Question Period Note: MEDICAL ASSISTANCE IN DYING (MAID) – SAFE IMPLEMENTATION OF RECENT LEGISLATIVE AMENDMENTS

• Recent media stories allege that MAID applicants are being forced to choose MAID in the absence of adequate housing and other supports. Opposition MPs also claim that there are numerous cases of non-compliance with MAID requirements.
• One member of the Special Joint Committee conducting the statutory review of MAID has proposed that Special Joint Committee study the alleged non-compliance concerns.
• Tabling of the report of the Expert Panel on MAID and Mental Illness may trigger more claims that Canada’s MAID framework puts vulnerable people at risk.

Concerns raised about MAID death investigations:
• Our government is aware of the concerns expressed by some about the safe delivery of MAID in this country arising from the accounts of family members.
• We cannot comment on individual cases, nor should we as only the individuals and their clinicians involved in these cases truly know the full circumstances.
• We can, and will however, continue to do what this government has done from the day of the Supreme Court’s decision in 2015. We will listen to the experts, including those at the front lines of our health care system, respect fundamental freedoms of individuals to make their own life choices, and put the safety and security of our most vulnerable people at the forefront of our actions.
We have confidence in the very dedicated and compassionate MAID assessors in Canada to make decisions that fully comply with the law and the wishes of individuals who request MAID.

Expert Panel report on MAID and Mental Illness:
• Our government has just tabled the final report of the Expert Panel on MAID and Mental Illness. This report focuses on the concerns that arise in cases where a mental illness is the sole underlying condition of a person requesting MAID.
• Notably, the Panel does not call for more changes to the legislative framework, but instead indicates the current system of safeguards, when interpreted and applied as the Panel recommends, provides sufficient protections for vulnerable individuals.
• Our government, as well as the medical community and others who are concerned about safe and compassionate access to MAID, will carefully review this report. We thank the Expert Panel members for their time and expertise.

IF PRESSED ON THE PARLIAMENTARY REVIEW PROCESS…
• The Government of Canada recognizes that other important issues related to MAID remain to be explored and that Canadians have strong views about them.
• That is why the law requires a review of the Criminal Code provisions on MAID and its application including specific issues such as: requests for MAID by mature minors, advance requests, requests by persons with mental illness as a sole underlying condition, palliative care and the protection of Canadians living with disabilities.
• The Special Joint Committee on MAID has an important job ahead of it, listening to experts and considering the evidence in order to have a deeper understanding of how MAID is being implemented in Canada. This review will help the government decide where further action and more robust guidance is required.

An Act to amend the Criminal Code (medical assistance in dying) received Royal Assent on March 17, 2021.

The new MAID legislation:
• removes the requirement for a person’s natural death to be reasonably foreseeable in order to be eligible for MAID;
• introduces a two-track approach to procedural safeguards based on whether or not a person’s natural death is reasonably foreseeable;
o existing safeguards are maintained and, in some cases, eased for eligible persons whose natural death is reasonably foreseeable;
o new and strengthened safeguards are introduced for eligible persons whose natural death is not reasonably foreseeable.
• temporarily excludes eligibility for individuals suffering solely from mental illness for 24 months, and requires the Ministers of Justice and Health to initiate an expert review tasked with making recommendations within the next year on protocols, guidance and safeguards for MAID for persons suffering from mental illness;
• allows eligible persons whose natural death is reasonably foreseeable, and who have a set date to receive MAID, to waive final consent if they are at risk of losing capacity in the interim;
• requires expanded data collection and analysis through the federal monitoring regime to provide a more complete and inclusive picture of MAID in Canada.

PARLIAMENTARY REVIEW OF MAID LEGISLATION
The new legislation also required that a Parliamentary Review be undertaken to 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.

Members of the Special Joint Committee on Medical Assistance in Dying were named in April 2021 in accordance with the distribution among parties in the House and Senate as stipulated in the Act. The Committee held three meetings before dissolution. In early April 2022, the Committee was reconstituted and resumed its review. The Committee is expected to provide an interim update on its work on MAID and mental illness in June 2022, and submit its final report and recommendations in the fall of 2022.

MENTAL ILLNESS: SUNSET CLAUSE AND INDEPENDENT REVIEW
The new legislation included a 24-month sunset clause on the exclusion of MAID requests from individuals where mental illness is the sole underlying condition. The exclusion clause in the legislation sunsets in mid-March 2023, after which time individuals with a mental illness as their sole condition will be able to request and receive MAID, providing they meet all other eligibility criteria including those that define a grievous and irremediable medical condition.

The sunset clause is accompanied by a legislative requirement that an independent review be initiated to consider protocols, guidance and safeguards to apply to MAID requests by persons who have a mental illness as their sole condition. The legislation stipulates that a report containing the conclusions and recommendations of the Expert Panel be provided to Ministers and tabled in Parliament.

The Expert Panel on MAID and Mental Illness was launched in August 2021 to undertake this work. It includes experts from a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.

The Expert Panel’s final report was tabled in Parliament on May 13, 2022. The report makes 19 recommendations for establishing a MAID regime that addresses situations regarding incurability, irreversibility, individual capacity, suicidality and the effect of structural vulnerabilities (structural vulnerabilities being the effects of interactions between a person’s sex, gender, socioeconomic status, race/ethnicity, sexuality, or institutional location, with one’s position in society). The recommendations address these concerns in a manner that respects individual autonomy while at the same time supporting safety and equity.

The Expert Panel also concluded that many of these concerns are neither unique to requests for MAID from persons with a mental disorder, nor applicable to every requestor who has a mental disorder. In the view of the Expert Panel, their recommendations should apply to any case where similar concerns may arise, regardless of the requester’s diagnosis. However, in keeping with their mandate, the Expert Panel did pay particular attention to the concerns in the context of mental disorders.

While some of the Expert Panel’s recommendations are directed at federal, provincial and territorial governments, the Panel believes that the current framework for MAID found in Canada’s Criminal Code is sufficient and that further legislative amendments are not required.

The Government is reviewing these recommendations as it shapes future direction in this area. The report will be forwarded to Parliament’s Special Joint Committee on MAID. The work of the Expert Panel will assist the Committee as it continues its hearings and deliberations in the lead up to its own interim report and recommendations on MAID and mental illness later in June 2022.

MAID STATISTICS AND MONITORING REGIME
Under MAID legislation, the federal Minister of Health is obligated to develop regulations for the collection of data and annual public reporting on MAID in Canada. The first report was released in July 2020. The second annual report was released in July 2021 summarizing data collected for the 2020 calendar year.

The second annual report indicates that, in 2020, there were 7,595 reported cases of MAID, accounting for 2.5% of all deaths (this percentage is in the median relative to other permissive jurisdictions). This represents an increase of 34.2% over 2019 when there were 5,631 reported cases of MAID. All provinces have experienced a steady year over year growth in the number of MAID cases since 2016. When all data sources are considered, the total number of medically assisted deaths reported in Canada from the enactment of federal legislation in 2016 to December 31, 2020 was 21,589.

Though not yet published, Health Canada provided preliminary data for 2021 and anecdotal sources for a meeting of the Special Joint Committee on MAID, which indicate the following:
• The number of MAID cases continues to increase (approaching 10,000 in 2021) - approximately a 30% increase from 2020 (7,595);
• Around 2%, or just over 200 cases, involved persons whose natural deaths were not reasonably foreseeable; and,
• As expected, these individuals were slightly younger than the average MAID recipient was and their predominant medical conditions was much more likely to be neurological in nature such as, Parkinson’s and MS, or chronic pain.

FUNDING TO SUPPORT MAID IMPLEMENTATION
Expanded access to MAID (as codified in the new legislation) increases the complexity of eligibility assessments and requires the administration of stronger safeguards to protect individuals who may by more vulnerable due to their specific circumstances. Budget 2021 provided $13.2 million to Health Canada over five years, beginning in 2021-22, with $2.6 million per year ongoing, to support the development of training and guidance materials for practitioners, as well as a policy driven research agenda. This investment will contribute to an enhanced knowledge base to support safe, sensitive and consistent implementation of the MAID legislation and safeguards across the country.

KEY FACTS
• The Expert Panel on MAID and Mental Illness was established by the Ministers of Health and Justice to provide recommendations on protocols, guidance, and safeguards for MAID requests from persons who have a mental illness. On May 13, 2022, their report was tabled in Parliament.
• The Panel’s recommendations focus on providing detailed guidance to MAID assessors who are responsible for decisions on complex MAID cases. The Panel’s view is that the existing regime of eligibility criteria and safeguards is robust and that additional legislated safeguards are not needed.
• The Special Joint Committee on MAID responsible for the statutory review of the Criminal Code provisions relating to MAID and other issues reconvened in April 2022. The Committee is required to submit an interim report on MAID and Mental Illness no later than June 23rd. Committee proceedings have been polarized among those who support broader access to MAID as set out through former Bill C-7, and those who oppose autonomy and choice for requesters who meet the eligibility criteria and safeguards. The Committee’s final report is due no later than October 17, 2022.