and declarations, witness verification, and physician certification of declarations (Bill s. 241.2(3.21)-(3.22)).
  • Providers must verify that all safeguards in the applicable pathway—reasonably foreseeable death (s. 241.2(3)) or not reasonably foreseeable death (s. 241.2(3.1))—were met before capacity was lost (Bill s. 241.2(3.2)(a)).

• Timing

  • Effective date: Data unavailable.

Expenses#

Estimated net cost: Data unavailable.

• The bill changes Criminal Code provisions and adds documentation and verification steps for providers. It does not include any appropriations or fees in the text (Bill s. 241.2(3.2), (3.21), (3.22), (3.4)).
• Government fiscal estimate: Data unavailable.

Proponents' View#

• Expands patient autonomy and planning. People at risk of losing capacity can set clear instructions through a specified-day arrangement or an advance declaration, reducing last-minute consent pressure (Bill s. 241.2(3.21), (3.22)).
• Closes a gap for people whose death is not reasonably foreseeable by allowing a waiver of final consent in that track, subject to all existing safeguards for that pathway (Bill s. 241.2(3.2), (3.1)).
• Adds safeguards to manage risk: two independent witnesses, a 5-year limit on declarations, and a physician certification that conditions are clear and observable (Bill s. 241.2(3.22)(b)-(e)).
• Maintains real-time protections. If the person shows refusal or resistance at the time, providers must not proceed (Bill s. 241.2(3.2)(c), (3.4)).
• Keeps the standard eligibility and safeguard checks. Waiver applies only if all other MAID criteria and track-specific safeguards were satisfied before capacity was lost (Bill s. 241.2(3.2)(a)).

Opponents' View#

• Consent uncertainty after capacity loss. Even with listed, observable conditions and a no-resistance check, assessing “words, sounds or gestures” can be subjective and may be hard to apply consistently (Bill s. 241.2(3.2)(c), (3.4)).
• Implementation complexity and error risk. Providers must confirm that all safeguards in the correct track—either s. 241.2(3) or s. 241.2(3.1)—were met before loss of capacity, which may be difficult to document over time (Bill s. 241.2(3.2)(a)).
• Scope expansion. Allowing waivers when death is not reasonably foreseeable broadens access to MAID without final contemporaneous consent, raising concern about whether safeguards sufficiently protect vulnerable people (Bill s. 241.2(3.2), (3.1)).
• Ambiguity in advance declarations. Even if conditions must be “clearly identified” and “observable,” clinical interpretation may vary, and the 5-year validity window may not align with individual disease progression (Bill s. 241.2(3.22)(a)-(c)).
• Oversight and record-keeping burdens. New requirements for witnessing and physician certification increase administrative workload, with no dedicated resources identified in the bill text (Bill s. 241.2(3.22)(d)-(e)).