Quebec Starts Taking Advance Requests for Assisted Dying Despite Criminal Code Prohibition

Health Minister Mark Holland rises during Question Period, in Ottawa, Monday, Sept. 16, 2024. THE CANADIAN PRESS/Adrian Wyld

Quebec will begin taking advance applications for medical assistance in dying (MAID) despite federal Criminal Code restrictions, provincial officials say.

Health Minister Mark Holland said this week that Quebec’s plans contravene Canadian law.

“The Criminal Code has not changed. It is still illegal in this country under the Criminal Code to enact advance requests,” Holland said during an Oct. 28 press conference.

Quebec’s acceptance of advanced requests means a person with an illness that will eventually leave them unable to grant consent for MAID can arrange beforehand to receive assisted death when their condition worsens, such as months or years in the future.

Sonia Bélanger, the minister responsible for seniors, said the province has already completed a thorough assessment of how the new rules will be applied, and will proceed with the program without Ottawa’s approval.

“Quebec has full jurisdiction to legislate in the area of ​​health care,” she said in a social media post.

Quebec updated its assisted-dying legislation last year, but the acceptance of advance requests was initially postponed to allow amendments to Canada’s Criminal Code.

The Criminal Code currently says a health-care worker who administers a medically-assisted death must ensure the person gives “express consent” immediately before they receive MAID. The person must also be given an opportunity to withdraw the request.

The province announced last week, however, that it wouldn’t wait for Ottawa to amend the law. As of Oct. 30, Quebec is now accepting advance MAID requests in cases where a person’s future condition could leave them incapable of giving consent at a later date. Those with Alzheimer’s disease, for example, would have the option to seek MAID with the intention of receiving the procedure when they are no longer able to express their wishes.

Bill 11, adopted by Quebec in June 2023, also contains a provision protecting doctors from prosecution. The province has asked the Crown prosecutor’s office not to charge doctors who choose to participate in the advanced MAID program as long as they comply with the provincial act.

Holland said while Quebec’s advance request program remains illegal under the Criminal Code, Ottawa won’t be ordering provincial authorities to prosecute for delivering advance MAID.

“I can’t direct a province how it’s going to administer its judicial system,” he said. “That is something that’s not in our control. And I would say that it’s extremely important to say that we have a spirit of cooperation here, that the issue that Quebec raises is a legitimate and fair issue.”

Ottawa instead plans to launch a countrywide consultation on the issue in November, with a report due in March 2025.

“I think we need time for a conversation about those kinds of issues and how we want to deal with them as a country,” Holland said.

The health minister has previously expressed concern about Quebec moving forward with advanced consent before the Criminal Code is modified. Associate Deputy Health Minister Dr. Stéphane Bergeron told reporters last week that it will take time for the first requests to be approved, giving the health system room to prepare.

“It’s not something we do in a few minutes during one consultation or appointment,” he said. “It’s something we have to take our time with, that will certainly require several meetings between the (health professionals) and the patient.”

Holland said he questions the “readiness” of the system to deal with advance requests, noting the importance of taking “slow, prudent steps when dealing with an issue as sensitive to this.”

The use of MAID has surged significantly in recent years as Canada has expanded its assisted dying regime to include more categories of people, leading to an increase in its utilization by individuals facing severe vulnerabilities.

In 2022, the instances of MAID-related deaths climbed by 31.2 percent, representing over 4 percent of all deaths in the country, according to Statistics Canada. This translates to 13,241 individuals choosing MAID in 2022, a significant rise from 10,029 deaths in 2021 and 7,446 in 2020.

Quebec Legislation

A number of criteria must be met in order to make an advance request for medical aid in dying, according to the province’s health ministry.

To request advance MAID in Quebec, the person must understand their medical situation and have the ability to communicate their wishes clearly, the ministry of health said on its website.

“The request must be made freely, without external pressure,” the page says. “It must also be informed, that is, the person making the request knows, among other things, what medical aid in dying involves and that there are other therapeutic possibilities. The person must make the request themselves and for themselves.”

Once an individual finds a physician or a specialized nurse practitioner who agrees to help with the request for advance MAID, the individual must provide a comprehensive description of the symptoms related to their condition that warrants their request for the procedure.

“The manifestations chosen by the person will constitute the expression of their consent to receive medical aid in dying when they have become incapable of consenting to care,” the page says.

Bergeron said the province doesn’t have an estimate of the potential requests the health network could receive as a result of the rule change, but said there is strong support for the move across the province.

He said Quebec’s experience in delivering MAID would help the province to navigate any challenges presented by the new rules.

The Canadian Press contributed to this report.