Medical Assistance in Dying
On March 17, 2021, the senate passed Bill C-7, which changes requirements related to Medical Assistance in Dying (MAID) under the Criminal Code. The key changes are:
- Eligibility criteria: The bill removes the restriction that MAID is available only for patients whose natural death is reasonably foreseeable. It is now available for reasonably foreseeable and not reasonably foreseeable natural death.
- Safeguards: The bill provides two sets of safeguards to protect patients and health care providers based on the foreseeability of death:
- For people whose natural death is reasonably foreseeable, the safeguards have been eased. For example, individuals no longer need to wait for a 10-day reflection period to pass before receiving the service.
- There are new safeguards for people whose natural death is not reasonably foreseeable. One is requiring a minimum of 90 days between the beginning of the first assessment and the day MAID is provided.
- Advanced consent
In specific circumstances, the requirement for final consent at the time of the MAID procedure can be waived. Therefore, when advanced consent has been given, MAID can be administered for patients whose natural death is reasonably foreseeable:
- If they have been assessed and approved
- if they lose capacity to consent before their preferred date for MAID, and
- if they have a written arrangement with a practitioner.
- Monitoring and reporting requirements
The bill enhances reporting requirements. For example, any time an eligibility assessment takes place for MAID, it must be reported to Health Canada
To learn more about these changes, read Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
No. A patient’s choice to stop treatment or refuse new treatment is not the same as medical assistance in dying. Medical assistance in dying, as defined in the Criminal Code, only refers to situations where:
- an NP or physician provides assistance by administering a medication to a client, at their request, that causes their death (i.e., clinician-assisted medical assistance in dying ); or
- an NP or physician prescribes or provides a medication to a client, at their request, so that they may self-administer the medication and in doing so cause their own death (i.e., client self-administered medical assistance in dying)
All nurses are required to have professional liability protection (PLP).
CNO has no additional liability protection requirements for a nurse who is involved in medical assistance in dying. It may be prudent to contact your PLP provider to discuss with them if it would be beneficial for you to have additional coverage.
Yes, a nurse can sign a request for medical assistance in dying on the patient’s behalf if the nurse meets the legal requirement to do so.
The law requires the patient to make a written request for medical assistance in dying. The request must be signed and dated by the patient after they have been informed by a physician or NP that they have a grievous and irremediable medical condition. If the patient is unable to sign and date the request, another individual may do so in the patient’s presence and under the patient’s express direction.
The person who signs on the patient’s behalf must:
- be at least 18 years of age
- understand the nature of the request for medical assistance in dying
- not know or believe that they are a beneficiary under the client’s will; and
- not know or believe that they are a recipient, in any other way, of a financial or other material benefit resulting from the patient’s death
No. The legislation clearly identifies that the person themselves must be capable of making the request and providing informed consent immediately before providing the medical assistance in dying. Therefore, there is no role for the SDM in medical assistance in dying.
The law states that an individual has a grievous and irremediable medical condition if:
- They have a serious and incurable illness, disease or disability (mental illness is not considered to be an illness, disease or disability for the purposes of MAID
- They are in an advanced state of irreversible decline in capability; and
- That illness, disease or disability, or that state of decline, causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.
Further details on interpreting the legal definition of a grievous and irremediable medical condition can be found in the companion resources developed by the federal government.
The provincial government has established a Care Coordination Service (CCS) to help clinicians connect patients with willing providers of MAID related services.
Patients may contact the CCS directly to receive information about end-of-life options in Ontario, including information on hospice care, other palliative care options in their communities, and MAID. Patients can also call the CCS to request to be connected to a physician or NP who provides MAID services, such as eligibility assessments. The CCS can be reached toll free by calling 1-866-286-4023, Monday to Friday 9:00 am – 5:00 pm. Services are available in English and French (translations for other languages can also be requested). TTY services are also available at 1-844-953-3350.
RN & RPN Practice
RNs and RPNs are not authorized to administer a medication to end life.
If a nurse is assisting the patient to self-administer a medication that has been prescribed for them for the purpose of medical assistance in dying, they should exercise extreme caution. The decision and action of taking the medication to end life must be the patient’s own.
The federal government has provided the following guidance (Legislative Background: Medical Assistance in Dying (Bill C-14)) with respect to acceptable forms of assistance: “A client may still need various forms of assistance depending on their state of health. For instance, they may need someone to open the bottle that contains such medication, or to lift a glass of water to their mouth so that they can swallow it.” (Note: Bill C-7 has not changed this guidance.)
Is an RN or RPN accountable for confirming legal requirements have been met before assisting with medical assistance in dying?
RNs and RPNs are not responsible for assessing whether a patient meets eligibility criteria, or documenting or collecting a patient’s consent or written request for medical assistance in dying. The NP or physician providing care to the patient is responsible for ensuring that the patient’s written request meets legal requirements, and documenting the patient’s initial and final consent prior to administering medical assistance in dying.
The RN and RPN should be confident that the NP or physician has affirmed that each of the eligibility criteria and safeguards are met. The RN and RPN does not need to confirm the specific details of how the assessment was conducted or documented. Where an NP or physician has not indicated that all criteria and safeguards have been met, the RN or RPN should follow-up with the NP or physician.
*This response was extracted from the Ontario College of Pharmacists’ Medical Assistance in Dying – Guidance to Pharmacists and Pharmacy Technicians.
There is no legal requirement that would prevent an RN or RPN from pronouncing death; however, there is a distinction between pronouncing death and certifying death.
The Practice Standard: Decisions About Procedures and Authority outlines the considerations and accountabilities when performing any procedure. In addition, you should consider if there are specific organizational policies and procedures regarding who may pronounce death where you work.
Yes, you can. RPNs and RNs involved in the Medical Assistance in Dying process may be an independent witness. Recent changes to Bill C-7 allow nurses to act as a witness if the provision of care is their primary occupation and they are paid to provide that care.
In addition, witnesses must not:
- be any medical provider who is involved in the assessment of a person for Medical Assistance in Dying eligibility or in providing Medical Assistance in Dying to the person (e.g., physician or nurse practitioner)
- know or believe that they are a beneficiary of the patient (e.g. within the client’s will)
- know or believe that they are a recipient, in any other way, of a financial or other material benefit resulting from the patient’s death
- be an owner or operator of a health care facility where the client is being treated, or any facility in which the patient resides
As with any procedure or activity nurses may be doing, you must ensure you have support from your employers and that you have the knowledge, skill and judgment to do so. To support you with this assessment, please see Understanding Your Scope of Practice.
No. Consent for medical assistance in dying must be obtained by the NP or physician who is authorizing the procedure.
Nurses should collaborate with the health care team, such as pharmacy staff, and their employers to determine the appropriate strategy for disposal of unused medications when medical assistance in dying has been completed. For additional information, please referto the Medication practice standard.
This second confirmation is a legal requirement. Medical assistance in dying cannot be provided if the second NP or physician concludes that the patient is not eligible. Patients should be prepared for the possibility that even if you consider them to be eligible, the NP or physician who provides a second opinion may not agree. If the second NP or physician concludes that the client does not meet eligibility criteria, you should inform the patient that you cannot proceed.
The Criminal Code currently excludes mental illness as an “illness, disease or disability” that makes an individual eligible for MAID. This exclusion remains in place until March 17, 2023, at which time it will require further assessment by the government. This temporary exclusion will provide the federal government with more time to study how MAID can safely be provided to individuals whose only illness is mental illness.
In the interim, individuals with mental illness are not prevented from accessing MAID if they also have a serious and incurable illness, disease, or disability (that is not a mental illness) and they meet the other eligibility criteria for MAID, as set out in the federal legislation. This includes the requirement that the individual who is seeking MAID has decision-making capacity.
Nurse practitioners will need to use their professional judgment to determine whether or not the serious and incurable illness, disease or disability, on the basis of which the patient is requesting MAID, is solely a mental illness and therefore does not meet the eligibility criteria. In determining whether a patient’s condition is a “mental illness”, on the sole basis of which they will not be eligible for MAID, NPs may want to consult the guidance provided by the federal government. The Department of Justice has indicated that “mental illness” includes conditions that are primarily within the domain of psychiatry, such as depression and personality disorders, but does not include neurocognitive and neurodevelopmental disorders, or other conditions that may affect cognitive abilities.
To help NPs demonstrate compliance with the Criminal Code and CNO’s standards and guidelines, NPs are required to:
- collaborate with the healthcare teams
- document each element of the patient’s assessment in accordance with the criteria for MAID, including what serious and incurable illness, disease or disability they have that qualifies them for MAID
- describe in their documentation, their assessment of how they came to the determination that the patient’s illness is not solely a mental illness.
In the MAID law, the criterion of being in an advanced state of irreversible decline in capability is used to determine if an individual has a grievous and irremediable medical condition, and therefore might qualify for MAID. It describes the state of an individual’s overall medical condition.
The meaning of advanced state of irreversible decline in capability has not changed in the new law.
The loss of capability can be sudden or gradual, and it can be ongoing or stabilized. An individual can be in an advanced state of irreversible decline in capability in general terms while still having moments of slight improvement.
Ensuring Safeguards are Met
The federal legislation sets out that the written arrangement that waives final express consent made by a patient whose natural death is reasonably foreseeable is invalidated (permanently) if “a person demonstrates, by words, sounds or gestures, refusal to have the substance administered or resistance to its administration.”
Consequently, a practitioner may only administer MAID in accordance with a written arrangement waiving final consent if they are satisfied that the patient has not demonstrated refusal or resistance to administration. Involuntary words, sounds or gestures made in response to contact are not considered a demonstration of refusal or resistance. The federal government has stated that the legislation does not provide any further direction and NPs will have to use their professional judgment to determine whether a patient’s reaction indicated refusal or resistance to administration or it was an involuntary reaction in response to contact.
To help NPs comply with the Criminal Code and CNO’s standards and guidelines, NPs are required to:
- collaborate with their broader healthcare teams
- document any words, sounds or gestures made by the patient when the practitioner attempts to administer MAID in accordance with a written arrangement
- document their rationale for determining whether or not the patient’s reaction indicated refusal or resistance to administration or was an involuntary reaction in response to contact.
The recent legislative changes have not altered the meaning of “reasonably foreseeable natural death.” NPs can continue to rely on the guidance previously provided by the federal government and court to inform their assessment of whether a patient’s natural death is reasonably foreseeable or not, and therefore which procedural safeguards apply.
Guidance from the federal government notes that “reasonably foreseeable natural death” is assessed on a case-by-case basis, in relation to the specific person who is seeking MAID and must consider the whole of their individual and unique medical circumstances. It is not limited to those who have an illness that is known to cause death –– it can result from a combination of multiple factors relevant to a person’s overall medical circumstances. It is important to acknowledge that it is difficult to predict how long an individual has to live and clinical estimation of life expectancy becomes even more difficult the further away death is expected.
To help NPs comply with the Criminal Code, NPs must document the analysis they undertook to determine whether the patient’s natural death was reasonably foreseeable or not.
A new safeguard in place for individuals whose natural death is not reasonably foreseeable is the requirement that one of the two practitioners who confirm the individual’s eligibility for MAID have expertise in the condition that is causing their suffering, or that they consult with an NP or Physician who has such expertise.
The federal government has clarified that the practitioner’s expertise must be in the condition that is causing the individual the greatest suffering. A practitioner does not need to have a specialty designation or certification in order to be considered an expert in the individual’s condition. Expertise regarding the condition could be obtained through education and training or experience (e.g., treating patients with a similar condition).
If neither practitioner has expertise in the condition that is causing the patient the greatest suffering, a consultation with a third practitioner is required. The federal government has clarified that the expert would not be assessing the individual’s eligibility for MAID. Instead, they would conduct a thorough assessment of the individual’s status and treatment options, especially as it relates to options to reduce suffering, and provide advice regarding the reasonable and available services and/or treatment options that might relieve the individual’s suffering. This may include advising on the nature or stage of the individual’s condition or on the status of the individual’s state of decline based on their knowledge of the trajectory associated with the condition. The information provided by the expert enables the practitioners who are assessing the individual’s eligibility for MAID to complete a fully informed assessment of the individual.
The federal government has also advised that the assessment information will need to be provided by the expert in writing, so both practitioners who are assessing the individual’s eligibility for MAID will have access to the entire information. To help NPs comply with the Criminal Code, NPs must thoroughly review and retain the written assessment provided by the practitioner with expertise as part of the patient’s medical record.
The federal government has clarified that the beginning of the 90-day assessment period is the day on which the first assessment of whether the patient meets the MAID eligibility criteria begins (i.e., the day on which the practitioner first considers or reflects on information that forms part of a MAID assessment, such as reviewing the patient’s file or meeting with the patient).
To help NPs comply with the Criminal Code, NPs must document the start of the 90 clear days. If the period is shortened in accordance with the federal legislation, the NP must document the reasons for doing so and the start and end dates of the new time period.
For individuals whose natural death is not reasonably foreseeable, the federal legislation requires that MAID providers inform individuals 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.
As an NP, make sure you take the following steps:
- Talk to the patient about their thought process (e.g., which services and/or treatments they considered, what they learned about each service or treatment including the expected risks and benefits, can they appreciate the reasonably foreseeable consequences of accessing each service or treatment, etc.).
- Offer the patient consultations with relevant professionals who provide those services or that care.
- Describe to the patient, the reasonable and available services and/or treatments and their potential impact
- Use your professional knowledge, skill and judgment to determine whether or not the patient has “given serious consideration” to the reasonable and available means to relieve their suffering
- Ensure that you and the second practitioner who confirmed the individual’s eligibility for MAID have discussed these options with the individual and agree that the individual has given serious consideration to the reasonable and available means to relieve their suffering.
- Document the steps taken to satisfy your assessment that the relevant procedural safeguards were met, including the nature of the reasonable and available means to relieve the patient’s suffering.
- Document that these means were discussed with the patient, and the NP’s rationale for concluding that the patient gave serious consideration to the these means.
The federal government has noted that the federal legislation does not specify a timeline within which the referral to these services and/or treatment must take place. There may be cases where the patient expresses interest in accessing services and/or treatments which may relieve their suffering, but it will take significant time to access them. In such cases, the federal government advises MAID providers to carefully assess the voluntariness and informed consent of the individual’s request for MAID if they proceed as a result of the length of time it is taking to obtain those other services and/or treatments.
The federal government also clarifies that the individual is not required to have tried the services and/or treatment.
The details of the arrangement required by the legislation include the name of the practitioner to administer MAID, the date that MAID is to be administered and explicit patient consent for the administration of MAID on the date (or possibly prior to that date, upon loss of capacity, if the patient wishes to include this in the arrangement).
The legislation does not prohibit the naming of alternative practitioners in the written arrangement (who can step in if the original practitioner is suddenly unavailable).
However, the practitioner who eventually provides MAID must have also personally assessed the patient and found them eligible for MAID while the patient still retained capacity to provide informed consent. The practitioner must also apply the safeguards to ensure that they have been satisfied.
The practitioner who provides MAID must be named in the arrangement in order to lawfully provide MAID on the basis of advance consent and must agree to enter into this arrangement with the patient.
Yes, a MAID provider can refuse to provide MAID after agreeing to be named in the waiver of final consent arrangement.
There is nothing in the federal legislation that compels a practitioner to provide MAID. MAID legislation provides exemptions within the Criminal Code that permit physicians and NPs to provide a medically assisted death but it does not impose any legal duty on the practitioner to provide MAID.
CNO’s Nurse Practitioner Practice Standard states that NPs identify when collaboration, consultation and referral are necessary for safe, competent and comprehensive patient care. If for any reason, an NP feels that they may not be able to provide MAID according to the terms of the arrangement (e.g., availability, personal values, etc.), they should advise the patient as soon as possible and encourage the patient to seek an arrangement with another practitioner. It is important to avoid a situation where the assessor or provider named in the waiver will (or can) no longer provide MAID, and the patient (who has subsequently lost capacity to consent) cannot enter into a new waiver of final consent arrangement and cannot receive MAID (unless they regain capacity to consent again).
If an individual has entered a waiver of final consent agreement and their family is attempting to prevent the provision of MAID, the question of whether to proceed with MAID would be a matter of health law, medical ethics or medical practice and therefore a matter of provincial or territorial responsibility. Therefore, practitioners faced with this scenario should seek legal advice. However, practitioners should encourage the individual to share their intentions and involve their family in discussions about receiving MAID, where possible, so that family members are aware of the individual’s wishes and are more likely to respect these wishes.
CNO acknowledges the complexity of Medical Assistance in Dying and the challenges health care providers face when providing it. While we cannot provide clinical direction on how to assess a patient in this scenario, we can provide you the following practice strategies to support you:
- Have you consulted with experienced providers of Medical Assistance in Dying?
- How does the health care team perceive your assessment of the patient?
- What does the best available evidence say about Medical Assistance in Dying assessments?
The Department of Justice website explains the new reporting requirements, which are related to data collection as follows:
- allowing for the collection of data on all assessments following a person’s request for MAID, and
- modifying the Minister of Health’s regulation-making power to:
- expand data collection related to race, Indigenous identity and disability
- seek to determine the presence of individual or systemic inequality or disadvantage in the context of or delivery of MAID
The Criminal Code (read from s. 241.1)requires NPs to provide information for the purpose of monitoring MAID. Federal regulations set out reporting requirements for nurse practitioners (NPs).
In cases where a medically assisted death has occurred, NPs are required to report it by completing the MAID Death Report (MDR) available electronically on the Central Forms Repository
Ontario has a hybrid reporting model, which captures not only deaths from MAID, but also requests for MAID, even if a MAID death never occurs. In these situations NPs are required to report to Health Canada using the Canadian MAID Data Collection Portal. This includes cases where:
- an NP has provided a prescription for self-administered medical assistance in dying, but a medically assisted death has not occurred
- the patient is ineligible for MAID
- the patient withdraws their request
- the patient dies of other causes not related to MAID
NPs have federal reporting requirements to Health Canada. Health Canada’s authority to collect information related to MAID for the purpose of monitoring falls under the federal Regulations for the Monitoring of MAID.
Bill C-7 authorizes the expansion of federal data collection and reporting, however, the new reporting obligations only come into effect once the existing Regulations for the Monitoring of MAID, which outline federal MAID reporting requirements, are amended and come info force.
The process to amend the federal regulations on MAID monitoring will involve extensive consultations and is expected to take up to 2 years before reporting requirements are finalized and the regulations are in force by spring 2023.
The federal government has advised that until the new regulations are in force, there are no new federal reporting requirements under the current reporting regime.
The federal government has advised when completing federal reporting forms for MAID, or using the online federal MAID Data Collection Portal, there are currently some questions that are no longer applicable or that are inconsistent with Bill C-7 changes. Until the required changes are made to the federal Portal and forms, NPs are asked to follow these instructions when completing the federal forms online or by paper format:
- Under Section 3: Eligibility Criteria and Related Information:
- Practitioners are encouraged to continue to respond to the question “Had the patient’s natural death become reasonably foreseeable, taking into account all of their medical circumstances?”
- Note: The new safeguards for persons who have requested MAID and whose deaths are not reasonably foreseeable will not be captured in the federal forms or online questionnaire until the new regulations come into force. However, as with any nursing intervention and in alignment with CNO’s Documentation practice standard and the new MAID law, NPs should document in the patient’s record how these new safeguards were satisfied.
- Under Section 4: Procedural Requirements – Providing MAID:
- NPs must now confirm that one (1) independent witness has signed/dated the patient’s official request for MAID. The current form incorrectly specifies (2) independent witnesses. Practitioners should check this requirement if they met the one witness requirement.
- NPs are no longer required to respond to the question “They ensured there were at least 10 clear days between the day on which the request was signed by or on behalf of the patient and the day on which MAID was provided.” This question, as well as the follow up question regarding the reason for shortening the 10 days, should be left blank (paper submission) or skipped (electronic submission).
You should first speak to other NPs or physicians in your professional network to see if there is someone who provides this service. If you are not able to find someone, ask your employer about whether your organization has any existing networks. Finally, the Ministry of Health is offering a referral service. This service is an option for you if you have not been able to find an NP or physician who can provide medical assistance in dying through the first two strategies.
NPs and physicians seeking assistance in making a referral for an initial assessment or for a second opinion can call the Ministry of Health’s (MOH)'s Clinical Referral Service toll-free at: 1 866-286-4023, TTY: 1 844-953-3350.
The phone line will be answered during regular business hours. There is a voicemail option available, where you will be prompted to leave a message including your name, contact information and practice location postal code. This voicemail box is monitored during regular business hours. No client information should be provided to the MOH.
If you wish to register yourself as a clinician willing to provide aspects of medical assistance in dying to patients, please send an email to MAIDregistration@sasc.ca. Your contact information will be used on the MOH’s service for clinicians seeking referral supports on behalf of patients requesting medical assistance in dying.
Before registering yourself as a clinician with the referral service, you may wish to consult with your employer to determine whether the aspects of medical assistance in dying services that you are willing to provide are included in your role.
MOH’s referral service is for NPs and physicians seeking assistance in making a referral for an initial assessment or for a second opinion. It is not mandatory for clinicians to use this service, but it is an option if an NP or physician is not able to find another clinician through their own professional networks or through their organization.
CNO recognizes a nurse’s individual freedom of conscience and their right to hold individual beliefs and values. You have the right to conscientiously object. The law does not compel an individual to provide or assist in providing Medical Assistance in Dying. Here are your accountabilities in this situation:
- Do not directly convey or express to the patient that you disagree with their decision for Medical Assistance in Dying, their beliefs, lifestyle, identity or characteristics
- Transfer the care of a patient to another health care provider who will address the patient’s needs
- Work with your employer to identify an appropriate alternative care provider
- Following the patient’s care plan, continue to provide care that is not related to activities associated with Medical Assistance in Dying until an alternative care provider is found
- Make a referral using your professional networks or institutional policies, or contact the Ministry of Health’s Care Coordination Service.
Having difficult conversations is a daily aspect of nursing practice. CNO recognizes how challenging it can be to have challenging conversations with patients, especially when there is an ethical dilemma. The following strategies may be helpful for this challenging conversation:
- continually seek to understand the patient’s health care needs and perspectives
- acknowledge the patient’s feelings
- ask open-ended questions
- engage in active listening (for example, use verbal and nonverbal cues to acknowledge what is being said)
- use open body language to display a calm, respectful and attentive attitude
- acknowledge the patient’s concerns about the health care system and his/her experiences as a patient
- respect and address the patient’s wishes, concerns, values, priorities and point of view
- reflect to understand how your personal behaviour and values may negatively affect the patient.
CNO recognizes the emotional impact that providing Medical Assistance in Dying has on health care providers. Providing Medical Assistance in Dying may pose a risk of increased moral distress, burnout, and trauma. To address these risks, it is critical for health care providers to have debriefings with their broader health care team. These debriefings provide a space to talk about Medical Assistance in Dying, the patient and the perspectives and feelings of the team. We encourage you to debrief with your teams to reflect on your experiences.
Lastly, it is also important to take care of yourself. Research shows that physical and emotional fatigue can reduce brain function and affect decision-making, memory and attention. Our personal and professional lives will have ups and downs. Take a step back and reflect on whether you feel your physical or mental health is impacting the care you are providing. If it is, it might be time to take care of yourself or seek help.
The Criminal Code is silent on whether assessments of patient eligibility or witnessing of patient requests can be done virtually. That said, Health Canada and the Ministry of Health have indicated that virtual tools can be used to support the MAID process during the COVID-19 pandemic.
CNO acknowledges that virtual tools may be used to conduct patient eligibility assessments and witness requests for MAID in the same circumstances these tools are used for all health care –– when NPs can satisfy all their legal and professional obligations. The use of virtual tools for health care, including MAID, is particularly relevant within the context of the pandemic and aligns with Health Canada’s guidance.
As with use of virtual tools in general, NPs must consider the appropriateness of using these virtual tools on a case-by-case basis, ensuring they can meet their legal and professional obligations. In this context, conducting assessments of patient eligibility or witnessing patient requests for MAID virtually, may introduce risks that need to be mitigated in order to ensure compliance with the Criminal Code (e.g., ensuring voluntariness) and NPs’ professional obligations.
CNO recognizes that virtual care has always played an important role in enabling access to MAID given the uneven distribution of MAID assessors and providers across the province. CNO also appreciates the increased value virtual tools offer to support access to care and mitigate the risks associated with providing care during a pandemic. Our focus is on ensuring that NPs comply with the requirements of the Criminal Code and that the procedural safeguards that have been put in place to protect patients are satisfied in all instances, whether done in-person or virtually.