Since medical assistance in dying, often referred to as MAiD, was legalized in 2016, its availability to individuals diagnosed with a mental illness has been a divisive issue. While MAiD was scheduled to be made available to individuals whose sole condition is a mental illness starting in March 2024, as noted by my colleague in Dignity in Death: The Current Legal Framework of Medical Assistance in Dying, Parliament recently extended the deadline for updating MAiD again, this time by a further three years: see An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No 2,SC 2024 c 1.

For individuals who want to access MAiD but whose sole underlying medical condition is a mental illness, it may be disheartening to think that they will not be able to apply for MAiD on this basis until at least March 17, 2027, and that’s only if the deadline for updating the MAiD framework is not extended again. However, that does not mean that individuals who have a diagnosed mental illness cannot qualify for MAiD at this time. An applicant with a mental illness who also has a grievous and irreparable condition that fits the current MAiD criteria ought to be able to access MAiD regardless of their mental health. In fact, the Court of King’s Bench of Alberta recently confirmed in WV v MV, 2024 ABKB 174that if a mentally ill individual qualifies for MAiD, that person’s eligibility cannot be reviewed by the courts on the basis of their mental illness.

In this case, a father obtained a temporary injunction from the court to prevent his 27-year-old daughter from accessing MAiD. However, this solution only proved to be temporary, as the daughter succeeded in having the injunction set aside.

One argument raised by the father during the daughter’s application to set aside the injunction was that the daughter was “not competent to make the decision to take her own life.” Capacity is salient when a person applies for MAiD, as subsection 241.2(1)(b) of the Criminal Code requires an applicant to be capable of making decisions regarding their health. The evidence before the court did not speak to the basis upon which the daughter was deemed eligible to qualify for MAiD, but it did establish that the daughter had been diagnosed with both ADHD and autism, and that she suffered from associated behaviour disorders. The father also alleged that the daughter suffered from undiagnosed mental conditions that resulted in physiological symptoms and led her to become obsessed with MAiD.

Justice Feasby dismissed the father’s claim that the daughter lacked capacity to consent to MAiD, confirming that an adult is presumed to have capacity “unless and until it is determined through the correct legal process that she does not have capacity,” as per section 2(a) of the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (the “AGTA”). The court also agreed with the Nova Scotia Court of Appeal’s decision in Sorenson v. Swinemar, 2020 NSCA 62 that courts cannot take judicial oversight over MAiD eligibility simply because an allegation of mental illness is raised by the applicant’s family. 

As there was no evidence establishing that the daughter was incapable of making decisions regarding her own health, the daughter could not be barred from accessing MAiD on this basis. To truly lay the question of whether the daughter had capacity to qualify for MAiD to rest, Justice Feasby noted that the father could have applied for a court-directed capacity assessment under the AGTA.

As there is no mechanism in the Criminal Code for the review of a MAiD assessment, the court also found that it was not able to review the clinical judgment of the MAiD assessors to determine whether the daughter’s sole condition was a mental illness. In the words of Justice Feasby, the “Court has no expertise and no place in reviewing MAiD assessments” and taking “on such a role would undermine the confidence of the public in the Court as well as undermine the MAiD structure established by Parliament in the Criminal Code.”

In setting aside the injunction, the court also held that the daughter’s right to dignity and self-determination outweighed her father’s concerns and the harm that he would suffer in losing her:

An injunction would deny MV the right to choose between living or dying with dignity. Further, an injunction would put MV in a position where she would be forced to choose between living a life she has decided is intolerable and ending her life without medical assistance. This is a terrible choice that should not be forced on MV as attempting to end her life without medical assistance would put her at increased risk of pain, suffering, and lasting injury.

This case serves as confirmation that individuals who are mentally ill can access MAiD for the time being, as long as they satisfy the applicable criteria, and also establishes that a parent cannot prevent a child who is over 18 years of age from accessing MAiD as long as that child is capable of making decisions for themselves. 

Thank you for reading, and have a great day! 

Ian.