OTTAWA — 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, and now that the details have been revealed, some advocates are expressing reservations. 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.” Advocates want bill split in two 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.” That said, the legislation is already being met with pushback from advocates. While there is wide support for continuing to exclude mental illness as an acceptable sole underlying medical condition, the advance directive element is more contentious. That’s prompting calls for the bill to be divided into two pieces so that parliamentarians with reservations about that piece can express them. “If you are a member of Parliament who is concerned, as I am concerned, you have to concede which issue matters more to you, and the fact that they’re unwilling to separate these is major cause for concern,” said Alicia Duncan, author of “The Other Side of the Straitjacket: A Daughter’s Story of Mental Health and Assisted Dying.” Five years ago, Duncan’s mom Donna received medical assistance in dying after dealing with complex physical and mental health issues. While she was approved based on her physical decline, the circumstances around the case triggered a police probe and led Duncan to do a deep dive on Canada’s current rules, turning her into an advocate for better protections. “I do believe that it is irresponsible to expand a system that is showing massive gaps already,” she said. “It’s very complex. We need to understand the full implications.” Inclusion Canada is also calling on the Liberals to divide the bill, or entirely remove the advance request portion, until Canadians feel assured about the protections proposed. “We wholeheartedly support the government’s decision to permanently exclude mental illness as the sole underlying medical condition for made, and this is likely an extremely important decision. And we also support getting that protection into law as quickly as possible,” said CEO Krista Carr. “On the other hand, however, we are very disappointed to see the expansion to advance requests.” Carr said that unlike the mental illness exclusion, advance directives and the nuanced nature of asking to die potentially years before receiving MAID has not received the same amount of rigorous debate or discussion in this country, and Inclusion Canada doesn’t want that process to be rushed. “Parliamentarians in this bill are going to have to accept one to get the other,” she said. “Yes, the government says there are ‘safeguards’ built into the bill, but we have not thoroughly examined what would need to be in place.” 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
