3. Questions and Answers

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Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying)

Bill C-39

• Q 1 Why is the MAID mental illness exclusion being extended?
• Q 2 Why is the extension only for one year?
• Q 3 Parliament delayed eligibility for two years (until March 17, 2023). Why do you still need more time?
• Q 4 What about individuals whose sole underlying medical condition is a mental illness who were awaiting eligibility to receive MAID in March 2023?
• Q 5 What happens if Bill C-39 is not enacted before March 17, 2023 (i.e., before the mental illness exclusion is set to expire)?
• Q 6 If Bill C-39 is not enacted before March 17, 2023, is the federal government going to allow MAID to become available on the basis of a mental illness alone before the healthcare system is ready?
• Q 7 Why did the Government wait so long to propose an extension of the temporary exclusion of eligibility on the basis of a mental illness alone?
• Q 8 Will the federal government put more procedural safeguards in place for MAID requests that are based only on a mental illness?

MAID more Broadly

• Q 9 Is the federal government questioning whether or not MAID should even be available on the basis of a mental illness alone given the controversial cases being reported by the media?
• Q 10 Are people receiving MAID for reasons solely related to lack of support services?
• Q 11 How do you respond to criticism that Canada’s MAID legislation is going against suicide prevention efforts?

Charter

• Q 12 Does the Charter require MAID to be available on the basis of a mental illness alone?
• Q 13 The Charter Statement for former Bill C-7 explains why the mental illness exclusion is consistent with the Charter. Is your position that the Charter Statement is inaccurate or invalid?

Final Report of the Special Joint Committee on MAID

• Q 14 Will the federal government consider a further expansion of Canada’s MAID regime based on the Special Joint Committee on MAID’s final report? In particular, will it consider expanding eligibility for MAID to mature minors and permitting MAID based on an advance request as was recommended by the Special Joint Committee on MAID?

Québec’s Bill 11

• Q 15 Québec recently introduced Bill 11, An Act to amend the Act respecting end-of-life care and other legislative provisions, which proposes to prohibit MAID on the basis of a mental disorder alone. You say that you believe the Charter requires MAID to be available on this basis, is it your view that Québec’s Bill is unconstitutional?
• Q 16 Why does Québec’s Bill 11 use the term “mental disorder” and not “mental illness” like the Criminal Code?
• Q 17 Québec’s Bill 11 also proposes the creation of a provincial advance request scheme, which is currently prohibited under the federal MAID framework. What are your views on this?

Bill C-39

Q 1 Why is the MAID mental illness exclusion being extended?

• The purpose of the extension is to ensure that medical assistance in dying (or MAID) can be safely assessed and provided in all cases where the sole underlying medical condition identified in support of the request is a mental illness.
• An extension would support healthcare system readiness by allowing more time for the dissemination and uptake of key resources by the medical and nursing communities.
• It would also provide more time for the federal government to meaningfully consider the final report of the Special Joint Committee on MAID (or AMAD), which has studied, among other things, the issue of MAID for mental illness. This report was tabled in Parliament on February 15, 2023, just one month before the mental illness exclusion is set to expire, making it virtually impossible for the federal government to meaningfully consider it before then.
• It is worth noting that in its final report, the Special Joint Committee on MAID expressed support for the one-year delay proposed by Bill C-39, as it is concerned that there has not been sufficient time to develop practice standards, which are key to ensuring a thoughtful, consistent approach.
• In order to ensure that standards are in place before eligibility for MAID on the basis of a mental illness is permitted, the Special Joint Committee recommended that it be re-established five months before then so that it may verify the degree of preparedness attained, and make a final recommendation as to preparedness.

Q 2 Why is the extension only for one year?

• I believe the one-year extension strikes the right balance in that it recognizes the importance of proceeding as quickly as possible, on the one hand, and ensuring that our partners in the healthcare system are ready to support requests for MAID in these complex cases, on the other hand.
• I am confident that one year will provide sufficient time for the dissemination and uptake of key resources by the medical and nursing communities to ensure healthcare system readiness, and for the federal government to meaningfully consider the Special Joint Committee on MAID’s final report.

Q 3 Parliament delayed eligibility for two years (until March 17, 2023). Why do you still need more time?

• The COVID-19 pandemic caused delays in key studies relating to MAID and mental illness and required those responsible for the health system to focus their efforts on pandemic response. The Expert Panel on MAID and Mental Illness started its work in August 2021. Its final report was tabled in Parliament in May 2022. The parliamentary Special Joint Committee on MAID was not able to begin its work until April 2022. The Committee’s final report was tabled on February 15, 2023, and will need to be carefully considered.
• The Government of Canada, provinces and territories, and their medical and nursing communities have made important progress in preparing for March 2023, including on the development of MAID practice standards and a Canadian MAID curriculum.
• However, the Government of Canada believes, and AMAD agrees, that more time is needed to ensure that dissemination and uptake of key resources by the medical and nursing communities has been completed.

Q 4 What about individuals whose sole underlying medical condition is a mental illness who were awaiting eligibility to receive MAID in March 2023?

• I understand that some individuals are disappointed by this extension of ineligibility. Though I do sympathize with these individuals, I want to emphasize that I believe that this extension is necessary to ensure the safe assessment and provision of MAID in all cases where the sole underlying medical condition identified in support of the request is a mental illness.
• We want to be prudent and measured in this expansion, and want to take the necessary time to ensure healthcare system readiness and for the federal government to meaningfully consider the recommendations of the Special Joint Committee on MAID.

Q 5 What happens if Bill C-39 is not enacted before March 17, 2023 (i.e., before the mental illness exclusion is set to expire)?

• I am confident that Parliamentarians will work together to get the Bill passed before March 17, 2023 (that is, before the MAID mental illness exclusion expires).
• In the event that the Bill is not in force before then, MAID will become lawful where the sole underlying medical condition identified in support of a request is a mental illness. This would mean that MAID on the basis of a mental illness alone would become lawful under the existing Criminal Code eligibility criteria (subsection 241.2(1)) and safeguards for MAID requests where death is not reasonably foreseeable (subsection 241.2(3.1)).
• These safeguards are more robust than those for MAID requests where death is reasonably foreseeable, and include additional requirements such as a minimum 90 day assessment period, that the practitioner must ensure that the person has been informed of alternative means available to relieve their suffering, and that they have been offered consultations with relevant professionals.
• Of course, it would remain open to the provinces and territories to determine whether or not to allow MAID in these circumstances under their responsibility for provincial health law (for example, Québec’s proposed Bill 11 would exclude MAID in these cases).

Q 6 If Bill C-39 is not enacted before March 17, 2023, is the federal government going to allow MAID to become available on the basis of a mental illness alone before the healthcare system is ready?

• This is not a question of the federal government “allowing” MAID in these circumstances.
• The law is clear that absent of Bill C-39 coming into force prior to March 17, MAID would be permitted under federal criminal law in circumstances where the sole underlying medical condition identified in support of a request for MAID is mental illness.
• Provinces and territories have the authority to determine how lawful medical services are provided in their jurisdictions and, as such, if they feel that they are not ready to safely provide MAID in these circumstances, they may choose not to permit it until they are ready.

Q 7 Why did the Government wait so long to propose an extension of the temporary exclusion of eligibility on the basis of a mental illness alone?

• The Government of Canada has been actively preparing for eligibility for MAID for persons whose sole medical condition is a mental illness, in collaboration with provincial and territorial partners.
• The Expert Panel on MAID and Mental Illness released its final report in May 2022, and the parliamentary Special Joint Committee on MAID released an interim report on MAID and Mental Illness as the Sole Underlying Condition in June 2022.
• The Special Joint Committee’s final report provides further insight on MAID and mental illness. The Special Joint Committee’s final report was originally expected in October 2022, but was extended to February 2023 at the Committee’s request.
• These reports are all critically important to fully understanding the challenges and considered approaches to assessing and providing MAID in circumstances where mental illness is the sole underlying condition. More time will be beneficial for the consideration, implementation and dissemination of the guidance that has been and will be provided through these reports.

Q 8 Will the federal government put more procedural safeguards in place for MAID requests that are based only on a mental illness?

• The Government of Canada, provinces and territories, and other stakeholders have made significant progress to prepare for eligibility for MAID for persons suffering solely from mental illness.
• The Government of Canada has appointed a Task Group of experts to develop MAID practice standards, in collaboration with provincial and territorial governments, regulatory bodies, and clinicians across Canada. These standards will be ready for health professional regulators and clinicians in March 2023. While the Government of Canada cannot mandate these standards across Canada, it is expected that the provinces and territories will either adopt these standards in their entirety, adapt them as necessary to fit their particular context, or integrate elements of the standards within their existing standards.
• Next steps will be considered after the review of the Special Joint Committee’s final report is complete.

MAID more Broadly

Q 9 Is the federal government questioning whether or not MAID should even be available on the basis of a mental illness alone given the controversial cases being reported by the media?

• No. This issue was before Parliament two years ago during consideration of former Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), and Parliament determined that eligibility for MAID should be expanded to circumstances where the sole underlying medical condition identified in support of a request for MAID is a mental illness.
• Bill C-39 does not propose to walk back this eventual expansion; it merely proposes to extend the period of ineligibility for one year so that this is done in a prudent and measured manner.

Q 10 Are people receiving MAID for reasons solely related to lack of support services?

• Lack of access to social supports or to health services does not make a person eligible for MAID.
• MAID is a deeply personal and complex choice and the law recognizes personal autonomy to choose MAID and to receive it when specific criteria and safeguards are fully satisfied. It also provides robust protections for those who may be vulnerable.
• MAID is intended for adults who freely choose to pursue a medically assisted death in situations where they have a grievous and irremediable medical condition (as defined in the legal framework for MAID) and whose illness is associated state of irreversible decline causes them enduring physical or psychological suffering that cannot be relieved under conditions they consider acceptable. They must be found eligible by two independent practitioners, and be aware of and have been offered supports that both practitioners agree have been seriously considered.
• The Health Canada website contains information on the robust eligibility criteria and safeguards in place for accessing MAID in Canada.
• Working to improve access to health care services remains a priority for the Government of Canada. All jurisdictions in Canada have a broad range of policies, programs and initiatives aimed at providing support to persons with disabilities and promoting their inclusion and full participation in Canadian society. While the federal government provides financial support to provinces and territories, the responsibility for matters related to the administration and delivery of health care services falls within provincial and territorial jurisdiction. This includes setting their own priorities, administering their health care budgets and managing their own resources.

Q 11 How do you respond to criticism that Canada’s MAID legislation is going against suicide prevention efforts?

• Protecting vulnerable persons, including those suffering from mental illness or in crisis, remains a priority for the Government of Canada. It is important to note that international evidence does not indicate that there is a direct causal relationship between the availability of MAID and an increase in suicide rates.

Charter

Q 12 Does the Charter require MAID to be available on the basis of a mental illness alone?

• While an interesting question, this is frankly beside the point.
• The federal government and Parliament have determined that eligibility for MAID should be expanded to circumstances where the only medical condition identified in support of a request for MAID is a mental illness.
• More information on the effects of our legislation in this area can be found in the Charter Statements prepared by my department.
• I remain committed to ensuring that our federal MAID laws continue to support autonomy and freedom of choice, while protecting those who may be vulnerable.

Q 13 The Charter Statement for former Bill C-7 explains why the mental illness exclusion is consistent with the Charter. Is your position that the Charter Statement is inaccurate or invalid?

• The Charter Statement for former Bill C-7 sets out the considerations supporting the constitutionality of the exclusion of eligibility for MAID where the sole underlying medical condition is a mental illness.
• As explained in the Charter Statement for Bill C-39, the question of whether to permit MAID for mental illness is a difficult one that can be answered in different ways, in conformity with the Charter. The considerations that support the Charter consistency of both the legal situations created by Bill C-39 – before and after the expiry of the mental illness exclusion – are set out in the Charter Statement.
• Like former Bill C-7, Bill C-39 seeks to balance a number of competing interests, including the autonomy of individuals eligible to receive MAID and the protection of vulnerable persons. The particular balance that Bill C-39 seeks to strike differs from that in former Bill C-7 (as introduced) and reflects the considerable progress, over the last two years, in relation to the availability of MAID in these circumstances.

Final Report of the Special Joint Committee on MAID

Q 14 Will the federal government consider a further expansion of Canada’s MAID regime based on the Special Joint Committee on MAID’s final report? In particular, will it consider expanding eligibility for MAID to mature minors and permitting MAID based on an advance request as was recommended by the Special Joint Committee on MAID?

• The Special Joint Committee on MAID’s final report was tabled in Parliament just a few weeks ago, on February 15, 2023.
• My officials are reviewing the final report and recommendations with a view of supporting the federal government in developing the Government Response, as was requested by the Committee.
• The Government of Canada is currently focussed on working with its partners to support the safe and consistent assessment and provision of MAID in circumstances where a person’s sole underlying condition is a mental illness, while protecting those who may be vulnerable.

Québec’s Bill 11

Q 15 Québec recently introduced Bill 11, An Act to amend the Act respecting end-of-life care and other legislative provisions, which proposes to prohibit MAID on the basis of a mental disorder alone. You say that you believe the Charter requires MAID to be available on this basis; is it your view that Québec’s Bill is unconstitutional?

• This is a difficult issue on which there is a diversity of views. Ultimately, however, it will be for the courts to make a determination as to the constitutionality of Québec’s Bill 11.

Q 16 Why does Québec’s Bill 11 use the term “mental disorder” and not “mental illness” like the Criminal Code?

• The terminology used varies between various reports and legislation.
• Generally speaking, for the purposes of MAID, a “mental disorder” is likely to be broader than a “mental illness” since it is a clinically defined term and as such would likely capture all disorders included in the DSM-5, the American Psychiatric Association’s Diagnostic and Statistical Manual. It would likely include sleep and neurocognitive disorders.
• A “mental illness”, as used in the Criminal Code, is meant to capture all mental disorders that are treated primarily in the domain of psychiatry, and as such would likely not include sleep or neurocognitive disorders.
• Québec’s Bill 11 uses the term mental disorder, but specifies that this does not include neurocognitive disorders.

Q 17 Québec’s Bill 11 also proposes the creation of a provincial advance request scheme, which is currently prohibited under the federal MAID framework. What are your views on this?

• In Canada, certain aspects of MAID fall under federal jurisdiction, whereas others fall under provincial jurisdiction. The criminal law aspect of MAID falls under federal jurisdiction, and as such applies consistently across the country.
• The federal MAID regime, which is set out in the Criminal Code, sets the minimum requirements for the lawful provision of MAID. In other words, a person who provides MAID must comply with these requirements in order to avail themselves of the exemptions to the Criminal Code offences of murder and assisting a person to commit suicide.
• The provision of MAID based on an advance request is not permitted under the Criminal Code, since a person must typically consent to receive MAID immediately before it is provided (paragraphs 241.2(3)(h) and 241.2(3.1)(k)).
• There is a very narrow exception to this that allows a person whose natural death is reasonably foreseeable to make a written waiver of the final consent requirement (paragraph 241.2(3)(h)) if they are at risk of losing capacity on or before the date on which they are scheduled to receive MAID (subsection 241.2(3.2)). This exception is very limited and does not amount to an advance request.
• If Québec’s Bill is enacted as drafted, a practitioner who administers MAID in compliance with Québec’s advance request scheme would commit an offence under the Criminal Code. If challenged, the courts could declare Québec’s advance request scheme to be inoperative to the extent that it conflicts with the Criminal Code.

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