441-00260 (Justice)

On March 17, 2021, new legislation on medical assistance in dying (An Act to amend the Criminal Code (medical assistance in dying)) received Royal Assent and came into effect immediately for all requests for medical assistance in dying (MAID) after that date. The new law removes the eligibility requirement for a reasonably foreseeable natural death, as well as easing certain safeguards, such as the removal of the ten-day reflection period (only for those whose death is reasonably foreseeable).

Over the past two years, in particular during the study of the Act, a growing number of mental health and medical professionals have indicated that they believe MAID can be safely extended to those whose sole underlying condition is mental illness. While experts have said that only a very small minority of these individuals would likely be approved for MAID, they have also stressed the point that patients with mental illness can, and must, be evaluated on a case-by-case basis that takes into account the diversity of their circumstances. It was their view that Canadian practitioners, particularly those with specialized training in mental health and MAID assessment, would be able to evaluate capacity and determine eligibility in these cases.

The Government of Canada recognizes that there are complexities associated with extending access to MAID to individuals suffering solely from mental illness, such as whether the person’s condition can be considered “incurable” or “irremediable” and challenges in assessing capacity. That is why the new legislation on MAID includes a 24-month sunset clause on the exclusion of MAID requests where mental illness is the sole condition. Importantly, the sunset clause in the legislation is accompanied by a legislative requirement to initiate an independent review by experts to consider protocols, guidance and safeguards that would be applied to MAID requests by persons who have a mental illness.

The Expert Panel on MAID and Mental Illness was launched in August 2021 to undertake this review. Members of the Expert Panel reflect a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.

The legislation stipulates that the Expert Panel must submit its final report to the Ministers of Health and Justice, and that they must table the report in Parliament within 15 sitting days of receiving it, at which point the report will be available to the public. The Panel expects to submit the final report to Ministers in the coming weeks.

With the report in hand, Parliamentarians will then consider whether additional changes are needed to Canada’s legal framework for MAID. Health professional regulatory bodies and stakeholders will be able to review this report to consider and develop appropriate guidance and resources, as appropriate.

The new legislation also requires that a comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application be undertaken by a Joint Committee of both Houses of Parliament. The Parliamentary Review must address (but not necessarily be limited to) the topics of mature minors, advance requests, mental illness, the state of palliative care in Canada, and the protection of Canadians with disabilities. The Joint Committee was formed in the spring of 2021 and met three times prior to the dissolution of Parliament. The Committee has since been reconstituted and must produce an interim report on mental illness as a sole underlying condition to be tabled in both houses of Parliament.

Addressing mental health remains an important priority for the Government of Canada. Mental illness affects many Canadian families and individuals, and has an impact on our economy and society as a whole.

Through Budget 2017, the Government of Canada made a historic investment of $5 billion over 10 years to improve access to mental health and addiction services. This funding is provided though bilateral agreements with provinces and territories.

Budget 2019 also provided $25 million over five years to develop, implement, expand, and sustain a fully operational pan-Canadian suicide prevention service. Through this initiative, people across Canada will have access to crisis support in English and French when they need it using the technology of their choice – either voice, text or online chat.

In response to the global pandemic in April 2020, the Government of Canada launched the Wellness Together Canada portal, the first national program of its kind, providing a 24/7 suite of free, evidence-based mental health and substance use tools and services. Through Wellness Together Canada, individuals across the country can access supports ranging from self-assessment and peer support to confidential sessions with social workers, psychologists and other mental health professionals. To date, the government has invested $130 million in Wellness Together Canada. As of April 4, 2022, over 2.3 million individuals across all provinces and territories have accessed the Wellness Together Canada portal in over 6.6 million web sessions.

Through Budget 2021, the government invested in a suite of mental health supports, including:

• $100 million over three years, starting in 2021-22, to support the mental health of Canadians most affected by COVID-19 (youth, seniors, 2SLGBTQQIA+, First Nations, Inuit and Métis, and Black and other racialized populations);
• $50 million over two years, starting in 2021-22, to help those experiencing post-traumatic stress disorder (PTSD) due to the pandemic;
• $140 million over five years, starting in 2021-22, to cover the mental health care costs of veterans with PTSD, depressive, or anxiety disorders while their disability benefit application is being processed;
• $62 million in 2021-22 for the Wellness Together Canada portal;
• $45 million over two years, starting in 2021-22, to develop national standards for mental health care; and,
• $598 million over three years, starting in 2021-22, to support distinctions-based mental health and wellness strategies co-developed with Indigenous partners.

The Government of Canada has reaffirmed its commitment to supporting the mental health needs of Canadians by appointing the first Minister of Mental Health and Addictions. The Minister’s mandate is to ensure that mental health is treated as a full and equal part of the universal healthcare system.

Budget 2022 supports this mandated objective by continuing to invest in the Wellness Together Canada Portal, the mental heath of Black Canadians and Indigenous, as well as by funding initiatives that impact the social determinants of health (e.g., housing, diversity/anti-racism). It also affirms the government’s commitment to engaging with provinces and territories and other stakeholders on the future development of a Canada Mental Health Transfer.

Medical assistance in dying (MAID) is a complex and deeply personal matter for many Canadians and their families. Last year, Parliament passed former Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), which responds to the September 2019 Superior Court of Quebec ruling in Truchon,which struck down the eligibility criterion of “reasonably foreseeable natural death” from the Criminal Code MAID regime.

The Government recognizes the difficult issues that arise when a mental illness is the sole underlying medical condition for a MAID request. Former Bill C-7, as adopted, excludes mental illness as a medical condition that can ground eligibility until March 2023. This temporary exclusion provides time for a panel of experts to examine the issue and recommend protocols, guidance and safeguards to apply to requests for MAID by persons who have a mental illness. Former Bill C-7 also required the establishment of a joint Parliamentary Committee to study this issue and other important issues concerning MAID. The Government is looking forward to the results of these processes.