Quebec’s Advance Request for MAiD Explained - Part 2

How Quebec is overriding federal MAiD laws to support patient autonomy

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Nov 24, 2024

Introduction

This is Part 2 of our series where we explain Quebec's new law allowing Advance Requests for Medical Assistance in Dying (MAiD). Part 1 explored the similarities and differences between Advance Requests for MAiD, general Advance Directives, and the Waiver of Final Consent. We recommend you give that a quick read here so you can understand the important differences, including why Advance Requests are needed.

This article reflects our close reading of Quebec’s Bill 11, and how we’ve interpreted what an Advance Request for MAiD is, and how they work. There’s a lot of information in Bill 11 that we don’t cover below. Feel free to ask us any questions you have in the comments below, or if you are in Quebec, contact your doctor or nurse practitioner for full details about Advance Requests for MAiD.

Federal MAiD Eligibility vs Quebec's Advance Request for MAiD

It is crucial to understand the Federal MAiD eligibility criteria, as these must still be met when an Advance Request is used.

The key difference lies in the timing of when the criteria must be met during the person's illness journey. Outside of Quebec's Advance Request for MAiD, the eligibility criteria must be fulfilled at the time of the MAiD request (this is known as a contemporaneous request). As discussed in Part 1, this requirement can create a significant barrier for individuals with illnesses like dementia that eventually lead to a loss of capacity. An Advance Request overcomes this challenge by allowing eligibility criteria to be met at different stages.

Below, you will find the relevant federal MAiD eligibility criteria for reference as you continue reading. You can find the full list of criteria here.

Have a serious and incurable illness, disease, or disability
Be capable of making health care decisions for yourself
Give informed consent to receive MAiD
Be in an advanced state of decline that cannot be reversed
Be experiencing unbearable physical or psychological suffering from the illness, disease, disability, or state of decline that cannot be relieved under conditions you find acceptable.

Why are Advance Requests Needed?

A person with dementia (used here as an example of an illness that leads to incapacity) may not meet the MAiD eligibility criteria early in their disease. However, as their illness progresses to the point where they meet the criteria, they might lack the capacity to consent to receive MAiD. This situation would exclude individuals from accessing MAiD solely due to the nature of their illness, which could be seen as a violation of their Canadian Charter right to life, liberty, and security of person (section 7). Quebec's Advance Request for MAiD aims to address this exclusion.

Let's look at an example:

Paul has just been diagnosed with dementia and is showing early signs and symptoms of the disease, such as forgetting names, having difficulty finding words, and misplacing items. While these symptoms are distressing, they likely don’t place Paul in an advanced state of decline or cause unbearable suffering (criteria 4 and 5 listed above). If Paul were to wait until he was in an advanced state of decline and experiencing unbearable suffering, he would be at high risk of losing the ability to make healthcare decisions or the capacity to consent to MAiD (criteria 2 and 3 listed above). In either scenario, Paul would not be eligible for MAiD. This is why an Advance Request is crucial for individuals like Paul.

We'll now explore how Quebec’s Advance Request law allows Paul to meet all the federal MAiD eligibility criteria, ultimately making him eligible to receive MAiD when appropriate. As we go through this process, we'll indicate which of the 5 federal MAiD criteria have been met, using brackets in each section for clarity.

Completing an Advance Request - The Steps

Diagnosis (criterion met: 1)

Paul has received a diagnosis of dementia. Therefore, he has met the “serious and incurable illness, disease, or disability” criterion.

Complete an Advance Request for MAiD (criteria met: 1, 2, 3)

Paul is early in his dementia diagnosis, so he still retains the ability to make decisions about his health care (criterion 2). And by completing the Advance Request, Paul has given his consent to receive MAiD at some future time (criterion 3). He has now met the federal MAiD eligibility criteria 1, 2, and 3. That leaves the “Advance state of decline” (4), and “unbearable suffering” (5) criteria unmet.

This is where Quebec’s Advance Request diverges from Federal law. In the usual process of requesting MAiD, the individual must currently be in an advanced state of decline (4), and articulate that they currently experiencing unbearable physical or psychological suffering from their condition that cannot be relieved under acceptable conditions (5).

Because Paul is early in his illness, he isn’t in an advanced state of decline, and isn’t experiencing unbearable suffering. This is where the usual MAiD assessment process would end, with Paul being found not eligible (meets eligibility criteria 1, 2 and 3, but not 4 or 5).

But with an Advance Request, Paul would describe, in detail, what manifestations of dementia he would consider as being unbearable suffering to him (criterion 5). This might include requiring around-the-clock assistance with personal care, having lost awareness of recent experiences and his surroundings, or having difficulty swallowing, among others.

Paul must be supported by a physician or a specialized nurse practitioner (sNP) when making an Advance Request. They will help Paul understand the likely course of his illness, including what symptoms or manifestations he might experience as his illness progresses. This way, Paul can clearly and specifically indicate in the Advance Request which manifestations of his illness he would find intolerable.

Thus, the Advance Request represents Paul's prior consent to receive MAiD if he loses the capacity to make medical decisions for himself, and details the specific physical or psychological suffering related to dementia that he would find unbearable.

It’s important to note that criterion 5 has not actually been met yet, but rather the suffering that Paul believes fulfils criterion 5 for him, has been specifically described in the Advance Request.

Designating a Trusted Third Person

Paul may also designate a Trusted Third Person (or two) in the Advance Request. Their role is to make sure Paul’s wishes expresses in his Advance Request are know and respected. This person is also responsible for notifying a health or social services professional (doctor, nurse, social worker, etc.) if they believe Paul has lost the capacity to make medical decisions, and is experiencing:

the suffering described in the Advance Request, or
enduring and unbearable suffering that cannot be relieved under conditions considered tolerable

We’ll touch on the role of the Trusted Third Person a little further down.

Signing and Submitting the Request

The Advance Request is then signed by Paul, the physician or sNP, two witnesses (or a notary), and any Trusted Third Persons Paul designates. It is then submitted to the provincial Advance Request for MAiD registry.

With an Advance Request completed, Paul can continue on his illness journey with the peace of mind that MAiD remains an option even if he loses the capacity to make medical decisions for himself.

Notes About Making an Advance Request:

The suffering Paul describes in the Advance Request must be medically recognized as being suffering that can result from his illness.
The suffering described must be objectively observable by a physician or sNP.
An Advance Request will not automatically lead to the administration of MAiD.
Paul may modify, edit, or cancel his Advance Request for MAiD at any time, as long as he has the decision-making capacity to do so. Paul will require the assistance of a physician or sNP to do any of these.
The Advance Request will be stored in a provincial registry, accessible by members of his health care team.

Lost Capacity and Unbearable Suffering

Paul’s Declining Condition

It has been four years since Paul made his Advance Request for MAiD. He updated it once after realizing he forgot to include a couple of symptoms of advanced dementia in the first version, but otherwise, he’s felt reassured knowing it’s in place for when his condition declines. That time may have come, as Paul’s illness has progressed to the point where he has lost the ability to make medical decisions for himself.

Here are the next steps that determine if Paul is eligible to receive MAiD based on his Advance Request:

If a health or social services professional becomes aware that Paul has lost capacity as a result of a serious and incurable illness leading to incapacity (like dementia), or they are notified of this by the Trusted Third Person, they must consult the registry to determine if Paul had made an Advance Request for MAiD. If there is a Request in the registry, they must notify all Trusted Third Persons listed in the Advance Request of Paul’s loss of capacity, if any Trust Third Persons are not already aware.
The Trusted Third Person(s) would then notify a health or social services professional if/when Paul appears to be experiencing the suffering he described in the Advance Request, or if he is experiencing unbearable suffering that cannot be relieved under conditions considered tolerable.
The health or social services professional would then notify a physician or sNP that they received this notification from the Trusted Third Person.
A physician or sNP would then examine Paul to determine if he does indeed objectively appear to be experiencing, on a recurring basis and due to his illness, the suffering described in his Advance Request. The Physician or sNP must also determine if Paul is experiencing enduring and unbearable physical or psychological suffering due to his illness, and that the suffering cannot be relieved under conditions considered tolerable. As part of this examination, the physician or sNP must consult with Paul’s care team, and have a discussion with Paul’s Trusted Third Person(s).
If the physician or sNP determines the above to be true, then Paul has met the final two criteria, advanced state of decline (4), and unbearable suffering (5).
The only thing left is to have a second independent physician or sNP assess Paul, and if they also find he has met the conditions described above, Paul can receive an assisted death.

There could be situations where Paul has not designated a Trusted Third Person, or where the designated Third Person cannot or will not fulfill their responsibilities. In such cases, an alternative route is available to proceed to step four—the examination of Paul by a doctor or sNP. In this scenario, a health or social services professional would be the ones to report that Paul appears to be experiencing the suffering described in the request or that he is experiencing enduring and unbearable suffering. Any Third Persons would still be notified of the outcome of the examination.

Conclusion

Quebec’s Advance Request for MAiD is complicated, but it probably need to be so as to make sure it is administered ethically and legally—well, as legally as a provincial law that contrivines federal law can be.

From our view, there seems to be no good argument against advance requests for MAiD, as long as the appropriate safeguards are in place. Thankfully, the federal government has launched a national conversation about advance requests for MAiD, and will not be initiating a challenge of Quebec's Bill 11. We may soon have advanced requests for MAiD available across the country, a position we are in full support of, and a position that is widely supported by the Canadian public.

There is more nuance involved with these Advance Requests, but we think we’ve covered the basics in enough detail, without getting too far into the weeds. How did we do?

Please ask any questions you have in the comments. We'll do our best to answer or direct you to where you can find those answers.