Ottawa Tables Bill C-41: Mental Illness Excluded From MAID Indefinitely, Advance Requests Allowed

The federal government introduced Bill C-41, the MAID Safeguards Act, today, Oct. 27. It turns Justice Minister Sean Fraser's Oct. 7 announcement into legislation.

The bill does two things. It amends the Criminal Code to "clarify that a person cannot receive medical assistance in dying on the basis of a mental illness." It also creates a legal path for advance requests, so people can consent to MAID before an illness takes away their capacity to decide.

Fraser and Health Minister Marjorie Michel are scheduled to take questions at 1 p.m. ET today. Senior officials are briefing reporters on the details beforehand.

What the advance-request provisions require

The Department of Justice says an adult diagnosed with an incurable illness expected to erase their decision-making ability could specify in advance the circumstances in which they would want MAID. Its example is Alzheimer's disease.

An advance request would not trigger MAID automatically. The department says all eligibility requirements would still have to be met, and the person would have to be experiencing intolerable suffering when MAID is provided, even if every condition in the request has been satisfied. The right to withdraw the request at any time stays in place.

According to CBC's reading of the bill, the criteria include "an advanced state of irreversible decline in capability" and "enduring and intolerable physical or psychological suffering that cannot be relieved through reasonable means."

The Criminal Code change only decriminalizes the practice. Provinces and territories regulate and deliver health care, so each would decide whether to offer advance requests in its own system. Fraser has said the legal change on advance requests will only affect the Criminal Code and it will be up to provinces to decide whether to provide them.

Why mental illness stays excluded

The expansion to mental illness as a sole condition has been pushed back repeatedly. Bill C-7 passed in March 2021 and set it for March 2023. It was delayed to 2024, then again to March 2027.

A special joint parliamentary committee reported in June and recommended an indefinite exclusion. CTV News reported the panel heard from dozens of experts, most of whom opposed expansion.

Fraser gave two reasons on Oct. 7. One was the lack of medical consensus on whether a mental illness is irremediable: "When I hear that there is a lack of consensus within the medical community about the irremediable nature of certain mental illnesses, that gives me real cause for concern." The other was uneven access to mental health care, and a worry that people who cannot get help might turn to MAID instead.

"While there is not a perfect consensus on this issue, we believe this is the correct approach at this particular time," he said.

Opposition from advocates

The decision is not unanimous. Dying With Dignity Canada, which is challenging the existing exclusion in court, called Fraser's Oct. 7 announcement a "profoundly disappointing day" for MAID legislation, according to The Globe and Mail. Supporters of expansion argue that denying access violates the constitutional rights of people suffering from mental illness. That court challenge is still pending.

The advance-request half draws pushback too. Advocates have long argued that the capacity requirement forces people with degenerative conditions to end their lives earlier than they would choose, while they can still consent. The bill is meant to answer that complaint.

Some critics asked Fraser not to bundle the two changes in one bill, so the government would have more time to consult. He has indicated no plans to split them.

Pairing a restriction on one group with a new permission for another gives each camp a reason to oppose the whole package, and the bill carries a hard deadline.

The March deadline

The government has not left itself much room. The bill needs to pass the House of Commons and the Senate before March 17, 2027, the date on which the law states people with a mental illness as their sole underlying condition would become eligible for MAID. Until that legislation is passed, the current exclusion is still scheduled to expire on that date.

Fraser also announced the legislation early, before it was fully ready. He said part of the reason was to explain why the government would not vote for Conservative MP Tamara Jansen's private member's bill, C-218, which was up for a vote that day.

He has said the specifics of advance consent will be worked out in House committees. That is where the contested details will be fought over in the coming months, ahead of the March 17 expiry.