Canada’s new medical assistance in dying (MAID) law

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Infographic: Medical assistance in dying in Canada

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

On March 17, 2021, changes to Canada’s MAID legislation became law. Information on the specific changes that came into force with this new legislation is available on this webpage.

Note: For more information on access to MAID and how it is delivered in Canada, please consult Health Canada’s MAID webpage.

On this page:

Changes to eligibility criteria

The revised law modifies 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 satisfy 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, 2023)
  • 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

Canadians whose only medical condition is a mental illness, and who otherwise meet all eligibility criteria, will not be eligible for MAID until March 17, 2023. This includes conditions that are primarily 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.

This temporary exclusion will provide the Government of Canada with more 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 those persons. To support this work, the law requires the Ministers of Justice and Health to initiate an expert review, which will be tasked with considering protocols, guidance and safeguards for MAID for persons suffering from mental illness, and to make recommendations within the next year (by March 17, 2022).

Other issues

Other outstanding important questions related to MAID—such as eligibility of mature minors, advance requests, mental illness, palliative care and the protection of Canadians living with disabilities—will be considered during a Parliamentary review of the MAID legislation that would commence within the next 30 days. The committee responsible for the parliamentary review process will be required to submit its report to Parliament no later than one year after the start of the review.

Changes to procedural safeguards

The revised law creates a two-track approach to procedural safeguards for medical practitioners to follow, based on whether or not a person’s natural death is reasonably foreseeable. This new approach to safeguards will ensure that sufficient time and expertise are spent assessing MAID requests from persons whose natural death is not reasonably foreseeable, while easing procedural safeguards in those 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 source 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 now 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, and it must be made after the person is informed that they have a “grievous and irremediable medical condition.” (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 now 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, and it must be made after the person is informed that they have a “grievous and irremediable medical condition” (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

Changes to final consent requirements

Final consent for persons whose natural death is reasonably foreseeable

The revised law now 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.

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.

Changes to the data collection and monitoring regime

The revised law enhances the federal MAID monitoring regime by extending 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 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 will 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 will be consulting with key stakeholders 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 in order to support broader reporting on topics such as socioeconomic considerations related to MAID requests.

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.