Justice denied: Where the MAID and mental disorders discussion went wrong

News & Updates | March 15, 2024 | Dying With Dignity Canada

Home / News & Updates / Justice denied: Where the MAID and mental disorders discussion went wrong
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Background 

On February 28, 2024, Parliament voted in favour of Bill C-62, delaying eligibility of medical assistance in dying (MAID) for those whole sole underlying medical condition is a mental disorder (MD-SUMC) until March 2027. In total, it is a six-year delay for this small group of people who are suffering and are most negatively impacted by this denial of human rights, compassion, and autonomy. 

Originally, Bill C-7 (2021) temporarily excluded eligibility for individuals with a mental disorder as their sole underlying medical condition until March 17, 2023. It was required that the Minister of Health and the Minister of Justice initiate an independent expert review “respecting recommended protocols, guidance and safeguards to apply to requests for medical assistance in dying by persons who have a mental illness.” Bill C-7 also mandated that the Special Joint Committee on MAID reconvene to assess preparedness for the end of the sunset clause on MAID MD-SUMC. 

As a result, in August 2021, the Expert Panel on MAID and Mental Illness was formed to undertake this review. It should be noted that the Panel’s Terms of Reference indicated that its role was not to debate whether or not persons with a mental disorder as their sole underlying medical condition should be eligible for MAID. However, the Panel did very carefully review the concerns of researchers, clinicians and stakeholders who question the inclusion of MAID for individuals with a mental disorder. 

The Panel delivered their final report in May 2022. In the summary of recommendations, they state, “The Panel’s work culminated in nineteen recommendations that, in its view, can be fulfilled without adding new legislative safeguards to the Criminal Code. The Panel found that the existing MAID eligibility criteria and safeguards buttressed by existing laws, standards, and practices in related areas of health care can provide an adequate structure for MAID MD-SUMC so long as they are interpreted appropriately to take into consideration the specificity of mental disorders.” 

The first recommendation in the report was the development of MAID Practice Standards. These standards were to elaborate upon the subject matter of recommendations 2-13 that addressed interpreting the term “grievous and irremediable medical condition,” vulnerabilities, and the assessment process. 

However, leading up to March 17, 2023, Bill C-39 was passed in Parliament which further extended the coming into force of MAID and mental disorders for another year. The Justice Minister at the time was quoted as saying, “This extension is intended to allow more time so that MAID assessors and providers are prepared to assess MAID requests for individuals suffering solely from a mental illness in a safe and consistent manner across Canada.”  

There were three productive years of preparations, and the mandated steps were completed. This included the development of the Model Practice Standard for clinicians, the accompanying Advice to the Profession document, the release of the first nationally accredited Canadian MAID Curriculum, and changes to the reporting standards to include demographic information. Extensive work was also done by provincial and territorial health services and MAID coordination teams across Canada. 

We are prepared for the end of the sunset clause on MAID and mental disorders. The last step was to reconvene the AMAD committee to assess preparedness. 

What went wrong? 

What was meant to be an orderly examination of Canada’s readiness for MAID MD-SUMC quickly degenerated into an unjustified reevaluation of MAID for those whose sole underlying condition is a mental disorder. 

As articulated by Senator Pierre Dalphond, a former judge with nineteen years’ experience, “The Special Joint Committee’s report moved away, consciously or unconsciously, from its mandate of verifying the preparedness of regulators and those involved in the assessment and provision of MAID.” 

The committee was overtaken by the anti-MAID agenda. Testimony deviated from the committee’s purpose, and witnesses circled back on content already covered, such as irremediability and misuse of the system. It was argued that Canada’s health care system is not prepared for this change in the law despite countless experts having testified the exact opposite. From the dissenting opinion of five Canadian Senators regarding the AMAD committees final report MAID and Mental Disorders: The Road Ahead, “The committee heard testimony from 21 individuals and organizations who spoke as witnesses over the course of three meetings. The committee heard from 15 witnesses who had fulsome knowledge of the completion of the preparedness criteria and each witness testified that all the preparedness criteria had been met. However, the majority report disregarded this testimony and instead chose to prioritize the testimony of five witnesses who either opposed MAID MD-SUMC or had little or no knowledge of the preparedness criteria. Therefore, the majority report chose to ignore the most pertinent and compelling evidence regarding the federal government’s own criteria for preparedness.” 

With only one week’s notice, the committee invited submissions to the process. A huge number of these submissions failed to adhere to the scope and written mandate of the enquiry, distracting from the submissions that met the criteria. Due to the limited time frame and lack of translation services, hundreds of those submissions were discarded, including from people who live with longstanding, treatment-resistant mental disorders. 

Most troubling was the blatant exclusion of those longstanding sufferers who would be directly impacted by the exclusion of MAID and mental disorders. The voices of those impacted by this arbitrary continued exclusion were drowned out amid a chorus of voices who wanted to revisit the original debate around eligibility.   

The Committee Chairs tasked the staff with drafting a report on an expedited basis which, to many individuals with mental health afflictions who had genuine interests at stake, looked as if the outcome had been predetermined. 

Finally, the speed at which Bill C-62 was introduced and given Royal Assent did not give adequate time and consideration to properly scrutinize the implications of another delay to MAID MD-SUMC. In hindsight, this was not a diligent and transparent evidence- gathering exercise in which procedural fairness was observed. In fact, quite the contrary, Dying With Dignity Canada was invited to speak to the Standing Committee on Health with an hour and five minutes notice, and the Bill was debated for only 30 minutes in the House of Commons.  

Everything considered, the three-year delay for MAID MD-SUMC is unsubstantiated, did not consult the most important voices, and has no clear, measurable criteria for preparedness in March 2027. 

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