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Medical Assistance in Dying (MAID), often referred to as doctor assisted death in Canada, is a deeply personal and complex matter. The Canadian government is dedicated to ensuring its laws both reflect the needs of Canadians and protect vulnerable individuals, while upholding autonomy and freedom of choice.
Important Update: As of February 29, 2024, legislation extending the exclusion of eligibility for MAID based solely on mental illness has been enacted. Individuals whose only underlying medical condition is a mental illness will not be eligible for MAID until March 17, 2027.
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For detailed information on MAID in Canada, please refer to Health Canada’s MAID webpage.
Medical Assistance in Dying in Canada: A Legal Overview
The legal framework for medical assistance in dying in Canada has evolved significantly since 2015. In February 2015, the Supreme Court of Canada’s landmark decision in Carter v. Canada mandated changes to the Criminal Code. The court found that the existing prohibitions on doctor assisted death were inconsistent with the Canadian Charter of Rights and Freedoms. The government was given until June 6, 2016, to enact new legislation.
In response, the Parliament of Canada passed federal legislation in June 2016, legalizing medical assistance in dying for eligible adults. This marked a significant shift in Canadian law, allowing individuals meeting specific criteria to request and receive doctor assisted death.
Further amendments were introduced on October 5, 2020, when the Minister of Justice and Attorney General of Canada presented Bill C-7: An Act to amend the Criminal Code (medical assistance in dying). These proposed changes were a direct response to the 2019 Truchon decision by the Superior Court of Québec. The Truchon ruling deemed the “reasonable foreseeability of natural death” criterion in the Criminal Code, and the “end-of-life” criterion in Québec’s Act Respecting End-of-Life Care, unconstitutional. The amendments were also shaped by extensive public consultation, expert input, and stakeholder feedback gathered in early 2020, as well as testimonies from over 120 expert witnesses during Bill C-7’s parliamentary review.
On March 17, 2021, Bill C-7 was passed, bringing immediate revisions to the eligibility criteria and assessment process for medical assistance in dying. The federal government continues to collaborate with provinces, territories, and healthcare professionals to ensure proper safeguards are in place.
December 15, 2022, saw an announcement from the Ministers of Justice, Health, and Mental Health and Addictions regarding the government’s intention to seek an extension to the temporary exclusion of MAID eligibility for individuals solely suffering from mental illness.
Legislation (Bill C-39) was introduced on February 2, 2023, to extend this exclusion for one year, until March 17, 2024. Bill C-39 received royal assent on March 9, 2023, taking immediate effect.
On February 1, 2024, the government introduced further legislation to extend the exclusion until March 17, 2027. This was followed by Bill C-62 receiving royal assent on February 29, 2024, which is the current legislation in effect, postponing MAID eligibility for those with mental illness as their sole condition until March 17, 2027.
Who is Eligible for Doctor Assisted Death in Canada? Current Criteria
Important Eligibility Update: As reiterated, the exclusion for eligibility based solely on mental illness for doctor assisted death in Canada is extended to March 17, 2027. Refer to Eligibility for persons suffering solely from mental illness for more details.
The 2021 legal revisions significantly altered the eligibility criteria for MAID, particularly in response to the 2019 Truchon decision. The “reasonable foreseeability of natural death” is no longer a requirement for eligibility.
As of March 17, 2021, to be eligible for medical assistance in dying in Canada, a person must meet all of the following criteria:
- Be 18 years of age or older and capable of making their own healthcare decisions.
- Be eligible for publicly funded health care services in Canada.
- Make a voluntary request for MAID that is not influenced by external pressures.
- Provide informed consent to receive MAID, meaning they understand all necessary information to make this decision.
- Have a serious and incurable illness, disease, or disability (excluding mental illness until March 17, 2027).
- Be in an advanced state of irreversible decline in capability.
- Experience enduring and intolerable physical or psychological suffering that cannot be relieved under conditions they find acceptable.
Doctor Assisted Death and Mental Illness: Understanding the Exclusion
In 2021, it was legislated that individuals whose sole medical condition is a mental illness, even if they meet all other criteria, would not be eligible for doctor assisted death in Canada for an initial two-year period, until March 17, 2023. This exclusion encompasses conditions primarily treated within psychiatry, such as depression and personality disorders, but excludes neurocognitive and neurodevelopmental disorders, or other conditions potentially affecting cognitive abilities.
This initial temporary exclusion was implemented to allow time for thorough study and development of safeguards for providing MAID in cases where mental illness is the sole underlying condition. The aim was to ensure safety and protection for vulnerable individuals in such circumstances.
The Government of Canada established an Expert Panel on MAID and Mental Illness to provide recommendations on protocols, guidelines, and safeguards. The Expert Panel submitted their final report to Parliament on May 13, 2022. More information on the Expert Panel’s work is available on Health Canada’s website.
In December 2022, the government announced its intention to extend the exclusion for mental illness for an additional period. This led to legislation in March 2023 extending the exclusion to March 17, 2024, and subsequently, the current extension to March 17, 2027, through Bill C-62 in February 2024.
This further extension is designed to provide provinces and territories with necessary time to prepare their healthcare systems. This includes developing regulations, guidance, and resources for assessing and providing MAID in cases of sole mental illness, and to allow practitioners to receive training and familiarize themselves with supports and guidelines.
Furthermore, the current legislation mandates a joint parliamentary committee to conduct a comprehensive review of MAID eligibility for individuals with sole mental illness within two years of royal assent. This review will assess healthcare system readiness and consider potential further Criminal Code amendments.
Other Considerations and Reviews
In April 2021, Parliament’s Special Joint Committee on Medical Assistance in Dying was established to review Canada’s MAID law, its application, and other critical questions, including eligibility for mature minors, advance requests, mental illness, palliative care, and protection for Canadians with disabilities.
The Committee issued an interim report on MAID and mental illness on June 22, 2022, and its final report on February 15, 2023. The government’s response to the final report was tabled on June 15, 2023.
In October 2023, motions were adopted in both the House of Commons and Senate to re-establish the Special Joint Committee to assess healthcare system readiness, as per recommendation 13 of their February 2023 report. The Committee’s final report, MAID and Mental Disorders: The Road Ahead, was released on January 29, 2024.
Procedural Safeguards for Doctor Assisted Death in Canada
The 2021 revisions introduced a two-track system of procedural safeguards for medical practitioners, based on whether a person’s natural death is reasonably foreseeable. This approach ensures rigorous assessment for requests from individuals whose death is not reasonably foreseeable, while streamlining procedures for those whose death is approaching.
These safeguards are a change from the previous law, which only permitted MAID when natural death was reasonably foreseeable. New safeguards now specifically apply to individuals whose natural death is not reasonably foreseeable, addressing diverse sources of suffering and potential vulnerabilities.
Safeguards When Natural Death is Reasonably Foreseeable
For individuals whose natural death is reasonably foreseeable, the following safeguards apply when seeking doctor assisted death in Canada:
- The request for MAID must be made in writing and signed by an independent witness (including paid professional care workers).
- Two independent doctors or nurse practitioners must assess and confirm all eligibility criteria are met.
- The person must be informed of their right to withdraw their request at any time.
- The person must be given the opportunity to withdraw consent and must expressly confirm their consent immediately before receiving MAID (with exceptions in certain circumstances).
Note: The mandatory 10-day reflection period has been removed for individuals whose natural death is reasonably foreseeable.
Safeguards When Natural Death is Not Reasonably Foreseeable
For individuals whose natural death is not reasonably foreseeable, the following procedural safeguards are in place for doctor assisted death in Canada (* indicates safeguards specific to these requests):
- The request for MAID must be made in writing, witnessed by an independent witness.
- Two independent doctors or nurse practitioners must assess and confirm all eligibility criteria.
- *If neither assessor has expertise in the person’s medical condition causing suffering, they must consult with an expert.
- The person must be informed of their right to withdraw their request at any time.
- *The person must be informed of available and appropriate options to relieve suffering, including counseling, mental health, disability, community, and palliative care services, and offered consultations with relevant professionals.
- *The person and practitioners must discuss and agree that the person has seriously considered reasonable and available means to relieve suffering.
- *Eligibility assessments must take at least 90 days (can be shortened if capacity is at risk, provided both assessments are complete).
- Immediately before MAID, the practitioner must offer an opportunity to withdraw the request and ensure express consent is given.
Final Consent Requirements for Medical Assistance in Dying
Final Consent for Persons Whose Natural Death is Reasonably Foreseeable
The revised law allows for waiving final consent immediately before receiving doctor assisted death in Canada for patients whose natural death is reasonably foreseeable, under specific conditions:
- The person has been approved for MAID.
- They are at risk of losing decision-making capacity before their chosen MAID date and have been informed of this risk.
- They make a written agreement with their practitioner to waive final consent, allowing MAID to be administered on their preferred date if capacity is lost.
This waiver is invalidated if the person, after losing capacity, demonstrates refusal or resistance to MAID through words, sounds, or gestures (reflexes and involuntary movements are not considered refusal).
This change, often termed “Audrey’s Amendment,” addresses concerns raised by Audrey Parker, who chose to receive MAID earlier than desired due to fear of losing capacity.
Final Consent for Self-Administered MAID
Individuals approved for doctor assisted death in Canada who choose self-administration can now create a written arrangement with their practitioner for practitioner-administered MAID in case of complications post-ingestion leading to loss of capacity but not death.
This allows advance consent for practitioner-administered MAID if complications arise during self-administration and the practitioner is present. This option is available to all individuals choosing self-administration, regardless of prognosis.
Data Collection and Monitoring of MAID in Canada
The 2021 MAID law revisions enhance data collection and reporting to provide a more comprehensive understanding of MAID implementation in Canada, including under the new provisions. This monitoring regime is crucial for transparency and public trust.
Changes to data collection include:
- Data collection on all assessments following a MAID request.
- Expanded regulation-making power for the Minister of Health to:
- Broaden data collection related to race, Indigenous identity, and disability.
- Assess potential individual or systemic inequality or disadvantage in MAID access and delivery.
The federal government recognizes the importance of comprehensive information on individuals requesting or receiving doctor assisted death in Canada.
Since the formal monitoring regime began in 2018, data collection solely based on written requests has provided an incomplete picture of MAID requests across the country.
The enhanced data collection now includes all assessments following a MAID request, including preliminary assessments by various health professionals, providing a clearer understanding of who is seeking MAID.
Federal monitoring regulations define the data collected and reporting methods. Government consultations with stakeholders in 2021 and 2022 informed the updated regulations to ensure comprehensive data collection reflecting the new MAID law. The government is also exploring linking MAID monitoring data with other databases to analyze socioeconomic factors related to MAID requests.
The Regulations Amending the Regulations for the Monitoring of Medical Assistance in Dying and its Regulatory Impact Analysis Statement were published in the Canada Gazette, Part II on November 9, 2022. These regulations, effective January 1, 2023, enable broader data collection, allowing for a more comprehensive view of MAID implementation in Canada with expanded eligibility.
The Government of Canada remains committed to upholding the autonomy of eligible individuals seeking doctor assisted death while protecting vulnerable individuals and ensuring equality for all Canadians.
