Extending Eligibility Criteria for MAID in Canada: Mental Illness Inclusion
By: Katie Cheung, JD from the Lincoln Alexander School of Law at Toronto Metropolitan University; Master’s of Public Health degree from McMaster University
May 5, 2023
Keywords: Medical Assistance in Dying, MAID, Mental Health
Medical Assistance in Dying (“MAID”) is a relatively new medical and legal procedure in Canada. The process requires either a doctor or nurse practitioner to administer or prescribe medication to an eligible individual requesting death. Since MAID became legalized, it has already undergone various changes in removing or expanding eligibility criteria to better reflect and protect society’s evolving needs while balancing patient autonomy and vulnerability. Under federal jurisdiction, these amendments are meant to clarify regulation and procedural safeguards for clinicians and persons involved. On February 2, 2023, the federal government introduced new legislation to extend the eligibility criteria of MAID by allowing Canadians whose only medical condition is mental illness to receive MAID.
History of MAID
MAID became legalized in 2016 after Bill C-14 came into force as a result of the Supreme Court of Canada decision of Carter v Canada (“Carter”). Carter held that the prohibition against physician-assisted death was not constitutionally valid as it violated section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), the right to life, liberty and security of the person. Specifically, the Supreme Court of Canada held that the prohibition denied individuals autonomy in making decisions regarding their bodily integrity and medical care. Bill C-14 clarified misconceptions of the MAID procedure and provided federal regulations in monitoring MAID. Among other things, the regulations established liability protection for providers such as physicians or nurse practitioners performing MAID, procedural safeguards for the person seeking MAID to ensure the request was made voluntarily, a pan-Canadian framework, effective patient referrals when a practitioner objected the procedure, and eligibility requirements. At this time, eligibility to receive MAID requires the person to be:
- at least 18 years old or older;
- a capable patient;
- entitled to public health care; and
- in a grievous and irremediable condition.
In 2019, the Superior Court of Quebec in Truchon v Canada (“Truchon”) declared that the “reasonable foreseeability of natural death” criterion under the grievous and irremediable condition was unconstitutional as it violated section 7 (described above) and section 15 of the Charter – the right to the equal protection and equal benefit of the law without discrimination. Although the decision only applied to Quebec and was not appealed by the Attorney General of Canada or Quebec, the federal government revised the legal framework for MAID to incorporate the decision held in Truchon, resulting in Bill C-7. Bill C-7 came into force in 2021 and removed the eligibility requirement that a person’s natural death had to be reasonably foreseeable to qualify for MAID. This change allows people who are not terminally ill to proceed with the MAID process. This consequently updated Bill-C7 to provide a revised MAID eligibility criteria to be:
- at least 18 years old and have decision-making capacity;
- eligible for publicly funded health services;
- requesting the procedure voluntarily and not as a result of external pressure;
- able to provide informed consent, meaning that the person has consented to receiving MAID after they have received all information needed to make this decision;
- in a serious and incurable illness, disease or disability; and
- enduring a grievous and irremediable medical condition (serious and incurable, irreversible decline in capability, and intolerable physical or psychological suffering)
Revisions from 2021 also created a two-track approach to procedural safeguards for medical practitioners to practice based on whether the person’s natural death is reasonably foreseeable. These safeguards were implemented to ensure sufficient time and expertise is spent on assessing the MAID request for persons whose natural death is not reasonably foreseeable, and for easing procedural safeguards for those whose natural death is reasonably foreseeable. Essentially, these safeguards are meant to evaluate patients who are not nearing death and to purposefully refer them to other sources that may aid their suffering and vulnerability instead.
Currently, there are two ways that the MAID process is administered: (1) clinician-administered MAID, and (2) self-administered MAID. Clinician-administered MAID requires a physician or nurse practitioner to directly administer a substance that causes death, such as an injection of a drug. Self-administered MAID requires a physician or nurse practitioner to prescribe a drug that the eligible person takes in the presence of the practitioner. For individuals that elect a self-administered approach, they can arrange for their practitioner to further administrate a substance to successfully complete the procedure if complications arise during self-administration. Drugs used to conduct this procedure are commonly used drugs that are available in Canada, but administered at higher dosages. Dosing is outlined in clinical guidelines by each province and territory, or organizations that regulate the practice of medicine. Health Canada estimates that over 30,000 total cases of MAID have occurred in Canada since 2016.
Eligibility from Mental Illness
Parliament proposed that starting March 17, 2023, persons whose only medical condition is a mental illness are eligible to seek MAID if they meet all of the eligibility requirements and if practitioners fulfill their procedural safeguards. Although the government initially intended to impose a blanket ban on legislation that would allow people who suffered solely from mental illness to access MAID, senators believed that the exclusion would be unconstitutional. This change demonstrates that Parliament recognizes the intolerable suffering associated with mental illness, and hopes to de-stigmatize the assumption that people with mental illness do not have decision-making capacity.
Mental illnesses, primarily within the domain of psychiatry such as depression and personality disorders, are the sole kinds of mental illness that are eligible to receive MAID. Neurocognitive disorders, (i.e. dementia, Huntington’s and Parkinson’s disease), neurodevelopment disorders (i.e. ADHD, autism and impairments in vision and hearing), and other conditions that affect cognitive abilities, are not included under the terms of “mental illness” as these conditions are considered treatable by specialists within or outside of medicine.
Surprisingly, as of February 2, 2023, the federal government tabled Parliamentary Review of its final report from the Special Joint Committee on Medical Assistance in Dying and delayed the MAID expansion to March 17, 2024 so that enough time is awarded to ensure the legislation is implemented carefully. The pressure to delay has come from psychiatrists who would need to approve patients wanting to receive MAID, and from mental health and disability organizations who are contributing to the decision-making processes and legalization of MAID.
There is also growing concern from mental health advocates and medical professionals who have expressed that treatment delays due to the pandemic, limited affordable housing and social support, and poverty have impacted mental health across the country. Although many of these concerns have solutions, the limited resources have forced some individuals in a position to see no other alternative than to elect MAID. For example, there have been reports of unhoused individuals beginning the MAID process, despite not wanting to die, because social supports have failed them and they do not see any other dignified option. UN experts have also expressed concern over Canada amending its MAID legislation and have noted that “it is not beyond possibility that, if offered an expanded right as per Bill C-7, persons with disabilities may decide to end their lives because of broader social factors such as loneliness, social isolation and lack of access to quality social services”. Parliament is still undergoing discussions with experts and advocates on how to properly safeguard the extended eligibility criteria and ensure the legislation is not too broad, particularly when there are discussions that mental illnesses are curable or have high chances of recovery.
As MAID is relatively new, it is expected that reform to legislation and regulation will likely continue as different considerations are advocated for. With the initial parliamentary purpose of this procedure to protect and meet the needs of our society, there is still debate as to whether the amending eligibility creates a more inclusive procedure by allowing individuals with mental illnesses, with capacity for decision-making, to make autonomous decisions. Alternatively, there are questions as to whether it creates danger for individuals who are lacking social support and resources. The delay until 2024 will allow more time for the government, regulatory bodies, hospitals, and health professionals to adopt practices and to prepare for the upcoming change.