Criminal Code
Bill to Amend--Second Reading
March 7, 2023
Moved second reading of Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).
He said: Honourable senators, I rise today to speak on Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), which was introduced in the other place by the Minister of Justice on February 2, 2023.
This bill proposes to extend the temporary exclusion of eligibility for medical assistance in dying, or MAID, on the basis of a mental illness alone — MAID MD-SUMC — for one year, until March 17, 2024.
In the absence of legislative change, this exclusion will automatically be repealed on March 17, 2023, at which point eligibility for MAID in these circumstances will become lawful under the existing eligibility criteria.
Colleagues, before proceeding, I would like to acknowledge that the material and the subject of our debate that is starting today and will continue into Thursday can be very difficult for some people. It can be very challenging. It has to deal with life‑and-death issues. It has to deal with mental illness.
I would encourage any of our colleagues and anybody who is listening or watching our debates to know that if you are having difficulties because of what we are talking about, but also just in general, please seek help for those difficulties. Asking for help is a sign of strength. It is not a sign of weakness.
The purposes of this extension to support federal government readiness in relation to MAID MD-SUMC are fourfold: first, to ensure that a national reporting system meeting the requirements set out in Bill C-7 has been established and has begun to gather data for MAID monitoring and system assessment; second, that the model MAID practice standard has been completed and disseminated to regulators in all provinces and territories; third, that an accredited national MAID training program has been developed and is available to existing and new MAID providers; and fourth, to allow time for the final report of the Special Joint Committee on Medical Assistance in Dying of the House and Senate to be considered.
I will speak to each of these readiness criteria in due course.
As we all know, Bill C-7 received Royal Assent on March 17, 2021, about a year after the WHO declared the COVID pandemic.
The work undertaken for MAID MD-SUMC readiness — the components of which I just named — was impacted by COVID, the detrimental effects of which on our health care system are well known to us all.
The timely discharge of this readiness work depended on numerous health care providers, regulators, civil servants and other health system actors, all of whom were deluged by the demands of this unexpected scourge.
Indeed, it is to the credit of hard-working people across multiple sectors that so much has already been done on the work to date.
Despite delays due to COVID, significant progress has been made. I am of the opinion that taking some additional time is wise. This will ensure that the federal government has addressed its commitments before the law with respect to MAID MD‑SUMC comes into effect. Specifically, it will ensure that the four readiness criteria that I identified earlier will have been appropriately addressed.
While my remarks today will focus primarily on the progress that has been made in the key domains within which the federal government acted following the coming into force of Bill C-7, I would like, first, to take this opportunity to remind us of the complex division of powers and responsibilities between the federal and provincial/territorial governments when it comes to MAID assessment and provision. There has been some confusion in the minds of many Canadians whom I have spoken with about this differential responsibility.
The federal government is responsible for the Criminal Code. This is where the legal parameters for MAID are established.
The federal government is not responsible for the general delivery of medical services, including MAID, as these are the primary responsibility of provinces and territories.
Nor is the federal government responsible for the regulation of those who provide these services. That is the responsibility of provinces and territories, which, in turn, delegate it to independent regulatory bodies, such as Colleges of Physicians and Surgeons and Colleges of Nurses.
I would also like to take this opportunity to remind us of some of the components of how MAID for track-2 conditions, of which MAID-MD-SUMC is one example, are delivered in Canada and, in so doing, correct some misinformation that is swirling around us.
MAID is a medical act provided by trained physicians and nurse practitioners, delivered by provincial and territorial health care systems — with a few exceptions for federal delivery, for example military and prisons — and is regulated through the well-established independent regulatory bodies in each province and territory. As such, it is like any other medical act in that it must adhere to legislation, regulation, practice standards, policies and procedures.
Thus, in addition to any specific rules about MAID, MAID assessors and providers must adhere to the existing rules that apply to all clinical acts, whether they concern confidentiality, documentation, operating within their scope of practice or any other regulatory dictate.
Also, in many jurisdictions, MAID providers work within a centralized intake system within existing health authorities and use a community-of-practice approach to support and consult with each other. In other jurisdictions, MAID practitioners draw upon the networks offered through professional associations in order to obtain advice and guidance from peers. In other words, colleagues, the delivery of MAID clinical services is not an insular practice.
The requesters of MAID MD-SUMC will be protected by the track-2 safeguards in the delivery of MAID.
Individuals may make a request in writing to a physician or nurse practitioner asking to be assessed for MAID MD-SUMC eligibility. Following this, they are assessed by two physicians or nurse practitioners, independently, trained in MAID assessment. If neither of these trained MAID assessors has expertise in the condition causing the person’s suffering, a third physician or nurse practitioner with such expertise must be consulted.
For MAID MD-SUMC, an independent psychiatrist, expert in the person’s specific condition, would often be an appropriate assessor or consultant.
If the person is found eligible for MAID MD-SUMC as per legislated requirements, at least 90 days must pass between the request for and the provision of MAID. During that time, the MAID practitioners must ensure that the person has been informed of alternative means available to relieve their suffering and that they have been offered consultations with the relevant professionals.
It is worth noting that this 90-day period is a minimum and that practitioners can take all the time they need to do what is necessary to complete the assessment. If there is uncertainty from any assessor about clinical or legal eligibility for MAID MD‑SUMC, the MAID procedure does not take place.
If during this 90-day period the person becomes suicidal, suicide-prevention efforts will be mobilized, and MAID does not proceed. If a person changes their mind, the MAID procedure does not occur.
It is simply incorrect, despite all the trumpeted misinformation, that an individual who is actively suicidal or experiencing an emotional crisis, and thus is feeling depressed, anxious or unhappy, can request MAID and have it completed without careful assessment by highly trained clinicians without the passage of at least 90 days and without due diligence being applied.
The statements that we have heard telling us that a person who is in an acute mental health crisis can arrive at a hospital or clinic, request MAID and promptly receive MAID are simply false.
Additional related misinformation about MAID MD-SUMC includes several other false claims: that a person can be eligible for MAID solely on the ground that they are having difficulty accessing mental health care, that MAID will become an alternative to providing mental health care, and that MAID has been created by the government to save health care costs. These claims are all false.
Unlike what the misinformers would have us believe, MAID MD-SUMC cannot be provided just because someone is having difficulty accessing mental health care or because they are feeling emotionally unwell.
On the contrary, the typical MAID MD-SUMC requester — someone who will also be considered potentially eligible for MAID MD-SUMC assessment — is someone who has a long‑standing mental disorder, and who had received a substantial amount of various types of therapeutic interventions for a prolonged period of time — often a decade or longer — and, in spite of all the treatments provided, still continues to suffer intolerably. The issue is not lack of access to mental health care.
People who may be considered eligible to be assessed for MAID have been receiving substantial amounts of mental health care for a long period of time. Again, the issue is not access to care; it is that all the treatments that have been tried — during a long period of mental health care — have not been successful.
The unfortunate reality is — as in all areas of medical practice — that there is a minority of people whose mental disorder does not respond to any available treatment. They continue to experience profound and persistent suffering, in spite of everything that has been tried. This reality is similar to that found with other brain diseases and, indeed, with other non-brain diseases.
Sadly, regardless of whether the illness is a mental illness or another type of illness, occasionally, people do not get well with any of the treatments that we have. Some, but not all, of these people suffer intolerably.
Additionally, some commentators would like us to believe that they — and not the patient — best understand the suffering that the patient experiences. They would have us accept a person being forced to continue to suffer intolerably — for years or decades — while waiting for some miracle cure to surface, just in case it might occur, and because they say so.
They promote the narrative that a competent person with a mental illness — who is suffering terribly, persistently and unremittingly — should not be able to decide how they choose to proceed with their life, even though someone with another type of illness can do so. This is another form of stigma against people who have a mental illness, and misinformation worsens stigma.
Colleagues, since we all have a role to play in correcting health misinformation when we become aware of it, it would behoove us — as members of the upper chamber — to also do so for MAID MD-SUMC. I will now remind us all of the responsibilities established through Bill C-7 by Parliament to promote MAID MD-SUMC readiness. I will then provide an update on what activities have been undertaken to date by the federal government to assist in that readiness.
I’ll start off with Bill C-7’s requirement that:
A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities must be undertaken by a Joint Committee of both Houses of Parliament.
Bill C-7 also mandated the Minister of Justice and the Minister of Health to:
. . . cause an independent review to be carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.
Bill C-7 also mandated the government to revise the regulations on reporting MAID cases in order to require the collection and analysis of a wider range of information about MAID requesters — most notably, race, indigeneity and disability.
One can reasonably ask this: What progress has been made on all of this?
First, let us consider the Regulations for the Monitoring of Medical Assistance in Dying, which outline the reporting requirements relating to MAID requests. These regulations came into force in November 2018, but were recently revised to ensure significantly enhanced data collection and reporting on MAID activity. Most notably, the regulations now require the collection of data based on race, Indigenous identity and the presence of a disability. The revised regulations came into force on January 1, 2023, and the collection of this enhanced data has already begun. I note that these changes are partially a result of amendments made to former Bill C-7 by this place, as proposed by our honourable colleague Senator Jaffer, and supported by many others.
Second, let us consider the Special Joint Committee on Medical Assistance in Dying. As you all know, the final report of the special joint committee was initially due last year, but this due date was pushed back. The final report was recently tabled — about one month before the mental illness exclusion is set to expire. Without the extension, this delay would make it very challenging for the federal government to meaningfully consider the final report and recommendations before the expiry of the mental illness exclusion. With the extension, the federal government will have time to consider the report and recommendations.
The Expert Panel on MAID and Mental Illness — created by the federal government — conducted its independent review. Its final report was tabled in Parliament on May 13, 2022. This report includes valuable information about — and analysis of — the issues associated with MAID for mental disorders. For those who have not yet had an opportunity to do so, reading the report is a useful part of preparation for consideration of the bill before us now. This report includes the recommendation that the federal government facilitate the development of a model practice standard that could be adopted or adapted by regulatory bodies.
Health Canada established an independent task group to produce this model practice standard. This model practice standard for assessing complex MAID requests, including requests where the sole condition is a mental illness, has been developed by a task group including clinical, regulatory and legal experts. The task group also prepared a model “Advice to the Profession: Medical Assistance in Dying” document to supplement the practice standard that regulatory bodies can use to provide clinical guidance to MAID providers seeking information about specific aspects of MAID MD-SUMC.
Regulators, provincial ministries, territorial ministries, health care authorities and clinicians from coast to coast to coast have now provided feedback to the task group on the draft model practice standard and draft “Advice to the Profession.” These have been reviewed and revised based on the inputs. The model practice standard and the “Advice to the Profession” document are now in translation and will be released very soon. At that point, they can be adapted or adopted by the various regulatory bodies that are responsible for how MAID will be delivered in each province and territory.
To remind us, it is these regulatory bodies that set the clinical and ethical standards of practice for all care, including MAID, and give guidance and direction to physicians and nurse practitioners. They do so in the interest of public protection — this is their primary mandate. They are independent of government control, answer to the public and are entitled to apply disciplinary sanction on their physician and nurse practitioner members up to, and including, definitive revocation of licensure. While each regulatory body is independent of each other, and of government, the creation of a model standard of practice and “Advice to the Profession” — which can be adapted or adopted by each province and territory — will go a long way to protecting the vulnerable, and to improving harmonization of MAID delivery across Canada.
It is important to note that this is, to my knowledge, the first time that such a federal government-led, collaborative and comprehensive approach to practice standard development and “Advice to the Profession” considerations has ever occurred in Canada.
Additionally, with funding provided by Health Canada, the Canadian Association of MAID Assessors and Providers, or CAMAP, has been developing a Canadian MAID education curriculum since October 2021.
CAMAP is an organization that is made up of nurse practitioners and physicians, including family physicians, hospitalists, psychiatrists, internists, anaesthetists and neurologists, who provide MAID services, including assessment for eligibility and the provision of MAID itself.
CAMAP’s main purpose is to support those who work in this field by providing clinical guidance and education to both those who are new to MAID, as well as to those who are seeking to enhance or deepen their knowledge.
This national educational curriculum is being developed by a diverse group of experienced MAID clinicians from across Canada who have come together to share their expertise in a series of training modules that will cover the entire spectrum of MAID care. This process is overseen by a consortium that includes representatives from CAMAP and a national advisory committee with multiple stakeholders including the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada, the Canadian Nurses Association, the Indigenous Physicians Association of Canada, the Canadian Indigenous Nurses Association, the Society of Rural Physicians of Canada, the Canadian Psychiatric Association, the Association des médecins psychiatres du Québec and other stakeholders including persons with lived experience — families and other supporters of people who have had MAID.
The training modules will be accredited by the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada and the Canadian Nurses Association. This is, to my knowledge, the first time in Canadian history that a health care curriculum has been developed from federal government funding and simultaneously accredited by these three bodies.
Once completed, CAMAP’s educational curriculum will consist of seven training modules, including a background to MAID in Canada; difficult clinical conversations; basic and complex MAID assessments, including a detailed understanding of capacity and vulnerability; and basic and complex MAID provisions. There is a module dedicated entirely to MD-SUMC. All of the modules also include resources to help those involved in MAID care to remain well as they undertake this important work.
The purpose of this accredited MAID curriculum will be to train new and experienced MAID practitioners across the country and, thereby, contribute to the development of knowledge and skills among practitioners, standardization of practices across the country and contribute to the high-quality provision of care in the context of MAID. Rollout of this curriculum is expected to begin this fall.
All of this progress is truly remarkable and is the result of the federal government’s leadership and collaborative efforts with health system partners, such as provincial and territorial governments, health professional organizations, regulatory bodies, clinicians and other organizations. As I previously mentioned, to my knowledge, this is the first time in Canadian history that the federal government has demonstrated such initiative in supporting the development of an accredited health training program.
So that is the progress report on the federal contributions to readiness.
At this time, I want to caution against allowing the continuing and enlarging storm of misinformation to impact our considerations of the bill before us. First, I want to address one important issue arising from the expert panel report that has become part of the misinformation industry surrounding MAID MD-SUMC. That is, unlike all other illnesses, including chronic pain, it is never possible to determine if a person with a mental illness has a “grievous and irremediable” medical condition. As you know, this is a legal and not a clinical term. The expert panel has provided a thoughtful and substantive approach as to how this legal term can be translated into clinical practice related to MAID MD-SUMC. This will be further articulated in Canadian clinical practice through the regulatory bodies of physicians and nurse practitioners in each province and territory that establish the standards of practice for MAID.
As I previously said, a Canada-wide input into the consideration of how this will be embedded into practice standards has already been completed and is ready for translation and dissemination. Through practice standards, the regulators will set the criteria that must be adhered to in the clinical interpretation of that legal phrase. This, as with all medical practice, will be further refined as clinical practice evolves.
Of additional interest, The Canadian Journal of Psychiatry recently, in 2022, published the results of a two-round Delphi procedure in which psychiatrists established 13 consensus criteria for determining “irremediable psychiatric suffering.” These criteria are very similar to those provided independently of this process by the expert panel.
Colleagues, it is simply incorrect to say that “grievous” and “irremediable” are terms that can never be appropriately clinically defined in psychiatric practice. Indeed, they have been. While some commentators may not agree, that does not mean that this issue cannot be properly defined, nor does it mean that the clinical definition offered by the regulatory bodies is inappropriate. Just because someone doesn’t like a clinical definition doesn’t mean that definition fails to meet the threshold for its utility, reliability or validity.
Just so everyone understands where we actually are with respect to the understanding of “grievous and irremediable medical condition” and “incurability” and “irreversibility,” the expert panel was of the view that, in the context of MAID, mental illness may be grievous and irremediable where a person has a long-standing condition leading to functional decline and for which they have not found relief from suffering, despite an extensive history of attempts with many different types of interventions and supports tailored to their specific diagnosis and related issues.
The panel further recommended that each MAID assessor should come to an independent understanding with the requester that an illness, disease, disability or functional decline causes the requester enduring and intolerable physical or psychological suffering, and — this is important — that each be done on a case‑by-case basis as the nuances of each situation require a personalized approach.
A key feature of this recommendation is that a person meeting the criteria identified by their expert panel makes the decision that their condition is “grievous and irremediable” in collaboration with each MAID assessor. It is not a single health care provider who alone makes the decision for the person.
In my opinion, this perspective is consistent with the modern medical practice of both evidence-based care and patient-centred care as these are discharged in the context of complex conditions and reflect the evolution of medical care from an autocratic, paternalistic approach to the engagement of the medical provider as a partner in the patient’s care. After all, it is the person who is suffering who needs to be heard.
That, by the way, colleagues, is what the word “patient” actually means — one who suffers.
This also reflects the reality of modern medical practice in which all pertinent information is gathered, and medical intervention decisions in complex cases are made on a case-by-case basis. There is no cookbook recipe or checklist for complex medical decisions. All complex medical decisions are made case by case because they must be tailored to the individual, the person’s medical condition, the totality of all interventions provided and the impact of those on the person’s unique situation and the person’s own aspirations and needs. Complex medical decisions also involve more than one highly trained health care provider. These decisions are made collaboratively with a well‑informed patient; they are not dictated to the patient.
Every patient must be treated for who they are, not just for the disease that they have. No two people are exactly alike, and what should be done in the best interests of the patient must not be provided by a predetermined recipe or checklist, but by three equal factors: One, the competency and training of the clinician; two, the best available evidence about the health problem and available interventions; and three, the needs and wishes of the informed patient.
This trifecta is what defines evidence-based care, and it can only be provided using case-by-case decision making. This is the foundation for modern medicine’s commitment to patient-centred care.
When I was in medical school, I had the incredible privilege to be introduced to the framework for evidence-based and patient‑centred care by Dr. David Sackett, the pioneer of evidence- and patient-centred medicine.
Dr. Fraser Mustard, the dean of our school, and two of my most revered teachers, Dr. Jack Laidlaw and Dr. Bill Spaulding, repeatedly reinforced that we don’t intervene in diseases; we intervene with people who are suffering from a disease. We don’t use recipes or checklists; we use our best clinical judgment, the best evidence we have and we are led by the needs and wishes of our patients. We also don’t fly alone. The more complex the case, the more important it is for us to involve other clinicians. Decisions regarding interventions in complex cases arise from this reality.
Colleagues, if we expect that for MAID where a mental disorder is the sole underlying medical condition, or MAID MD‑SUMC, a situation that calls for complex decision making, clinicians should be making decisions based on a cookbook recipe or a checklist, and if we accept that we should ignore the foundational principles of evidence-based medicine and patient‑centred care for those who suffer from a mental illness, while at the same time using these same tools in helping make intervention decisions for those whose suffering is not solely determined by a mental illness, we are denying those with a mental illness the same high-quality care that we provide to those who have a different type of illness. Colleagues, this is not only stigma, it is discrimination.
Friends, when the time comes — and for some of us, it already has — that we or a loved one is dealing with a complex and pernicious illness, such as cancer or end-stage heart failure, I am sure we would all want to be treated on a case-by-case basis. We would want our clinicians to understand who we are as a person and to do their best to help us while respecting our needs and wishes. Why would we accept that we — or any one of us who may have a mental illness — should not be treated that way?
I would also like to remind us that, given the law regarding MAID in Canada, at least two — and sometimes three — different, highly trained clinicians must independently and together with the patient come to the decision that the patient’s condition is “grievous and irremediable.” If the clinicians do not agree, then the MAID process does not proceed. The decision of what constitutes “grievous and irremediable” is not made by a solo practitioner with doubtful competencies; quite the contrary.
Finally, on this point, many of us have heard that a person who, for example, may be psychotic and refusing an effective treatment would be able to receive MAID. This is also not true. A person who is psychotic would not be found competent to make that decision. The minimum 90-day period between request and provision would give ample time for the appropriate in-depth evaluations to be carried out by multiple clinicians addressing this issue, especially since this is a minimum period and clinicians will take as much time as they think is necessary to form opinions about eligibility. Furthermore, a capable person cannot refuse all or most interventions and automatically render themselves incurable for the purposes of accessing MAID.
A MAID assessor cannot form a judgment about eligibility in the absence of evidence needed to form that judgment. As such, when reasonable treatments are left to be tried, MAID eligibility cannot be found.
Honourable colleagues, ongoing misinformation about MAID MD-SUMC continues to spread, misleadingly suggesting that persons with mental disorders requesting MAID will be treated in a haphazard, irresponsible and unregulated manner. However, as evidenced by a careful look at the law itself and the regulatory and practice context within which the law sits, this is not the case. In fact, the opposite is true. MAID MD-SUMC will be provided under perhaps the most comprehensive and robust federally facilitated health regulatory and training interventions ever created in this country.
Returning to the task immediately at hand — namely, consideration of a bill extending the period of ineligibility — I think we can all agree that significant progress has been made. However, I believe it would be best to extend the period for one more year. I am confident that one more year will be enough time for the dissemination and uptake by the nursing and medical communities of the key resources I just discussed, as well as increased familiarity with the new reporting regulations.
The Minister of Justice has also said that one more year will provide sufficient time for the federal government to carefully consider the final report of the Special Joint Committee on Medical Assistance in Dying. One more year strikes the balance between ensuring that people can access MAID on the sole basis of a mental illness as soon as possible and ensuring that this change is done at a time when the more robust data gathering is well-established and health care stakeholders have had more time to familiarize themselves with the practice standards and training materials.
Additionally, I am of the opinion that the federal government must do a much better job of communicating with Canadians about the complex and nuanced aspects of MAID.
One critical component of this communication is that the federal government must be clear about what “being ready” means in the context of its role regarding MAID. In my opinion, “being ready” means that four conditions have been met: One, that the model practice standard is finalized, published and distributed to regulators in each province and territory; two, that the certified MAID training program has been completed and is available for access by MAID practitioners; three, that the updated reporting requirements have been implemented and the government has begun to gather the data that will be critical for our ongoing assessments of the MAID system in Canada; and four, that the government has had time to consider the joint committee report.
In closing, I want to take a moment to speak directly to those people who have been waiting to become eligible to receive MAID in March 2023 and who will surely be disappointed by this extension of the period of ineligibility.
I have heard from some who express anguish over this delay. It is important that we all acknowledge the additional prolonged suffering that those who have been waiting will continue to experience. I know that the suffering caused by a mental illness can be just as severe as, or even worse than, that caused by a physical illness. I want to assure those who are waiting that, although unfortunate, I think this extension is necessary to help ensure that MAID MD-SUMC requests can be properly assessed and appropriate decisions can be made.
This extension should not be taken to be an endorsement or validation of the misinformation being circulated about MAID MD-SUMC. This extension does not question the capacity or autonomy of competent people with mental illness to make their own health care decisions. This extension does not question the reality of mental disorders or the profound suffering that occurs when treatments have been tried and all have failed.
I invite all honourable senators to join me in support of this bill so that we can help ensure that Canada has a MAID regime that is carefully considered, appropriately equipped and responsive to the complex dynamics inherent in this important issue.
Wela’lioq, thank you.
Would Senator Kutcher agree to take a question?
Certainly.
Thank you for your speech, Senator Kutcher; I found it to be very thorough.
I’d like to go back to the very last part of your speech, and the fourth point in particular. You were explaining that procedures have been put in place and training programs are being developed.
However, there is one aspect that bothers me, and that is the fourth point that you brought up. You said that the government will also have time to look at the Special Joint Committee on Medical Assistance in Dying report, which was tabled in February 2023.
However, the issue on the agenda was actually mental illness and how it relates to part of the legislation that was going to come into effect a few days later and allow access to medical assistance in dying.
The government is saying that it wants to push back the implementation of this access to medical assistance in dying by one year. You’re right to point out that many people are very disappointed, if not confused, by this proposed delay.
Are you saying that the part of the report by the Special Joint Committee on Medical Assistance in Dying that the government would like to examine covers only mental disorder or did the special joint committee examine all the issues? If we open the door to other considerations in the upcoming year and agree to delay the coming into force of this part of the legislation, we can very well imagine that one year from now the government will come back to us and say that it hasn’t had the time to consider the issue of mature minors or the other issues that were included in the committee’s report.
What guarantees do you have from the government that, if we delay for one more year, the government will only consider the issue of mental disorders?
Thank you, senator. That is an excellent question.
There are four members, including our esteemed co-chair, who have sat on this joint committee, and it has been a challenge that we have all taken on. It did cover much ground, as you have said. It addressed mental illness as a sole condition. It looked at advance requests. It looked at mature minors and a number of other topics.
My understanding is that this legislation is specifically focusing on extending the issue around MAID for mental illness as a sole underlying medical condition and the government’s analysis of the joint committee’s report related to this particular topic. This particular bill will focus on that.
My understanding is that the other aspects that the joint committee looked at will also be considered by the government, but are not part of the considerations related to this specific topic.
However, we’ll have two ministers here tomorrow. I think it would be much better for them to speak on behalf of the government than for me to do it because I don’t speak on behalf of the government.
Thank you for your question, and hopefully you can raise that again with them tomorrow.
Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.
The bill has only one very short provision that targets only one provision of the Criminal Code, the one that makes mental illness ineligible for medical assistance in dying.
My speech has three parts. First, I want to talk about where the exclusion for people suffering from mental illness came from. Second, I will explain why the Senate refused to support that exclusion in 2021, and third, I will talk about the reasons for extending the exclusion.
The debate we’re having here today is in response to the September 11, 2019, ruling of the Quebec Superior Court in Truchon and Gladu.
This ruling found unconstitutional some provisions of the Criminal Code and some provisions of Quebec’s Act Respecting End-of-Life Care, which made a reasonably foreseeable death a condition for accessing medical assistance in dying. According to the judge, this criterion, which wasn’t suggested by the Supreme Court in its 2015 ruling in Carter, violated the constitutional rights of Mr. Truchon and Ms. Gladu, namely the right to equality.
Both the Government of Quebec and the federal government accepted that ruling and promised to take appropriate action.
At the federal level, this took the form of Bill C-7, which was introduced on October 5, 2020. The bill added a second pathway to medical assistance in dying for people suffering from an incurable disease that is causing them intolerable suffering, without that suffering being the cause of imminent or foreseeable death.
By contrast, in Bill C-7, the government proposed to deny access to medical assistance in dying to individuals suffering only from mental illness, arguing that this was an appropriate measure given the lack of sufficient consensus among psychiatric experts at the time.
This is the origin of track 2 and of the exclusion of those suffering from only a mental illness, even if their illness was found to be incurable and the source of unbearable suffering as explained by Senator Kutcher a few minutes ago.
I move now to the reasons why the Senate disagreed with the permanent exclusion. As you may remember, Bill C-7 received much attention in the Senate. First, there was a pre-study in the fall of 2020 that led to a comprehensive report released in February 2021, which has been quoted extensively by many witnesses before the joint committee recently.
On the exclusion of mental illness as a sole condition, our legal committee reported a lack of consensus about the irremediable character of many mental illnesses and signalled that renowned legal experts, such as Professor Downie of Dalhousie University, have argued that the exclusion was unconstitutional.
During the third reading debate in the Senate, five amendments were adopted — some after lively debates. One was the addition of an 18-month termination date on the exclusion of those suffering solely from a mental illness. For the majority of this chamber, this group exclusion was discriminatory, resting on stereotypes and biases against mental illness and thus even unconstitutional. Only a mechanism providing for a case-by-case assessment of requesters of MAID could be acceptable.
The government finally agreed with this conclusion, ending the group exclusion through a sunset clause two years after Royal Assent. That’s going to be March 17, a few days from now. In addition, the government proposed an independent review by experts in relation to MAID and mental illness, including safeguards.
A majority of the House of Commons agreed with these proposals, and we later accepted them. As a result, the exclusion from track 2 of those suffering from a mental illness was to end on March 17, 2023.
At the time and to this day, many psychiatrists and citizens believe that a group exclusion for individuals suffering from an incurable mental illness is the option to be preferred. This is the goal of Bill C-314, a private bill tabled yesterday in the other place.
But it remains that this is not the view of most Canadians according to a recent poll conducted by Ipsos for Dying With Dignity Canada. In the context of treatment-resistant mental illness with intolerable suffering, 34% of Canadians strongly support access to MAID in such a case, 48% somewhat support access, 10% somewhat oppose and 7% strongly oppose.
Essentially, over 80% of Canadians think that access to MAID should be available for those suffering in that type of situation, which is incurable illness and unbearable suffering.
In my view, those numbers confirm that the Senate rightly concluded that a permanent exclusion was not only unjustified and likely unconstitutional, but also that Canadians do not support further stigmatization of those suffering from an incurable mental illness. The law should not treat them as unable to make a choice for themselves by denying access to track 2 if they are otherwise eligible and meet the safeguards provided for track 2.
Bill C-39 does not revisit the exclusion issue but, rather, it extends by one year the current temporary exclusion. We must ask this: Why postpone the coming into force of track 2 access for those suffering solely from a mental illness who otherwise meet the stringent requirements of track 2? The answer is that Parliament should proceed with some caution in lifting the exclusion in order to allow provinces and territories sufficient time to prepare for the required assessments. Harmonization and proper training for assessors are critical.
As Minister of Health Duclos has noted, the development of practice standards for MAID falls outside direct federal responsibility. He also said that the government:
. . . is actively engaging [provinces and territories] and the Federation of Medical Regulatory Authorities of Canada on the development of consistent practice standards.
In his speech, Senator Kutcher referred to the efforts that are being deployed across Canada to achieve such harmonization and develop assessment procedures and standards.
The recent Special Joint Committee on Medical Assistance in Dying, where I had the honour to serve with Senators Martin, Kutcher, Mégie, Wallin and 10 members of Parliament, shared the responsibility of completing an interim report and a final report on various issues related to MAID. The interim report tabled last June was on MAID and mental disorders, and it was dedicated to reviewing the task force report.
A government response followed in October. By that time, everybody was working hard to meet the requirement of March 17, and the government was hopeful that date would be met.
However, further witnesses heard by the committee led the committee to conclude in its final report, which was tabled on February 15, that we were not yet ready to move forward. That final report includes 23 recommendations, including one in relation to mental disorders. That recommendation is to agree with the government about postponing the date of March 17 and also proposes to re-establish a joint committee five months before the new exclusion date, which is March 2024, in order to verify the degree of preparedness attained for a safe and adequate application of MAID for mental disorders as a sole underlying condition. Again, that recommendation reflects a cautious approach.
However, there are also risks to not removing the exclusion in a timely way. The special joint committee noted in its report that the delay in eligibility under Bill C-39 may prolong the suffering of some individuals who are otherwise able to receive MAID. Senator Kutcher referred to that, and I believe most of you received emails from those people, urging us not to accept Bill C-39 and not delay further access to MAID.
Essentially, adults who meet the eligibility criteria for MAID — including irremediability, informed consent and intolerable suffering — currently face discrimination as a class when their condition is mental as compared to physical, or when compared to having both physical and mental conditions, when we don’t dispute their ability to consent to MAID.
In my view, Charter compliance very likely requires a MAID law that allows for a case-by-case analysis of eligibility based on individual facts, such as assessing capacity and past attempts at treatment. Such an approach will occur for cases of mental disorders once the sunset clause expires — now in March 2024.
Indeed, Parliament has considered MAID in the context of mental disorders for a long time. Senator Seidman and former Senators Cowan, Joyal, Ogilvie and Nancy Ruth served on another special joint committee on MAID in the Forty-second Parliament. In their 2016 report over seven years ago, recommendation 3 urged:
That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.
On legalities, let me refer to lawyer Shakir Rahim’s testimony to the special joint committee on October 4, 2022. He discussed MAID and mental disorders in relation to the 2020 Supreme Court decision of Ontario (Attorney General) v. G, a leading case on section 15 equality rights. During our third reading debate on Senator Kutcher’s amendment to Bill C-7 I referred to that decision of the Supreme Court regarding mental disorders. The special joint committee’s final report also refers to that decision.
As Mr. Rahim told the committee:
In my view, the recommendation of the expert panel on [medical assistance in dying where a mental disorder is the sole underlying medical condition] conforms to the spirit and letter of the section 15 jurisprudence. . . .
Senators, these conclusions show the necessity of having access to MAID for mental disorders.
However, it must be done in a way that ensures that there is no slippery slope and no mistakes that might contribute to opposition to this expansion. That’s why, honourable senators, I suggest that we pass Bill C-39, and I have a message for anyone who may be listening. This is not about opposing your right to MAID; it is simply a pause. Your right to medical assistance in dying is constitutionally recognized and will soon be available.
Thank you.
Honourable senators, I rise today to speak to the second reading of Bill C-39, a bill to delay by one year the repeal of the exclusion of mental illness as a sole underlying cause from eligibility for assisted suicide.
This Trudeau government’s 2021 decision to extend assisted suicide to people who are mentally ill is nothing short of abhorrent. Since the government expanded the eligibility for assisted suicide from people at end-of-life to those not facing imminent death, Canadians have witnessed the slippery slope rapidly become reality. We have seen it in the news: multiple veterans offered medically assisted death instead of help from the government, and disabled and impoverished Canadians who feel they have no other option but to end their lives through assisted suicide because of a lack of health and social supports.
The parliamentary committee on MAID recommends the expansion of assisted suicide to children. In recent weeks, I saw Twitter posts from the federal Department of Justice actually promoting the virtues of medical assistance in dying. Meanwhile, psychiatric experts warn repeatedly about the dangers of expanding assisted suicide to people suffering from mental illness, and health practitioners state they’re not prepared to do it.
Rather than heed the dire warnings and apply the brakes, this activist Trudeau government has opted instead for this bill a one-year delay in implementation. They want to use the time to “sell” the awful concept of assisted suicide for mental illness to the Canadian public. But Canadians are waking up to the reality of the expansion of assisted suicide, and they are shocked and alarmed at the prospect of it being extended for mental illness. A recent Angus Reid survey found that only 31% of Canadians support this move.
It was only seven years ago that assisted suicide even became legal in Canada. I have been fighting against its expansion into mental illness since before the first legislation, Bill C-14, was introduced in 2016 in response to the Supreme Court of Canada’s 2015 Carter ruling. Fighting against the expansion of assisted suicide to people with mental illness was what first prompted me to start my social media accounts. My very first Twitter and Facebook posts were my national column on the issue, entitled “Help the mentally ill. Don’t kill them.”
In 2019, a Quebec lower court ruled in the Truchon case that the federal Criminal Code provisions requiring that natural death be “reasonably foreseeable” and the Quebec assisted dying law provision that a person be “at the end of life” to qualify were invalid. Rather than appeal the ruling, as would usually be done, the Trudeau government instead chose to introduce new legislation, Bill C-7, to remove not only the “reasonably foreseeable” criterion but also some minimal safeguards that had accompanied Bill C-14.
Initially, the bill contained an exclusion for mental illness as a sole underlying cause of accessing MAID, but it was actually — shamefully — the Senate that passed a sunset-clause amendment to end that exclusion in 18 months, thus throwing open the gates of assisted suicide to those suffering with mental illness. The government accepted that amendment but modified the delay to two years.
Even though the subject matter of the bill was studied by the Senate Legal Committee twice — once at pre-study, then again during study of the actual bill — the mental illness sunset clause, and thereby the extension of MAID to vulnerable Canadians with mental illness, was never examined by a committee in either house. The government established a committee to study how to implement the inclusion of psychiatric illnesses, not to judge the merits of whether to do so. And a parliamentary committee studied the further expansion of assisted suicide, including the issues of advance consent and extending MAID to minors.
As is so often the case, throughout this process, this activist Trudeau government has prioritized pure ideology over evidence. But the government continues to push its agenda anyway.
Mental illness is not irremediable — one of the primary criteria to qualify for assisted suicide. Recovery or at least the alleviation of suffering is possible and can’t be predicted. Expert psychiatrists recognize that the trajectory of mental illness is unpredictable.
Dr. John Maher, a veteran psychiatrist who has worked with patients with some of the most severe, resistant cases of mental illness, testified at the Special Joint Committee on Medical Assistance in Dying:
. . . I defy literally any psychiatrist to say that this particular patient has an irremediable illness, because you can’t. I have patients who get better after five years, after 10 years and after 15 years. You cannot do it. It’s guesswork. If you’re okay with guesswork, if you’re okay with playing the odds, or if your position is let’s respect autonomy at all costs — if someone wants to die, they can die — call it what it is. It’s facilitated suicide.
Colleagues, often, finding the right treatment for an individual is a process of narrowing down the combination of medications over time. Advocates of psychiatric assisted suicide have recently begun to turn their argument from one of irremediability to that of inaccessibility as irremediability. That is pretty mind-blowing when you consider the state of Canada’s health care system at the moment and how inaccessible doctors and treatments are for Canadians.
Dr. John Maher reacted to one such claim at the MAID Committee when another psychiatrist stated that she would consider a patient facing a long waiting list for treatment as “irremediable” on that basis:
It’s actually been said out loud, we’ll let people die. We’ve seen in the news: Let people die because they can’t get an apartment. Irremediability, on my understanding of the Supreme Court ruling and subsequent legislation, had nothing to do with psychosocial resources. We were talking about diseases. These were medical diseases — brain diseases we’re talking about now — where we couldn’t medically treat them.
Boy, has the barn door been opened wide here if that counts as irremediable. I’m going to cite this as a specific example of my great fear of the abuses that are going to follow with this legislation, because there’s no oversight. . . . If [a psychiatrist] is going to let someone die because they can’t get a treatment that will help them, then I’m frankly just shocked. That is not what this law is about, nor should it be. If we as a Canadian society are willing to let people die over apartments, I’m frankly just disgusted. Forgive my passion here, but you’re parliamentarians with a duty to preserve life.
As many of you know, I am a family survivor of suicide loss. My husband, MP Dave Batters, died by suicide days short of his fortieth birthday, after struggling with depression and anxiety. I have seen up close the failures of our mental health care system. There are problems of accessibility, costs, stigma and an utter lack of resources that stand in the way of people getting the help they need. The answer to those barriers is to fix that system, not to confirm a mentally ill patient’s feelings of hopelessness and offer them the lethal means to suicide. The answer is certainly not to end their lives for them. As a compassionate society, we have an obligation to hold hope for Canadians with mental illness when they don’t have any hope for themselves.
In the limited time I have left, I did want to address some of the specious claims that the government and proponents of psychiatric MAID expansionism are making, because they are misleading, and I think parliamentarians and Canadians should know this.
First, in trying to sell the concept of psychiatric MAID to the Canadian public, Justice Minister David Lametti has implied that extending assisted suicide to people with mental illness has been mandated by the courts. This is simply not true. Neither the Carter nor the Truchon cases ruled on the constitutionality of expansion for mental illness, and neither plaintiff requested MAID based on psychiatric grounds.
The government and proponents of psychiatric MAID try to draw a false equivalence between physical and mental illnesses. However, the two are very different. A mental illness is not “terminal.” Death is not its “reasonably foreseeable” outcome. Again, mental illness is not irremediable and it is unpredictable, even for expert psychiatrists extensively trained to assess and diagnose those illnesses.
Further, suicidality can be a symptom of mental illness. This is something I have unfortunately witnessed first-hand. To evaluate physical and mental illnesses as not identical is not discriminatory. It is simple acknowledgement of fact. As Dr. Sonu Gaind testified before our Senate Legal Committee:
. . . it is not discriminatory to consider the particular nuances of mental illness in MAID discussions. “Equity” does not mean everything is the same; it means treating things fairly and impartially.
We should not extend assisted suicide on psychiatric grounds if we cannot give Canadians with mental illness full access to treatment and support options.
Honourable senators, we cannot just throw up our hands at the gaps in our mental health care system and sign a death warrant to ease people’s pain, congratulating ourselves with the delusion that we do it out of a twisted sense of equality. This is not equality for people with mental illness. It is a complete dereliction of our duty as parliamentarians.
There are gaps in the mental health care system, and they are causing such suffering that people with mental illness are considering death rather than the further pursuit of treatment. The massive problems in our mental health care system make me angry. I’ve seen it. I’ve lived it with my husband. The fact that this Trudeau government will offer people death before addressing their need for treatment makes me livid. We as parliamentarians have a responsibility to do something about it, honourable senators, and it starts at the top, with holding this government accountable.
The Trudeau government, in its signature style, talks pretty words about mental health but does not follow through. In the 2021 election, the Liberal platform promised a “Canada Mental Health Transfer” of $4.5 billion over five years. Here we are nearly 18 months later, with one budget down and one on the way, and how much of that money for mental health has actually begun flowing? Not one red cent. According to the deadlines in their own Liberal campaign platform, this government is already more than $1.5 billion behind on their mental health care promises. How many wait-lists for psychiatric care will that help alleviate, honourable senators? How many Canadians with mental illness will that provide with treatment, testing or medications? Oh, that’s right — zero.
This government thinks they can put out a couple of tweets on Bell Let’s Talk Day, voice empty promises on mental health funding and never follow it up with action.
Honourable senators, I know many of you have your hearts in the right place, but if you really want to help people suffering with mental illness, why are you letting the government continue to get away with this? Why have you voted to give people with mental illness death before adequate supports? When this measure to extend assisted suicide was added by this chamber at the end of the Bill C-7 process, so that it has never had proper review before a parliamentary committee in either house of Parliament, why aren’t we forcing this bill to go through an intensive study now? Why is the only scrutiny this bill will receive going to be a one-hour Committee of the Whole split between two ministers?
Bill C-39 will pass. Those who want psychiatric MAID will vote for it, and those who vehemently oppose psychiatric MAID will vote for this bill to at least delay its enactment. We should be using the year of this delay to finally and honestly review whether it is right to expand assisted dying to people with mental illness, not how to implement killing them.
Minister of Justice Lametti says he intends to use this year delay in implementing psychiatric MAID to “allow everyone to internalize the standards” and “allow universities to prepare teaching materials” and “develop explanations.” What a load of bunk. The government recognizes the tide is turning against this awful expansion, and they’re hoping this delay will give them more time to do a sell job to Canadians.
Honourable senators, this one-year delay is needed today because Canada is not ready to extend assisted suicide to people living with mental illness. Psychiatrists and doctors are not ready. They are not comfortable with this, because extending assisted suicide to mentally ill patients contradicts the standard of mental health care, which is suicide prevention and the preservation of hope and life.
Canadians are also not ready for this. They’re not comfortable with it because they’re now witnessing in real time the nightmare scenarios that expanding assisted suicide so quickly have already caused. The rest of the world looks at our assisted suicide regime with shock — we’ve become the most permissive country on the planet. If everyone’s uncomfortable with it, it’s probably a good indication we’re doing something wrong, honourable senators. We need to stop this runaway train before it’s too late.
The one-year delay in Bill C-39 is a start, but it’s only a start. The federal government needs to use this year to completely re‑evaluate extending assisted suicide for mental illness. They have gone too far with this ideological experiment and are headed straight for the abyss. It has gone too far for psychiatrists, it has gone too far for Canadians and it is hurting most the people who desperately need us to continue to preserve hope for them — people living with mental illness. One of them, noted Canadian mental health advocate Mark Henick, put it this way:
To expand Medical Assistance in Dying solely for a mental illness would be the ultimate expression of systemic stigma and discrimination against people with mental illnesses. It would represent a final, preventable indignity to people who have been fighting for their right to recover, sometimes for a very long time, in spite of failing government healthcare systems which too often make recovery harder than it needs to be. It is unacceptable for lawmakers to abdicate their responsibility to some Canadians, those of us with a mental illness, and to wash their hands of their end of the social contract. We will not be so summarily culled by people in power who seem to see us as a systemic burden. People who have experienced a mental illness pay taxes too, and are valuable members of Canadian society. We will not let you let us down.
Honourable senators, we must not let them down. Thank you.
Honourable senators, I rise today to speak to Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), as the official opposition critic in the Senate.
Medical assistance in dying, or MAID, has been and remains one of the most complex and deeply personal issues for individuals, families and for our nation. The issue of expanding MAID eligibility to those suffering from mental illnesses is deeply personal for me as well, as I know individuals who have suffered and are living with complex mental illnesses, and I have witnessed first-hand what they and their families must endure in the process of finding the right treatments and solutions. Every case is unique. Assessments and effective treatments may take a long time, even decades, but I am grateful that MAID was never an option in their darkest hours, as it will be for others within a year’s time with the passage of C-39. Bill C-39 extends the exclusion of eligibility for receiving MAID in circumstances where the sole underlying medical condition identified is a mental illness until March 17, 2024 — a one-year delay from what is set out in the current law.
Bill C-7 expanded the eligibility for MAID to persons whose natural death is not reasonably foreseeable. Originally, the bill excluded eligibility to receive MAID in circumstances in which mental illness was the sole underlying medical condition. However, Senator Kutcher introduced an amendment at third reading to expand MAID to those with mental illnesses as a sole underlying condition, which was adopted with majority support in this chamber. The government accepted this amendment, and the law that was ultimately passed included a sunset clause date of March 17, 2023. This would mean that MAID for those suffering from mental illness would become legal next week unless we adopt the government’s eleventh-hour legislation, Bill C-39, to delay the expansion for one year.
With the expansion, Canada will become one of only four countries — including Belgium, Luxembourg and the Netherlands — in the entire world to allow MAID for some of the most vulnerable people in our society. Canada becoming a leader in the world in our rapid expansion of MAID is not something most Canadians would want Canada to be known for, in my opinion.
As honourable senators are aware, I served as joint chair of the Special Joint Committee on Medical Assistance in Dying, along with Liberal Member of Parliament Marc Garneau and with senators in this chamber who have already been named. The committee recently tabled our final report after examining several topics and issues involving MAID. The issue of expanding MAID to those with mental illnesses as a sole underlying medical condition was studied in the interim report tabled in June 2022. It was a difficult subject matter then, and it remains difficult as we debate C-39 today.
The committee held 36 meetings in total, heard from close to 150 witnesses and received more than 350 briefs and submissions. We heard compelling and emotional testimony from mental health patients, patient advocates, scientists, psychiatrists, MAID assessors and providers and other mental health professionals. There was a wide range of views brought forward debating the science, ethics, practicality and readiness for this proposal. The witnesses on all sides of the issue were passionate and informative. The overarching takeaway, however, was that there is no medical or scientific consensus at this time on the concept of MAID for mental illnesses. Many of those who were in favour of this expansion acknowledged that we are not ready to proceed and recommended further delay of this expansion.
In fact, in December 2022, even the Association of Chairs of Psychiatry in Canada, which includes the heads of psychiatry departments at all 17 medical schools, issued a statement raising concerns about the looming March 17, 2023, deadline and the lack of readiness for this expansion to take place safely and reliably, calling on the Liberal government to extend the sunset clause for MAID MD-SUMC.
As reported in the National Post on December 15, 2022:
. . . a lack of public education on suicide prevention as well as an agreed-upon definition of irremediability, or at what point someone will not be able to recover, are important, unresolved issues.
“Further time is required to increase awareness of this change and establish guidelines and standards to which clinicians, patients and the public can turn to for more education and information.”
When we are discussing policy proposals in which the cost of getting it wrong is wrongful or unnecessary death, why would we even consider moving forward without overwhelming consensus among experts?
As Dr. Sonu Gaind, former president of the Canadian Psychiatric Association told our committee:
. . . our law does not say grievous and irremediable conditions are determined by an ethical decision. It should be a scientific decision.
The government did establish an expert panel to study MAID and mental illness as a sole underlying medical condition. However, this panel was created after the passage of the sunset clause and the members were not asked to consider whether Canada was ready, whether it is possible to do this safely or whether there was scientific consensus to justify this expansion. The expert panel was tasked with presenting recommendations on implementation. The work of the expert panel should not be misconstrued as expert consensus. In fact, even the panel’s final report indicated that it would be difficult, if not impossible, to predict irremediability with mental disorders.
This view — the inability to predict irremediability — was a concern raised by several experts. If we do not have certainty of irremediability as a safeguard in our MAID regime, what meaningful safeguards against premature death do we really have?
Dr. Mark Sinyor, a professor of psychiatry, told the joint committee:
In physician-assisted death for sole mental illness, we have no numbers at all. Neither we nor our patients would have any idea how often our judgments of irremediability are simply wrong. This is completely different from MAID applied for end-of-life situations or for progressive and incurable neurological illnesses, where clinical prediction of irremediability is based in evidence.
In the context of physician-assisted death for sole mental illness, life or death decisions will be made based on hunches and guesswork that could be wildly inaccurate. The uncertainties and potential for mistakes in mental illness are enormous and, therefore, the ethical imperative to study harms in advance of legislation is accordingly immense.
Sean Krausert, Executive Director of the Canadian Association for Suicide Prevention, pointed out that a patient’s treatment refusal does not equal irremediability, as well as that when it comes to mental illness, irremediability must remain objective. He stated:
MAID should not be provided to patients suffering from a condition that does not have reasonable foreseeability of death, unless there is clear scientific evidence that the condition is irremediable. Irremediability must always be objective and never subjective. There is no evidence that concludes that mental illness falls into this category.
Our joint committee continued its work through the fall sitting of Parliament, hearing from more witnesses on this topic, and raising more questions than answers.
Dr. John Maher, a clinical psychiatrist and medical ethicist who appeared before the committee, said:
Psychiatrists don’t know and can’t know who will get better and live decades of good life. Brain diseases are not liver diseases.
Honourable senators, the idea of a mental health patient receiving MAID when the irremediability of their illness is subjective, and open to interpretation, troubles me greatly. Canadians share this concern. According to a recent national Angus Reid poll, although Canadians agree with MAID generally, only 31% agree with MAID for irremediable mental illness. We can only imagine how much that number would drop if Canadians were asked if they would support MAID for mental illness in cases where experts disagree on the irremediability.
Concerns were also raised at committee about the inability to distinguish between suicidality and requests for MAID. It is indisputable that mental health services in Canada are grossly insufficient. According to the Centre for Addiction and Mental Health, only half of Canadians experiencing a major depressive episode receive “potentially adequate care.” One third of Canadians aged 15 or older who report having a need for mental health care say those needs have not been met. Seventy‑five per cent of children with mental disorders do not have access to specialized treatment services. Aboriginal youth are about five to six times more likely to die by suicide than non-Aboriginal youth. Suicide rates for Inuit youth are among the highest in the world — at 11 times the national average.
These are very troubling statistics, and, based on the Indigenous witnesses at committee — who also expressed their deep concerns about the impact of MAID on their communities, particularly on Indigenous youth — we know that more consultations are needed, and careful attention must be given to safe and appropriate MAID expansion for Indigenous communities.
We know that one of the symptoms of many mental illnesses is the wish to die, and, yet, before the government has honoured their funding commitments to improve mental health care, they are moving forward with a policy that will offer assisted death. How can we be certain that we are providing mental health patients with a fair and honest choice? How can we be certain that feelings of suicidality associated with mental illness are not a factor in the request for MAID? As many experts told the joint committee, we cannot.
Sean Krausert noted that he likely would have chosen MAID in his “darkest days” of depression and anxiety, and now he has a rich life with successful medication and therapy. Similarly, Dr. Georgia Vrakas, a psychologist and professor, said:
In this context, giving people like me the green light to get medical assistance in dying is a clear signal of disengagement from mental illness. It sends the message that there is no hope and that we are disposable.
Colleagues, on February 2, the Honourable David Lametti, Minister of Justice, tabled Bill C-39 just weeks away from the March 17 deadline. Bill C-39 gives a one-year extension for mental illness as a sole underlying condition for MAID. But how can the government ensure that a year from now we will have the necessary answers, resources and safeguards in place to protect some of our most vulnerable people? There is no evidence to indicate that the difficulties around important issues, such as predicting irremediability and the inherent risk to vulnerable persons, will be resolved in a year.
The Liberal government has created Bill C-39 to attempt to fix the problems they created with their rushed approach to Canada’s MAID regime, but this is not an acceptable solution.
I will, reluctantly, support Bill C-39 because, without it, MAID for those with a mental illness as a sole underlying medical condition will be legal in 10 days. It is my sincere hope that this year will give parliamentarians a chance to pause and seriously reflect on the direction we are going. We would be proceeding with legislation with life-and-death consequences before we have any meaningful evidence to justify doing so. Canada is on track to be one of the jurisdictions referenced in other countries as a dangerous example.
Honourable senators, we have an opportunity to listen to the experts, and exercise the caution that this delicate issue requires. I hope many of you will join me in supporting my colleague in the House of Commons MP Ed Fast, and his private member’s bill, Bill C-314, which provides that the term “grievous and irremediable medical condition” — contained in Canada’s MAID regime — will not include mental disorders.
All policy should be based on evidence, and I cannot imagine a more crucial example than the policy around the MAID regime. I will question Minister Lametti tomorrow during Committee of the Whole on how he will ensure that the proper safeguards will be in place, and how concerns raised by experts and advocates will be fully addressed — or perhaps to re-evaluate expanding MAID if concerns remain within the year ahead.
I also look forward to working with my Conservative colleagues over the next year to put a stop to any dangerous expansion, and protect our most vulnerable Canadians.
Thank you.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
(Motion agreed to and bill read second time, on division.)
Honourable senators, when shall this bill be read the third time?
(On motion of Senator Kutcher, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.)
