Ottawa Moves to Redraw Canada’s MAID Rules

Federal government plans to keep mental illness alone outside eligibility while opening a path for advance requests — two decisions that could reshape assisted dying differently across the country

OTTAWA — The federal government is preparing to redraw two of the most contested boundaries in Canada’s medical assistance in dying system, closing off a planned expansion for people whose sole underlying condition is mental illness while moving toward allowing some Canadians to request MAID before an illness takes away their capacity to consent.

Justice Minister Sean Fraser announced Wednesday that Ottawa intends to introduce legislation this fall maintaining the exclusion for mental illness on an indeterminate basis. Without new legislation, that exclusion is scheduled to end on March 17, 2027. The same bill is expected to change federal criminal law so that MAID could, in defined circumstances, be provided on the basis of an advance request.

The announcement does not change the law today. No government bill containing the proposed rules had been tabled as of Oct. 11.

What Ottawa has done is establish its direction: greater caution where mental illness is the sole basis for a MAID request, and greater recognition of previously expressed consent where a serious illness may later remove a person’s ability to decide.

Those positions move in different directions, but they turn on the same question that has shaped Canada’s MAID debate for a decade: how should the law respect individual autonomy while protecting people when suffering, vulnerability and decision-making capacity are difficult to assess? The answer will depend heavily on the legislation still to come.

Mental illness will remain outside eligibility

Under the Criminal Code as it stands, a person seeking MAID must be at least 18, capable of making decisions about their health, make a voluntary request free from external pressure, give informed consent and have what the law calls a “grievous and irremediable medical condition.”

That condition must include a serious and incurable illness, disease or disability; an advanced and irreversible decline in capability; and enduring physical or psychological suffering that the person finds intolerable and that cannot be relieved under conditions they consider acceptable. Section 241.2 currently adds that, for this purpose, a mental illness is not considered an illness, disease or disability.

The exclusion was designed to be temporary. Parliament has postponed its expiry more than once, most recently setting March 17, 2027, as the date when the restriction would otherwise disappear.

A special joint committee of MPs and senators spent the spring reviewing whether that expansion should proceed. Its June report recommended that people whose sole underlying medical condition is a mental illness remain excluded indefinitely.

Fraser cited two recurring concerns in explaining the government’s decision: the lack of medical consensus about determining when a mental illness is irremediable and uneven access to mental-health treatment and supports across the country.

Those concerns are central to the argument for continued exclusion. Unlike many progressive physical diseases, the future course of a psychiatric illness can be difficult to predict. Critics of expanding MAID argue that a finding of irremediability is especially difficult when treatment histories vary and when access to psychiatrists, specialized therapies, housing or community supports may itself shape a person’s suffering.

The opposing argument is also substantial.

Dying With Dignity Canada says excluding people solely because their underlying condition is psychiatric discriminates on the basis of disability and denies some capable adults equal access to an otherwise lawful medical service. The organization, along with Claire Elyse Brosseau and physician Patricia Smith, is pursuing a constitutional challenge to the exclusion. An Ontario court denied Brosseau emergency access to MAID in September, while the broader challenge remains before the courts.

That means Parliament’s decision may not be the final word. The courts could eventually be asked to determine whether an indefinite exclusion complies with the Charter.

Advance requests pose a different problem

Ottawa’s other proposed change moves in the opposite direction.

Under current federal law, a person ordinarily must still be capable of consenting immediately before MAID is provided. There is a narrow exception: someone whose natural death is reasonably foreseeable, who has already been assessed and approved for MAID and has arranged a date for the procedure, may waive final consent if they are at risk of losing capacity before that date.

Even then, MAID cannot proceed if the person later demonstrates refusal or resistance through words, sounds or gestures.

That is not the same thing as an advance request.

An advance request would be made earlier, while a person still has decision-making capacity but before they are eligible or ready to receive MAID. The person would describe circumstances under which they want MAID considered later, after an illness has taken away their capacity to consent. Dementia is the most frequently cited example. The distinction is significant. A waiver of final consent applies after eligibility has already been established. An advance request asks the health system to rely on a competent person’s earlier wishes after that person can no longer confirm them.

That raises difficult questions that Parliament will have to answer.

How precisely must a future condition be described? Who determines that the threshold has been reached? What happens if a person who no longer has legal capacity appears comfortable or content? What constitutes refusal? How often should an advance request be reviewed before capacity is lost?

Health Canada heard those concerns directly during a national consultation conducted between late 2024 and early 2025. More than 47,000 people participated through an online questionnaire, roundtables and public-opinion research. The consultation found broad support for the principle of advance requests but significant concern about safe implementation. Participants raised questions about coercion, vague instructions, changing circumstances, the interpretation of resistance and whether health systems have enough trained professionals to administer a more complex regime.

In a random public-opinion survey of 1,000 Canadians conducted for the consultation, 69 per cent said they supported or strongly supported allowing an advance request after diagnosis with a serious and incurable condition that would lead to the loss of decision-making capacity. At the same time, 41 per cent expressed concern about pressure from family or others, and 45 per cent were concerned about providers having to interpret vague advance instructions. The consultation did not make a policy recommendation. It documented the trade-offs.

Canada may end up with different systems by province

Advance requests also expose the complicated jurisdictional structure beneath Canada’s MAID system.

Parliament controls the criminal-law framework. The Constitution gives the federal government jurisdiction over criminal law, while provinces have authority over hospitals, property and civil rights and other matters central to the organization and delivery of health services.

Health Canada describes MAID accordingly as an area of shared jurisdiction: federal criminal law establishes the national legal framework, while provincial and territorial health systems deliver the service.

That division is already visible.

Quebec brought its provincial advance-request framework into force on Oct. 30, 2024. A person diagnosed with a serious and incurable illness leading to incapacity, such as Alzheimer’s disease, may make an advance request while still capable of consenting to care. The request must meet detailed provincial requirements and does not guarantee that MAID will eventually be provided.

But there is an important legal complication: the federal Criminal Code still does not authorize MAID on the basis of an advance request. Quebec’s Director of Criminal and Penal Prosecutions has instructed provincial prosecutors that, where the evidence shows MAID was provided in compliance with Quebec law and with freely and knowingly expressed wishes, authorizing a prosecution would not be in the public interest. Ottawa’s proposed amendment would remove that federal criminal-law barrier in circumstances Parliament has yet to define.

Alberta is taking a different course. Its Safeguards for Last Resort Termination of Life Act would prohibit advance requests and MAID for people without capacity to make their own health-care decisions. The Alberta government says the legislation will come into force upon proclamation.

Fraser has said provinces and territories would decide whether to provide advance-request MAID after the federal Criminal Code is changed. If that structure survives the legislative process, location could matter greatly. Two Canadians with similar diagnoses and similar previously expressed wishes could face different legal and clinical options depending on the province in which they receive care. For supporters of provincial discretion, that reflects the constitutional division of health-care responsibilities. For critics, it raises the possibility of unequal access to a deeply consequential medical service.

The system is already significant

The debate is taking place inside a MAID system that is no longer marginal in Canadian health care.

The latest federal annual report, covering 2024, recorded 16,499 MAID provisions, up 6.9 per cent from 2023. Health Canada estimated that 5.1 per cent of people who died in Canada that year received MAID, although that proportion may change as national death statistics are finalized.

Most cases — 95.6 per cent — involved people whose natural deaths were considered reasonably foreseeable. There were 732 cases involving people whose deaths were not reasonably foreseeable. The same report recorded 785 cases in which MAID was provided after a person lost capacity under the existing, much narrower waiver-of-final-consent rules.

Those numbers matter because the current debate is not simply about abstract legal principles. Parliament is deciding how the next boundaries will operate inside an established health service used by thousands of Canadians each year.

The hardest questions remain unwritten

The government has announced a destination, not the route.

For mental illness, Parliament must act before March 17, 2027, if it intends to prevent the existing exclusion from expiring. The wording will matter, particularly in distinguishing psychiatric illness from neurological and neurocognitive conditions that may involve declining capacity.

For advance requests, almost every important safeguard remains to be seen.

Parliament will have to decide who may make a request, when it can be made, whether a qualifying diagnosis must already exist, how specific future conditions must be, how requests can be changed or withdrawn, what later behaviour counts as refusal and what obligations fall on clinicians.

There is also a question legislation cannot solve by itself: whether Canadians facing profound illness have reasonable access to the alternatives that make consent meaningful.

Health Canada’s advance-request consultation repeatedly heard concern about shortages in palliative care, home care, long-term care, mental-health services, disability supports and health professionals. Some participants worried that people could make decisions about MAID partly from fear that adequate care would not be available when their condition deteriorates.

That concern deserves attention regardless of where a person stands on assisted dying.

Autonomy has little meaning if someone lacks real alternatives. Protection can also become paternalism if capable adults are denied choices solely because others disagree with them.

Canada’s next MAID debate will turn on how Parliament attempts to hold both ideas at once.

Ottawa has decided that uncertainty surrounding mental illness is sufficient to stop a scheduled expansion. At the same time, it believes a person’s wishes expressed while capable may deserve greater legal force when illnesses such as dementia later eliminate the ability to consent.

The legislation will determine whether those principles can coexist in practice.

For Canadians following the issue, the next thing to watch is not another press conference. It is the text of the bill: the definitions, safeguards and division of responsibility it creates, followed by the evidence heard when MPs and senators examine it in committee. That is where the new boundaries of Canadian MAID law will actually be drawn.