Question Period Note: MAID - Mental Illness and Advance Requests

• The Federal Government’s position on amending the Criminal Code to permit advance requests for MAID.
• The temporary exclusion of MAID eligibility for persons whose sole underlying medical condition is a mental illness has been extended by three years, to March 17, 2027.

Advance Requests
• We are aware that there is strong support among the public for advance requests, in particular for persons who have been diagnosed with a capacity-limiting disease such as Alzheimer’s.
• We have also heard that practitioners place a great deal of value on obtaining a “final consent” as a confirmation of a person’s wishes.
• Criminal Code amendments to permit advance requests would be very complex and first require a great deal of consultation and study with provinces/territories, experts and health care stakeholders.
Mental Illness
• The Government recognizes that MAID is a deeply personal choice and remains committed to supporting eligible individuals in having their MAID request considered in a fair, safe and consistent manner, while supporting efforts to protect those who may be vulnerable.
• A great deal of progress has been made to prepare for MAID eligibility for persons with a mental illness, however the provinces and territories and other key stakeholders are at various levels of readiness and have requested more time.
• In addition, the Special Joint Committee on Medical Assistance in Dying has concluded that more time is needed as the health care system is not yet prepared to safely assess MAID eligibility for requests based on mental illness as the sole underlying condition.
• The three-year extension provided through the passing of former Bill C-62 will allow the necessary preparations within our health care systems, including training more clinicians.
IF PRESSED ON WHAT WOULD HAPPEN IF A QUEBEC PHYSICIAN WOULD PROVIDE MAID IN ACCORDANCE WITH PROVINCIAL LAW, BUT WITHOUT CHANGES TO THE CRIMINAL CODE
• A practitioner who provided MAID in compliance with Québec’s advance request scheme, even once it is in force, would commit a criminal offence. This is because they would not satisfy all of the Criminal Code requirements and therefore could not avail themselves of the exemptions in the Code.
IF PRESSED ON WHY A THREE-YEAR DELAY AND NOT AN INDEFINITE PAUSE
• The Government of Canada recognizes that mental illness can cause suffering on par with that of physical illnesses.
• The question is about “when” and not “if”. It was important to establish a firm timeline, otherwise we risked losing momentum based on the excellent progress and study completed to date.
• A three-year extension will provide provinces and territories and partners sufficient time to have structures and mechanisms in place to safely assess MAID requests where mental illness is the sole underlying condition.
• The extension also provides practitioners with time to become trained and gain confidence in applying the guidelines and safeguards.
IF PRESSED ON THE WORK UNDERTAKEN TO SUPPORT PREPAREDNESS
• Our Government has been collaborating with provinces and territories, medical and mental health communities to support system preparedness for MAID eligibility on the basis of a mental illness alone.
• We have supported important initiatives including development of a model Practice Standard and Advice to the Profession, the launch of an accredited bilingual curriculum for MAID clinicians, two Knowledge Exchange Workshops for MAID assessors and providers, and launched ongoing engagement with Indigenous Peoples to understand their diverse perspectives on MAID.
• We are committed to continuing to work with provinces and territories to advance health system preparedness in the coming years.
IF PRESSED ON THE QUESTION OF MAID FOR PEOPLE WITH MENTAL ILLNESS AS THE SOLE UNDERLYING CONDITION
• The Government recognizes that mental disorders can cause suffering on par with that of physical illnesses.
• Resources such as the Model MAID Practice Standard, Advice to the Profession, and the MAID training curriculum, and additional resources developed by provinces and territories will support the medical and psychiatric communities in being prepared for changes to the law.
• The Government is committed to furthering our engagement with persons with lived experience, including experts in the mental health community, to help inform next steps and to prepare for March 2027
IF PRESSED ON THE GOVERNMENT’S REACTION TO MEDIA STORIES ALLEGING THAT PEOPLE ARE SEEKING MAID DUE TO LACK OF NEEDED SERVICES
• The legislation sets a high bar with stringent eligibility criteria including having a grievous and irremediable medical condition. No one can receive MAID solely on the basis of a lack of social supports, such as housing and mental health services.
• Improving access to social and health services remains a priority and governments are working to address disparities.
• On June 22, 2023, the Government passed the Canada Disability Benefit Act to reduce poverty and support financial security of persons with disabilities.

ADVANCE REQUESTS

Studies on Advance Requests
When former Bill C-14 passed in June 2016 permitting MAID in Canada, it required the Ministers of Health and Justice to undertake reviews on issues relating to complex types of MAID requests that were not included in the Bill. These included advance requests; requests by mature minors, and requests where mental illness is the sole underlying medical condition.

The Council of Canadian Academies (CCA) was selected to undertake the reviews, for which the objective was to gather and analyze relevant information and evidence to support further discussion on the implications of extending or not extending eligibility in the three circumstances. A report on each topic was tabled in Parliament in December 2018.

The CCA reports did not include recommendations, but summarized the findings and available evidence. The report on advance requests identified many ethical, legal and process challenges associated with implementing advance requests.

International Experience
International experiences with advance requests is limited. Although permitted in the Netherlands and Belgium, advance requests represented just 1 - 4% of all assisted deaths over a 15-year period in the Netherlands, and only 1% of Belgium’s euthanasia cases since 2018-2019. In many other jurisdictions where MAID is permitted (e.g., several US states), a person must self-administer the lethal medication, so advance requests would, by definition, not be feasible.

Varied levels of support
There is public support for advance requests. According to a Leger poll in February 2024, two-thirds of Canadians (65%) believe that people suffering from an illness that can affect their cognitive ability should be able to make a request in advance for MAID. This proportion is higher among Quebecers (77%) and people aged 55 and over (69%). However, there are some communities who do not support advance requests, such as organizations representing persons with disabilities.

Some practitioners and experts have raised significant concerns about advance requests for MAID. For example, there may be difficulties interpreting the document setting out the advance request, apparent resistance by the person at the time MAID is to be administered, or hesitation among MAID providers to act on an advance request should they be permitted by law.

Current legislation
Advance requests for MAID are not permitted in Canada under the Criminal Code because the provisions require that a person must be experiencing enduring and intolerable suffering and be able to provide consent immediately before MAID is provided. With an advance request, a person would make a request for MAID before they are experiencing enduring and intolerable suffering, and receive MAID after they have lost capacity to consent.

The Criminal Code does allow for a waiver of final consent in specific situations in which people have already been assessed as eligible for MAID under Track 1 (natural death reasonably foreseeable). In this situation, they have specified a date for receiving MAID and they are concerned about losing capacity before the provision of MAID and not being able to provide final consent. An advance request, in contrast, involves a person making a request for MAID before they wish to have it, and before they are eligible, to receive it.

A person with dementia may be eligible to receive MAID if the person meets all the eligibility criteria and the MAID provider can ensure the safeguards are met. This means that the person must be in an advanced state of decline in capability, but still has the capacity to make health care decisions. It can present a challenge for the MAID assessor/provider to find the right time when both these criteria can be met.

Bill proposing expansion
On June 2, 2022, Bill S-248, An Act to amend the Criminal Code (medical assistance in dying), was introduced in the Senate by Senator Pamela Wallin. The aim of the Bill is to create a federal advance request regime for MAID in the Criminal Code for persons who have received a diagnosis that will lead to incapacity. On June 8, 2023, the Bill passed second reading and was referred to the Standing Senate Committee on Legal and Constitutional Affairs (LCJC) for review just prior to summer adjournment. This review has not yet started. The Government has not yet indicated its position on this Bill.

Quebec
In June 2023, the National Assembly of Québec passed Bill 11, An Act to amend the Act respecting end-of-life care and other legislative provisions, which created a provincial regime to permit advance requests for MAID (to come into force on a date set by the government that can be no later than June 7, 2025).

Quebec’s legislative amendments on advance requests are based on several Quebec reports produced over the past few years exploring MAID-related issues. At least three reports have made recommendations to permit advance requests [Expert Group on the Issue of Incapacity and Medical Aid in Dying (2019); 2020-21 Annual Report of the Quebec Commission on End-of-Life Care; Select Committee on the Evolution of the Act respecting end-of-life care (December 2021)].

Given the Criminal Code does not permit the provision of MAID based on an advance request, a practitioner who provides MAID in compliance with Québec’s advance request scheme would commit a criminal offence. In recent months, Quebec has been asking the Federal Government to explore options that would remove legal barriers and permit Quebec to implement an advance request regime. Most recently in February 2024, the Québec National Assembly passed a motion requesting the federal Parliament to amend the Criminal Code so that Québec can legally allow advance requests for medical aid in dying according to its provincial legislation.

MENTAL ILLNESS

MAID LEGISLATION AND MENTAL ILLNESS
In the original 2016 legislation (former Bill C-14), which legalized MAID for persons whose natural death was reasonably foreseeable, the Act required the Ministers of Health and Justice to initiate independent reviews on three particularly complex issues, including requests where the sole underlying medical condition was mental illness.
In 2016, the Government asked the Council of Canadian Academies (CCA) to conduct these independent studies. Following a comprehensive study of this matter, experts in this field could not come to a consensus on this very complicated issue.
Four years later, the Government introduced former Bill C-7, which proposed to expand MAID eligibility to persons whose death was not reasonably foreseeable. As introduced, former Bill C-7 contained a provision stating that mental illness was not considered to be a disease, illness or disability. In other words, requests for MAID based solely on mental illness would not be permitted. As such, no provision for a temporary exclusion was included in the former Bill.
During its study of former Bill C-7, the Senate concluded that MAID requests based solely on mental illness should be permitted, and amended the former Bill to include a temporary, 18 month exclusion of eligibility. The Government responded by tabling a motion in the House extending the temporary exclusion to two years and adding the requirement for an expert independent review. These amendments were passed in the final Bill.
In March 2023, former Bill C-39 extended for one year the temporary exclusion of MAID eligibility for persons suffering solely from a mental illness.
On February 29, 2024, Bill C-62 received Royal Assent, thereby extending the exclusion for MAID eligibility solely on the basis of a mental illness to March 17, 2027.The new law requires that a joint parliamentary committee undertake a comprehensive review relating to the eligibility for MAID of persons suffering solely from a mental illness within two years of the Bill receiving royal assent, that is by March 1, 2026.

MAID AND SUBSTANCE USE DISORDER
To be eligible for MAID, a person must: have a serious and incurable illness, disease, or disability; be in an advanced state of irreversible decline in capability; and, experience enduring and intolerable suffering. All three of these criteria must be met for a person to be deemed eligible. Furthermore, the legislation includes enhanced safeguards, which make it a responsibility of the medical practitioner to ensure that an individual seeking MAID is made aware of the supports available to them. The person seeking MAID and the practitioners must have discussed reasonable and available means to relieve the person’s suffering, and agree that the person has seriously considered those means. These safeguards for persons not nearing a natural death aim to help practitioners identify and potentially address the sources of suffering and vulnerability that could lead the person to ask for MAID.
Clinician resources, such as a MAID practice standard and a training curriculum, have been developed to assist clinicians in their assessments of complex MAID requests, such as those that involve a mental disorder. These resources point to the need to assess the person over a period of time and not during a time of crisis to ascertain the durability of the condition and proper capacity to consent. The MAID curriculum includes a module on MAID and mental illness which includes information on substance use disorder.
No one can receive MAID solely on the basis of lack of social supports such as housing and mental health services. All jurisdictions in Canada have a broad range of policies, programs and initiatives aimed at providing health and social service supports to individuals.
Through Budget 2021, the Government is investing $45 million to develop national standards for mental health and substance use services, in collaboration with provinces and territories, health organizations, and key stakeholders. National standards will help to ensure that Canadians receive high quality, (e.g., safe, effective, patient-centred, equitable, and culturally sensitive) evidence-based mental health and substance use services. The Government of Canada is also currently investing $5 billion over ten years to improve Canadians’ access to mental health and substance use services. The investment is being provided directly to provinces and territories via negotiated bilateral agreements to help them expand access to community-based mental health and addiction services.
THE EXPERT PANEL ON MAID AND MENTAL ILLNESS
As a requirement of former Bill C-7, an Expert Panel was appointed by Ministers of Justice and Health to conduct an independent review to consider protocols, guidance and safeguards to apply to MAID requests by persons who have a mental illness. The final report of the Expert Panel on MAID and Mental Illness was tabled in Parliament on May 13, 2022. It included 19 recommendations that provide guidance on the interpretation of the MAID eligibility criteria, application of the legislated safeguards, and the assessment process, as well as advice on measures to improve the functioning of Canada’s MAID regime more broadly.

The Expert Panel found that the challenges people tend to associate with MAID eligibility for persons with mental disorder (e.g., irremediability, decision-making capacity, suicidality and structural vulnerability) are neither unique to requests for MAID from persons with a mental disorder, nor applicable to every requester who has a mental disorder.

A key conclusion of the Panel was that new legal safeguards are not required to ensure that requests for MAID from individuals with a mental disorder are handled safely and appropriately. They noted that the legal framework for MAID already sets a very high bar for eligibility – that existing MAID eligibility criteria and safeguards, when interpreted appropriately and buttressed by existing laws, standards, and practices in related areas of healthcare, can provide an adequate structure for assessing those more complex (track two) MAID requests, including where a mental disorder is the sole underlying medical condition. The key consideration for the Panel was ensuring that practitioners have additional guidance on how to operationalize the existing eligibility criteria and safeguards in the context of mental disorder and other complex MAID requests.

The central recommendation of the Panel was for federal, provincial and territorial governments to facilitate collaboration among regulatory bodies on the development of MAID practice standards. This process was completed in March 2023.

In addition to the collaborative work towards the development of MAID practice standards, provinces and territories, in collaboration with healthcare regulators and MAID communities, have also been working towards preparedness – some creating specific teams, adding resources, updating their practice standards and encouraging training to help clinicians in addressing requests for those more complex MAID cases, and where mental illness is a sole underlying medical condition.

On July 26, 2022, the Ministers of Health, Justice and Disability Inclusion issued a news release on the Government’s progress in implementing several of the Panel’s key recommendations to help prepare the MAID practice community in assessing these complex MAID requests. This progress included: developing a practice standard for MAID; developing a nationally fully accredited MAID curriculum; enhancements to the data collection system under the Regulations for the Monitoring of MAID; plans for Indigenous engagement; and, federally-funded qualitative research on MAID.

PARLIAMENTARY REVIEW OF MAID LEGISLATION
The 2021 legislation also required that a Parliamentary Review be initiated within 30 days following its Royal Assent. It stipulated that the Parliamentary Review must address (but not necessarily be limited to) the topics of mature minors, advance requests, mental illness, the state of palliative care in Canada, and the protection of Canadians with disabilities.

The Special Joint Committee on MAID (AMAD) held three meetings before dissolution. The committee reconvened in April 2022 and, on June 23, 2022, submitted an interim report, specifically focused on MAID where a mental disorder is the sole underlying medical condition. The interim report made no formal recommendations but urged the federal government to support the timely implementation of the recommendations of the Expert Panel.

AMAD’s second report, containing 23 recommendations on all topics under its remit, was tabled on February 15, 2023. On June 15, 2023, the Government tabled its Response to AMAD’s report and recommendations in the House of Commons.

AMAD reconvened in October 2023 to follow up on Recommendation 13 of its second report which was to examine the degree of preparedness attained for the safe application of MAID for persons whose sole underlying condition is a mental illness. AMAD tabled its recommendation to Parliament on January 29, 2024. It concluded that health care systems are not ready and that further time is needed, and recommended an additional delay until the Minister of Health and the Minister of Justice are satisfied, in consultation with provincial and territorial counterparts and Indigenous Peoples, that it can be safely and adequately provided. It also recommended that a joint parliamentary committee be re-established to assess preparedness one year prior to expanding MAID eligibility for mental illness as the sole condition. The report included two dissenting opinions (by Committee Senators) and two supplementary opinions (Conservative Party and the Bloc Québecois).

The new law, which delays expansion of the current MAID regime to March 2027, requires that a joint Parliamentary committee undertake a comprehensive review relating to the eligibility for MAID of persons suffering solely from a mental illness within two years of the Bill receiving royal assent, that is by March 1, 2026.

Advance Requests
• An advance request refers to situations where a person requests MAID before they are eligible (and before they want) to receive it. A person outlines the circumstances under which they would want to receive MAID, in the future, if such circumstances arise after they lose decision making capacity
• The provision of MAID based on an advance request is not permitted under the Criminal Code because the provisions require that a person must be experiencing enduring and intolerable suffering and be able to provide consent immediately before MAID is provided, with limited exception. With an advance request, a person would make a request for MAID before they are experiencing enduring and intolerable suffering, and receive MAID after they have lost capacity to consent.
• The Criminal Code does allow for a waiver of final consent in specific situations in which people have already been assessed as eligible for MAID under Track 1 (natural death reasonably foreseeable).
• The Special Joint Committee on MAID (AMAD) reviewed advance requests as one of several topics addressed in its report tabled in February 2023. AMAD recommended that the Government of Canada amend the Criminal Code to allow for advance requests following a diagnosis of a serious and incurable medical condition disease, or disorder leading to incapacity. The federal government’s response to the report does not make commitments to expanding federal legislation, noting that further consultation and study is required.
• In June 2023, the National Assembly of Québec passed Bill 11, An Act to amend the Act respecting end-of-life care and other legislative provisions. This legislation created a provincial regime to permit advance requests for MAID (to come into force on a date set by the government that can be no later than June 7, 2025).
• During the recent parliamentary debate on Bill C-62, which extended the temporary exclusion of MAID eligibility where mental illness is the sole underlying condition, the question of allowing advance requests for MAID was frequently raised, even though it was not connected to the content of the Bill.

Mental Illness
• Former Bill C-7, which received Royal Assent on March 17, 2021, included a sunset clause excluding persons with a mental illness as a sole underlying medical condition from seeking MAID until March 17, 2023. The date was deferred by one year to March 17, 2024 with the passage of former Bill C-39.
• On January 29, 2024, the Special Joint Committee on MAID (AMAD) tabled its report examining the degree of preparedness to safely assess MAID eligibility for persons whose sole underlying condition is a mental illness. The Committee concluded that health care systems are not ready and that further time is needed.
• On February 29, 2024, Bill C-62 received Royal Assent, thereby extending the exclusion for MAID eligibility solely on the basis of a mental illness to March 17, 2027. The new law requires that a joint Parliamentary committee undertake a comprehensive review relating to the eligibility for MAID of persons suffering solely from a mental illness within two years of the Bill receiving royal assent, that is by March 1, 2026.
• Over the next three years, the federal government will continue to work with the provinces and territories and other stakeholders to enhance system preparedness such as supporting ongoing uptake of practitioner training and other key resources, the development of necessary coordination services, exploring models of case review and enhancing engagement with Indigenous Peoples and other key populations.