When a Canadian requests medical assistance in dying ("MAID"), it must be done by way of a written request. By law, the request must be signed and dated in front of two independent witnesses who are least 18 years of age. To ensure the request is truly voluntary, there are restrictions that limit who can be a witness.
The two witness cannot:
• benefit from the death (or even think they might benefit, for example, if they are not sure what is in the Will)
• be an owner or operator of a health care facility where the person seeking MAID lives or is receiving care
• be directly involved in providing the person seeking MAID with health or personal care
This leaves limited options for who can be witness to a MAID request. Prior to COVID-19 some individuals struggled to find witnesses, and had to rely on acquaintances and even strangers willing to volunteer.
With an ongoing pandemic, and the pressing need to practice physical distancing, finding a witness for MAID just got a whole lot harder.
Hospital staff are often not permitted to witness patients signing legal documents as a matter of policy. And where that is not a barrier, it may currently not be best practice for health professionals to interact with any more patients than absolutely necessary.
Even if a person seeking MAID finds an individual willing to enter the hospital or long-term care facility to serve as a witness, the willing witness may not be permitted as health care institutions are seriously restricting visitors in order to mitigate the spread of COVID-19.
If the person seeking MAID is living at home, it is likely they interact only with individuals (family and care providers) who are not eligible to be witnesses. If they are able to find two eligible witnesses to come into their home, will they be able to witness and sign the document while maintaining a safe distance? Will the witnesses have access to personal protective equipment? And will this even be legal, as the law continues to reduce the size of gatherings?
And for that matter, will the medical or nurse practitioners normally involved with MAID even have the time to meet with patients seeking MAID, when their skills are so desperately needed elsewhere? There have already been reports about various MAID programs being suspended, and it seems likely this will continue.
As the COVID-19 outbreak unfolds, which has resulted in many confined to their homes, we are seeing some ease of requirements in the legal system such as the possibility of remote witnessing of affidavits for urgent matters. Bill C-14, which created the MAID two-witness requirement, states that the request must be signed "before" two independent witnesses. Can witnessing via Skype be considered "before" a witness? Only a judge can say for sure. These are issues that surely were not considered when MAID laws were put into place.
At this time, the only thing we know for sure is this: if you are involved with a MAID request be sure to bring your own pen.
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