Before federal Medical Assistance in Dying (MAiD) legislation was drafted, there was considerable stakeholder discussion about the concept of a waiting/reflection period between the time a patient requested and received an assisted death. The law ultimately settled on a 10-day waiting period, starting the day after a patient completes a properly executed written request for MAiD.
On its website, the Government of Canada indicates that the purpose of the waiting period is to provide patients ample time to (re)consider their request and allow health practitioners to feel confident about the sustainability of the individual’s decision.
Most accepted this requirement as an important and reasonable safeguard. But there have been several unintended and negative consequences related to the 10-day waiting period for MAiD. Three years post legislation, it is time to reflect on whether the 10-day waiting period is an effective mechanism for confirming that a wish is enduring.
MAiD providers have relayed troubling experiences of finding their patients with unmanaged pain on the day of the procedure. Despite being encouraged to continue taking their medication as prescribed, some patients elect to reduce or stop their pain and/or sedating medications during the waiting period because they fear these drugs will affect their capacity to consent to MAiD. While the goal of MAiD is to be an end-of-life option that relieves suffering, for these individuals, their level of suffering actually increases during the waiting period.
The waiting period is also difficult for family members who are often a consistent presence at the bedside during a patient’s final days. Some have described the 10-day waiting period as “cruel punishment,” as they watched their loved one continue to suffer intolerably. It’s important to note that most patients who request MAiD have been contemplating the decision for weeks or months before they complete the written request – so waiting 10 days longer provides no additional assurance of the continuity of the patient’s desire for MAiD.
The legislation allows the 10-day waiting period to be waived if the patient is at imminent risk of either losing capacity or dying and if both MAiD assessors agree that the patient meets this criteria. In Ontario, the most recent statistics indicate that this waiting period is waived for 24 per cent of patients.1 It was documented to be reduced for 39 per cent of patients at a Toronto hospital. But we know that predictions around the timing of loss of capacity and death are fraught with error.
In our experience, there have been a number of patients who requested MAiD who unexpectedly lost capacity or died during the 10-day waiting period. We’ve witnessed surviving family members express feelings of anger and disappointment that their loved one’s death did not unfold as they had wished. Some of our patients who lost capacity experienced a lengthy dying process with complications like delirium, loss of independence, and an inability to communicate – the very things they had hoped to avoid by choosing MAiD.
Finally, the date of completion of the written request is the current trigger that starts the 10-day waiting period. As the written request must be signed, dated, and witnessed by two legally authorized individuals, the coordination of the process to complete the form can take several days. Finding witnesses who are both independent and trusted can be difficult. Instances have arisen where the written request was completed incorrectly (e.g. conflicting dates, missing signatures, ineligible witnesses). Redoing the written request delays the initiation of the waiting period. For a patient who is suffering intolerably, each additional day of waiting can be agonizing.
These are just some of the issues that we have encountered with the 10-day waiting period required for MAiD. Although it would require an amendment to legislation, there is a relatively simple solution that would resolve most of them: change the trigger for the initiation of the waiting period to when a patient first expresses to a health practitioner a desire, verbally or otherwise, to be assessed for eligibility for MAiD.
The assessments by two doctors or nurse practitioners and the completion of the written request could all be done in the ensuing 10 days. As with current practice and in accordance with the law, the patient continues to have the opportunity to change their mind about the procedure at any time, right up until the medications are administered.
Such an amendment would ensure the patient’s desire for MAID is enduring, while reducing the risk that they will die or lose capacity before they can have the death they chose. On the other hand, given the waiting period for MAiD in Ontario has been waived for 24 per cent of patients without any known concerns being raised, perhaps it’s time to consider whether the 10-day period should be significantly reduced or even eliminated altogether.