Following the Carter v. Canada decision of Feb. 6, 2015, Canada passed federal legislation on Jun. 17, 2016 to allow Canadian adults to request medical assistance in dying (MAiD). The current eligibility criteria, under Bill C-14, are that a person must:
- be eligible for health services funded by the federal government, or a province or territory (or during the applicable minimum period of residence or waiting period for eligibility)
- be at least 18 years old
- have a grievous and irremediable medical condition
- make a voluntary request for medical assistance in dying that is not the result of outside pressure or influence
- give informed consent to receive medical assistance in dying
To be considered to have a grievous and irremediable medical condition, a patient must meet all the following criteria:
- have a serious illness, disease or disability
- be in an advanced state of decline that cannot be reversed
- experience unbearable physical or mental suffering from an illness, disease, disability or state of decline that cannot be relieved under conditions that the patient considers to be acceptable
- be at a point where natural death has become reasonably foreseeable
A patient does not need to have a fatal or terminal condition to be eligible for MAiD.
Bill C-14 did not expressly exclude mental illness. It also did not include provisions on three issues: 1) advance directives, 2) mental disorder as a sole underlying condition, and 3) access for mature minors. These were deferred for further study, for which an independent panel was commissioned through the Council of Canadian Academies (CCA). On Dec. 12, 2018, the CCA released three final reports: one on each type of request
The CCA’s Expert Panel Working Group on MAiD Where a Mental Disorder Is the Sole Underlying Medical Condition did not arrive at a consensus on the best way forward in its final report. However, their report drew on the literature, international experience, and diverse perspectives to present key considerations, implications and potential safeguards.
On Sept. 11, 2019, the Superior Court of Quebec struck down the “reasonably foreseeable” provision in Canada’s assisted dying legislation (Truchon c. Procureur général du Canada) and gave the government until Mar. 11, 2020 to develop new legislation. The Truchon decision was not appealed by the Quebec or the Canadian governments. However, the federal government requested and received two extensions to the original Mar. 11 deadline for new legislation until Dec. 18, 2020.
On Feb. 24, 2020, the federal government introduced bill C-7 with proposed changes to the Criminal Code eligibility criteria for MAiD. The following are the proposed amendments, in response to the Truchon decision:
- The requirement for a person’s natural death to be reasonably foreseeable in order to be eligible for MAiD is removed.
- Introduce a two-track approach to procedural safeguards based on whether or not a person’s natural death is reasonably foreseeable: 1) existing safeguards will be maintained and certain ones will be eased for eligible persons whose death is reasonably foreseeable and 2) modified safeguards will be introduced for eligible persons whose death is not reasonably foreseeable.
- Exclude eligibility for individuals suffering solely from mental illness.
- Allow the waiver of final consent for eligible persons whose natural death is reasonably foreseeable and who may lose capacity to consent before MAiD can be provided.
- Expand data collection through the federal monitoring regime to provide a more complete picture of MAiD in Canada.
Advance requests, mental disorder as the sole underlying condition and mature minors remained as issues to be considered during a broader parliamentary review of MAiD legislation, as required by the original legislation passed in 2016.
Bill C-7 did not make it beyond second reading in the House of Commons before Parliament was prorogued in August 2020. Shortly after Parliament resumed, the government reintroduced bill C-7 on Oct. 5, 2020. The bill had second reading and was referred to study on Dec. 17, 2020, the same day that the federal government received a third extension to the deadline for new legislation until Feb. 26, 2021.
Following the parliamentary break, the Standing Senate Committee on Legal and Constitutional Affairs held hearings on Feb. 1 through 3, 2021 and put forward a number of amendments.
The Senate approved five amendments to bill C-7, including one placing an 18-month time limit on the proposed ban on MAiD for people whose sole underlying condition is mental illness. Other amendments of note include a provision for advanced requests as well as the collection of race-based data on who requests and receives MAiD. On Feb. 17, the bill passed third reading in the Senate, and returned to the House of Commons, which must decide whether to accept or reject some or all of the amendments.
In response to the Senate amendments, the federal government proposed a number of changes to the bill, most notably that there be a 24-month time limit on the proposed ban on MAiD for people whose sole underlying condition is mental illness. The government did not accept the Senate’s advance requests amendment, modified two other amendments and rejected a third. The Bloc Québécois has said it will support the government’s amendments, assuring that it will pass.
Once approved by the House of Commons, the bill will return to the Senate, which can defer to the will of the House or insist on changes. The current deadline to pass the legislation is Feb. 26, 2021, but on Feb. 18, the government requested a fourth one-month extension to the court-imposed deadline until Mar. 26, 2021.
CPA’s Position on MAiD
Within Canadian psychiatry there are divergent opinions with respect to the provision of MAiD, as well as whether access to MAiD should be permitted solely on the basis of a mental disorder. There are compelling legal, clinical, ethical, moral and philosophical questions that make this issue particularly challenging. At this time, the CPA has not taken a position on whether MAiD should be available in situations where mental illness is the sole underlying medical condition.
On Mar. 13, 2020 CPA published a position statement that was written in the context of the current legislation, Bill C-14, and is in keeping with international human rights agreements to which Canada is a signatory (i.e., the UN Convention on the Rights of Persons with Disabilities).
The CPA position statement said that “patients with a psychiatric illness should not be discriminated against solely on the basis of their disability, and should have available the same options regarding MAiD as available to all patients” [emphasis added]. The statement did not say “patients with only a psychiatric illness,” nor did it take a position—either express or implied—that psychiatric illnesses are grievous and irremediable.
The Professional Standards and Practice Committee prepared the position statement at the Board’s request and CPA governance policy, which states that papers and statements are usually developed through committees or councils on subjects reflecting the scope of their mandate or as authorized and prioritized by the Executive Committee or the Board.
Consultation with Members
The CPA has engaged members on this issue since 2016, through surveys, a time-limited task force, and symposia at annual conferences. Most recently, CPA has been gathering information about the range of opinion among psychiatrists through a new survey, member town halls, and a call for written comments from our members. This member consultation has been bolstered by feedback from members of the provincial psychiatric associations, as well as the psychiatry subspecialty academies of child and adolescent, geriatric, forensic, and consultation-liaison psychiatry.
This most recent consultation work has been led by a group co-chaired by the CPA’s Public Policy Committee (Dr. Manon Charbonneau) and Professional Standards and Practice Committee (Dr. Alison Freeland). The working group, which is nationally-representative, includes psychiatrists with a cross-section of expertise such as provision of MAiD in Canada, epidemiology and/or research in MAiD, health-care policy regarding MAiD, and ethics. The working group also includes a member with lived experience of mental illness.
The working group is finalizing a discussion paper examining several aspects related to MAiD including decisional capacity, informed consent, and appropriate safeguards in the context of available medical evidence. The CPA anticipates that the discussion paper on MAiD will be available in early 2021.
Recommendations to Government
The CPA has previously made submissions to the federal government or appeared before government committees regarding MAiD. Most recently, CPA submitted a brief to the House of Commons Standing Committee on Justice and Human Rights on Nov. 12, 2020, as well as the Senate Standing Committee on Legal and Constitutional Affairs on Nov. 23, 2020 about the proposed bill C-7.
The CPA supports equality and dignity for persons with psychiatric disabilities. In the context of any proposed amendment to legislation related to MAiD the CPA strongly advocates for equitable access to clinical services as an essential safeguard to ensure that people do not request MAiD due to a lack of available treatments, supports or services. Any new legislation on MAiD must uphold the rights of and protect all vulnerable Canadians without unduly stigmatizing and discriminating against those with mental disorders.
Assessing decisional capacity for consent to an irreversible and fatal medical procedure such as MAiD is very complex, especially when there is a concurrent mental illness and even more so when mental illness is the sole underlying condition. Psychiatrists have specialized training and expertise in the assessment, diagnosis and treatment of mental illnesses including the assessment of decisional capacity and the durability, stability, and coherence of a person’s expressed will and preferences. Psychiatrists are well-versed in taking into consideration any external constraints or internal psychopathology that may impact these issues.