Canada’s proposed law on MAID revealed. Here’s what it says

The federal government on Tuesday revealed the details of a bill that would see access to medical assistance in dying (MAID) for people whose sole reason for seeking it is mental illness.

Bill C-41, the Medical Assistance in Dying Safeguard Act, would amend the Criminal Code to shield doctors from prosecution when they provide assisted death to an eligible patient who requested it in an advance directive.

“We will work with provinces and territories on implementation, with rigorous safeguards to protect people and ensure the decision remains voluntary and free from external pressure,” Justice Minister Sean Fraser said.

MAID is “deeply personal and complex,” Health Minister Marjorie Michel said.

2:02 Health Matters: Liberals table bill restricting access to MAID in cases of mental illness

“Our approach must respect personal autonomy and individual choice while maintaining robust safeguards for those who may be vulnerable,” she said.

While the bill may be able to amend the Criminal Code, the provinces and territories will “organize, regulate, and deliver health care, including MAID assessments and provision,” the federal government said.

In Canada, a person seeking MAID on the basis of mental illness is not eligible to receive it, and the federal government said in February 2024 that it would delay the expansion to mental illness until March 17, 2027.

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The new law would prevent the expansion entirely; however, it would still have to pass both the House of Commons and the Senate before the March 17 deadline.

Officials cited “difficulty in assessing an individual’s decision-making capacity when seeking MAID on the basis of a mental illness” as a reason for preventing the expansion of Canada’s MAID laws for mental illness.

Advocacy group Dying With Dignity Canada said it was disappointed by the federal government’s decision to exclude mental illness from the ambit of the law.

“It is stigmatizing and unconstitutional and Dying With Dignity Canada continues to be dismayed in any action that prevents all Canadians from equal access to apply for MAID,” Helen Long, the group’s CEO said.

Often referred to as an “advance directive” or “advance request” in medical parlance, the principle involves a mentally competent person making a written request for MAID, with the intention that it would be honoured later, if and when they lose the capacity to make the decision for themselves: for example, in people suffering from worsening Alzheimer’s or dementia.

In 2024, Quebec became the first, and so far, the only province to authorize residents an early request for MAID.

Quebec’s MAID law is “in compliance” with rules Ottawa is looking to establish, Fraser said.

The federal bill restricts advance directive on MAID only to people who are:

• at least 18 years of age
• eligible to receive government-funded health services
• able to make their own decisions about MAID
• diagnosed with a “serious and incurable illness or disease prior to making the advance request that is expected to lead to a permanent loss of capacity to consent” to MAID.

The bill lays out two “tracks” under which a person can receive MAID. The first is in cases of people with incurable illnesses with “death reasonably foreseeable,” for example, someone suffering from cancer nearing the end of their life.

The second track is for people with incurable illnesses with “death not reasonably foreseeable.” This includes, for example, a person with Parkinson’s disease who is not nearing the end of their life but has irreversible decline in their abilities.

Dying With Dignity Canada, which has long advocated for advance directives, says the federal government’s approach is “fundamentally flawed” because it downloads implementation to the provinces and territories.

“Dying With Dignity Canada is disappointed that the Medical Assistance in Dying Safeguards Act includes an exclusion from MAID eligibility for persons whose sole underlying medical condition is a mental illness,” Long said.

The applicant should have prepared the advance request with help from a medical or nurse practitioner and consulted with a medical practitioner who is an expert in their condition or illness.

They should also have been given clear information about their diagnosis, progression of their illness, and the available options to relieve their suffering before they make the decision, and also informed about the mechanism by which they can withdraw their consent to receive MAID.

If a person meets all the eligibility criteria, a second medical doctor or nurse practitioner must provide written confirmation of the eligibility based on the advance request. The two practitioners who provide the confirmation should be independent.

If a person set to receive MAID shows any “refusal or resistance” to receive the procedure through either “words, sounds or gestures,” the procedure must be halted.

If medical practitioners observe a person refusing MAID through words, sounds or gestures, they must wait a minimum of 30 days before they can reassess and resume the procedure.