Almost 5 years ago, Canada expanded eligibility for medical assistance in dying (MAiD) to patients without a reasonably foreseeable natural death. This population includes patients with serious and incurable illnesses and those with intolerable psychological suffering. This expansion of eligibility has not been without controversy, and a study in CMAJ describes the approach that clinicians use to assess patients’ eligibility for MAiD if their deaths are not reasonably foreseeable.

In Canada’s MAiD system, Track 1 encompasses requests from patients whose natural deaths are considered “reasonably foreseeable.” This track allows for simpler safeguards, including the option for a waiver of final consent if capacity is lost, as well as immediate access to MAiD once it has been approved. It applies to patients with serious, incurable conditions (such as terminal cancer) where death is predictable but not necessarily imminent.

In contrast, Track 2 encompasses requests from patients whose natural deaths are not foreseeable. It requires more safeguards such as 90-day assessment period, unless the patient is at immediate risk of losing the capacity to consent.

Track 2 Assessments

The objective of the current study was to describe the clinical decision-making process that assessors use to determine an applicant’s eligibility for Track 2. The researchers conducted interviews with 23 healthcare professionals who assess eligibility for MAiD in four Canadian provinces. Of these professionals, 14 were physicians and nine were nurse practitioners.

Sally Thorne, PhD, RN, professor emeritus of nursing at the University of British Columbia in Vancouver and a study investigator, outlined the following aspects of these assessments for Medscape News Canada:

• One of the two medical practitioners who provides an assessment must have expertise in the medical condition that is causing the patient’s unbearable suffering or consult with a practitioner who has such expertise.
• The patient must be informed of the available means to relieve their suffering and must have been offered consultations with professionals who provide services, including palliative care, community services, counseling, mental health, and disability support services.
• The patient and practitioners must have discussed the reasonable and available means to relieve their suffering, and all parties involved must agree that they have seriously considered those means. 

“To understand the nature of the suffering that has led to the request, assessors needed to hear from the patient’s perspective what the experience of illness or disability had been for them,” Thorne told Medscape News Canada. “They needed to make a determination as to whether the applicant’s case best fit the criteria for Track 1 or Track 2.”

Mental Health Assessment

A controversial aspect of Track 2 is the assessment of the patient’s mental health and their ability to request MAiD. Assessors must determine the applicant’s mental capacity to make a decision as weighty as a MAiD request, according to the researchers. They must be confident that the decision had been made voluntarily and had not been affected by undue influence from other people or from circumstances that might have restricted their perceived options.

During the 90-day assessment period, the assessors must document previous efforts to seek treatment or support, as well as any difficulties accessing healthcare interventions, the researchers wrote. The assessors also must determine whether any refusals to accept care that had been offered were reasonable, given the applicant’s circumstances, experiences, or values.

Critics and disability rights organizations raise concerns about issues such as patient vulnerability, the distinction between treatable suffering and irremediable conditions, and a possible lack of sufficient mental health expertise among assessors.

Practitioners working in the MAiD sector have lost sight of the underlying purpose of MAiD, K. Sonu Gaind, MD, professor of medicine at the University of Toronto in Toronto, told Medscape News Canada. “The entire premise is to provide compassionate relief for somebody when they have intolerable suffering. My concerns about Bill C-7 and the expansion with Track 2 are that we've started providing MAiD for reasons that extend too far and for all sorts of other reasons and other suffering.” Expanding the reasons for which MAiD is provided raises questions about marginalized populations and their psychosocial suffering, Gaind added.

“We all have our vulnerabilities, and those are magnified when we’re struggling with anything. With Track 2, although we’re saying it’s meant for the same reasons, for intolerable suffering of an irremediable medical condition, we’ve now opened it up so much that we no longer know what we’re providing death for,” said Gaind.

While the CMAJ study is presented as an academic paper, said Gaind, the authors appeared to display bias when they wrote, “The work of Track 2 assessors has been further complicated by persistent media misrepresentation of their efforts, which has suggested that assessors are operating outside the bounds of the legislation or providing MAiD to patients without due attention to the social determinants of health or adequate healthcare services.” 

“The references they have cited, which they claim are ‘misrepresentations,’ take actual cases from the Ontario Coroners MAiD Review Committee and discuss them,” said Gaind. “The blasé dismissal of the real concerns raised in those references, in those officially documented cases, is highly concerning. It suggests a refusal to even consider whether there might be problems that others have legitimately identified with a system that is providing death. The authors go beyond being dismissive of those concerns they pejoratively discount and undermine any of those concerns raised by others as ‘mischaracterizations.’ I’m not aware of any mischaracterization in the referenced pieces, which raised legitimate concerns shared by many based on documented cases.” 

Concerns associated with Track 2 have prompted the government to postpone MAiD eligibility until March 17, 2027, for patients whose sole underlying medical condition is a mental disorder.

The study was funded through the Canadian Institutes of Health Research. Thorne and Gaind reported having no relevant financial relationships. 

Evra Taylor is a widely published freelance medical writer and reporter with 20 years’ experience covering a broad range of therapeutic sectors, including family health, cardiology, psychiatry, ophthalmology, and dermatology.