In February 2015, the Supreme Court of Canada struck down the existing ban on medically-assisted dying in Canada. As a result, the Canadian government created new law in June 2016 setting out the limited parameters within which assisted dying is now legal.

According to the new legislation you may now ask for medical assistance in dying if you are:

  1. at least 18 years old,
  2. mentally capable of making health care decisions for yourself,
  3. eligible for health services funded by the Canadian government,
  4. making the request voluntarily, and
  5. suffering from a “grievous and irremediable medical condition”.

Importantly, you are only considered to have a “grievous and irremediable medical condition” if you meet all of the following criteria:

  1. you have a serious incurable illness,
  2. you are in an advanced state of irreversible decline as a result of that illness,
  3. you are suffering pain that is intolerable to you and cannot be relieved and,
  4. your natural death has become “reasonably foreseeable”.

Significantly, the language used by the Supreme Court of Canada in Carter v. Canada was much less restrictive than the new law. The Supreme Court did not indicate that death needed to be “reasonably foreseeable” nor that assistance should be available only for those with terminal illnesses.

The current law would appear to make it impossible for a person to ask in advance for an assisted death in the case of certain forms of illness.  A person suffering from Alzheimer’s, for example, may not be considered to have a “reasonably foreseeable” natural death and therefore would presumably not qualify to make the necessary request while they are still of sound mind. Once no longer of sound mind, they also would not qualify to make the request, because they would fail to meet mental capability requirement.

This issue, namely, whether “reasonably foreseeable” natural death should be a necessary requirement to request assisted dying, was a point of considerable debate and contention when the new legislation was being debated and drawn up.  Many have argued that the Government did not go as far as they should have to ensure Canadians’ rights to assisted dying.  It is anticipated that the new law will be challenged.