Canada’s Medical Assistance in Dying (MAID) laws were set to change in March 2024 to include mental disorders. But the federal government has once again delayed implementation until at least March 2027.
Medical Assistance in Dying (MAID) was legalized in Canada in 2016 and became available to eligible adults with terminal illnesses. In 2021, An Act to amend the Criminal Code (medical assistance in dying) expanded MAID to include people whose natural death was not considered reasonably foreseeable.
The 2021 changes came in response to the 2019 Superior Court of Quebec’s decision in Truchon c Procureur général du Canada (Truchon). The Superior Court found the requirement that an individual’s death needed to be reasonably foreseeable to be eligible for assisted dying was unconstitutional and violated both Charter sections 7 and 15. The Court also found the violations were not justified under Charter section 1 (at paras 682-735).
The Current Law
Section 241.1 of the Criminal Code defines MAID as:
(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.
Section 241.2(1) of the Criminal Code reads:
A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible […] for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
Delays in Including Mental Illness
MAID excludes individuals whose sole underlying medical condition is a mental illness. The legislation states that “mental illness is not considered to be an illness, disease or disability” (see section 241.2(2.1) of the Criminal Code). At first, the exclusion was delayed for a two-year period so the federal government could set up appropriate safeguards. (In order to appreciate the evidence in favour of including people with mental illnesses under MAID, see paras 351 to 466 of Truchon).
In February 2023, the government extended the deadline until March 2024. Then in February 2024, the government extended the deadline – once again – until March 2027.
The latest delay came after the Special Joint Committee on Medical Assistance in Dying concluded in its report that “the medical system in Canada is not prepared for medical assistance in dying where mental disorder is the sole underlying medical condition (MAID MD-SUMC).”
Reasons for the Delay
Consent and Capacity
To be eligible for MAID, a person must be able to give informed consent and be capable of making medical decisions. Giving informed consent means having capacity to give consent. In Canada, the law presumes adults have the legal capacity to make healthcare decisions unless the situation suggests otherwise.
People with mental disorders are usually considered to have the capacity to make treatment decisions. However, mental disorders can affect a person’s decision-making in different ways.
Mental disorders can be defined, according to the Council of Canadian Academies, as “health problems that disturb or impair a person’s thoughts, experiences, emotions, behaviour, and/or ability to relate to others.”
The Council of Canadian Academies stated:
Prohibiting or more broadly permitting MAID MD-SUMC is a question that must be considered alongside key issues such as eligibility criteria, including capacity to provide consent; vulnerability and autonomy; the state of mental healthcare and treatment in Canada; and the realities of suicide.
Jessica Taylor affirmed:
As part of the eligibility criteria for MAID includes providing informed consent, an individual must be capable of making decisions related to their health by being mentally competent or capable. ‘A person is mentally competent or capable when they have the capacity to understand the nature and consequences of their actions and choices, including decisions related to medical care and treatments.’
The Expert Panel Working Group on MAID stated:
In some instances (e.g., certain neurocognitive disorders like dementia, neurodevelopmental disorders and intellectual disabilities, and some cases of schizophrenia), there is a clear decline in the cognitive abilities needed to understand and appreciate information. In other instances (e.g., depressive, bipolar, and anxiety disorders), a person’s capacity for making decisions can be impaired by the disorder’s impact on their mood and emotions. For example, depression can impair one’s ability to deliberate about the future […] or to maintain a minimal concern for self […]. Furthermore, some disorders, such as bipolar disorder, may be characterized by manic, depressive, or mixed states, in which the impact of emotion on capacity will vary.
Therefore, assessing decision-making capacity for MAID MD-SUMC for people with mental disorders can be a real challenge as their wish to die could be a symptom of their condition.
Health Care System Readiness
Expanding MAID to mental illness in Canada will result in our law becoming one of the broadest in the world. Many critics have concerns.
The Centre for Addiction and Mental Health (CAMH)’s concern about the expansion is that the health care system is not ready. They say we need more time to ensure that guidelines, resources and experts are in place. In addition, the health care system is not equipped to deal with the anticipated increase in MAID requests that come with expanding eligibility.
According to CAMH:
[…] mental illness can be severe and cause suffering that can be comparable to physical illness. But the health care available for mental illness is not comparable to the health care available for physical illnesses.
Mental health care has been significantly underfunded compared to physical health care. There are also inconsistencies in treatments covered by different provincial health plans. This means that many people across Canada do not have ready access to the full range of evidence-informed treatments that can assist in their recovery.
The Canadian Mental Health Association (CMHA) stated that “robust and rights-based safeguards to prevent harm and discrimination must accompany the legislative change permitting MAID for those with a mental disorder as their sole underlying condition.”
According to CMHA, there has been insufficient time and resources allocated to:
- consulting with community-based partners and people with lived experience of mental health and substance use health concerns regarding provincial and territorial MD-SUMC implementation frameworks,
- supporting frontline mental health and substance use health staff who are navigating inquiries regarding MD-SUMC and may be involved in MD-SUMC assessments, and
- ensuring people with mental illnesses and substance use disorders can access the medical, social and economic care they need to be well.
Furthermore, some psychiatrists have said expanding MAID to people with mental illnesses would not give them the chance to find treatments that enhance their lives. According to Virginia Duff, it could violate the principles of suicide prevention. John Maher stated that “even patients with serious mental illnesses can improve; they often just need more time to find the right treatments that work for them.”
According to the federal government, the extension of the temporary exclusion will give provinces and territories more time to adjust their health care systems. It will allow them time to develop new safeguards to apply to people with mental illnesses. Further, it will also allow practitioners to become familiar with available supports, guidelines, and standards.
How Canadians feel
In a February 14, 2024 poll, less than half of Canadians agreed that MAID should be expanded to people whose sole underlying condition is mental illness.
Seventy-seven per cent of those surveyed are satisfied with the current MAID legislation. Only forty-two per cent agree to expanding the eligibility to people who have only mental-health conditions.
Having been delayed twice, March 2027 will reveal whether Canada goes ahead with an expanded MAID program.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Myrna El Fakhry Tuttle
