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Here's what you need to know about Canada's expansion of medically assisted dying

OTTAWA — Debate over medical assistance in dying is heating up as a deadline approaches to expand the program to people whose sole underlying condition is a mental disorder.
Justice Minister and Attorney General of Canada David Lametti rises during Question Period, in Ottawa, Thursday, Nov. 24, 2022. Debate over medical assistance in dying is heating up as a deadline approaches to expand the program to people whose sole underlying condition is a mental disorder. THE CANADIAN PRESS/Adrian Wyld

OTTAWA — Debate over medical assistance in dying is heating up as a deadline approaches to expand the program to people whose sole underlying condition is a mental disorder. 

The Liberal government has promised to delay the expansion, which is set for March 17, but has not said how long the delay may be.

Meanwhile, Veterans Affairs Canada has been under scrutiny after reports that a case manager, who no longer works for the department, discussed medically assisted dying with former Armed Forces members who sought help from the department.

All of this has put medically assisted dying high on the political agenda. Here's what you need to know about how it became legal, why it's expanding and who can access it in Canada.

When and how did medical assistance in dying become legal?

Medically assisted death became legal in Canada in 2016 following a Supreme Court decision that found certain sections of the Criminal Code that made it a crime to help a person end their life violated the Canadian Charter of Rights and Freedoms.

The unanimous ruling, known as the Carter decision, in early 2015 called it a "cruel" choice to deny people "who are grievously and irremediably ill" a physician's assistance in dying.

Legislation passed the following year created an assisted-dying regime that limited eligibility to adults who were suffering from a long-term illness and whose natural death was "reasonably foreseeable."

Why is the program being expanded? 

A Quebec Superior Court ruled in 2019 that it was unconstitutional to restrict eligibility to people whose deaths are reasonably foreseeable.

The law was challenged by Jean Truchon, who had cerebral palsy before being diagnosed with another ailment in 2012 that paralyzed his one functioning arm. He applied for an assisted death and met all of the criteria except for a reasonably foreseeable natural death.

The federal government chose not to appeal that ruling to the Supreme Court, which some critics said it ought to do.

Instead, Parliament sought to update and expand the assisted-dying regime.

During debate over the bill to expand access, Sen. Stan Kutcher, a psychiatrist who sits with the Independent Senators Group, argued excluding people with mental illness from the assisted-dying program would be unconstitutional and violate the right to equal treatment under the law, as guaranteed in the Charter. 

Senators voted in favour of his amendment to give the federal government 18 months to expand the program to people suffering solely from mental illnesses. The Trudeau government, which had originally intended for mental illness to be excluded, ended up agreeing but lengthened the delay to two years. The "sunset clause" in the law was meant to allow for more time to study the expansion of the regime to include people whose sole underlying condition is a mental disorder.

An expert panel was convened and it concluded that the proper safeguards are in place for the expansion to take place in March.

Why is there a delay?

Justice Minister David Lametti announced in mid-December that the government will seek to delay the expansion when the House of Commons resumes sitting at the end of the month.

It would need to pass legislation to amend the sunset clause under the current law, with Lametti saying that he believed other parties and senators would support such a bill.

Lametti said the government had heard concerns the health-care system might not be prepared to handle these "more complex" cases. 

"That includes having the time to implement those practice standards, and to complete and disseminate key resources that are being developed for clinicians and other health-care system partners," he said Dec. 15.

Who is eligible for assisted dying today? 

To receive a medically assisted death, a person must have a serious and incurable illness, disease or disability in an advanced state of irreversible decline. According to federal guidelines, the person has to be enduring intolerable pain or psychological suffering.

Patients whose natural death is not "reasonably foreseeable" must be informed of what options are available to them, including counselling, mental health or disability supports, community services and palliative care. Patients are also required to consult and discuss other potential treatments with their medical practitioner. 

They also must be at least 18 years old, have decision-making capacity and make the request voluntary, without external pressure. 

Who will be eligible when the program expands? 

People suffering from mental disorders who have other underlying conditions may already be eligible for assisted dying. The expansion specifically includes people who only have a mental disorder.

That will make Canada one of a handful of countries where someone who is suffering from a mental disorder and whose natural death is not foreseeable will be able to receive a medically assisted death. 

How does the process work? 

First, people have to make a request for medically assisted death in writing and have it signed by an independent witness. 

Then, two medical professionals must independently do an assessment and ensure the person is eligible. Consent has to be given throughout the process. If assessors determine a person is eligible, a date of death is determined.

If natural death is "reasonably foreseeable," the patient can proceed when they are ready. If not, then an additional assessment period of at least 90 days generally takes place. An assisted death can be administered by heath-care professionals or self-administered under their supervision.

How many people have chosen a medically assisted death?

More than 31,000 people chose an assisted death in the first five years after it became legal. 

That includes just over 10,000 people in 2021, a 32.4 per cent increase from the year before. 

Medically assisted deaths accounted for 3.3 per cent of all deaths in Canada in 2021.

This report by The Canadian Press was first published Jan. 4, 2023.

David Fraser, The Canadian Press