Introduction

Canada has permitted medical assistance in dying (MAID) since 2016, provided that certain legal criteria and conditions are met. In February 2023, the Special Joint Committee on Medical Assistance in Dying (the committee) tabled its report, Medical Assistance in Dying in Canada: Choices for Canadians, which included the following recommendation:[1]

Recommendation 13

That, five months prior to the coming into force of eligibility for MAID where a mental disorder is the sole underlying medical condition, a Special Joint Committee on Medical Assistance in Dying be re‑established by the House of Commons and the Senate in order to verify the degree of preparedness attained for a safe and adequate application of MAID (in MD-SUMC situations). Following this assessment, the Special Joint Committee will make its final recommendation to the House of Commons and the Senate.

In October 2023, the committee was re-established in accordance with this recommendation. MAID where mental disorder is the sole underlying medical condition (MAID MD-SUMC) will be included in the exemption for MAID in the Criminal Code as of 17 March 2024.

The committee heard testimony from 21 witnesses, including legal and medical experts, practitioners, representatives of professional associations, mental health organizations, and regulators, as well as representatives of Health Canada and the Department of Justice. The committee also received hundreds of written submissions, including briefs and written opinions, which demonstrates the great interest of Canadians in the difficult issue of MAID. The committee is grateful to all who shared their views and experiences regarding MAID. Those submissions for which we have permission to do so from the authors will be made available on the committee’s website, and will undoubtedly be invaluable to future parliamentary committees studying this topic. The committee’s sincere appreciation to all who participated cannot be overstated.

This report reflects the narrow scope of the committee’s mandate; it is not a full review of MAID in Canada. The committee, which based its report and recommendations solely on witness testimony, heard conflicting views about Canada’s readiness for MAID MD-SUMC. While some witnesses said Canada is clearly ready, others stated that preparations are still in progress, or that the state of the country’s readiness for 17 March 2024 is difficult to ascertain. Still others felt that readiness for MAID MD-SUMC will never be attained.

The evidence heard by the committee clearly demonstrates that governments, regulators, professional associations, and practitioners have worked very hard to prepare for MAID MD-SUMC and have made significant progress. The federal government has responded to the call to support the development of both model practice standards and an accredited training program for MAID assessors and providers. Data collection requirements are in place at the federal level. At the provincial level, the model practice standards are being adopted or adapted, and work on clinical practice guidelines, research, professional development opportunities, and oversight mechanisms is ongoing.

Nevertheless, the committee also heard significant testimony that some stakeholders perceive a lack of readiness to proceed with MAID MD-SUMC at this time. Many practitioners remain concerned, particularly regarding the challenges of assessing irremediability, distinguishing requests for MAID MD-SUMC from suicidality, and protecting the most vulnerable in our society.

The committee agrees with the many witnesses who emphasized that the suffering of individuals with mental disorders is no less important than the suffering of those with physical conditions, and is deserving of relief.^[2] However, for the reasons outlined in this report, the committee has concluded that Canada is not yet ready to proceed with MAID MD‑SUMC.

Background

In 2021, the passage of Bill C‑7, An Act to amend the Criminal Code (medical assistance in dying), provided a pathway to MAID for those whose natural death is not reasonably foreseeable, commonly referred to as “track two.”[3] Bill C‑7 included a provision prohibiting MAID where mental disorder is the sole underlying medical condition (MAID MD‑SUMC) for a period of two years—until 17 March 2023. During the two‑year period, the presence of a mental disorder did not prevent a person from accessing MAID, provided that they also had a qualifying condition.

Bill C-7 required that an independent expert review be carried out “respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness” (clause 3.1). That review was carried out by the Expert Panel on MAiD and Mental Illness, which released its final report in May 2022.^[4]

Bill C-7 also required the establishment of this committee to review the Criminal Code’s MAID provisions and their application, as well as various MAID-related issues, including mental illness. The committee’s interim report of June 2022 focused on MAID MD‑SUMC. While it did not contain recommendations, it concluded that:^[5]

We must have standards of practice, clear guidelines, adequate training for practitioners, comprehensive patient assessments and meaningful oversight in place for the case of MAID MD-SUMC. This task will require the efforts and collaboration of regulators, professional associations, institutional committees and all levels of government and these actors need to be engaged and supported in this important work.

The committee’s final report for that review, tabled in February 2023, also emphasized the importance of standards of practice being in place prior to MAID MD‑SUMC being permitted:^[6]

While the committee supports MAID MD-SUMC, it is concerned that there has not been sufficient time to develop the standards of practice referred to by the Expert Panel [on MAID and Mental Illness]. Witnesses were clear that these standards are key to ensuring a thoughtful, consistent approach to MAID MD-SUMC.

While the committee’s review was ongoing, stakeholders raised concerns that the health care system would not be prepared to safely and consistently provide MAID MD‑SUMC by the 17 March 2023 deadline set out in Bill C-7. To address those concerns, the law was amended by Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), to delay the availability of MAID MD‑SUMC until 17 March 2024.[7]

In June 2023, Quebec amended its assisted dying law, the Act respecting end-of-life care, to prohibit requests for MAID based on a mental disorder other than a neurocognitive disorder, among other changes.[8]

Evidence of Readiness

Practice Standards

Model Practice Standard for Medical Assistance in Dying

The first recommendation of the Expert Panel on MAiD and Mental Illness (Expert Panel) in its 2022 report called for the development of “Standards of Practice for physicians and nurse practitioners for the assessment of MAiD requests in situations that raise questions about incurability, irreversibility, capacity, suicidality, and the impact of structural vulnerabilities.”^[9]

As mentioned above, this committee previously recognized the need for these standards to be in place before proceeding with MAID MD‑SUMC.

Health Canada established the MAID Practice Standards Task Group (Task Group) to “create resources that could be used by regulators to operationalize the Expert Panel’s guidance with respect to … challenging MAID requests.”^[10]

The Task Group published the Model Practice Standard for MAID (the Model Practice Standard),^[11] a non-binding template for provinces and territories, in March 2023. Both the Task Group’s chair, Dr. Mona Gupta, Psychiatrist and Researcher, Centre hospitalier de l'Université de Montréal, who appeared before the committee as an individual, and Dr. Douglas Grant, Registrar and Chief Executive Officer of the Federation of Medical Regulatory Authorities of Canada (FMRAC), who represented FRMAC on the Task Group, confirmed that regulators had reviewed the Model Practice Standard and were either adopting it or adapting it within their jurisdiction.^[12]

A number of aspects of the Model Practice Standard come from the Criminal Code provisions on MAID, such as the requirements to have two independent assessors and to ensure that the request for MAID is voluntary. The Model Practice Standard also sets out guidance relating to suicidality, including that

[a]ssessors and providers must take steps to ensure that the person’s request for MAID is consistent with the person’s values and beliefs, and is unambiguous, and enduring. They must ensure it is rationally considered during a period of stability, and not during a period of crisis. This may require serial assessments.^[13]

Describing it as “the best synthesis of the law with the input of all necessary stakeholder voices,” Dr. Grant explained that the Model Practice Standard contemplates MAID MD-SUMC cases and provides guidance for cases where an individual’s natural death is not reasonably foreseeable.^[14] Dr. Grant expects that there will be substantial consistency of standards between provinces and territories.^[15]

Dr. Alison Freeland, Chair of the Board of Directors and Co-Chair of MAID Working Group for the Canadian Psychiatric Association, told the committee that the Model Practice Standard and the associated Advice to the Profession^[16] document “clearly articulate some of the things that need to be carefully considered as part of an assessment,”^[17] and that “there's been a lot of thought and attention to build those standards, disseminate them and provide advice.”^[18]

However, Dr. Jitender Sareen, Physician, Department of Psychiatry from the University of Manitoba, who was appearing on behalf of eight chairs of psychiatry, expressed concern that the Model Practice Standard does not require a psychiatrist to be involved in the assessment of requests for MAID MD‑SUMC.^[19] Both Dr. Sareen and Dr. K. Sonu Gaind, Chief, Department of Psychiatry at Sunnybrook Health Sciences Centre (appearing as an individual) were concerned that the Model Practice Standard does not specify how many treatments an individual should receive;^[20] Dr. Gaind was also concerned that it does not specify the length or type of treatment that should be required.^[21]

Provincial and Territorial Standards Relating to Medical Assistance in Dying

While the committee recognizes that the regulation of the medical profession falls clearly within provincial jurisdiction, it also recognizes that practice standards are key to ensuring the safe and adequate application of MAID MD-SUMC. While witnesses provided information to the committee in relation to practice standards, the committee emphasizes that it did not review all provincial or territorial practice standards or provincial readiness more generally. Instead, it focused its study on the leadership role that the federal government has played in supporting the development of such standards.

While discussing how the Model Practice Standard will be fully adopted in the Atlantic provinces, Dr. Grant asserted that regulators are ready to safely provide MAID MD-SUMC.^[22]

Dr. Stefanie Green, MAID Practitioner and Advisor to BC Ministry of Health, who appeared as an individual, told the committee that clinical teams in a number of provinces have confirmed that they are prepared for MAID MD‑SUMC.^[23]

In contrast, Dr. Mauril Gaudreault, President of the Collège des médecins du Québec, explained that while guidelines were being developed and five criteria relating to MAID MD‑SUMC had been identified, more work was needed.^[24]

Need for Guidelines

Dr. Tarek Rajji, Chair of the Medical Advisory Committee of the Centre for Addiction and Mental Health (CAMH) told the committee that while “the federal model practice standards are a good first step,” health care professionals also need access to clinical practice guidelines (CPGs), which currently do not exist for MAID MD-SUMC.^[25] While CAMH has been working with partners to develop CPGs, the limited evidence on which to base their work and the lack of consensus is challenging.^[26] Dr. Rajji indicated that more time and funding for collaboration was needed, but could not provide a timeline on when the necessary guidance and resources would be ready to provide MAID MD‑SUMC.^[27]

Training and Professional Development

Canadian MAiD Curriculum

The Canadian Association of MAiD Assessors and Providers (CAMAP) has developed a nationally accredited, evidence-based training program to support the practice of MAID. Nurse practitioner and vice-president of CAMAP Julie Campbell explained that “CAMAP does not take a position on MAID MD-SUMC.”^[28] Launched in August 2023, the curriculum has eight topics, including one on “MAiD & Mental Disorders.” The curriculum includes an online component and facilitated discussions of case reviews. The curriculum’s development included input from experts and individuals with lived experience, an assessment of training needs, and a review of other jurisdictions. The Canadian Psychiatric Association was part of the curriculum steering committee. The curriculum was piloted for feedback before its broader release.

Jocelyne Voisin, Assistant Deputy Minister, Strategic Policy Branch, Health Canada, told the committee that as of 17 November 2023, 490 physicians, 132 psychiatrists and 279 nurse practitioners had registered for the CAMAP curriculum, and that the number of registrants was increasing.^[29]

Dr. Gaind critiqued the CAMAP training program. In his opinion, it is not evidence-based and includes misinformation and gaps: “The CAMAP curriculum dangerously doesn't teach assessors how to distinguish suicidality from psychiatric MAID requests, but convinces them that they can … Remarkably, the CAMAP suicide module neglects mentioning known risks to marginalized populations.”^[30]

Eleanor Gittens from the Canadian Psychological Association indicated that the Canadian Psychological Association was not included in the development of the training modules, nor have they been able to review them.^[31]

Other Professional Development Initiatives and Guidance to the Profession

In addition to the Model Practice Standard, standards that have been established by different regulatory authorities, and the CAMAP nationally accredited training program, the committee heard that there are numerous opportunities for sharing knowledge and expertise about MAID assessments. Dr. Freeland spoke about a conference which included discussions of suicide versus MAID, research published in the peer-reviewed Canadian Journal of Psychiatry, and information exchanged through various networks, including the Council of Psychiatric Associations and coordinated hospital working groups.^[32] Dr. Gupta mentioned a national MAID MD-SUMC preparatory workshop.^[33] Julie Campbell referred to CAMAP’s clinical guidance documents, knowledge exchange workshops on clinician readiness and system readiness, and a fall symposium on assessing MAID MD-SUMC requests.^[34] Dr. Claire Gamache, psychiatrist with the Association des médecins psychiatres du Québec, noted that the Association’s annual conference would include a session on MAID MD-SUMC.^[35]

Oversight

Provincial Oversight

Oversight of MAID cases falls to the provinces and territories, and there is variation in the mechanisms used in different jurisdictions. Dr. Gupta indicated that 90% of MAID cases take place in a jurisdiction with a formal oversight process.^[36] Dr. Green told the committee that the working group in British Columbia has proposed establishing a case review committee for all MAID MD-SUMC cases, and that one of the regional health authorities in British Columbia already has a similar system in place.^[37]

Jocelyne Voisin from Health Canada also advised the committee that the department is working with provinces and territories to share views on oversight mechanism consistency and best practices.^[38]

The Federal Regulations for the Monitoring of Medical Assistance in Dying

Data is also collected at the federal level under the Regulations for the Monitoring of Medical Assistance in Dying,^[39] which Jocelyne Voisin indicated has been enhanced “to help determine the presence of any inequalities or disadvantages in requests for the delivery of MAID.”^[40] Dr. Gaind emphasized that socioeconomic data should also be collected to protect marginalized groups.^[41]

Ongoing Concerns

Assessing Irremediability

To be eligible for MAID under the Criminal Code, a person must have a “grievous and irremediable medical condition,” which is defined as “a serious and incurable illness, disease or disability” that has led to an “advanced state of irreversible decline” and intolerable suffering.[42]

The Model Practice Standard for MAID provides the following definitions of “incurable” and “irreversible:”

9.5.2 'Incurable' means there are no reasonable treatments remaining where reasonable is determined by the clinician and person together exploring the recognized, available, and potentially effective treatments in light of the person's overall state of health, beliefs, values, and goals of care.

9.6.4 'Irreversible' means there are no reasonable interventions remaining where reasonable is determined by the clinician and person together exploring the recognized, available, and potentially effective interventions in light of the person's overall state of health, beliefs, values, and goals of care.^[43]

The committee heard that it is difficult, if not impossible, to accurately predict the long-term prognosis of a person with a mental disorder. Some witnesses took this to mean that irremediability cannot be assessed with certainty, thereby indicating a lack of readiness for MAID MD-SUMC.^[44] In addition, some witnesses opined that adequate criteria have not been established for determining irremediability.^[45] According to Dr. Gaind, there is evidence that clinicians’ predictions are wrong over half the time.^[46]

On the other hand, Dr. Gupta pointed out that the difficulty of predicting a person’s long-term prognosis is not unique to mental disorders, and applies to current track two cases as well:

There are many medical conditions for which prognostication is “difficult, if not impossible”, to borrow the same language of the expert panel report, and yet we reason clinically about these cases in full respect of the Criminal Code requirements.^[47]

The committee heard that, in practice, a person would need to have a long, documented history of failed treatment attempts in order to be found eligible for MAID MD-SUMC.^[48] Several witnesses underscored that individuals in crisis would not be eligible.^[49] However, some witnesses noted that Canada’s eligibility criteria do not require a person to exhaust all reasonable treatments, in contrast to other countries.^[50]

Distinguishing MAID Requests from Suicidality

Some witnesses told the committee that there is no way to distinguish requests for MAID MD-SUMC from suicidality,^[51] while others asserted that there is a clear distinction between the two.^[52]

Dr. Gupta acknowledged that suicidality is one symptom of “a small number of specific conditions,” but believed there would be a subset of people capable of making an informed decision to seek MAID despite having struggled with suicidality.^[53] Several witnesses noted that assessing suicidality is already part of the MAID assessment process,^[54] and clinical medical practice generally.^[55] By contrast, Dr. Gaind told the committee that the training medical practitioners receive to assess suicidality does not equip them to distinguish requests for MAID from suicidality.^[56]

Dr. Gordon Gubitz, Division of Neurology, Department of Medicine, Nova Scotia Health, told the committee that training and other resources are available to help MAID assessors understand the difference between suicidality and “a reasoned wish to die.”^[57] However, as noted above, other witnesses described the available resources as inadequate or problematic.^[58]

Lack of Professional Consensus

The committee heard that many psychiatrists do not support the practice of MAID MD-SUMC. A range of statistics were put forward on this point, with some suggesting that the majority of psychiatrists are not in favour of MAID MD-SUMC.^[59] However, some witnesses also pointed out that there is no consensus on many existing medical practices,^[60] and that this is not generally considered a justification for prohibition.^[61]

Protecting the Vulnerable

Some witnesses expressed concern regarding the potential impacts of MAID MD-SUMC on vulnerable groups, including women, Indigenous people, people with disabilities, people living in poverty, and people in geographically underserved areas.^[62] According to Dr. Sareen, “there are inadequate safeguards to protect vulnerable groups that are disproportionately affected by mental disorders.”^[63] On the other hand, Shelley Birenbaum, Chair of the End of Life Working Group for the Canadian Bar Association, opined that there are already significant protections for the vulnerable built into the legal framework for MAID.^[64]

The committee heard that people who have not received adequate treatment, or whose treatment was not adequately documented, would not be eligible for MAID MD-SUMC.^[65] Dr. Rajji noted that the delivery of MAID MD-SUMC at this time risks exacerbating health inequities.^[66]

Some witnesses expressed concern about how socio-economic or psychosocial vulnerabilities may contribute to requests for MAID MD-SUMC.^[67] Dr. Green underscored that people would not be eligible for MAID MD-SUMC on the basis of socio-economic vulnerabilities, but acknowledged that “people are quite complicated and it’s hard sometimes to discern which factors are involved.”^[68]

As in previous studies, the committee heard about a lack of consultation with Indigenous Peoples on MAID, and MAID MD-SUMC specifically.^[69] Jocelyne Voisin, however, told the committee that consultation with Indigenous Peoples on MAID is ongoing.^[70]

Charter Considerations

Legal experts’ opinions differed regarding the constitutional issues raised by MAID MD-SUMC. According to some, the ongoing exclusion from MAID of people suffering solely from a mental disorder risks violating the rights to equality, liberty and security of the person protected by the Canadian Charter of Rights and Freedoms (the Charter).^[71] Others believed that the failure to afford Criminal Code protections against death to the most vulnerable, including people with disabilities and mental disorders, is itself discriminatory and unconstitutional.^[72]

Myriam Wills, Counsel, Criminal Law Policy Section, Department of Justice told the committee that there are Charter considerations supporting the constitutionality of both prohibiting and permitting MAID MD-SUMC, as evidenced in the Charter statements for Bill C-7 and Bill C-39.^[73]

Availability of Trained Practitioners

The committee heard differing views as to whether there are enough properly trained practitioners—psychiatrists in particular—to safely and adequately provide MAID MD-SUMC.

As Sam Mikail, a psychologist with the Canadian Psychological Association, pointed out, the answer to this question depends in part on the number of expected cases, about which there was conflicting testimony.^[74] While several witnesses were of the view that very few people would in fact be eligible for MAID MD-SUMC,^[75] others disagreed, noting that there has been increasing demand in countries where MAID MD-SUMC has become available, and that approval rates in Canada will be higher due to more relaxed eligibility criteria.^[76]

Several witnesses indicated that the role of psychiatrists in the MAID process is primarily to provide expert consultations, rather than to undertake assessments.^[77] The committee heard that psychiatrists already have the skills and training necessary to act as expert consultants for MAID requests involving mental illness, and have already been doing so for track two cases.^[78] It also heard that “the complexities so often attributed to mental disorders are not, in fact, unique to mental disorders and are already being handled in our MAID system today.”^[79]

Jocelyne Voisin from Health Canada agreed, but noted that some provinces and territories have expressed concerns about having enough trained professionals with mental health expertise for track two assessments. Dr. Rajji affirmed the lack of such professionals for track two cases in Ontario, stating that more time is needed to build a “community of practice.”^[80]

The committee heard that a little over 100 psychiatrists out of 5000 in Canada (approximately 2%) have signed up for the Canadian MAiD Curriculum.^[81] Some witnesses pointed out that, while this seems like a small percentage, only 2% of Canadian physicians are MAID providers.^[82] Furthermore, it is normal for an innovative area of practice to begin with a small number of experts, who then train and mentor others.^[83]

Others disagreed that only a small number of psychiatrists will be needed for MAID MD-SUMC.^[84] In Dr. Sareen’s opinion, all psychiatrists will need training on how to address suicidality in the context of mental disorder if MAID MD-SUMC is permitted.^[85]

Dr. Freeland noted that being able to provide appropriate care to those who are found ineligible for MAID is also an important aspect of readiness.^[86]

Conclusion

As mentioned at the outset of this report, given the conflicting testimony before this committee about whether Canada is ready to safely and adequately provide MAID MD-SUMC, the committee makes the following recommendation:

Recommendation 1

WHEREAS the Committee concludes that the medical system in Canada is not prepared for medical assistance in dying where mental disorder is the sole underlying medical condition (hereinafter “MAID MD-SUMC”), the committee recommends:

• a.      That MAID MD-SUMC should not be made available in Canada until the Minister of Health and the Minister of Justice are satisfied, based on recommendations from their respective departments and in consultation with their provincial and territorial counterparts and with Indigenous Peoples, that it can be safely and adequately provided; and
• b.      That one year prior to the date on which it is anticipated that the law will permit MAID MD-SUMC, pursuant to subparagraph (a), the House of Commons and the Senate re-establish the Special Joint Committee on Medical Assistance In Dying in order to verify the degree of preparedness attained for a safe and adequate application of MAID MD-SUMC.