Legislation permitting medical assistance in dying (MAiD) came into force in Quebec in December 2015, and in the rest of Canada in June 2016. The Quebec and federal MAiD laws contain detailed eligibility criteria as well as procedural safeguards. In particular, Quebec’s MAiD legislation requires that to be eligible for MAiD, a person must be “at the end of life,” whereas the federal legislation requires that a person’s “natural death” must have become “reasonably foreseeable.” At the time the two laws were introduced, legal experts warned that some eligibility criteria would require further clarification and could even face Charter of Rights and Freedoms (Charter) challenges.
The federal legislation also required that the ministers of health and justice initiate an independent review of issues relating to requests for MAiD by mature minors, advance requests, and requests where a mental disorder is the sole underlying medical condition (MD-SUMC). Tasked with conducting this review, the Council of Canadian Academies appointed an expert panel, which submitted its reports to Parliament in December 2018.
As predicted, in 2017, the “reasonably foreseeable” natural death and “end of life” eligibility criteria were challenged by Jean Truchon and Nicole Gladu — two individuals seeking access to MAiD who were experiencing enduring, intolerable and irremediable suffering (from physical conditions) but whose natural deaths were not yet reasonably foreseeable and who were not at the end of life. In her 2019 decision, Quebec Superior Court Justice Baudouin concluded that both the federal and Quebec criteria violated the Charter. She struck these provisions from both laws for Quebec, in a decision that will take effect in March 2020. The federal and Quebec governments chose not to appeal the decision. Despite the fact that the ruling only applies to Quebec, the federal government committed to changing its MAiD law for all Canadians.
As a result, persons with physical disabilities and chronic conditions like Jean Truchon and Nicole Gladu will have access to MAiD. But the implications of these changes will extend to many others, including persons with MD-SUMC who were unlikely to meet the “end of life” and the “reasonably foreseeable death” criteria.
In May 2019, eight of the members of the Expert Panel Working Group that examined MAiD for persons with MD-SUMC for the Council of Canadian Academies gathered in Halifax to explore whether they could make recommendations to governments in regard to MAiD for persons with MD-SUMC. This IRPP report, authored by the Halifax Group, aims to shed light on and offer solutions to the challenges associated with amending the federal and the Quebec legislation, specifically as it relates to cases where mental disorder is the sole underlying medical condition.
The Halifax Group’s recommendations address a range of legal and policy issues, such as how to revise the MAiD eligibility criteria and improve professional competencies and standards for clinical assessments, as well as the need for greater consultation support and a new oversight process for complex cases. More broadly, the report also calls for better access to mental health services and social supports across Canada, particularly for those with chronic, difficult-to-treat mental disorders.
- The federal and Quebec governments should not amend their laws to exclude all persons with MD-SUMC from accessing MAiD.
- The federal and Quebec governments should not add an eligibility criterion of a “nonambivalent decision” to their legislation.
- The federal and Quebec governments should add an eligibility criterion that a person’s decision to request MAiD be “well-considered,” and they should define this criterion explicitly in the legislation to make it clear that it does not require an assessment of the quality of the decision the person is making — that is, whether the assessor believes it to be a good decision — but rather an assessment of the decision-making process to ensure that it is well thought out and not impulsive.
- Provincial/territorial regulators of physicians and nurse practitioners should establish explicit standards for clinical assessments of MAiD for persons with MD-SUMC.
- Training programs and continuing education providers should offer training to improve the eligibility-assessment skills of MAiD assessors and providers for cases of persons with MD-SUMC.
- The federal government should establish a MAiD consultation service for providers, assessors and patients for an initial five-year period.
- The federal government should establish a post hoc peer review process for an initial five-year period for all requests outside Quebec for MAiD in circumstances in which the person did not have a diagnosis of a lethal condition.
- Federal/provincial/territorial governments should significantly improve and increase access to mental health services (especially in rural, remote, underserved and marginalized communities), particularly for persons with chronic, difficult-to-treat mental disorders.
- Federal/provincial/territorial governments should improve and increase access to social supports for persons with mental disorders, particularly for persons with chronic difficult-to-treat mental disorders.
- Provincial/territorial health departments should increase and improve “corridors of service” to facilitate family physicians and nurse practitioners taking on patients with mental disorders.
- The federal departments of justice and health should work together with provincial/territorial departments of health (as well as with clinicians and experts in health law and ethics) to resolve the potential for overlap in MAiD eligibility criteria and involuntary hospitalization admission criteria.
- Professional associations should develop clinical practice guidelines to enable physicians and nurses to better respond to cases where voluntary stopping eating and drinking or personal care is used as an alternative to MAiD.
Canadians must now decide under what conditions to permit and how to regulate MAiD for persons with MD-SUMC. The Truchon and Gladu decision has precipitated changes to MAiD eligibility criteria. This report aims to contribute to the imminent public policy debate as federal and Quebec legislators reflect upon how best to respond to the issue of MAiD for persons with MD-SUMC.
The Halifax Group, "MAiD Legislation at a Crossroads: Persons with Mental Disorders as Their Sole Underlying Medical Condition" IRPP Report (January 2020) Montreal: Institute for Research on Public Policy.