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The federal government has tabled new legislation that indefinitely excludes people suffering solely from mental illness from qualifying for medically assisted death and opens the door for Canadians to request MAID before they lose the capacity to consent.
During a news conference on Tuesday, Justice Minister Sean Fraser said the mental illness exclusion came after a period of “rigorous study” by Canadian lawmakers, including via a special parliamentary committee, and review by his own department.
“This wasn’t a conclusion that we reached out of thin air,” he said.
The legislation, Bill C-41, would amend the Criminal Code to “clarify that a person cannot receive medical assistance in dying on the basis of a mental illness.”
On Tuesday, the federal government tabled legislation that would allow for people to make advance requests for MAID by amending the Criminal Code. Justice Minister Sean Fraser said that where provincial safeguards are put in place, ‘we don’t think criminal liability should attach to the care provider.’
It also would allow people to make what’s known as an “advance request” for medically assisted death before losing the capacity to consent due to their health condition.
But the legislation outlines specific criteria that must be met, including being in “an advanced state of irreversible decline in capability” and “experiencing enduring and intolerable physical or psychological suffering that cannot be relieved through reasonable means.”
It also states that MAID based on advance requests may only be provided in provinces that have established a “provincial legislated regime” outlining the rules and safeguards around such requests.
Provinces respond
Asked whether that would create gaps in access across Canada, Fraser said the federal government decided to allow the provinces “to determine the extent to which they wish to embrace the next frontier on medical assistance in dying.”
“From my point of view, this is going to be the start of a national conversation that will largely play out at the provincial level around the extent to access,” he said.
Maddison McKee, a spokesperson for the Alberta government, said the province would “carefully review the proposed [federal] changes and consider what further consultation may be needed in Alberta.”
“Our priority will continue to be protecting vulnerable Albertans and ensuring appropriate safeguards are in place around consent and patient safety,” McKee said.
The Department of Health and Community Services in Newfoundland and Labrador said it was reviewing the federal government’s position.
Saskatchewan’s Ministry of Health said any decision on legislation would be shared publicly with residents and that the province would “continue to work with our health system partners to ensure the provisions of MAID continue to follow appropriate safeguards and quality of care.”
Ottawa’s plan drew mixed reaction
When Fraser announced Ottawa’s plans earlier this month, Dying with Dignity Canada — a group that advocates for access to MAID — said it was a “profoundly disappointing day.”
“Preventing a group of people from having the same access to a legal medical procedure as the rest of the population simply because of their diagnosis violates Charter rights. It is stigmatizing and unconstitutional,” CEO Helen Long said in a written statement.
The group also said that allowing provinces and territories to decide on whether to allow advance requests risks creating “a patchwork of systems” across Canada, “further increasing inequity in MAID access.”
Helen Long, CEO of Dying with Dignity Canada, which advocates for assisted-dying rules, shares her reaction to the federal government extending the MAID exclusion to those suffering solely from mental illness. She says given the number of delays already with the legislation, it is not a total surprise.
In a written statement on Tuesday, Inclusion Canada, an organization that supports people with intellectual disabilities, welcomed the mental illness exclusion.
But the group said it opposes advance requests for MAID because they would leave “consequential judgments about [a person’s] suffering and expressions of refusal to others.”
It also raised concerns “that discriminatory assumptions about disability, dependence and quality of life could influence those judgments.”
Canada passed MAID legislation in 2016, but the Superior Court of Quebec struck the law down in 2019 because it was limited to those whose deaths were “reasonably foreseeable.”
Parliament passed Bill C-7 in 2021 to align with the court’s ruling. A planned expansion of medically assisted death to people suffering only from mental illness was pushed back several times to allow for further study.
In June, a special parliamentary committee recommended that people suffering solely from mental illness be excluded.
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