Federal government tables bill to exclude mental illness from MAID eligibility

Explainer

The federal Liberal government tabled legislation on Tuesday that would permanently bar access to medically assisted death for people whose sole underlying medical condition is mental illness. The bill also proposes allowing Canadians to make advance requests for MAID before they lose the capacity to consent. Justice Minister Sean Fraser introduced the legislation, Bill C-41, which amends the Criminal Code. The changes follow years of study and debate, including a recommendation from a parliamentary committee in June. The current law, which would have allowed MAID for mental illness alone starting next March, will be superseded if the bill passes.

Fraser said the decision to exclude mental illness as a sole basis for MAID came after rigorous study. "This wasn't a conclusion that we reached out of thin air," he said during a news conference. The government had repeatedly delayed the planned expansion to allow for further examination. A special parliamentary committee concluded in June that people suffering solely from a mental illness should be indefinitely excluded from accessing MAID, citing a lack of consensus within the medical community about what makes a mental illness irremediable.

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The legislation also seeks to explicitly amend the Criminal Code to state that a person cannot receive MAID on the basis of a mental illness alone. The Department of Justice said the decision to change the system was not easy, but the government believes it is the correct choice. Dying with Dignity Canada, a group that advocates for access to MAID, called the exclusion a deeply disappointing day. The group said preventing people from accessing a legal medical procedure based on diagnosis alone violates Charter rights and is stigmatizing and unconstitutional.

What does the bill say about advance requests?

The proposed law would allow people to make an advance request for MAID if they are diagnosed with a capacity-limiting disease such as Alzheimer's or dementia. The request must outline the specific, observable clinical circumstances under which they would want to receive assisted death in the future. The federal Justice Department says provinces and territories, which are responsible for health care delivery, would decide whether to make advance requests available in their jurisdictions. The legislation outlines criteria that must be met for an advance request, including being in an advanced state of irreversible decline in capability and experiencing enduring and intolerable physical or psychological suffering that cannot be relieved through reasonable means. It requires two separate medical or nurse practitioners to confirm the person meets the criteria. An advance request would not mean that MAID is automatically provided, the department said, adding that patients must be enduring intolerable suffering when assisted death is provided.

What safeguards are included for advance requests?

The bill includes specific safeguards to ensure a person cannot be forced to end their life if they have changed their mind. It states that MAID cannot be provided if the person demonstrates, by words, sounds or gestures, refusal or resistance to having the substance administered. The legislation says that if the medical provider is in doubt about whether a patient's gestures constitute a refusal, MAID cannot be offered. It proposes a minimum 30-day waiting period from that point before another attempt could be made.

Heather Campbell Pope, founder of Dementia Justice Canada, said the safeguards do not go far enough. She asked who would represent the patient when doctors, nurses, social workers and family members are discussing whether to carry out MAID. Her group is calling for an independent, publicly-funded statutory lawyer to advocate for the patient's rights before death is administered, to avoid undue influence from family members, including financial conflicts of interest. Campbell Pope also raised concerns about the requirement for a person to actively communicate refusal. She said the legislation would require the person to actively communicate no when they may not understand what is happening to them. Doctors and nurse practitioners who knowingly fail to comply with the requirements could face up to five years in prison if found guilty of an offence.

How will this affect access across Canada?

The legislation states that MAID based on advance requests may only be provided in provinces that have established a provincial legislated regime outlining the rules and safeguards. Fraser said the federal government decided to allow provinces to determine the extent to which they wish to embrace the next frontier on medical assistance in dying. This approach risks creating a patchwork of systems across Canada, according to some advocates. So far, only Quebec has laws that permit advance requests. Alberta's government has passed legislation that would prohibit them. A spokesperson for the Alberta government said the province would carefully review the proposed federal changes and consider what further consultation may be needed in Alberta. Saskatchewan's Ministry of Health said any decision on legislation would be shared publicly and that the province would continue to work with health system partners on safeguards.

Ontario Health Minister Sylvia Jones said earlier this month that provinces and territories would assess the federal legislation to see how it affects residents. She said she was very appreciative the federal government did not plan to allow assisted death for mental illness. National consultations conducted from November 2024 to February 2025 found that a majority of Canadians are supportive of advance requests. Inclusion Canada, an organization that supports people with intellectual disabilities, welcomed the mental illness exclusion but said it opposes advance requests for MAID. The group said advance requests would leave consequential judgments about a person's suffering and expressions of refusal to others and raised concerns that discriminatory assumptions about disability could influence those judgments. The bill must pass the House of Commons and the Senate before March 17, 2027, when the current law would have allowed eligibility for mental illness alone.

With files from The Canadian Press, The Globe and Mail and CBC News