This blog was written by Christopher Cook, student-at-law.

Medical assistance in dying (“MAiD”) is yet in its infancy in Canada. It was only in 2015 that the Supreme Court of Canada struck down as unconstitutional the Criminal Code’s prohibition on physician-assisted suicide. The following year, the Parliament of Canada amended the Criminal Code to permit MAiD for those suffering from grievous and irremediable physical or physiological medical conditions. On March 17, 2023, the Parliament of Canada is set to enact another historic amendment to the Criminal Code’s regulation of MAiD, one that will expand MAiD eligibility to those suffering from mental illness.

What is MAiD and Who is Eligible?

MAiD is legally defined in s. 241.1 of the Criminal Code. It is a procedure whereby a medical practitioner or nurse either: (a) administers a substance to a person, at their request, which causes their death; or (b) prescribes or provides a substance to a person, at their request, so that they may self-administer that substance and in so doing cause their own death.

The eligibility requirements for MAiD are set out in s. 241.2 (1) of the Criminal Code. In order to receive MAiD, a person must satisfy five basic criteria:

1. They must be eligible for health services funded by a government in Canada;
2. They must be at least 18 years of age, and capable of making decisions concerning their own health;
3. They must have a grievous and irremediable medical condition;
4. They must voluntarily request MAiD, meaning the request cannot be due to external pressure or influence; and
5. They must give informed consent to receive MAiD.

Informed Consent and Capacity to Make Decisions about One’s Own Health

In order to receive MAiD, a person must be capable of making informed decisions about their own health and treatment. In Ontario, the test for capacity with respect to treatment is set out in s. 4 (1) of the Health Care Consent Act:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In the context of MAiD, informed consent requires that the person understand the nature of their medical diagnosis, the forms of treatment that are available, and the options that are available to relieve their suffering (e.g., palliative care). It goes without saying that they must also be made to understand that MAiD results in the termination of life.

Informed consent to MAiD is also required both during the initial request for MAiD as well as immediately before MAiD is provided—unless the special circumstances for waiver of final consent, as set out in s. 241.2 (3.2) of the Criminal Code, are met. That topic, however, goes beyond the scope of this blog post.

Mental Illness and Grievous and Irremediable Medical Conditions

To receive MAiD, a person must have a grievous and irremediable medical condition. To classify as having such a condition, a person must meet the three requirements set out in s. 241.2 (2) of the Criminal Code:

1. The person must have a serious and incurable illness, disease, or disability;
2. The person must be in an advanced state of irreversible decline in capability; and
3. The person’s illness, disease or disability, or their state of decline, must cause them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.

Currently, the Criminal Code does not allow those whose only medical condition is a mental illness to receive MAiD. This is because of s. 241.2 (2.1) of the Criminal Code, which defines, for the purposes of MAiD, “a serious and incurable illness, disease or disability” as excluding all mental illnesses.

However, this definition will change in the next few months. On March 17, 2023, Parliament will repeal s. 241.2 (2.1) of the Criminal Code. This means that mental illnesses will no longer be categorically excluded from the definition of “a serious and incurable illness, disease or disability.” In other words, as of early next year, those with a mental illness as their sole underlying medical condition will be able to receive MAiD, assuming they otherwise meet all of the eligibility requirements spelled out in the Criminal Code.

A Cause for Concern?

Naturally, Parliament’s decision to expand MAiD eligibility to those whose only medical condition is a mental illness is controversial. Medical experts have fallen on both sides of the debate. Though there are safeguards in place for anyone seeking MAiD whose death is not reasonably foreseeable (e.g., a 90-day mandatory assessment period, a second assessment by a specialist, etc.), it appears that Parliament will not be creating any additional MAiD safeguards for those whose only medical condition is a mental illness.

Regardless of which side of the debate you fall on, at present, at least one thing is certain: with Parliament’s forthcoming amendment, Canada is set to join the ranks of Belgium, Luxembourg, and the Netherlands as one of the most liberal countries in the world when it comes to the regulation of physician-assisted death.