A partial fix in MAID law
‘Audrey’s Amendment’ gives flexibility to patients and family
We are members of a team of family physicians who provide MAID assessments and provisions in the Hamilton community. We would like to thank Jeff Paikin for his heart-rending description of his wife’s death (Jan. 28) and extend our condolences to him and his family.
We would also like to clarify that, since the Paikin family’s experience, the Canadian law on MAID has, to some extent, been “fixed.”
When MAID was legalized in 2016 there was a requirement that the person requesting MAID be of sound mind and able to give their consent at the time they receive an assisted death. However, this law was modified in 2021, largely as a result of the advocacy of one brave woman, Audrey Parker.
Audrey had an assisted death in Halifax in November 2018 at the age of 57. Tragically, she had breast cancer which had spread to her brain.
Like most of the MAID patients we see in this community, Audrey faced her death with grace and courage: in her obituary (which she composed) she stated that: “I was never able to get control of the cancer that consumed my body, but I did take control of every aspect of my end-of life-experience. I drifted off to my final sleep in my bedroom, surrounded by my loved ones …” Audrey had wanted to live through another Christmas, which was her favourite holiday. However she feared that she would lose her ability to consent to MAID and in her words, “I chose to leave life early because I couldn’t take the risk of losing access to MAID and thus dying a very cruel, painful death.”
Largely because of Audrey’s experience, the law on MAID that was passed by Parliament in March, 2021 provided for a “waiver of final consent” which patients may sign after they have been approved for MAID. This waiver means that, should they lose capacity before the date they have chosen to die (for example, by slipping into a coma as Andrea Paikin apparently did) they are still eligible to receive MAID. This provision is sometimes referred to as “Audrey’s Amendment.”
To be clear, the waiver of final consent is not the same as an advance directive. In order to qualify for a waiver the patient must first be approved for an assisted death with the usual safeguards: they are assessed by two independent physicians or nurse practitioners; their death is “reasonably foreseeable”; they are deemed to have the mental capacity to make such a decision; they have “intolerable” suffering; they have a severe and irreversible decline in capability; and their request is voluntary. The patient must then must choose a date for MAID provision, usually less than three months in the future, and have identified the conditions that would lead to them wanting to go ahead with MAID on or before the date identified for their death. Having signed the waiver, patients are then eligible to have an assisted death even if they become confused or fall into a coma.
In contrast, an advance directive, which is a legal document that states a person’s wishes about receiving medical care if that person is no longer able to make medical decisions because of a serious illness or injury, still cannot be used to access MAID.