An Act to amend the Criminal Code (medical assistance in dying) (S.C. 2021, c. 2)
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Assented to 2021-03-17
An Act to amend the Criminal Code (medical assistance in dying)
S.C. 2021, c. 2
Assented to 2021-03-17
An Act to amend the Criminal Code (medical assistance in dying)
SUMMARY
This enactment amends the Criminal Code to, among other things,
(a) repeal the provision that requires a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying;
(b) specify that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying;
(c) create two sets of safeguards that must be respected before medical assistance in dying may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
(d) permit medical assistance in dying to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before medical assistance in dying is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
(e) permit medical assistance in dying to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing medical assistance in dying in order to cause their own death.
Preamble
Whereas the Government of Canada has committed to responding to the Superior Court of Québec decision in Truchon v. Attorney General of Canada;
Whereas Parliament considers that it is appropriate to no longer limit eligibility for medical assistance in dying to persons whose natural death is reasonably foreseeable and to provide additional safeguards for those persons whose natural death is not reasonably foreseeable;
Whereas under the Canadian Charter of Rights and Freedoms every individual has the right to life, liberty and security of the person without being deprived of them except in accordance with the principles of fundamental justice and has the right to the equal protection and equal benefit of the law without discrimination;
Whereas Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and recognizes its obligations under it, including in respect of the right to life;
Whereas Parliament affirms the inherent and equal value of every person’s life and the importance of taking a human rights-based approach to disability inclusion;
Whereas Parliament recognizes the need to balance several interests and societal values, including the autonomy of persons who are eligible to receive medical assistance in dying, the protection of vulnerable persons from being induced to end their lives and the important public health issue that suicide represents;
Whereas it is desirable to have a consistent approach to medical assistance in dying across Canada, while recognizing the provinces’ jurisdiction over various matters related to medical assistance in dying, including the delivery of health care services and the regulation of health care professionals, as well as insurance contracts and coroners and medical examiners;
Whereas the Government of Canada is committed to having a federal monitoring regime that provides a reliable national dataset and that promotes accountability under the law governing medical assistance in dying and improve the transparency of its implementation;
Whereas, while recognizing the inherent risks and complexity of permitting medical assistance in dying for persons who are unable to provide consent at the time of the procedure, Parliament considers it appropriate to permit dying persons who have been found eligible to receive medical assistance in dying and are awaiting its provision to obtain medical assistance in dying even if they lose the capacity to provide final consent, except if they demonstrate signs of resistance to or refusal of the procedure;
Whereas further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness in light of the inherent risks and complexity of the provision of medical assistance in dying in those circumstances;
And whereas the law provides that a committee of Parliament will begin a review of the legislative provisions relating to medical assistance in dying and the state of palliative care in Canada in June 2020, which review may include issues of advance requests and requests where mental illness is the sole underlying medical condition;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. 46Criminal Code
Marginal note:2016, c. 3, s. 3
1 (1) Subsection 241.2(2) of the Criminal Code is amended by adding “and” at the end of paragraph (b), by striking out “and” at the end of paragraph (c) and by repealing paragraph (d).
(2) Section 241.2 of the Act is amended by adding the following after subsection (2):
Marginal note:Exclusion
(2.1) For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability.
(2.1) Subsection 241.2(2.1) of the Act is repealed.
Marginal note:2016, c. 3, s. 3
(3) The portion of subsection 241.2(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Safeguards — natural death foreseeable
(3) Subject to subsection (3.2), before a medical practitioner or nurse practitioner provides medical assistance in dying to a person whose natural death is reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining, the medical practitioner or nurse practitioner must
Marginal note:2016, c. 3, s. 3
(4) Paragraph 241.2(3)(c) of the Act is replaced by the following:
(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before an independent witness who then also signed and dated the request;
Marginal note:2016, c. 3, s. 3
(5) Paragraph 241.2(3)(g) of the Act is replaced by the following:
(g) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision; and
Marginal note:2016, c. 3, s. 3
(6) Subsection 241.2(3) of the Act is amended by striking out “and” at the end of paragraph (h) and by repealing paragraph (i).
(7) Section 241.2 of the Act is amended by adding the following after subsection (3):
Marginal note:Safeguards — natural death not foreseeable
(3.1) Before a medical practitioner or nurse practitioner provides medical assistance in dying to a person whose natural death is not reasonably foreseeable, taking into account all of their medical circumstances, the medical practitioner or nurse practitioner must
(a) be of the opinion that the person meets all of the criteria set out in subsection (1);
(b) ensure that the person’s request for medical assistance in dying was
(i) made in writing and signed and dated by the person or by another person under subsection (4), and
(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before an independent witness who then also signed and dated the request;
(d) ensure that the person has been informed that the person may, at any time and in any manner, withdraw their request;
(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1);
(e.1) if neither they nor the other medical practitioner or nurse practitioner referred to in paragraph (e) has expertise in the condition that is causing the person’s suffering, ensure that they or the medical practitioner or nurse practitioner referred to in paragraph (e) consult with a medical practitioner or nurse practitioner who has that expertise and share the results of that consultation with the other practitioner;
(f) be satisfied that they and the medical practitioner or nurse practitioner referred to in paragraph (e) are independent;
(g) ensure that the person has been informed of the means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care and has been offered consultations with relevant professionals who provide those services or that care;
(h) ensure that they and the medical practitioner or nurse practitioner referred to in paragraph (e) have discussed with the person the reasonable and available means to relieve the person’s suffering and they and the medical practitioner or nurse practitioner referred to in paragraph (e) agree with the person that the person has given serious consideration to those means;
(i) ensure that there are at least 90 clear days between the day on which the first assessment under this subsection of whether the person meets the criteria set out in subsection (1) begins and the day on which medical assistance in dying is provided to them or — if the assessments have been completed and they and the medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the loss of the person’s capacity to provide consent to receive medical assistance in dying is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;
(j) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision; and
(k) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.
Marginal note:Final consent — waiver
(3.2) For the purposes of subsection (3), the medical practitioner or nurse practitioner may administer a substance to a person to cause their death without meeting the requirement set out in paragraph (3)(h) if
(a) before the person loses the capacity to consent to receiving medical assistance in dying,
(i) they met all of the criteria set out in subsection (1) and all other safeguards set out in subsection (3) were met,
(ii) they entered into an arrangement in writing with the medical practitioner or nurse practitioner that the medical practitioner or nurse practitioner would administer a substance to cause their death on a specified day,
(iii) they were informed by the medical practitioner or nurse practitioner of the risk of losing the capacity to consent to receiving medical assistance in dying prior to the day specified in the arrangement, and
(iv) in the written arrangement, they consented to the administration by the medical practitioner or nurse practitioner of a substance to cause their death on or before the day specified in the arrangement if they lost their capacity to consent to receiving medical assistance in dying prior to that day;
(b) the person has lost the capacity to consent to receiving medical assistance in dying;
(c) the person does not demonstrate, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration; and
(d) the substance is administered to the person in accordance with the terms of the arrangement.
Marginal note:For greater certainty
(3.3) For greater certainty, involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance for the purposes of paragraph (3.2)(c).
Marginal note:Advance consent invalidated
(3.4) Once a person demonstrates, by words, sounds or gestures, in accordance with subsection (3.2), refusal to have the substance administered or resistance to its administration, medical assistance in dying can no longer be provided to them on the basis of the consent given by them under subparagraph (3.2)(a)(iv).
Marginal note:Advance consent — self-administration
(3.5) In the case of a person who loses the capacity to consent to receiving medical assistance in dying after self-administering a substance, provided to them under this section, so as to cause their own death, a medical practitioner or nurse practitioner may administer a substance to cause the death of that person if
(a) before the person loses the capacity to consent to receiving medical assistance in dying, they and the medical practitioner or nurse practitioner entered into an arrangement in writing providing that the medical practitioner or nurse practitioner would
(i) be present at the time the person self-administered the first substance, and
(ii) administer a second substance to cause the person’s death if, after self-administering the first substance, the person lost the capacity to consent to receiving medical assistance in dying and did not die within a specified period;
(b) the person self-administers the first substance, does not die within the period specified in the arrangement and loses the capacity to consent to receiving medical assistance in dying; and
(c) the second substance is administered to the person in accordance with the terms of the arrangement.
(8) Section 241.2 of the Act is amended by adding the following after subsection (5):
Marginal note:Exception
(5.1) Despite paragraphs (5)(c) and (d), a person who provides health care services or personal care as their primary occupation and who is paid to provide that care to the person requesting medical assistance in dying is permitted to act as an independent witness, except for
(a) the medical practitioner or nurse practitioner who will provide medical assistance in dying to the person; and
(b) the medical practitioner or nurse practitioner who provided an opinion under paragraph (3)(e) or (3.1)(e), as the case may be, in respect of the person.
Marginal note:2016, c. 3, s. 3
(9) The portion of subsection 241.2(6) of the Act before paragraph (a) is replaced by the following:
Marginal note:Independence — medical practitioners and nurse practitioners
(6) The medical practitioner or nurse practitioner providing medical assistance in dying and the medical practitioner or nurse practitioner who provides the opinion referred to in paragraph (3)(e) or (3.1)(e) are independent if they
(10) Paragraph 241.2(6)(b) of the English version of the Act is amended by replacing “or” with “and” at the end of that paragraph.
Marginal note:2019, c. 25, s. 80
2 The portion of section 241.3 of the Act before paragraph (a) is replaced by the following:
Marginal note:Failure to comply with safeguards
241.3 A medical practitioner or nurse practitioner who, in providing medical assistance in dying, knowingly fails to comply, subject to subsection 241.2(3.2), with all of the requirements set out in paragraphs 241.2(3)(b) to (h) or paragraphs 241.2(3.1)(b) to (k), as the case may be, and with subsection 241.2(8) is guilty of
Marginal note:2016, c. 3, s. 4
3 (1) Subsections 241.31(1) and (2) of the Act are replaced by the following:
Marginal note:Filing information — practitioners
241.31 (1) Unless they are exempted under regulations made under subsection (3), a medical practitioner or nurse practitioner who carries out an assessment of whether a person meets the criteria set out in subsection 241.2(1) or who receives a written request for medical assistance in dying must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.
Marginal note:Filing information — responsible for preliminary assessments
(1.1) Unless they are exempted under regulations made under subsection (3), any person who has the responsibility to carry out preliminary assessments of whether a person meets the criteria set out in subsection 241.2(1) must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.
Marginal note:Filing information — pharmacist and pharmacy technicians
(2) Unless they are exempted under regulations made under subsection (3), a pharmacist who dispenses a substance in connection with the provision of medical assistance in dying, or the person permitted to act as a pharmacy technician under the laws of a province who dispenses a substance to aid a medical practitioner or nurse practitioner in providing a person with medical assistance in dying, must, in accordance with those regulations, provide the information required by those regulations to the recipient designated in those regulations.
Marginal note:2016, c. 3, s. 4
(2) The portion of paragraph 241.31(3)(a) before subparagraph (ii) of the Act is replaced by the following:
(a) respecting the provision and collection, for the purpose of monitoring medical assistance in dying, of information relating to requests for, and the provision of, medical assistance in dying, including
(i) the information to be provided, at various stages, by medical practitioners, nurse practitioners, persons referred to in subsection (1.1) who have the responsibility to carry out preliminary assessments, pharmacists and pharmacy technicians, or by a class of any of them, including
(A) the elements considered in the course of the assessments — preliminary or otherwise — of whether a person meets the criteria set out in subsection 241.2(1),
(B) information respecting the race or indigenous identity of a person who requests or receives medical assistance in dying, if the person consents to providing this information, and
(C) information — other than information that must be provided in relation to the assessment of eligibility to receive medical assistance in dying and the application of safeguards — respecting any disability, as defined in section 2 of the Accessible Canada Act, of a person who requests or receives medical assistance in dying, if the person consents to providing that information,
(2.1) Paragraph 241.31(3)(b) of the Act is replaced by the following:
(b) respecting the use, analysis and interpretation of that information, including for the purposes of determining the presence of any inequality — including systemic inequality — or disadvantage based on race, Indigenous identity, disability or other characteristics, in medical assistance in dying;
(b.1) respecting the protection, publication, and disclosure of that information;
(3) Paragraph 241.31(3)(d) of the Act is replaced by the following:
(d) exempting, on any terms that may be specified, a class of persons from the requirements set out in subsections (1) to (2).
Marginal note:2016, c. 3, s. 4
(4) The portion of subsection 241.31(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Offence and punishment
(4) A medical practitioner or nurse practitioner who knowingly fails to comply with subsection (1), a person having the responsibility to carry out preliminary assessments who knowingly fails to comply with subsection (1.1) or a pharmacist or pharmacy technician who knowingly fails to comply with subsection (2),
(5) Section 241.31 of the Act is amended by adding the following after subsection (5):
Marginal note:Consultation
(6) In performing his or her functions or duties under subsection (3), the Minister of Health must, when appropriate, consult with the minister responsible for the status of persons with disabilities.
Independent Review
Marginal note:Expert review
3.1 (1) The Minister of Justice and the Minister of Health must cause an independent review to be carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.
Marginal note:Report
(2) A report containing the experts’ conclusions and recommendations must be provided to the Ministers no later than the first anniversary of the day on which this Act receives royal assent.
Marginal note:Tabling
(3) The Ministers must cause the report to be tabled in each House of Parliament within the first 15 days on which the House is sitting after the day on which they receive the report.
Transitional Provision
Marginal note:Request made prior to assent
4 A medical practitioner or nurse practitioner who provides medical assistance in dying to a person who, before the day on which this Act receives royal assent, had signed and dated a written request for medical assistance in dying must provide it in accordance with section 241.2 of the Criminal Code as it read immediately before that day, other than paragraph 241.2(3)(g), and with subsections 241.2(3.2) to (3.5) of that Act, as enacted by this Act.
- Date modified: