The province is considering changes to its MAID program — and they want help from Albertans

December 19, 2024 Canuck

The government of Alberta is considering sweeping changes to its medical assistance in dying program, or MAID.

This comes after the province released a public survey last month, to collect responses from Albertans on their perspectives and experiences with MAID.

No official proposals have been made.

But, the government said it’s considering changes including a second agency to oversee the MAID process, a dispute mechanism for families, a new framework which would allow confidential MAID-related information to be shared, and other provincial limits on eligibility.

Currently, all MAID cases go to the province’s medical examiner.

Health lawyer and senior counsel with global law firm Denton, Rose Carter said she’s concerned about what these possible changes could mean for medical autonomy.

“I find some of those plans to be interesting, if not disturbing,” she said in an interview.

“We have so many safeguards in place. It’s confusing to me because we live in a free and democratic society and as long as you and I have capacity, we’re entitled under the law to request or do certain things.”

MAID largely a federal matter

Since MAID was legalized in Canada in 2016, over 4,457 Albertans have died with medical assistance, according to Alberta Health Services.

Carter was appointed vice-chair of the Expert Panel on MAID and Mental Illness in 2021. Its findings would help shape Bill C-7, which would allow MAID to apply to incurable mental illness. This federal bill is expected to go into effect in 2027.

In Canada, the federal government is responsible for all matters related to the Criminal Code. By extension, MAID largely falls under the federal jurisdiction.

The provinces, under the Constitution, implement health care. Therefore, the policies that must be followed in administering MAID by health-care professionals falls under provincial jurisdiction.

However, certain decisions that the province is toying with, could challenge the overarching federal jurisdictions when it comes to MAID, Carter said.

“I mean, the provincial government can bring in whatever laws it wishes,” she said. “Whether or not those laws would withstand scrutiny under the court system is something that remains to be seen.”

Carter said the province could bump into federal guardrails if it was to go through with changes allowing family members to access MAID-related health documents.

“To allow family members or other interested parties to have access to those medical records would certainly be seen under the laws as a breach of privacy,” said Carter.

What is ‘capacity’ when it comes to MAID?

Capacity is “the legal status of being able to provide informed consent for or refusal of health-care interventions,” as defined by the Expert Panel on MAID and Mental Illness.

For University of Toronto bioethics Prof. Kerry Bowman, the biggest source of tension when it comes to MAID is the threshold of capacity.

“Families might say this person is not capable when in fact you’ve got physicians that are looking at capacity and they’re seeing that the person actually is capable. Those physicians cannot under any circumstances counter,” he said.

“What I’m finding increasingly contributing to tension throughout this country is we don’t really know on a case-by-case level what’s going on with a lot of this, and the reason we don’t know is because we have to respect confidentiality.”

Every adult in Canada is assumed to have capacity until proven otherwise, according to Carter. She said this is often an argument people use when trying to prove that mental illness could interfere with someone’s capacity to give consent.

Currently, Quebec is the only province allowing access to MAID before a person’s condition, such as Alzheimer’s, interferes with a person’s capacity to give consent.

Safeguards around MAID

For Dying with Dignity’s palliative care physician, Hayden Rubensohn, the process to approve MAID is thorough.

He said some assessments can be as short as 90 minutes, while others require much more work.

“Other assessments can take many hours, many days,” he said. “The longest assessment that I have been involved in probably took three to four months.”

At times, physicians may need to consider the previous medical treatments the patient attempted. Some might also have to consult close relatives or friends if the case is particularly complex.

Hayden Rubensohn on Google Meets — Hayden Rubensohn is a palliative care and internal medicine physician with Dying with Dignity. He says current MAID guardrails are thorough. (Emma Zhao/CBC)

The guardrails put in place are adequate as they are, according to Rubensohn. He’s concerned that any new measures could make things more difficult for those who are already vulnerable.

“I think it’s important that any new measures that come in continue to respect the fact that capacity is decision specific, that there are very few situations where someone’s global capacity is lost,” he said.

He points to a recent slew of family members taking MAID cases to court. Most recently, a B.C. man’s family announced they were suing the government after he used a day pass to end his life with medical assistance.

While sympathetic to family members, Rubensohn emphasized the importance of protecting those who need MAID.

“At the core of it, I really believe that each person in Canada is an autonomous being, provided they have capacity to direct their care, they should be the ones choosing what medical treatments they wish to pursue,” he said.

Bowman is interested to see what responses the province’s public survey garnered. While he said that numerical statistics when it comes to MAID are plentiful (Statistics Canada has kept track of MAID-related deaths since 2019), he said there needs to be a more qualitative approach to research.

“You know there’s people that underlie those numbers and what we’re not getting is what’s the lived experience of some of these people,” he said.

“I know as a researcher, this is not easy stuff to do. It may not even be possible. But it would help us tremendously if we could find a way.”

The province’s public survey will end tomorrow.

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