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18 September 2023 | Policy Analysis
Changing legislation for providing medical assistance in dying
6.1. Analysis of recent reforms
Since 2013, when the second edition of this study was published (Marchildon, 2013), there have been few pan-Canadian health reform initiatives beyond the potential establishment of a national Pharmacare programme (section 6.2). However, individual PT ministries of health have concentrated on the administrative structure of their health systems, with a number of governments amalgamating their RHAs into a single delegated health authority responsible for integrating and coordinating most health services within their respective jurisdictions. These reforms include the reorganization or fine-tuning of their regional health systems, alongside efforts to improve the quality and timeliness of – and patient experience with – primary, acute and chronic care. Also, patient dissatisfaction with queues in hospital EDs and for elective surgery, such as joint replacements and cataract surgery, have triggered efforts in all provinces to better manage and reduce waiting times, though these remain persistent challenges, as described in Chapter 7.
In what follows, more recent and incremental health reforms have been separated into two categories, one driven by the continued desire for greater coordination and integration through structural reorganization (and more recently a move towards centralization) and primary care reform, the second moving towards Indigenous self-determination and self-governance in health administration and delivery.
The main purpose of regionalization was to gain the benefits of vertical integration by managing facilities and providers across a broad continuum of health services in particular to improve the coordination of “downstream” curative services with more “upstream” public health and disease prevention services and interventions (Marchildon, 2013). Although all provinces adopted a form of regionalized health administration and delivery in the early to mid-1990s, with the exception of Ontario which waited until 2006 to adopt its unique approach to regionalization, this convergence has been unravelling in recent years due to political dissatisfaction with the results of regionalization (Marchildon, 2016b). In particular, a number of jurisdictions abandoned this experiment with regionalization in favour of establishing a single delegated health authority – most notably Alberta in 2008, Nova Scotia in 2015, Saskatchewan in 2017 and Ontario in 2019 (see Table2.3). Broadly, these structural changes aimed to capture economies of scale and scope in service delivery as well as reduce infrastructure costs. In the provinces which have kept RHAs, there has been a movement towards amalgamating smaller geographical regions into larger RHAs in the hope of reaping greater economies of scale and facilitating greater integration and coordination across the health continuum. Thus far, there has been little evidence that these changes have yet resulted in any major cost efficiencies, enhanced integration or improved outputs or outcomes.
Table2.3
One of the areas of greatest concern has been primary health care because of its central position in the health continuum, between acute and institutional care on the one hand and community and social care on the other. Progress on primary care was also identified as a policy priority under the 10-Year Plan. All governments agreed to provide at least 50% of their respective populations with 24/7 (24-hour, 7-day-a-week) access to multidisciplinary primary care teams by 2011, a major commitment given the fact that the vast majority of primary care was still being provided by physicians in 2004. In most provinces and territories, primary care providers are expected to be both gatekeepers to more specialized services and coordinators of services for their patients across health sectors. As a consequence, there has been a continuing shift towards team-based and interprofessional primary care, an expansion of information technology (IT) and EHRs.
With the introduction of numerous primary care practices and major changes in payment modalities since the early 2000s, Ontario has gone further than any other province in terms of primary care reform (Marchildon & Hutchison, 2016). The Government of the Northwest Territories has made the most progress in terms of the introduction of a jurisdiction-wide EHR for use by both providers and patients (Peckham, Ho & Marchildon, 2018). Only the governments of Ontario and Quebec have introduced rostering agreements between providers and patients to ensure more consistent and continuous care as well as greater accountability (Peckham, Ho & Marchildon, 2018).
Another area of reform has broadly aimed to improve health outcomes of Canada’s First Nations, Inuit and Métis populations who face a persistent health disparity with other Canadians (see Chapter 7). Indigenous leadership has long argued that greater control through self-government is a prerequisite to obtaining more culturally appropriate health services and better health outcomes (Lavoie, 2018). Currently, there are a number of approaches to move towards including: 1) the establishment of Nunavut in 1999, a public government and single point of contact for the administration and delivery of all health services to the territory’s residents, the majority of which is Inuit; 2) Indigenous-controlled health authorities, either on a regional basis such as the Dene-governed Athabasca Health Authority in northern Saskatchewan or the British Columbia-wide First Nations Health Authority; and 3) separate First Nations delivery through individual bands or in modern treaty and lands claims arrangements. Moreover there have been calls for all FPT governments to implement changes consistent with the TRC’s call for changes in the health sector (TRC, 2012; 2015).
The federal government has also changed its organization of Indigenous health services, including the administration of the NIHB programme which offers coverage for extended health benefits to eligible Indigenous beneficiaries. Once provided by the First Nations and Inuit Health Branch in Health Canada, Indigenous health services and NIHB have been moved to a government department created in 2017 called Indigenous Services Canada. At the same time, the federal government also established a second department, known as Crown-Indigenous Relations Canada, to negotiate the details of greater Indigenous self-governments arrangements. Given the very recent nature of all of these reforms, it is difficult to evaluate their impact.
Context
In 2015, the Supreme Court of Canada (SCC) decided unanimously that the Criminal Code of Canada had to be amended because the criminalization of providing medical assistance in dying (MAID) violated the Canadian Charter of Rights and Freedoms. The decision followed 2014 legislation in Quebec to make MAID legal in that province. In 2016, the Federal Government passed the Medical Assistance in Dying Act (Bill C-14), opening access to MAID to persons who suffered because of a disease that was not remediable and whose death was foreseeable. That last clause (also present in the legislation in Quebec) was not in the decision of the SCC, and the Bill was challenged in the Superior Court of Quebec (SCQ). In 2019, the SCQ decided against the clause of foreseeable death and the province of Quebec dropped it in 2020. The Federal Government introduced Bill C-7 in 2021 to expand eligibility to those whose death was not foreseeable. It did this by creating two tracks to MAID: track one defined eligibility as in the 2016 MAID Act (foreseeable death) but track two dropped it. More safeguards and procedures to access MAID were added to track two compared to track one. A final consent waiver (a written agreement with a health care provider to be provided MAID on a specific future day should they have lost the capacity to consent to MAID by that date), introduced in Bill C-7, was not open to requests in track two. Moreover, persons suffering from a mental illness only were explicitly excluded from eligibility (even track two), until March 2023. In the meantime (May 2022), an Expert Panel on MAID and mental illness was asked to produce a report on the necessary safeguards and procedures for the expansion of MAID to persons suffering from a mental illness only. The Panel was not mandated to assess the validity of expanding eligibility to that category of persons, rather to provide recommendations accompanying it, thus creating a third track. An important element of context has been a much higher uptake for MAID in Canada than in comparable jurisdictions: for instance, California allowed a form of MAID in the same year as Canada, has a comparable population, but less than 500 cases in 2021 versus close to 10,000 in Canada (Pullman, 2023).
Reform content
On 2 February 2023, the Federal Government of Canada introduced legislation to extend the temporary exclusion of eligibility for MAID for persons whose sole underlying medical condition is a mental illness until 17 March 2024.
Possible motivation
The decision came after a joint parliamentary interim report (June 2022) raising issues about extending eligibility to MAID to persons whose sole underlying condition is a mental disorder, such as: impossibility to predict irremediability of the disorder, difficulty in assessing ability to provide consent, suicidality, and the risk that MAID track three would become a substitute to treatments for persons who cannot access timely help due to rationing. Contrary to the situation in other countries allowing eligibility to persons whose sole underlying conditions is mental illness (such as the Netherlands), Canada only requires that the person considers existing treatments that are available to them. This means that they need not have tried them unsuccessfully, can refuse recommended treatments, or have access to standard treatments to be eligible for MAID.
Authors
References
De Bruin, Tabitha (2021) Assisted Suicide in Canada, The Canadian Encyclopedia, last edited December 3, 2021.
Garneau, Hon. Marc and Hon. Yonah Martin (2022) Medical Assistance in Dying and Mental Disorder As the Sole Underlying Condition: An Interim Report, Report of the Special Joint Committee on Medical Assistance in Dying, 44th Parliament, 1st session.
Health Canada (2022), Final Report of the Expert Panel on MAID AND MENTAL ILLNESS.
Pullman, Daryl (2023) Slowing the Slide Down the Slippery Slope of Medical Assistance in Dying: Mutual Learnings for Canada and the US, The American Journal of Bioethics, DOI: https://doi.org/10.1080/15265161.2023.2201190