Justice Minister Sean Fraser has introduced legislation to amend Canada’s medical assistance in dying law. The changes proposed would indefinitely exclude those whose sole underlying condition is a mental illness from qualifying for assisted death. It would also allow people to make advance plans to pursue MAID in certain cases. Fraser first signaled the policy changes were coming earlier this month. Accompanied by Health Minister Marjorie Michel, Fraser addressed reporters about the updates to Canada’s medical assistance in dying (MAID) law Tuesday afternoon in Ottawa. “These are challenging circumstances, but in some way, we have an opportunity to make them somewhat less challenging for people in their greatest time of need,” Fraser said. Ahead of their press conference, government officials briefed reporters on the details of the bill – which spans just 12 pages – and the specific Criminal Code reforms being proposed. During that briefing, officials cited the persisting disagreement among experts over whether practitioners can safely assess an individuals’ circumstances when seeking MAID on the basis of a mental illness. In cases where someone has a mental illness in addition to a physical illness, if they are approved on the basis of their physical condition, MAID is still obtainable. They also provided a detailed breakdown of the framework for establishing advance directives, emphasizing that approvals under this path do not mean an assisted death will automatically be provided later, and remain subject to each province and territory’s discretion. In a statement announcing the tabling of what will be known as Bill C-41, the MAID Safeguards Act, Fraser vowed to work with provinces and territories on implementation, “with rigorous safeguards to protect people and ensure the decision remains voluntary and free from external pressure.” Halting expansion for mental illness The federal government has decided – after an extensive study by MPs and ahead of a March deadline – not to move ahead with the expansion scheduled in the Criminal Code of Canada to permit assisted death in circumstances where mental illness is the sole factor. Instead, the legislation proposes to “indefinitely exclude” persons whose sole underlying condition is a mental illness, meaning that people seeking MAID on the basis of mental illness will be ineligible for the foreseeable future. This approach was precisely what was recommended to the government by the special joint parliamentary committee tasked with assessing a potential expansion. That panel heard from dozens of experts, the majority of which opposed expanding eligibility. To qualify for MAID in Canada, a person must be suffering from a grievous and irremediable medical condition, a determination that can be very challenging to make in the case of a mental illness. Under both tracks of the current regime: Whether death is reasonably foreseeable or not, the individual needs to be experiencing intolerable suffering, able to make decisions about their health, and receive two independent assessments confirming requirements are met. Allowing advance directives Tuesday’s bill also includes provisions to allow people who make advanced requests for medical assistance in dying if they have been diagnosed with an illness that will cause them to lose decision-making capacity and the capacity to consent in the future. Known as advance directives, these kinds of requests allow adults with a capacity-limiting disease – such as Alzheimer’s – to outline the circumstances under which they would want to receive an assisted death down the line. Bill C-41 outlines the minimum requirements for MAID based on an advance directive. In short, the potential-recipient must make the request of their own volition in co-ordination with an approved medial professional. Those seeking an advance directive must informed about the expected progression of their illness, their prognosis, options to relieve their suffering, and how to change or cancel their advance request if desired. Further, officials sought to emphasize Tuesday that even if an advance directive was approved, MAID would not proceed if at the time the person is not experiencing intolerable suffering and are considered to be content or not in distress. An assisted death would also not be provided if the person refuses or resists. Another key detail, confirmed Tuesday, is that this option will only be available in provinces and territories that wish to permit such request and have legislation in their respective jurisdictions to ensure the policy is implemented safely. Across Canada, provinces and territories have differing positions on the issue of allowing adults to consent in advance to receive MAID at a later point. Pressed on how this could result in a patchwork system where patients in a jurisdiction where advanced directives are not permitted seek approval in another province, officials said it will be up to each province and territory to determine in their respective systems, whether they’d allow non-residents in. “I expect in the months and potentially years ahead, there will be a greater degree of uniformity where it comes to access to medical assistance in dying, where there are advance requests. But today, we wanted to have a single change to the Criminal Code that would ensure that there are rigorous protections in place,” Fraser said. “So, though there is always some degree of concern around a lack of unanimity or uniformity when it comes to access to services, I would far prefer that scenario to a scenario where you universally expand access without first having those safeguards in place, given the nature of the consequences being quite literally life and death.” ‘Deeply personal and complex’ Certain Canadians have had access to MAID since 2016 and amendments were made to the eligibility criteria in 2021. Further expansion of MAID has been highly controversial, amid reports of existing safeguards failing in complex cases. The temporary exclusion of MAID eligibility on the basis of mental illness was first imposed in 2021, and was extended twice in the years that followed. The current exclusion is set to expire on March 17, 2027. This looming expiration is putting some additional pressure on Parliamentarians to study and pass this legislation to ensure the new indefinite exclusion becomes law before that date. “The consequences of not meeting this timeline are extraordinarily serious,” Fraser said. “We insist upon the speedy debate and passage. That doesn’t mean we intend to shortcut opportunities for parliamentarians to feed into the process.” The minister said at this point, he has “no sign there’s going to be any of that kind of gamesmanship on this bill,” adding that “the consequences are simply too great.” Beyond these two main features of Bill C-41, the legislation also includes provisions intended to “streamline and update federal data collection and reporting,” on MAID in Canada, and to lessen the “administrative burden” on practitioners.
