Context
In 2015, the Supreme Court of Canada (SCC) decided unanimously that the Criminal Code of Canada had to be amended because the criminalization of providing medical assistance in dying (MAID) violated the Canadian Charter of Rights and Freedoms. The decision followed 2014 legislation in Quebec to make MAID legal in that province. In 2016, the Federal Government passed the Medical Assistance in Dying Act (Bill C-14), opening access to MAID to persons who suffered because of a disease that was not remediable and whose death was foreseeable. That last clause (also present in the legislation in Quebec) was not in the decision of the SCC, and the Bill was challenged in the Superior Court of Quebec (SCQ). In 2019, the SCQ decided against the clause of foreseeable death and the province of Quebec dropped it in 2020. The Federal Government introduced Bill C-7 in 2021 to expand eligibility to those whose death was not foreseeable. It did this by creating two tracks to MAID: track one defined eligibility as in the 2016 MAID Act (foreseeable death) but track two dropped it. More safeguards and procedures to access MAID were added to track two compared to track one. A final consent waiver (a written agreement with a health care provider to be provided MAID on a specific future day should they have lost the capacity to consent to MAID by that date), introduced in Bill C-7, was not open to requests in track two. Moreover, persons suffering from a mental illness only were explicitly excluded from eligibility (even track two), until March 2023. In the meantime (May 2022), an Expert Panel on MAID and mental illness was asked to produce a report on the necessary safeguards and procedures for the expansion of MAID to persons suffering from a mental illness only. The Panel was not mandated to assess the validity of expanding eligibility to that category of persons, rather to provide recommendations accompanying it, thus creating a third track. An important element of context has been a much higher uptake for MAID in Canada than in comparable jurisdictions: for instance, California allowed a form of MAID in the same year as Canada, has a comparable population, but less than 500 cases in 2021 versus close to 10,000 in Canada (Pullman, 2023).
Reform content
On 2 February 2023, the Federal Government of Canada introduced legislation to extend the temporary exclusion of eligibility for MAID for persons whose sole underlying medical condition is a mental illness until 17 March 2024.
Possible motivation
The decision came after a joint parliamentary interim report (June 2022) raising issues about extending eligibility to MAID to persons whose sole underlying condition is a mental disorder, such as: impossibility to predict irremediability of the disorder, difficulty in assessing ability to provide consent, suicidality, and the risk that MAID track three would become a substitute to treatments for persons who cannot access timely help due to rationing. Contrary to the situation in other countries allowing eligibility to persons whose sole underlying conditions is mental illness (such as the Netherlands), Canada only requires that the person considers existing treatments that are available to them. This means that they need not have tried them unsuccessfully, can refuse recommended treatments, or have access to standard treatments to be eligible for MAID.