Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision
Part II – Eligibility Criteria for MAID
Current Eligibility Criteria
Under the current Criminal Code eligibility criteria, persons who seek to obtain medical assistance in dying must satisfy all of the following eligibility criteria (subsections 241.2(1) and (2) of the Criminal Code):
- be 18 years of age or older;
- be capable of making decisions with respect to their health;
- be eligible for health services funded by the federal government, or a province or territory (or during the minimum period of residence or waiting period for eligibility);
- make a voluntary request for MAID that is not the result of external pressure;
- give informed consent after having been informed of the means that are available to relieve their suffering, including palliative care;
- have a “grievous and irremediable medical condition”, which is defined as:
- having a serious and incurable illness, disease or disability;
- being in an advanced state of irreversible decline in capability;
- experiencing enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that they consider acceptable; and
- their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Proposed Amendments to Eligibility Criteria
Removal of RFND
The Bill proposes to make two amendments to the current MAID eligibility criteria. First, it would remove the “reasonable foreseeability of natural death” (RFND) criterion from the list of eligibility criteria in response to the Truchon decision, which declared that criterion unconstitutional. The legal effect of removing RFND would be that both persons whose natural death is reasonably foreseeable and persons whose natural death is not reasonably foreseeable could be found eligible for MAID if they meet all other eligibility criteria.
Exclusion of Mental Illness as the Sole Underlying Medical Condition
The Bill also proposes to provide that a “mental illness” is not considered to be an “illness, disease or disability” for the purpose of the MAID eligibility criteria. The legal effect of this amendment would be to preclude individuals suffering solely from a mental illness from accessing MAID.
The Government of Canada asked the Council of Canadian Academies (CCA) in 2016 to conduct an independent study on MAID in such cases. Following a comprehensive study of this matter, experts in this field could not come to a consensus on this very complicated issue (CCA report released in December 2018). On the contrary, the experts who prepared the CCA report were deeply divided on many fundamental issues implicated by this question. In addition, many participants in the roundtables held in January and February 2020 emphasized the increased complexities and risks of MAID for mental illnesses, including the fact that:
- clinicians disagree on if/when a mental illness can be considered “irremediable”;
- capacity assessments are more difficult to conduct, given that symptoms of mental illnesses can affect a person’s ability to understand and/or appreciate the nature and consequences of treatment decisions;
- the trajectory of mental illnesses is generally harder to predict than those of physical diseases; and
- a desire to die is a symptom of some mental illnesses.
These concerns have also been noted by many mental health organizations, such as the Mental Health Commission of Canada, the Centre for Addiction and Mental Health, the Canadian Mental Health Association, and the Canadian Psychiatric Association.
Despite the absence of a single clear definition of mental illness, in the context of Canadian discussions on MAID, this term has come to be understood as generally referring to those conditions which are primarily within the domain of psychiatry, and which raise specific types of concerns as set out above, when it comes to eligibility for MAID. In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry (such as neurology for neurodegenerative or neurodevelopmental conditions) or specialties outside of medicine (such as education specialists for intellectual disabilities) and do not raise the specific concerns outlined above.
Moreover, although persons suffering solely from a mental illness would not be eligible for MAID, persons suffering from both a grievous and irremediable physical medical condition and a mental illness would not be excluded from the regime (e.g., someone suffering from clinical depression who also has a spinal cord injury).
The Government of Canada recognizes that the suffering associated with mental illness can be just as intolerable as that arising from other types of medical conditions, and that stigmatizing assumptions that mental illness deprives people of decision-making capacity must be avoided. However, the Government believes that the unique considerations for MAID in this kind of situation require further discussion and public debate. The issue of MAID for persons whose sole underlying medical condition is a mental illness will therefore be part of the parliamentary review. The Government of Quebec also announced that access to MAID for such cases would be suspended and that a broad consultation process would be conducted on this issue.
Revised Eligibility Criteria
As a result of these two proposed amendments, the MAID eligibility criterion which requires a person to have a “grievous and irremediable medical condition” would be defined in the following way (amended subsection 241.2(2) of the Criminal Code):
- having a serious and incurable illness, disease or disability (to the exclusion of a mental illness—new subsection 241.2(2.1) of the Criminal Code);
- being in an advanced state of irreversible decline in capability; and
- experiencing enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.
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