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Understanding MAiD Eligibility

A comprehensive guide to Medical Assistance in Dying in Canada

Breaking Down the Legal Language

Canada's Medical Assistance in Dying (MAiD) legislation uses complex legal and medical language that can be difficult to understand. This guide strips away the jargon to explain eligibility criteria in clear, practical terms.

We'll cover non-medical requirements, medical criteria including the "grievous and irremediable medical condition" standard, and the legal safeguards that protect everyone involved in the process.

Non-Medical Eligibility Requirements

Public Health Coverage

Must be eligible for provincial, territorial, or federal health services. This prevents medical tourism while ensuring people with federal coverage can access MAiD.

Age & Capacity

Must be at least 18 years old and mentally competent to make this specific decision at this time, under these circumstances.

Voluntary Request

The request must be made freely, without undue pressure or influence from external sources, though discussion with loved ones is expected.

Informed Consent

Must understand what is happening, available alternatives, and outcomes. Cannot be delegated to others or written into advance directives.

Understanding Mental Capacity

Mental competence doesn't mean "perfectly healthy mind." It means having decision-making capacity for this specific choice, at this moment, under these circumstances. Capacity typically has four key components that assessors evaluate:

01

Understand

Does the person understand important information about their illness and available treatment options?

02

Appreciate

Can they apply that knowledge to their particular situation, including what accepting or refusing treatment would mean for them personally?

03

Reason

Can they demonstrate a reasoning process when considering available options, not just have the ability to reason?

04

Communicate

Can they communicate a clear and consistent choice about their decision?

If someone can do all four, they have capacity. This applies equally to saying yes to MAiD, no to treatment, or any other medical intervention. Capacity is assessed independently for each medical decision.

The Medical Criteria: Grievous and Irremediable

The law requires a "grievous and irremediable medical condition." These are legal terms, not medical ones. Grievous means serious. Irremediable means incurable—that no medical interventions can provide enduring improvement or restore acceptable function.

Think of the three components this way:

  • The illness, disease, or disability is the cause
  • The advanced decline is the loss from the condition
  • The suffering is how the person experiences that loss

Serious and Incurable Conditions

The person must have a serious and incurable illness, disease, or disability. There is no list of qualifying conditions—and that's intentional. Any list would quickly become outdated and could exclude people who clearly meet the law's intent.

What "Serious" Means

The condition must be significant, enduring, and life-altering—profoundly affecting the person's function or quality of life.

What "Incurable" Means

Sometimes means "not curable for this person." If a treatment imposes suffering, risk, or burden that outweighs potential benefit, it may not be considered realistic or acceptable for that individual.

Informed Refusal

If someone with cancer reasonably refuses chemotherapy, their illness could be considered incurable for them. Incurability reflects both medical facts and the person's own determined limitations and choices.

Advanced State of Irreversible Decline

The person must be in an advanced state of decline that cannot be reversed. This can include declines in cognitive or physical functions, sudden as well as gradual losses, and ongoing as well as stabilized declines in capability.

For example, someone newly diagnosed with dementia likely wouldn't be in an "advanced state of decline" yet. They may still function independently, recognize loved ones, and manage much of their own care. In contrast, someone who has progressed to significant disorientation and loss of self-care abilities could be considered in an advanced state.

This is assessed relative to the person's prior capabilities, not by a particular test or measurement, but through demonstrable and irreversible decline in function.

Understanding Unbearable Suffering

The person must experience unbearable physical or mental suffering from their condition that cannot be relieved under conditions they find acceptable. Suffering cannot be quantified through tests—it's understood only through the individual's experience and sense of what makes life meaningful.

96%

Loss of Meaningful Activities

The top source of suffering: losing ability to engage in things that make life worth living

83%

Loss of Daily Living Abilities

Unable to perform basic activities like feeding, bathing, and toileting independently

70%

Loss of Dignity

The erosion of identity and sense of self through illness progression

59%

Pain or Fear of Pain

Physical pain itself or fear of uncontrolled pain in the future

Contrary to popular belief, pain is not the primary reason people request MAiD. It's often what pain steals from them—the ability to garden, cook, play with grandchildren, or engage meaningfully with others. The percentages above are from the Fifth Annual Report on MAiD, and reflect Track 1 cases. These statistics differ slightly for Track 2.

Anticipatory Suffering vs. Anticipating Suffering

There's an important distinction between anticipating future suffering and experiencing anticipatory suffering right now.

Anticipating Suffering (Future)

"When I can't get out of bed, that will be intolerable to me." This is suffering one may experience in the future and does not meet the eligibility criterion.

Anticipatory Suffering (Present)

"My parents suffered horribly through dementia. Now that my own dementia is progressing, I am experiencing significant anxiety and fear about what I know is coming for me." This is current suffering about a highly probable future state and may meet the criterion.

Source of Suffering Matters

The suffering must come from the illness, disease, disability, or state of decline itself—not from outside circumstances like poverty, housing insecurity, or lack of social supports. Assessors spend considerable time determining whether suffering truly stems from the medical condition or from factors that could be improved with better supports.

Conditions They Find Acceptable

The person must be informed about all reasonable ways to relieve suffering and seriously consider them. They might have tried interventions and found them unhelpful, or reasonably refuse others because the burden outweighs the benefits. Just as someone needs capacity to say yes to treatment, they need capacity to say no.

Reasonably Foreseeable Death: Track 1 vs Track 2

Canada's MAiD legislation divides eligibility into two tracks based on whether natural death is reasonably foreseeable. This distinction affects which safeguards apply.

Track 1: Reasonably Foreseeable Death

Death is reasonably predictable and the medical condition makes the trajectory toward death clear. No formal timeframe required—assessors look at the entire clinical picture including how advanced the illness is and whether the course makes death predictable.

Track 2: Not Reasonably Foreseeable

Death is not predictable in the reasonably foreseeable future. These individuals are still eligible for MAiD but face additional safeguards including a minimum 90-day assessment period and requirement to seriously consider all reasonable alternatives.

Safeguards for All MAiD Requests

These protections apply to both Track 1 and Track 2 to ensure every request is voluntary, well-considered, and thoroughly assessed.

Personal Consent Required

Only the person themselves can consent—not a substitute decision-maker, family member, or through an advance directive.

Written Request with Independent Witness

Request must be in writing, signed and dated with a pen (not digital), and witnessed by one independent person who does not benefit from the person's death.

Right to Withdraw Anytime

The person can withdraw their request at any time, for any reason, right up until the last moment before medications are administered.

Two Independent Assessments

Two practitioners must agree that all criteria are met. "Independent" means no reporting relationship or conflict of interest that might impact their ability to make an unbiased assessment.

Final Consent at Provision

Before medications are given, the person must have capacity and give final consent—unless they've signed a waiver of final consent (Track 1 only).

Additional Safeguards for Track 2

When death is not reasonably foreseeable, extra protections ensure thorough consideration of all alternatives and adequate time for reflection.

Expert Consultation Required

At least one assessor must have expertise in the condition causing suffering. If neither does, they must consult an expert who can confirm diagnosis, prognosis, and outline possible treatments or supports.

Informed About All Options

The person must be informed about all reasonable means to relieve suffering, including palliative care, psychological or spiritual counselling, community or disability supports, and other interventions.

Serious Consideration

Everyone must agree the person has seriously considered available options. This doesn't mean trying everything—just making a reasoned decision about what is acceptable to them.

Minimum 90-Day Assessment

At least 90 days must pass from the start of first assessment to the MAiD provision—unless the person is at imminent risk of losing capacity or death becomes reasonably foreseeable. This time allows assessors and the person to explore alternatives, discuss what is and isn't acceptable, and confirm that remaining treatments or supports have been offered, attempted, or reasonably declined.

The Waiver of Final Consent

Available only under Track 1, the waiver of final consent allows someone who has been approved for MAiD and chosen a date to proceed even if they lose capacity before that date.

In order for the waiver to be a potential option, the person must:

  • Already be found eligible under Track 1.
  • Still have capacity when signing the waiver.
  • Have chosen a date for MAiD.
  • Be at risk of losing capacity before that date.

This is a legal agreement between the person and their MAiD provider that cannot be transferred. The waiver gives permission, not obligation—if providing MAiD becomes unnecessary or if the person shows any sign of refusal, the provider will not proceed.

Only the MAiD provider can determine if the waiver is appropriate for an individual’s specific situation.

1

Already Eligible Under Track 1

Must have been found eligible with reasonably foreseeable natural death

2

Has Capacity When Signing

Must still have decision-making capacity at the time of signing the waiver

3

Chosen a Specific Date

Must have selected a date for their assisted death

4

At Risk of Losing Capacity

Must be at risk of losing capacity before the chosen date arrives

Your Questions Matter

Understanding MAiD eligibility is complex, and every situation is unique. The criteria we've outlined provide the framework, but real-world application requires careful assessment by qualified practitioners who consider the whole person and their circumstances.

Key Takeaways

  • Eligibility combines non-medical requirements, medical criteria, and legal safeguards
  • Suffering is understood through individual experience, not quantifiable tests
  • Track 1 and Track 2 have different safeguards based on whether death is reasonably foreseeable
  • Capacity and consent are assessed continuously throughout the process
  • The person maintains the right to withdraw at any time

Get More Information

If you have questions about MAiD eligibility or any aspect of the process, reach out through the Ask Us Anything page or send an email. Paul and Kim read every message and are committed to providing accurate, compassionate information.

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