It has been 10 years since medical assistance in dying (“MAID”) was legalized in Canada. Since the initial legislation, amendments were made in 2021 to expand MAID eligibility; however any person whose sole underlying medical condition is a mental illness has remained ineligible for MAID.
MAID is a complex topic and the laws surrounding it require a delicate balance of competing considerations – from preserving a person’s dignity and autonomy in making health care decisions, including end-of-life care, to protecting vulnerable populations. Unsurprisingly, MAID laws have been subject to considerable review and development since their inception. It is expected that MAID laws will continue to evolve as the concept develops and lawmakers’ understanding and comfortability with the various complexities grows.
A total of 76,800 Canadians received MAID between 2016 to 2024, with the latest report on MAID outlining that 16,499 Canadians received MAID in 2024.
HISTORY
The Supreme Court of Canada in the landmark decision in Carter v Canada, 2015 SCC 5 unanimously ruled that sections of the Criminal Code which prohibited medically assisted death violated section 7 of the Charter protecting the life, liberty and security of the person. In 2016, Parliament passed Bill C-14 which amended parts of the Criminal Code to allow physicians and nurse practitioners to administer MAID to eligible adults in accordance with relatively restrictive safeguards.
Under this law, a person who had a “grievous and irremediable medical condition” had to also show that their natural death was “reasonably foreseeable” to be eligible for MAID.
In 2021, Parliament passed Bill C-7 after the Superior Court of Quebec handed down its decision in Truchon v Canada, 2019 QCCS 3792. In Truchon, the court found that the “reasonably foreseeable” death requirement was too restrictive and therefore unconstitutional. In response, the eligibility criteria was expanded further and two separate “tracks” were created: one for those whose deaths are reasonably foreseeable and one for those whose deaths are not reasonably foreseeable.
The 2021 amendments addressed but temporarily excluded from MAID eligibility any person whose sole underlying medical condition is a mental illness.
CURRENT MAID ELIGIBILITY
Under s. 241.2(1) of the Criminal Code, a person is eligible to receive MAID if they:
- are eligible for publicly funded health care services in Canada;
- are at least 18 years old and capable of making health care decisions;
- have a grievous and irremediable medical condition;
- have made a voluntarily request for MAID; and
- have given informed consent to receive MAID after being informed of means available to relieve their suffering.
A person has a “grievous and irremediable medical condition” if they have a serious and incurable illness, disease or disability [excluding mental illness] and are in an advanced state of irreversible decline in capabilities; and the foregoing causes them enduring physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that they consider acceptable.
SAFEGUARDS
Individuals seeking MAID must make a request under one of the two safeguard “tracks” outlined in the Criminal Code.
Death reasonably foreseeable
Where a MAID applicant is otherwise eligible and their death is reasonably foreseeable, MAID can be provided if certain safeguards under s. 241.2(3) of the Criminal Code are met, including:
- assessments carried out by two independent physicians or nurse practitioners;
- a signed written request for MAID by the applicant;
- an opportunity to withdraw their request immediately before MAID is provided; and
- a final consent given immediately before MAID is provided (which can be waived in certain circumstances).
Death not reasonably foreseeable
Where a MAID applicant’s death is not reasonably foreseeable, there are additional safeguards in place under s. 241.2(3.1) of the Criminal Code, including:
- a 90-day mandatory assessment period (or shorter if the assessors believe the person is at imminent risk of losing capacity);
- one of the two assessors has expertise in the condition causing the applicant’s suffering;
- the applicant has been informed of available and appropriate means to relieve their suffering;
- the applicant and practitioners discussed reasonable and available means to relieve suffering, and agree that the applicant has seriously considered those means; and
- a final consent, which cannot be waived, given immediately before MAID is provided.
ADVANCE CONSENT VS ADVANCE REQUEST
Bill C-7 waived the requirement for MAID applicants with a reasonably foreseeable death to provide final consent immediately before receiving MAID: a person approved for MAID who loses capacity to consent at the time of the procedure may give advance consent in writing to their health care practitioner. Proposed Bill S-248 seeks to extend the advance consent option to applicants whose deaths are not reasonably foreseeable, however this has not yet been adopted.
In contrast, an advance request for MAID refers to a request by a person who is not presently eligible but wishes to access MAID in the future if they become incapable. Currently, advance requests for MAID are prohibited under federal law. However, proposed Bill S-248 seeks to allow an advance request if an individual has been diagnosed with a serious and incurable illness, disease or disability, provided stringent requirements are met. Bill S-248 was referred to the Standing Senate Committee on Legal and Constitutional Affairs, but as of January 9, 2026, the Committee has no meetings scheduled.
In October 2024, Quebec became the first – and currently the only – Canadian jurisdiction with legislation allowing advance requests, in limited circumstances. Between November 2024 to February 2025, the federal government carried out a national conversation to hear opinions from the public, health care providers, members of various community groups, and others on the topic. The resulting report discloses that the principle of advance requests is generally supported. This suggests that advance requests may be permitted in the future; however it is anticipated that more consideration and contemplation will occur before such time.
MENTAL ILLNESS
Expanding MAID to individuals whose sole underlying condition is a mental illness is currently the most contentious and complex issue. It was originally expected that as of March 17, 2023, MAID would be available to such individuals, provided that they met all other eligibility criteria. However, in March 2023, the temporary exclusion was extended for one year to March 2024 to allow for further development of the safeguards and nuanced assessment required for these more complex requests and for consideration of the second report of the Special Joint Committee (SJC) on MAID that was released in February 2023.
A third report of the SJC on MAID, released in January 2024, concluded that Canada was not yet ready and that lawmakers and experts needed to develop additional standards and support guidelines in order to prepare our health care systems and most importantly, to allow practitioners to train and become familiar with these guidelines and standards. It is noted that although MAID is governed by federal law, health care regulations and medical standards fall within provincial jurisdiction; this division of authority introduces some added legal and administrative complexity in aligning federal policy with provincial implementation.
On February 1, 2024, the government passed legislation in line with the SJC’s third report recommendations extending the exclusion for an additional three years. Unless additional extensions are introduced, as of March 17, 2027, MAID will be available to eligible Canadians whose sole underlying medical condition is a mental illness.
OTHER UPDATES
The BC Supreme Court is currently hearing a constitutional challenge, Gaye O’Neill v British Columbia (Minister of Health), where the plaintiffs argue that the ability of publicly-funded, faith-based healthcare institutions to deny MAID for religious reasons violates ss. 2(a) and 7 of the Charter. Various stakeholder organizations were granted intervenor status. At time of writing the trial remains in process.
CONCLUSION
With the temporary exclusion extended and Bill S-248 still pending, MAID laws generally continue to reflect the 2021 amendments. For more information on MAID, refer to the Government of Canada’s MAID website and the Government of Ontario’s MAID website and speak to your legal and medical advisors.
*This is an update to “Medical Assistance in Dying (MAID) Laws in Canada” by Andrea Tratnik & Christina Kim, published by OBA’s Trusts and Estates Law Section on May 2, 2023.
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