At this time, medical assistance in dying (“MAiD”) is set to become available to those with mental illnesses in March of 2024. Given this, I thought it would be a good time to discuss the current eligibility criteria for MAiD.

Following the Supreme Court of Canada’s decision in Carter v Canada, Parliament passed federal legislation which allowed adults to request medical assistance in dying. In this original legislation, the person requesting MAiD had to have a grievous and irremediable medical condition such that their death was reasonably foreseeable. After this legislation came into effect, the criteria of death being reasonably foreseeable was found to be too restrictive and was eventually removed following a 2019 decision of the Quebec Superior Court.

At the present time, as outlined in section 241.2 of the Criminal Code, in order to be eligible for MAiD, an individual must meet the following criteria:

• Be eligible for health services funded by a government in Canada;
• Be 18 years old and have capacity to make decisions respecting their health;
• Have a grievous and irremediable medical condition;
• Make a voluntary request for medical assistance in dying; and
• Given informed consent to receive medical assistance in dying.

Whereas previously a ‘grievous and irremediable medical condition’ meant that the individual’s death had to be reasonably foreseeable, it now means that they must:

• Have a serious and incurable illness, disease or disability;
• Be in an advanced state of irreversible decline; and
• Be experiencing enduring physical or psychological suffering due to the illness, disease, disability or state of decline that is intolerable to them and that cannot be relieved under conditions they consider acceptable.

Of course, there are many safeguards in place to govern the use of MAiD. An individual who requests MAiD must:

• have two independent medical assessments;
• make a written request signed by an independent witness; and
• provide informed consent both at the time of their request and immediately before receiving MAiD. They must be made aware that their consent can be withdrawn at any time and be given the opportunity to withdraw their consent immediately before receiving MAiD. The only time this final request can be waived is in certain circumstances when an individual’s death is reasonably foreseeable.

If an individual’s death is not reasonably foreseeable, there are additional safeguards in place that must be met on top of those noted above, including:

• one of the two medical practitioners assessing them must have expertise in the medical condition they suffer from, or must consult with a medical practitioner who does;
• they must be informed of alternative means to relieve their suffering, including various support services, and have been offered consultations with professionals who provide those services;
• their medical practitioner must discuss alternative means to relieve their suffering with them and agree that they have given serious consideration to those means; and
• there must be 90 clear days between the day that the first assessment by a medical professional begins and the day on which MAiD is provided (however this can be shortened in some circumstances if the loss of capacity is imminent).

As MAiD is still in its relative infancy, it will be interesting to see how the legislation continues to involve and how it will impact estate planning and estate litigation.

Thank you for reading!

Darien Murray