Bill C-39: Medical Assistance in Dying, When Mental Disorder is the Sole Underlying Condition

Honourable senators, in the spirit of speakers who have come before me who are not experts in MAID but who feel passionate about this issue, let me also offer some reflections on the bill before us.

Senator Plett has given us a good summary of how we got here in his account of Bill C-7 two years ago, underscoring the fact that the government itself did not want medical assistance in dying when mental illness is the sole underlying medical condition to be part of our MAID regime.

It was in this chamber that we put forward the proposed removal of the exclusion of mental illness as a sole underlying condition, and that amendment was ultimately adopted.

In the debate around that amendment to remove the exclusion, there were two arguments for removal. The first was that the exclusion of mental illness was unconstitutional; it was essentially discriminatory. The second argument was that the medical profession already had the tools and capacity to do capacity assessment of patients with mental illness as the sole underlying condition.

Both of these arguments would have been sufficient for us to reject the exclusion. Indeed, the first argument of unconstitutionality would have been a slam dunk, but we chose to go a different route. We chose instead to delay the implementation of MAID MD-SUMC in the belief that the medical profession did not yet have all the tools and procedures for proper capacity assessment in the case of MAID MD-SUMC.

The agreed delay period in the end was 24 months, and that proposal was described euphemistically by many as a “sunset clause.” I thought at the time that the image of a sunset was not helpful for a variety of reasons, but in particular because sunsets are inevitable and essentially unchangeable, whereas the nature of the task that we gave to the medical profession for this 24-month period did not lend itself into a fixed time frame.

I prefer the image of a runway, where the purpose of delay was to prepare an aircraft for takeoff. In this imagery, we have to ask not just whether the plane is ready for flight but also if the runway is long enough.

As I put it in my February 9, 2021, speech:

. . . what if the plane is not ready to take off in 18 months? What if the problem is not about training more people or aligning standards, but it’s about sorting out difficulties and challenges that the profession itself has in coming to terms with how they do capacity assessment?

Colleagues, I would ask the same question today, on the eve of our vote on this bill.

The difference this time around, I believe, is that the expectation around the one-year extension is framed more narrowly as a technical question of putting in place protocols and training materials and the two other criteria that Senator Kutcher referred to, and that those things can be done within the 12-month period.

To that extent, I’m reasonably certain that the MAID MD-SUMC aircraft will take off on March 17, 2024. The runway will be long enough for “Flight C-39,” and it will take off, but I’m not sure that it will have as many passengers on board as it should.

The reason, colleagues, is that there continues to be profound disagreement among doctors on the question of irremediability. Distinguished experts have lined up on both sides of this debate. If you were hoping, as I was, for the original 24-month delay to provide scientific clarity on irremediability, you will be disappointed. If anything, the divide between the two views is as wide as ever, inflamed in part by media reporting about MAID cases that seem to be egregious in violation of the safeguards put in place.

That’s why, colleagues, I believe the debate on MAID MD-SUMC this time around is focusing much more on the rights and autonomy of Canadians with mental illness as a sole underlying medical condition rather than on medical evidence of irremediability.

In his testimony to honourable senators just yesterday, Minister Lametti used the word “autonomy” on multiple occasions as a core reason for allowing MAID to be accessible in the case of mental illness as a sole underlying medical condition.

Now, it should not surprise us that the Minister of Justice, who is a distinguished legal scholar, chose to focus on constitutional rights. And there are indeed arguments in favour of MAID MD-SUMC based on constitutional protections for such patients. I would note, however, echoing Senator Plett, that such arguments have not yet been offered by the courts, which is a point the minister conceded during Question Period yesterday.

What is curious, though, is that MAID advocates who are not lawyers — but who are doctors — are also increasingly basing their case on legal arguments, such as equality and non-discrimination, rather than on the medical evidence of irremediability, which they surely have much more expertise in than us mere mortals.

This suggests to me that the direction in which we are heading on MAID in general — and we can be sure that this is not the last MAID bill we will debate — is a focus on the rights of Canadians to determine their time of death and less on the conditions under which that should happen.

Grievous and irremediable may well continue to be embedded in our law as a formal condition for MAID. But as we can see in the debate over MAID where a mental disorder or mental illness is the sole underlying medical condition, it will go ahead — even in cases where irremediability is disputed — albeit subject to safeguards.

What will happen after March 17, 2024, is that MAID for mental illness, or MI-SUMC, will be considered on a case-by-case basis. But as I suggested in my question to the ministers yesterday, anyone seeking MAID will seek an assessor who is predisposed to approve the request. In any case, it is almost certain that any assessor would agree with the proposition that some mental illnesses are irremediable, or they would not be assessors in the first place.

From an autonomy perspective, this is as it should be. Again, it is why I think we are going to see more and more of the autonomy argument and less emphasis on medical evidence of grievousness and irremediability.

You may recall that I asked the question to ministers yesterday about the scenario whereby a patient in this situation of requesting MAID is given authorization but where there is another medical professional who knows the patient — who is not part of the assessment team — giving an alternate view, and whether that alternate view from an expert not on the assessment team would carry any weight in the decision.

We did not receive a full answer — not because the ministers were prevaricating; we ran out of time. But I’m sure this scenario will play out after March 2024. My guess is that the medical experts who are not part of the assessment team will have little or no say in the MAID decision of a patient requesting that procedure. In this sense, the bias will be in favour of personal autonomy rather than medical evidence.

Since Senator Kutcher has cautioned us against slippery-slope arguments, let me reassure him that I am not scaremongering that this bill will lead to an avalanche of requests for MAID or that MAID is the same as suicide. I agree with him that, in the near-term, the numbers of Canadians requesting and obtaining MAID will continue to be small relative to the size of our population. However, I am signalling to all of us here that there is a discernible shift in the reasoning behind arguments for MAID — from reasonably foreseeable death to grievous and irremediable condition to autonomy. We already know that reasonably foreseeable death is no longer a factor and irremediability remains.

Depending on your point of view, the focus on autonomy — perhaps even as the principal or only criterion for decisions on MAID — is a good thing. We have heard as much in this chamber. This is no slippery-slope argument, but there are shifting sands. We cannot and should not close our eyes to where the sands are shifting us to and whether we want to go there.

Colleagues, I invite all of us to reflect on this question before the next MAID bill arrives in the Senate. Thank you.

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