Question Period Note: Medical assitance in dying (MAID) - Eligibility for persons with a mental health disorder as the sole underlying condition in march 2023

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• The Government Response to the Interim Report of the Special Joint Committee on Medical Assistance in Dying (AMAD) was tabled on October 20th. AMAD’s Interim Report, focused on the topic of MAID and mental disorder, made no formal recommendations but urged the federal government to support the timely implementation of the recommendations of the Expert Panel on MAID and Mental Illness (the Panel). The Government Response outlines the Government’s progress to this end.
• Central to AMAD’s concerns are practitioner and health system readiness for March 17, 2023 (when MAID for persons with a mental disorder as a sole underlying condition will be permitted). As outlined in the Government Response, the Government is actively supporting the practitioner community in ensuring the safe and consistent implementation of MAID in Canada through practice guidelines, accredited practitioner training and a strengthened monitoring system.
• The Government acknowledges concerns regarding the end in March 2023 of the temporary exclusion from access to MAID for persons with a mental disorder as their sole underlying medical condition.
• The mandatory eligibility criteria and safeguards in the legislation set a very high bar for access to MAID. We laud the rigor and diligence demonstrated by MAID practitioners who abide by all the requirements of the legislation.
• We are working hard with provinces, territories, clinicians and regulatory bodies on MAID practice standards and accredited training programs, which will ensure MAID assessors are well equipped to make decisions on complex requests for MAID.

IF PRESSED ON OTHER INITIATIVES THE FEDERAL GOVERNMENT IS UNDERTAKING…
• Our Government is working with provinces, territories and partners on implementation of key recommendations of the Expert Panel on MAID and Mental Illness.
• We have convened a task group to develop MAID practice standards that will provide clinicians with guidance when assessing complex MAID requests, including those involving mental disorders.
• We are also funding the Canadian Association of MAID Assessors and Providers to develop a fully accredited MAID training curriculum. Modules will be rolled out early in 2023.
• Over the longer term, we will implement a research agenda that aims to provide greater insight into the circumstances and experiences of people who seek MAID.

IF PRESSED ON THE QUESTION OF MAID FOR PEOPLE WITH MENTAL DISORDERS AS THE SOLE UNDERLYING CONDITION OR THE EXPERT PANEL REPORT…
• Our Government is working to support MAID practitioners who, after March 17, may receive MAID requests from persons with a mental disorder as their sole underlying medical condition.
• Some MAID practitioners have already assessed cases that involve mental disorders, alongside other conditions. We are working on further guidance to help providers interpret the eligibility criteria and apply the safeguards to these complex cases.
• We have convened a task group to develop MAID practice standards that will be available in early 2023, providing clinicians across the country with consistent guidance when assessing complex MAID requests, including involving mental disorders. We are encouraging provincial and territorial governments and medical regulators to work collaboratively to consider and adopt these practice standards.

IF PRESSED ON CONCERNS THAT PEOPLE WILL SEEK MAID AS A FORM OF SUICIDE, ESPECIALLY THOSE WITH A MENTAL DISORDER …
• The latest review of international studies suggests that the availability of MAID does not have a statistically significant impact on suicide rates.
• The MAID framework sets a high bar for access. Just as persons with physical ailments must be suffering grievously and be in an advanced state of irreversible decline arising from an incurable condition in order to receive MAID, only individuals with severe and long-standing mental illnesses that have been resistant to multiple treatments and interventions will ever be considered for MAID.
• The Expert Panel on MAID and Mental Illness also noted that suicide assessments are already part of MAID practice. This includes ensuring that a person’s request is consistent, unambiguous and rationally considered during a prolonged period of stability, and not during a time of crisis.

IF PRESSED ON THE GOVERNMENT’S REACTION TO MEDIA STORIES ALLEGING THAT PEOPLE ARE SEEKING MAID DUE TO LACK OF NEEDED SERVICES…
• We do not comment on individual cases, as only the individuals and their clinicians involved truly know the full circumstances.
• While a person may say they want to receive MAID due to inadequate services, the eligibility criteria and safeguards in the law are robust. Two independent practitioners must conclude a person is eligible and an offer of available services and supports must be made and considered by the requester.
• No person would ever be approved for MAID simply because they lack adequate support services.

IF PRESSED ON EFFICACY OF NEW SAFEGUARDS FOR WHERE DEATH IS NOT REASONABLY FORSEEABLE (ALSO KNOWN AS TRACK 2 CASES)…
• Recognizing the variability in the types of applicants who might make a request, the legislation established new and enhanced safeguards that require among other things, inclusion of professional expertise in the assessment process, and offering of alternate options to alleviate suffering.
• These safeguards ensure that practitioners consider the physical, psychological and social circumstances of requesters who are not nearing a foreseeable natural death.
• We are also supporting development of MAID practice standards to help clinicians consistently interpret and apply eligibility criteria and safeguards when assessing complex requests that may fall under the track two stream, including requests where a mental disorder is involved.

IF PRESSED ON UPCOMING REGULATORY AMENDMENTS TO EXPAND DATA COLLECTION FOR MAID…
• The amendments to the Regulations for the Monitoring of MAID will respond to the changes to the MAID legislation in 2021, and will provide for the collection of new data related to race, gender and Indigenous identity, as well as disability status of MAID requesters.
• These amendments are on track to be published in Canada Gazette, Part II prior to January 1, 2023.

IF PRESSED ON INDIGENOUS ENGAGEMENT ON MAID…
• Health Canada is committed to engaging with Indigenous peoples on the culturally safe implementation of MAID, guided by principles respecting the Government of Canada’s relationship with Indigenous peoples, and based on recognition and respect for the right to self-determination.

IF PRESSED ON THE POTENTIAL ELIGIBILITY OF MATURE MINORS FOR MAID …
• Many Canadians have strong views about MAID. There may be additional tensions and sensitivities when considering potential eligibility for mature minors.
• Generally speaking, mature minors are those under 18 with the capacity to make informed health care decisions and the ability to act voluntarily on those decisions.
• In many provinces and territories, mature minors already have the right to make important decisions regarding their care. This includes the right to consent to or refuse lifesaving medical treatment.
• Medically assisted dying is still relatively new in Canada and we are still learning. That is why the Government will be working closely with experts and other stakeholders to support necessary research on its implementation. We also look forward to reviewing the Special Joint Committee’s final report on MAID, expected in October 2022.

BILL C-7, AN ACT TO AMEND THE CRIMINAL CODE (MEDICAL ASSISTANCE IN DYING)
On September 11, 2019, the Superior Court of Québec ruled in favour of two plaintiffs (Jean Truchon and Nicole Gladu) who had challenged the Criminal Code eligibility requirement that an individual’s natural death be reasonably foreseeable and the more stringent provincial requirement for a person to be at the end of life. The governments of Canada and Québec did not appeal the decision.

On February 24, 2020, the federal government tabled proposed amendments to the 2016 Criminal Code provisions on MAID (Bill C-7) in response to Truchon. The Bill was terminated with the prorogation of Parliament but was re-introduced on October 5, 2020 (its content was unchanged). It received Royal Assent on March 17, 2021.

The new 2021 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

IMPLEMENTING KEY RECOMMENDATIONS OF THE EXPERT PANEL ON MAID AND MENTAL ILLNESS
The revised legislation includes a 24-month sunset clause on the exclusion of MAID requests from individuals where mental illness is the sole underlying condition. After March 17, 2023, individuals with a mental illness as their sole condition will be able to request and receive MAID, providing they meet all other eligibility criteria.

During this exclusion period, 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 includes 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.

A key conclusion of the Panel was that the existing MAID eligibility criteria and safeguards (interpreted appropriately) 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.

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 that will 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 new legislation also required that a Parliamentary Review be initiated within 30 days following Royal Assent. 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 committee’s final report is due no later than February 17, 2023.

PROPOSED AMENDMENTS TO MAID REGULATIONS
On May 21, 2022, the proposed amendments to the existing 2018 Regulations for the Monitoring of Medical Assistance in Dying were published on the Canada Gazette, Part 1 website for a 30-day public comment period. The proposed regulatory amendments support Canada’s MAID regime by allowing for enhancements to data collection and reporting through the federal MAID monitoring regime to provide a more comprehensive and inclusive picture of how MAID, with expanded eligibility, is being implemented in Canada.

Once the amended Regulations are enacted, the expanded data collection requirements will commence and the information collected will be reflected in the federal annual report on MAID in Canada for 2023, to be publicly released in the summer of 2024.

INDIGENOUS ENGAGEMENT
Throughout various consultative and Parliamentary discussions on MAID, Indigenous participants, as well as several Parliamentarians, spoke to about the lack of and need for meaningful engagement with Indigenous peoples on the topic of MAID to understand their diverse views and perspectives. This view was most recently echoed by the May 2022 final report by the Expert Panel on MAID and Mental Illness, and the June 2022 Interim Report of the Special Joint Committee on MAID. These calls for engagement come from the concerns raised around the potential impacts of MAID on Indigenous peoples, such as:
• Undermining of suicide prevention efforts;
• Straining already inaccessible culturally-safe health care services, including palliative care; and
• Exacerbating systemic racism experienced by Indigenous peoples in the health care system.

FUNDING FOR MAID INITIATIVES
Expanded access to MAID (as codified in the new legislation) increases the complexity of eligibility assessments and requires the administration of the enhanced safeguards aimed at protecting vulnerable people who might be induced to seek an assisted death. 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.

MAID AND MATURE MINORS
Generally, mature minors are those under 18 with the capacity to make informed health care decisions and the ability to act voluntarily on those decisions. While provinces and territories may have different requirements, in some cases mature minors are already legally capable of making end-of-life decisions (such as withdrawing life-sustaining treatment), but this is dependent on the capacity of the young person to understand their decision and their ability to provide consent.

Individuals under the age of 18 are not currently eligible for MAID. In 2016, the federal Ministers of Health and Justice tasked the Council of Canadian Academies (CCA) with completing a review of questions related to complex MAID requests, including MAID and mature minors. The CCA report, tabled by the Ministers in December 2018 indicated:
o The need for key safeguards for mature minors, noting that autonomy develops in a relational context, where decision making should involve the patient, their family (parents or guardians), and an inter-professional healthcare team;
o While chronological age can provide some developmental generalizations about decision-making abilities, it is not the most important variable in determining capacity for informed consent;
o Capacity of a minor to consent to a healthcare intervention must be determined on a case-by-case basis by considering their experiences, maturity, circumstances, and the gravity of the decision at hand; and,
o Any deliberation on whether to permit MAID for currently excluded groups would benefit from greater engagement with Canadian society, especially those groups most likely to be affected. They also noted that the voice of youth is missing in the discussions surrounding access to MAID for mature minors.

There is limited research in the area of assisted dying for mature minors. Understanding the views of minors, family members and health care professionals about MAID requests for mature minors will inform future policy development. To this end, Health Canada is in the early stages of launching research that will generate nationally informed evidence for policymakers to consider in deliberations pertaining to requests for MAID from mature minors.

The mandate of the Special Joint Committee on MAID includes the question of MAID and mature minors. The final report of this Committee is due by February 17, 2023.

• AMAD is responsible for the parliamentary review of Canada’s legislation on MAID as required in former Bill C-7. As specified in the legislation, AMAD’s review must cover mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities. Its final report covering all of these issues is due to be tabled no later than February 17, 2023.
• The Panel was commissioned last year to make recommendations respecting protocols, guidance and safeguards to apply to MAID requests from persons with mental disorders. Its final report contains 19 recommendations, the first of which calls upon FPT governments to facilitate the development of MAID practice standards for use by health professional regulatory bodies. Most of the remaining recommendations provide guidance on MAID assessment and provision in complex cases, while others focus on broader measures to improve the functioning of Canada’s MAID regime, though training, oversight, data collection, research, and Indigenous engagement.