Law in Quebec

Bill 11, the latest effort to revise Quebec’s provisions governing its end-of-life care legislation, expands access to MAiD to include individuals who have a serious physical impairment causing “significant and enduring” disabilities, and to people who suffer from a serious and incurable illness and be in a medical state of advanced, irreversible decline in “capability.” The new law, with its amendments, assented to on June 7, also reappraises the notion of refusal, opens the door for specialized nurses to administer the procedure and allows MAiD to be carried out in places other than hospitals such as funeral homes and long-term care facilities, with the proviso that it cannot be promoted or advertised for commercial purposes and nor can there be fees associated with receiving MAiD.

“Bill 11 goes a long way towards mitigating the risks by making people with severe physical disabilities eligible,” remarked Nicole Filion, former director general of legal affairs at the Public Curator of Quebec and co-chair of an expert panel on incapacity and medical assistance in dying, now disbanded. “From a legal point of view, before the introduction of section 26(3)(b) of Bill 11, there was a lack of harmonization between the Quebec and Canadian legislation. That could have led to the Quebec legislation being challenged before the courts (for) depriving people suffering from the consequences of their state of health, without suffering from an illness, of a right that was nevertheless guaranteed to them under federal legislation.”

According to Dalhousie law professor Jocelyn Downie, allowing persons with a significant and persistent disability, “is appropriate from both a legal and ethical perspective.”

It brings Quebec law, added Downie, more in line with federal law which allows it, and with the seminal Supreme Court of Canada decision in Carter and the Quebec Superior Court landmark decision in Truchon c. Procureur général du Canada, 2019 QCCS 3792, which invalidated the “reasonably foreseeable” death clause of both the federal and Quebec laws and the end of life requirement under s. 26 of Quebec’s Act respecting end-of-life care, holding that it breached s. 15 of the Charter. “It also removes a distinction between illness and disability that is ethically indefensible,” said Downie, who was part of the plaintiff’s legal team in Carter.

Pushing the boundaries

Just as Quebec was at the forefront when it legalized MAiD in 2015, Bill 11 is pushing the boundaries by allowing advance requests for MAiD. Under Bill 11 persons suffering from a “serious and incurable” illness, such as Alzheimer’s, that leads to “incapacity” to give consent to care can make an advance request for MAiD once they become incapable. However, the regime applicable to advance requests will ostensibly come into force no later than 24 months after the law is passed, to allow clinical protocols to be put in place, a timeline that was met with disapproval by patients groups but approved by the commission on end-of-life care, a provincial agency. It takes time to train health-care teams, to formulate advance requests for medical assistance in dying and to draw up practice guides, said the commission.

“It’s a bill that many people have been waiting for because there seems to be a certain consensus in our society about the possibility of having access to medical assistance in dying through advance medical directives,” noted Jean-François Leroux, a Montreal lawyer specializing in medical liability with MedLégal, and who was part of the legal team that successfully pleaded Truchon.

But allowing advance requests for MAiD in advance of loss of capacity will very likely place medical practitioners, patients and lawyers in a quandary, said health law experts. Advance requests for MAiD runs against the Criminal Code, with two exceptions. Medical aid in dying may be provided without the person’s contemporaneous consent under the Criminal Code if there is a waiver of final consent, which is permitted for a person whose death is reasonably foreseeable. It is also permitted when a person chooses to self-administer MAiD, and an arrangement in writing with a practitioner has been reached in the event of complications with self-administration that causes loss of decision-making capacity but not death. “It raises the legal question of what clinicians and patients are to do with the inconsistency between the Quebec law and the federal law with respect to advance requests,” said Downie.

But Leroux, while acknowledging the importance of issuing clear directives or guidelines to ensure that advance requests for MAiD can be done without exposing practitioners to criminal charges “for respecting Quebec law,” maintains that Bill 11 falls within the scope of health-care services, a shared jurisdiction between federal and provincial and territorial governments.

“Quebec certainly has the right to adopt the legislation it has passed,” said Leroux. “I don’t get the impression that there is any laxity or major shortcomings in the implementation or at least in the theory behind the framework provided by Bill 11 regarding advance requests for MAiD. But between what the legislator has decided and the reality on the ground of applying what the legislator has approved, this is where there may be a certain challenge.”

Medical practitioners are undoubtedly going to face thorny and uncomfortable situations over whether or not the conditions expressed by the person in the advance directive are met, added Leroux. The notion of refusal is indubitably another issue they will have to grapple with. In other words, what happens when a person who has made an advance request for MAiD and has in the meantime lost the capacity to consent to care in a free, informed and ongoing manner as the ailment progresses but appears to refuse MAiD, Leroux asked rhetorically.

Notion of trusted third person

The matter becomes even more complicated when the notion of a trusted third person is taken into account. Under Bill 11, a patient may designate in the advance request a trusted third person. Trusted third persons are entrusted with the responsibility of notifying a health or social services professional who provides care to the patient when they believe the patient is exhibiting “clinical manifestations” related to their illness that are described in the request. The trusted third person also should reach out to practitioners when they believe the patient is experiencing “enduring and unbearable” physical or psychological suffering. But what happens if a trusted third person does not agree with medical practitioners that the conditions articulated by the person in the advance directive are met or not met? Trusted third persons are not granted a veto, otherwise it would indirectly undermine the exercise of self-determination by people who have exercised their right to have recourse to MAiD through advance medical directives, said Leroux.

“I expect that we will eventually find ourselves in clinical situations where there could obviously be debates and disputes over the interpretation of a clinical situation as to whether or not the conditions expressed by the person are met,” said Leroux.

In the federal regime under s. 241.2 of the Criminal Code, if the medical practitioner is about to carry out the person’s advance MAiD directive but the patient appears to be using gestures, words or sounds that indicate he is opposed to receiving MAiD, the medical or nurse practitioner may administer “a substance to a person to cause their death” if it is deemed that the signals are involuntary as “they do not constitute a demonstration of refusal or resistance” to receiving MAiD. The same appears to hold true under Bill 11. Under s. 29.19 of Bill 11, if the patient is exhibiting behavioural symptoms resulting from their state such as resistance to care, the practitioner must “based on the information at their disposal and according to their clinical judgment,” rule out the possibility that the patient is refusing to receive MAiD. “Bill 11 introduces sections dealing with clinical manifestations related to the illness described in the request, the exercise of clinical judgment by the competent professional and, above all, resistance to care as a behavioural symptom arising from the illness,” noted Filion.

There is another knotty issue that will eventually come up, said legal experts. Under Quebec law, a mental disorder, other than a neurocognitive disorder, is not considered to be an illness for which a person can make a request to receive MAiD. The same holds true for the federal regime, at least for now. But that’s about to change. In March 2023, Bill C-39 was assented, which provides that as of March 2024, a person suffering from mental illness would be eligible to receive MAiD.

“Clinicians and patients and the public will be confused about the differences between the federal system and the Quebec system — what are they to do, what can they access when the two are inconsistent?” said Downie. “For example, next March when MAiD for persons with mental disorders as their sole underlying medical condition can be eligible for MAiD under the federal law but not under the Quebec law. Clear direction will need to come from the Quebec government and the regulatory bodies as to what they will do if MAiD is provided to a person whose sole underlying medical condition is a mental disorder, consistent with the federal law but in breach of the provincial law.”

Numbers of MAiD requests increasing

The number of MAiD procedures administered in Quebec is increasing, from nearly 3,300 persons in 2021 to more than 4,810 people in 2022, a figure projected to reach 6,000 people this year, which would account for about eight per cent of all deaths in the province, according to a brief the commission on end-of-life care presented before the National Assembly of Quebec. The proportion between men and women who opted for MAiD is nearly the same, with 53 per cent being men and 47 per cent women. The average age was 74, and the vast majority of people, or 91 per cent, were aged 60 and over. Most people waited for the advanced or terminal phase of their illness, with 81 per cent facing a prognosis of six months or less and 69 per cent of at least three months. The average time between signing the authorization application and receiving it was 44 days, with 94 per cent of individuals receiving MAiD within 90 days of their formal application, revealed the commission. The majority, or 57 per cent, of MAiD procedures were administered in hospitals while 29 per cent were done at home, nine per cent in long-term care facilities and five per cent in palliative care homes.

These figures lay bare the fact Quebec resorts to MAiD more than any other province, and more than other countries where it has long been permitted, such as Belgium and the Netherlands, added the brief. “The fact that Quebec is the only place where MAiD is considered as care, offered as part of the continuum of end-of-life care, and that MAiD has enjoyed popular support since its introduction, probably partly explains this growth,” said the brief.

But these numbers nevertheless make Dr. Michel Bureau, head of the commission, wonder about what is behind the phenomena. “What obsesses me is whether our society will replace natural death with medical aid in dying,” said Bureau in testimony during public hearings before the National Assembly.

“We have often seen MAiD administered in ways that were unclear,” added Bureau. “And in these circumstances, a medical commissioner contacts the doctor and says: ‘Is it really natural death that we did’t let happen and then took medical aid in dying?’ It’s not easy to answer this question, but in all cases, I would say that there are elements that mean that MAiD does not cause natural death or replace it. When the law was passed, it was’t designed for that at all.”

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