2017-0703891C6 2017 CTF – Q16 – Medical assistance in dying

Principal Issues: Whether medical assistance in dying would be considered a medical service for the purpose of the medical expense tax credit (METC).

Position: It is our view that services for medical assistance in dying are medical services for the purpose of the METC when they are provided by a medical doctor or nurse practitioner as outlined in the Criminal Code, in conjunction with the requirements of the respective provincial and territorial health-related laws, rules and policies, as applicable.

Reasons: The term “medical service” is not defined in the Act, and health-related matters generally fall under provincial and territorial jurisdiction. Although the legislation on medical assistance in dying is part of the Criminal Code, provinces and territories may create additional health-related laws or rules. Accordingly, one would have to consider such laws and rules, in addition to specific standards of practice and policies relating to medical assistance in dying as set out by regulatory bodies in their respective jurisdiction. Also, all the applicable conditions in section 118.2 of the Act must be met in order to claim amounts paid as medical expenses.

Author: El-Kadi, Randa
Section: 118.2(2)(a)

2017 CTF Annual Conference

 CRA Roundtable

 Question 16:  Medical Expenses – Medical Assistance in Dying

 The Supreme Court recently issued its ruling in Carter v. Canada (2015 SCC 5) which indicated that Canadians are entitled to obtain medical assistance to end their lives under appropriate circumstances.  Does the CRA consider costs of medical assistance to end an individual’s life eligible medical expenses for purposes of the medical expense tax credit?”

 CRA Response

 As a result of the Supreme Court of Canada decision in Carter v. Canada, 2015 SCC 5, the Criminal Code was amended to specify the parameters under which medical assistance in dying can be lawfully provided. In particular, sections 241.1 and 241.2 of the Criminal Code specify that medical assistance in dying:

 *     is available only to individuals who are eligible for health services funded by a government in Canada, or would be so eligible if it were not for any applicable minimum period of residence or waiting period;

*     must be provided by either a medical doctor or a nurse practitioner who is authorized to practise his or her profession under the laws of a province;

*     means the administration of a substance to a person, at their request, that causes their death;

*     also means the prescription or provision of a substance to a person, at their request, for self-administration to cause their own death;

*     requires the diagnosis of a grievous and irremedial condition (which is defined in the Criminal Code) by either a medical doctor or a nurse practitioner; and

*     must be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules, policies and standards.

The Criminal Code also requires medical doctors and nurse practitioners providing medical assistance in dying to comply with the information filing requirements as regulated by the respective Ministry of Health in their jurisdiction, with similar filing requirements for pharmacists who dispense a substance in connection with the provision of medical assistance in dying.  In addition, certain provinces and territories have created health-related laws, rules or policies, specific to medical assistance in dying.

The METC is described in section 118.2 of the Income Tax Act.  Eligible medical expenses include amounts paid for medical services provided by a medical doctor or nurse practitioner, as well as medications, preparations or substances that meet specific requirements in the Act.

In our view, the provision of medical assistance in dying as outlined in the Criminal Code, in conjunction with the requirements of the respective provincial and territorial health-related laws, rules and policies, as applicable, would be considered a medical service for the purpose of the METC.  Therefore, expenses paid for these services provided by a medical doctor or nurse practitioner or a public or licensed private hospital for medical assistance in dying would be eligible medical expenses for the purpose of the METC.

Similarly, the cost of medicaments or other preparations or substances used for medical assistance in dying, as outlined in the Criminal Code and the applicable provincial and territorial requirements, will be eligible for the METC provided the requirements of the Act are met. Specifically, the cost is an eligible medical expense if the medicaments or other preparations or substances meet the conditions in subparagraph 118.2(2)(n)(i) of the Act.  Namely that the substance can only be lawfully obtained if prescribed, and its purchase is recorded by a pharmacist.  Where a substance can be lawfully obtained without a prescription, subparagraph 118.2(2)(n)(ii) of the Act, in conjunction with section 5701 of the Income Tax Regulations, allow the cost of a substance if, among other things, it may be lawfully acquired only with the intervention of a medical practitioner.

 In addition, paragraph 118.2(3)(b) of the Act does not generally permit an individual to include as an eligible medical expense, any expense to the extent that the individual or certain other persons are entitled to be reimbursed for the expense.

R. El-Kadi
2017-070389
November 21, 2017

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