Canada’s medical assistance in dying (MAID) law

Source: https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html

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Medical assistance in dying (MAID) is a complex and deeply personal issue. The Government of Canada is committed to ensuring our laws reflect Canadians’ needs, protect those who may be vulnerable, and support autonomy and freedom of choice.


  Important: On February 29, 2024, legislation to extend the temporary exclusion of eligibility to receive MAID in circumstances where a person's sole underlying medical condition is a mental illness received royal assent and immediately came into effect. The eligibility date for persons suffering solely from a mental illness is now March 17, 2027.
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On this page

    Medical assistance in dying in Canada
    Eligibility criteria
        
            Eligibility for persons suffering from mental illness
            Other issues
        
    
    Procedural safeguards
        
            Safeguards for persons whose natural death is reasonably foreseeable
            Safeguards for persons whose natural death is not reasonably foreseeable
        
    
    Final consent requirements
        
            Final consent for persons whose natural death is reasonably foreseeable
            Final consent for persons who choose to self-administer substance for MAID
        
    
    Data monitoring and collection regime


Medical assistance in dying in Canada
In February 2015, the Supreme Court of Canada ruled in Carter v. Canada that parts of the Criminal Code would need to change to be consistent with the Canadian Charter of Rights and Freedoms. As the sections that prohibited medical assistance in dying would no longer be valid, the Supreme Court gave the government until June 6, 2016, to create a new law.
In June 2016, the Parliament of Canada passed federal legislation that allows eligible adults in Canada to request medical assistance in dying.
On October 5, 2020, the Minister of Justice and Attorney General of Canada introduced former Bill C-7: An Act to amend the Criminal Code (medical assistance in dying) in Parliament, which proposed changes to Canada's law on medical assistance in dying. These changes were introduced in response to the Superior Court of Québec's 2019 Truchon decision, in which it found the "reasonable foreseeability of natural death" eligibility criterion in the Criminal Code, as well as the "end-of-life" criterion from Québec's Act Respecting End-of-Life Care, to be unconstitutional. The changes were also informed by Canada's experience with MAID, feedback from over 300,000 members of the Canadian public, experts, practitioners, stakeholders, provinces and territories, provided during the January and February 2020 consultations , and the testimony of over 120 expert witnesses heard throughout former Bill C-7's study by the House of Commons and the Senate.
On March 17, 2021, Parliament passed former Bill C-7 to revise eligibility criteria for obtaining MAID and the process of assessment. These changes took effect immediately. The federal government is working with provinces and territories and with health care professionals to ensure that the appropriate protections are in place.

    News release: Canada's new medical assistance in dying (MAID) law (March 17, 2021)

On December 15, 2022, the Ministers of Justice, Health, and Mental Health and Addictions, announced the Government of Canada's intention to introduce legislation to seek an extension of the temporary exclusion of eligibility for persons suffering solely from mental illness.

    Statement: Statement by Ministers Lametti, Duclos and Bennett on medical assistance in dying in Canada (December 15, 2022)

On February 2, 2023, the Government of Canada introduced legislation (former Bill C-39) to extend the temporary exclusion of eligibility in circumstances where a person's sole underlying medical condition is a mental illness for a period of one year, until March 17, 2024.

    News release: Delay of eligibility for medical assistance in dying for persons suffering solely from mental illness proposed by Ministers of Justice and Health (February 2, 2023)

On March 9, 2023, former Bill C-39 received royal assent and immediately came into effect, temporarily postponing the eligibility date for persons suffering solely from a mental illness until March 17, 2024.
On February 1, 2024, the Government of Canada introduced legislation to extend, until March 17, 2027, the temporary exclusion of eligibility in circumstances where a person's sole underlying medical condition is a mental illness.

    News release: The Government of Canada introduces legislation to delay Medical Assistance in Dying expansion by 3 years (February 1, 2024)

On February 29, 2024, Bill C-62 received royal assent and immediately came into effect, temporarily postponing the MAID eligibility date for persons suffering solely from a mental illness until March 17, 2027.

Eligibility criteria
Important: On February 29, 2024, legislation to extend the temporary exclusion of eligibility for MAID in circumstances where a person's sole underlying medical condition is a mental illness received royal assent and immediately came into effect. The eligibility date for persons suffering solely from a mental illness is now March 17, 2027. For more information, please see Eligibility for persons suffering solely from mental illness.

The revised 2021 law modified MAID eligibility criteria in response to the Superior Court of Québec’s 2019 Truchon decision. The Superior Court found the “reasonable foreseeability of natural death” eligibility criterion in the Criminal Code, as well as the “end-of-life” criterion from Québec’s Act Respecting End-of-Life Care, to be unconstitutional.
The law no longer requires a person’s natural death to be reasonably foreseeable as an eligibility criterion for MAID.
As of March 17, 2021, persons who wish to receive MAID must meet the following eligibility criteria:

    be 18 years of age or older and have decision-making capacity
    be eligible for publicly funded health care services
    make a voluntary request that is not the result of external pressure
    give informed consent to receive MAID, meaning that the person has consented to receiving MAID after they have received all information needed to make this decision
    have a serious and incurable illness, disease or disability (excluding a mental illness until March 17, 2027)
    be in an advanced state of irreversible decline in capability
    have enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable


Eligibility for persons suffering from mental illness
In 2021, it was determined that persons whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, would not be eligible for MAID for two years—until March 17, 2023. This includes medical conditions that are primarily treated within the domain of psychiatry, such as depression and personality disorders. It does not include neurocognitive and neurodevelopmental disorders, or other conditions that may affect cognitive abilities.
The original two-year temporary exclusion was put in place to provide additional time to study how MAID on the basis of a mental illness can safely be provided and to ensure appropriate safeguards are in place to protect persons in those circumstances.
The Government of Canada established an Expert Panel on MAID and Mental Illness tasked with making recommendations on protocols, guidance and safeguards to apply to requests for MAID by persons who have a mental illness. The Expert Panel tabled their final report in Parliament on May 13, 2022. Learn more about the Expert Panel’s work on Health Canada’s website.
In December 2022, the Government of Canada announced that it would seek to extend the original two-year exclusion of eligibility for persons whose sole underlying medical condition is a mental illness for an additional period of time.
On March 9, 2023, legislation to extend the temporary exclusion of eligibility for persons suffering solely from a mental illness received royal assent and immediately came into force, extending the period of ineligibility by one year to March 17, 2024.
On February 1, 2024, the Government of Canada introduced a bill to extend the exclusion of eligibility for persons whose sole underlying medical condition is a mental illness for an additional period of three years to March 17, 2027. On February 29, 2024, Bill C-62 received royal assent and immediately came into force.
This extension will provide more time for provinces and territories to prepare their health care systems, including the development of regulations, guidance and additional resources to assess and provide MAID in situations where a person’s sole underlying medical condition is a mental illness. It will also provide practitioners with more time to participate in training and become familiar with available supports, guidelines and standards.
Additionally, the new law requires that a joint parliamentary committee undertake a comprehensive review, relating to the eligibility for MAID of persons suffering solely from a mental illness within two years of the bill receiving royal assent. This review could serve to examine progress made in achieving overall health care system readiness, and to study whether Criminal Code amendments are needed.

Other issues
In April 2021, Parliament’s Special Joint Committee on Medical Assistance in Dying was established to undertake a review the provisions of Canada’s MAID law and its application, as well as other outstanding important questions related to MAID—such as eligibility of mature minors, advance requests, mental illness, palliative care and the protection of Canadians with disabilities.
On June 22, 2022, the Committee released an interim report on MAID and mental illness:

    Medical Assistance in Dying and Mental Disorder as the Sole Underlying Condition: An Interim Report (June 2022)
    Government Response to the First Report of the Special Joint Committee on MAID (October 2022)

On February 15, 2023, the Committee released its final report. The Government of Canada tabled its response to this report on June 15, 2023.

    Medical Assistance in Dying in Canada: Choices for Canadians (February 2023)

In October 2023, the House of Commons and Senate adopted motions to re-establish the Special Joint Committee on Medical Assistance in Dying to assess healthcare system readiness pursuant to recommendation 13 of its February 2023 report. The Committee’s final report, MAID and Mental Disorders: The Road Ahead, was tabled on January 29, 2024.

Procedural safeguards
The 2021 revisions to Canada’s MAID law created a two-track approach to procedural safeguards for medical practitioners to follow, based on whether a person’s natural death is reasonably foreseeable. This approach to safeguards ensures that sufficient time and expertise are spent assessing MAID requests from persons whose natural death is not reasonably foreseeable, while easing procedural safeguards in cases where natural death is reasonably foreseeable.
This approach to safeguards differs from the previous law, under which only persons whose natural death was reasonably foreseeable were eligible for MAID. New safeguards now apply to persons whose natural death is not reasonably foreseeable. These safeguards seek to address the diverse sources of suffering and vulnerability that could potentially lead a person who is not nearing death to ask for MAID.

Safeguards for persons whose natural death is reasonably foreseeable
The following procedural safeguards apply to persons whose natural death is reasonably foreseeable:

    request for MAID must be made in writing: a written request must be signed by one independent witness (a paid professional personal or health care worker can be an independent witness)
    two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
    the person must be informed that they can withdraw their request at any time, in any manner
    the person must be given an opportunity to withdraw consent and must expressly confirm their consent immediately before receiving MAID (however, this “final consent” requirement can be waived in certain circumstances)

Note: the requirement for a minimum 10-day reflection period is now removed. This means that individuals whose natural death is reasonably foreseeable no longer have to wait 10 days between the approval of their MAID request and receiving MAID.

Safeguards for persons whose natural death is not reasonably foreseeable
The following procedural safeguards apply to persons whose natural death is not reasonably foreseeable (*indicates safeguards specific to those requests):

    request for MAID must be made in writing: a written request must be signed by one independent witness (a paid professional personal or health care worker can be an independent witness)
    two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met
        
            *if neither of the two practitioners who assesses eligibility has expertise in the medical condition that is causing the person’s suffering, they must consult with a practitioner who has such expertise
        
    
    the person must be informed that they can withdraw their request at any time, in any manner
    *the person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care, and must be offered consultations with professionals who provide those services
    *the person and the practitioners must have discussed reasonable and available means to relieve the person’s suffering, and agree that the person has seriously considered those means
    *the eligibility assessments must take at least 90 days, but this period can be shortened if the person is about to lose the capacity to make health care decisions, as long as both assessments have been completed
    immediately before MAID is provided, the practitioner must give the person an opportunity to withdraw their request and ensure that they give express consent


Final consent requirements
Final consent for persons whose natural death is reasonably foreseeable
The revised law allows the waiver of the requirement to provide final consent immediately before receiving MAID for patients whose natural death is reasonably foreseeable, where:

    the person has been assessed and approved to receive MAID
    the person is at risk of losing decision-making capacity before their preferred date to receive MAID, and has been informed of that risk
    the person makes an arrangement in writing with their practitioner to waive final consent, and according to which the practitioner will administer MAID on their preferred date if they have lost the capacity to provide final consent at that time

The agreement to waive final consent will be invalid if the person, after having lost decision-making capacity, demonstrates refusal or resistance to the administration of MAID by words, sounds or gestures. Reflexes and other types of involuntary movements, such as a response to a touch or to the insertion of a needle, do not constitute refusal or resistance.
A change to the initially proposed framework allowing the waiver of final consent for persons in these circumstances, often referred to as “Audrey’s Amendment,” responds to the concerns that were raised by Audrey Parker, who chose to receive MAID earlier than she wanted to out of fear of losing decision-making capacity before her preferred date.

Final consent for persons who choose to self-administer substance for MAID
In addition, persons approved to receive MAID who choose to self-administer the substance for MAID can now make an arrangement in writing with their medical practitioner if complications arise after the ingestion of the substance, causing loss of decision-making capacity, but not death.
Such arrangements allow the person to provide their consent to practitioner-administered MAID in advance, in the event of complications with self-administration, and if the practitioner is present at the time of self-administration. All persons who choose to self-administer a substance for the purpose of MAID can make such an arrangement with their practitioner, regardless of their prognosis.

Data collection and monitoring regime
The 2021 revisions to Canada’s MAID law enhance data collection and reporting to provide a more comprehensive picture of how MAID is being implemented in Canada, including under the new provisions. The monitoring regime is important to supporting transparency and public trust in how MAID is accessed and delivered.
Changes in the new law related to data collection include:

    allowing for the collection of data on all assessments following a person’s request for MAID, and
    modifying the Minister of Health’s regulation-making power to:
        
            expand data collection related to race, Indigenous identity and disability
            seek to determine the presence of individual or systemic inequality or disadvantage in the context of or delivery of MAID
        
    

The federal government recognizes the importance of collecting a range of information on the circumstances of individuals requesting or receiving MAID, or both.
Since the implementation of the formal monitoring regime in 2018, it has become clear that capturing information based solely on the written requests received by physicians and nurse practitioners has resulted in an incomplete picture of who is requesting MAID across the country.
The changes to the data collection and monitoring regime allow for the collection of data on all assessments following an individual’s request for MAID. This includes any requests that have not been put in writing or any preliminary assessments that may be undertaken by other health professionals—such as other types of nurses—in the care team or through a care coordination service. This will help provide a clearer understanding of who is requesting MAID.
Federal monitoring regulations for MAID define the type of information to be collected and how it is reported. The Government of Canada consulted with key stakeholders in summer 2021 and spring 2022 to inform how the new MAID law can best be reflected in the MAID monitoring regulations to ensure comprehensive data collection and reporting. The Government of Canada is also exploring linking MAID monitoring data with other databases to support broader reporting on topics such as socioeconomic considerations 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, which came into force on January 1, 2023, provide for the collection of additional data and will allow the Government of Canada to provide a more comprehensive picture of how MAID, with expanded eligibility, is being implemented in Canada.
The Government of Canada remains committed to supporting the autonomy of eligible persons to seek MAID while protecting vulnerable individuals and the equality rights of all Canadians.

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