An ongoing case in British Columbia has drawn attention to the legal risks physicians face when providing Medical Assistance in Dying (MAiD). The family of a patient has filed a lawsuit against a physician who allegedly administered MAiD while the patient was out on a day pass from a psychiatric hospital.
Many of our clients are family caregivers who have a loved one with a mental illness receiving care in psychiatric facilities. They would be shocked and devasted to learn that their loved one was permitted to leave the hospital and have MAiD administered while they were actively undergoing treatment for their mental illness.
This case raises questions about compliance with the strict requirements of Canada’s MAiD legislation and the potential consequences of failing to meet them.
Current Legal Framework for MAiD in Canada
Canada's laws on MAiD outline stringent criteria and procedural safeguards to ensure that the process is ethical, informed, and legally compliant. Eligibility requires that a patient has a grievous and irremediable medical condition and that the decision to seek MAiD is made voluntarily, without external pressure. Safeguards include independent assessments, a require that the patient be capable of making the decision, and written consent.
Mental disorders as the sole underlying condition are explicitly excluded from eligibility under the current framework. While changes are expected in the future to expand eligibility to include mental disorders as a sole criterion, this is not yet law.
Risks for Physicians
Physicians who fail to adhere to the safeguards and requirements of MAiD may face consequences under the Criminal Code of Canada, including the risk of imprisonment.
Additionally, physicians risk disciplinary action from professional regulatory bodies such as the College of Physicians and Surgeons of Ontario or British Columbia, which may result in the suspension or revocation of their medical license.
Physicians who perform MAiD also face civil lawsuits by families of their patients, as demonstrated by the ongoing lawsuit (which is not the first and surely won't be the last of its kind).
Questions
Without knowing more, we are left with only questions.
- Did the patient meet the criteria under the law to be eligible for MAiD?
- Was there a second opinion in agreement from a nurse or medical practitioner?
- Did the physician consult with a specialist in the patient’s condition if neither she nor the second nurse or medical practitioner had expertise in the patient’s underlying condition, as required for cases where natural death is not foreseeable? Was the specialist opinion shared with the second practitioner?
- Was the physician aware that the patient was currently being treated at a psychiatric facility? If not, she should have known?
- Did the physician take all reasonable steps to ensure the patient’s eligibility was thoroughly assessed?
- Was the patient's capacity to consent to MAiD properly assessed?
- At the time MAiD was performed, was the patient making their own treatment decisions with respect to their psychiatric care?
- Were the procedural safeguards followed?
- Did the physician take adequate steps to confirm that the request for MAiD was voluntary and free from external pressure?
- Did the physician ensure that all reasonable alternatives were discussed and seriously considered by the patient?
- Why was the family left in the dark? Should privacy law continue to be permitted to serve as a barrier to the involvement of family given the significance of a decision such as MAiD?
Conclusion
At its core, MAiD is meant to alleviate suffering and uphold the dignity of those facing intolerable circumstances. When the process is called into question, it affects not just the individuals involved but also the trust we place in our healthcare and legal systems.
For the family at the center of this case, the loss of a loved one under such circumstances is undoubtedly heartbreaking. Their pursuit of answers and accountability is a powerful testament to the profound impact this decision has had on their lives.
As these issues unfold in the courts and public dialogue, it’s critical to approach them with empathy and a commitment to ensuring that every life is valued, every safeguard is upheld, and every question is transparently answered. Cases like this push us to reflect not only on the legal framework but also on how we, as a society, can better support individuals and families in their most vulnerable moments, and whether the status quo is doing enough to protect the lives of people with mental illness.
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