As parliamentarians and as legislators, honourable senators, we have the responsibility to consider the implications of widespread access to assisted suicide.

I am concerned when I hear certain safeguards being dismissed because they would limit access to assisted dying, for when we begin to view safeguards as mere "barriers to access" for ending a life, I think we have lost perspective on the entire question.

In no uncertain terms, physician-assisted suicide is the taking of a life. It should not be easily obtainable. It should be a last resort. Given what is at stake, surely it is not unreasonable that we pause and reflect a few times during the approval process. I am concerned that in our haste to deal with this legislation, we are failing to ensure that the necessary safeguards are in place to properly protect the vulnerable.

There are a number of basic safeguards that are not spelled out in Bill C-14. The usual response when the question of safeguard is raised is that the federal government will leave it to the medical regulators in each province and territory to figure it out, yet the regulations vary widely among the different regions.

For example, at the Standing Senate Committee on Legal and Constitutional Affairs on Monday, we learned — and I find this highly disturbing — that three jurisdictions — Alberta, New Brunswick and Yukon — all now have medical regulations that could potentially allow children to access assisted suicide. Other provinces and territories have minimum adult age limits in order to qualify.

In the interests of clarity, the Liberal government should clarify these types of situations in legislation so that there remains no confusion about what is acceptable under the law.

Honourable senators, I am particularly concerned about the lack of safeguards for the mentally ill in this legislation. Proponents of Bill C-14 point out that the preamble excludes those people with psychological suffering as a sole basis for accessing assisted suicide, as if that were an adequate safeguard for those who are mentally ill. I submit that it is not.

People who have mental illness in addition to a grievous and irremediable physical condition will still be considered for assisted suicide under this legislation. There are no specific safeguards for that additionally complicated situation, and I believe there should be.

When Minister Wilson-Raybould was speaking in our chamber last week, she referred to the recent E.F. assisted suicide court case in Alberta, where one of the doctors had evaluated the patient over FaceTime. The Justice Minister was shocked to hear this, of course, but failed to mention that her bill, Bill C-14, does not even require that much of an evaluation before determining a patient with mental illness is fit to die. That is simply not acceptable.

As I explained in my speech at second reading, the Senate Legal Affairs Committee heard a great amount of evidence from mental health experts on this issue. They indicated that mental illness merits special considerations in the face of the devastatingly final choice of assisted suicide.

The head of the Canadian Psychiatric Association told us at the Legal Committee:

The very symptoms of mental illness may thus make individuals particularly vulnerable to be induced to end their life at a time of weakness.

Symptoms of mental illness can affect a person's emotional resilience, making even normal life stresses seem unbearable, and can lead to cognitive distortions, including negative views of oneself and the future. Thus, symptoms of mental illness not only lead to suffering but may also independently affect the person's decision-making process regarding their will to live or die.

Honourable senators, I am all too aware of what the reduced capacity of one suffering with mental illness looks like. As many of you know, my husband, former member of Parliament Dave Batters, struggled with severe anxiety and depression and died by suicide in 2009. Unfortunately, I have first-hand knowledge of the different decision-making capacities of someone with mental illness and their suicidal thoughts. For someone who is mentally ill, there can be a tunnel vision that makes that person want to end his or her life, even when there are many other viable options obvious to all around them.

Mental illness is not a terminal condition. It is often treatable, and many of the symptoms of psychological illnesses may ebb and flow somewhat, depending on the circumstances of an individual's life — problems, stressors, et cetera. One of the primary symptoms of many mental illnesses is the lack of perspective about one's own life and its worth. Clearly, medical assistance in dying should not be extended to someone in that altered mental state.

Furthermore, it is true that a number of psychiatric illnesses can significantly increase one's risk of suicide. The mental health professionals at our committee explained that some psychiatric medications may also have the side effect of increasing the frequency of suicidal thoughts. Again, this is something I have unfortunately witnessed first-hand.

Knowing this, I think it would be unfair for us to ignore the special considerations of mental illness where it is present in assisted suicide cases. We must establish strong safeguards to ensure that no person struggling with mental illness can ask the state to end his or her life if there is hope that life could get better. How do we determine whether a patient with mental illness is capable of providing informed consent on the matter of his or her own death? At least one psychiatrist or psychologist should be required to assess a patient as part of the eligibility approval process.

As Dr. K. Sonu Gaind, President of the Canadian Psychiatric Association, told us during our deliberations on Bill C-14 at our Legal Committee:

A psychiatrist. . . . needs to be involved in part of the capacity assessment when mental illness is present, largely because some of the cognitive changes can be quite subtle and they can be missed unless you are expert in the area.

Currently, Bill C-14 would allow a nurse practitioner in to fulfill this role. While nurse practitioners may have training and experience in a lot of different areas, they are not experts in psychiatry.

Another expert witness who appeared at our committee raised the issue of difficulties for assessing capacity for people with psychiatric illnesses. He stated:

. . . I would state emphatically that anyone who is not worried about the difficulties associated with assessing the capacity of persons with severe psychiatric disorders who are requesting PAD is not basing that view on existing data.

For this reason, it is imperative that a mental health professional is responsible for conducting this assessment.

Furthermore, in cases where mental illness resides along with a patient's grievous and irremediable physical condition, a longer waiting period should be required. Currently, Bill C-14 states that the waiting period between the date that the request for assisted suicide is made and the date the assisted suicide is provided should be at least 10 days. Clearly, this is woefully inadequate in the case of someone suffering from mental illness.

In Canada, the average waiting period to see a psychiatrist spans from months to years, depending on your region. As I mentioned earlier, the nature of mental illness is such that it can fluctuate in intensity, and when circumstances change, often the symptoms of mental illness can be affected as well.

Psychosocial factors must also be taken into consideration. A patient's relationships, employment, emotional issues, support network or lack thereof, knowledge of all of these things would better inform a clinician of a patient's capacity and capability to consent to his or her own death. A week and a half is not even long enough to fully observe a patient's mental illness over multiple appointments.

A number of the mental health professionals who testified at our Senate Legal Committee testified to the importance of having a longer wait time in cases where mental illness is present.

Psychiatrist Dr. Padraic Carr stressed the importance of "adequate wait time between assessments to ensure that interviews are not unduly influenced by immediate circumstances." He referred to the then 15-day waiting period as "inadequate if mental illness is present or suspected."

The Mental Health Commission of Canada advocates a waiting period of three months between the request and receipt of medical assistance in dying. Psychologist Patrick Baillie told our Legal Committee that the Mental Health Commission of Canada supported a longer waiting period:

. . . not only to allow for further assessment but also to allow for the opportunity for the individual to perhaps be informed about other forms of treatment that are available beyond those pharmacological interventions, for example, that have previously been tried.

Honourable senators, these are words of mental health experts in the field, people who work with mentally ill and suicidal patients every day. They will tell you that a week and a half is not long enough to fully evaluate someone suffering with psychiatric issues who claims they want to die.

This is why our Senate Legal Affairs Committee — a committee with Conservatives, Liberals and an independent — unanimously agreed to recommend a 90-day waiting period in our pre-study recommendations.

There are those who maintain that requiring additional safeguards in assisted suicide for the mentally ill is discriminatory. As someone who has devoted considerable time advocating for mental health and suicide prevention in the past several years, and as a suicide loss survivor, I completely reject that argument.

I will be moving an amendment, so perhaps the pages could start to pass it out now.

Mental illness presents a unique set of challenges and circumstances for any regime that allows the mentally ill to access physician-assisted suicide. In the words of Dr. Gaind:

"Equity" does not mean everything is the same; it means treating things fairly and impartially. Failure to consider the particular circumstances of mental illness, as it could impact MAID processes, would itself be stigmatizing or discriminatory, as it would fail to acknowledge the realities of mental illness on people and their lives.

This is exactly it, honourable senators. As legislators we need to recognize the particular needs of Canadians living with mental illness and respond sensitively with a cautious and considered approach in any legislation that affects them.

There is no more fundamental issue than the one before us today, honourable senators. It is truly a matter of life and death.

The Senate of Canada was groundbreaking in undertaking the first major national study on mental health issues Out of the Shadows at Last chaired by former Senator Michael Kirby. Some of you who are here today I know served with him in that excellent endeavour.

We have a great history in this place of protecting the vulnerable, and people living with mental illness are among some of our most vulnerable Canadians. As senators, we have the responsibility to stand up for them and to protect their interests in this assisted suicide legislation. Let's use our collective sober second thought to increase the safeguards for mentally ill Canadians.

Whether you think Bill C-14 is too broad or too restrictive, I respectfully ask you to support me in calling for a psychiatric assessment and a 90-day waiting period in cases where mental illness is present alongside a grievous and irremediable physical condition.

Motion in Amendment

Hon. Denise Batters: Therefore, honourable senators, I move:

That Bill C-14, as amended, be not now read a third time, but that it be amended in clause 3,

(a) on page 5, by adding the following after line 26:

"psychiatrist means a medical practitioner who is entitled to practise psychiatry under the laws of a province. (psychiatre)

psychologist means a person who is entitled to practise psychology under the laws of a province. (psychologue)";

(b) on page 6, by adding the following after line 26:

"(a.1) ensure that, if the person has a mental illness, the person has been assessed by a psychiatrist or psychologist as being capable of making decisions with respect to that person's health;";

(c) on page 7,

(i) by replacing line 11 with the following:

"(g) subject to subsection (3.1), ensure there are at least 10 clear days between", and

(ii) by adding after line 30 the following:

"(3.1) If the person requesting medical assistance in dying has a mental illness in addition to the grievous and irremediable medical condition referred to in paragraph (1)(c), the period referred to in paragraph (3)(g) is increased to at least 90 clear days."; and

(d) on page 9, by replacing line 2 with the following:

"graphs 241.2(3)(a.1) to (h) and subsection 241.2(8) is guilty".

Thank you.

The Hon. the Speaker: Honourable senators, in amendment, it is moved by the Honourable Senator Batters, seconded by the Honourable Senator Oh:

That Bill C-14 as amended be not now read a third time but that it be amended in clause 3,

(a) on page 5 —

Shall I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: As honourable senators are seeing this amendment for the first time, I believe we should take a few minutes for senators to review it and see how it fits into the structure of the amended bill before continuing debate.

Hon. James S. Cowan (Leader of the Senate Liberals): Honourable senators, might it be in order for me to suggest to colleagues that in order to expedite and ensure we give the proper consideration to amendments, that it would be helpful for amendments to be circulated to colleagues in advance. I think it diminishes the quality of the debate when serious amendments are proposed but we do not have an opportunity to see them in advance. Many of us have circulated them, and I would ask Your Honour to commend that to colleagues.

The Hon. the Speaker: Senator Cowan raises an interesting point, but whether or not amendments are distributed ahead of time is entirely up to the discretion of the senator proposing the amendment.

Senator Cowan: I understand.

The Hon. the Speaker: We're taking a moment for senators to review it and then we will move to questions.

Are honourable senators ready for questions? Senator Plett.

Hon. Donald Neil Plett: Thank you, Your Honour. I thank Senator Batters very much for introducing her amendment. I think it is imperative that mental health professionals assess competency to consent in a situation of this gravity. I also remember Dr. Patrick Bailey making a compelling case for an extended time in accessing assisted suicide, yet the government shortened it instead of lengthening it.

Can the honourable senator explain why she has included both psychologist and psychiatrist as being able to conduct this assessment?

Senator Batters: I thank the honourable senator for the question and for all of his support on these types of issues.

First of all, Patrick Bailey from the Mental Health Commission of Canada made a very compelling case at our Legal Committee talking about the length of time it takes in Canada to see a psychiatrist. As well, something just raised with me earlier today, a reminder of how long sometimes some of these particular medications can take to even start working. It can be six weeks or more for them to start working, so to really give people a chance for some realistic help, and that may be the first time they seek help. Too many people in Canada do not seek help for mental health issues, and I always encourage people to get to a doctor, to deal with things at an early stage.

Dealing with the issue of psychiatrists and psychologists, the reason I decided to add psychologist into this particular portion, to allow people to access that as an avenue as well, is to simply recognize that in Canada we have significant mental health gaps and many areas of the country have very few psychiatrists but perhaps more psychologists. It provides the opportunity for people and does not take it away as an option, and often it takes less time to get in to see a psychologist, and it's a less-costly situation as well. Some places even offer those types of services through different service organizations. The amendment is to provide more access and allow people to get better help.

Senator Plett: Just one more question. Last evening when I presented an amendment that unfortunately didn't pass, part of that amendment at 241.2(3) where it says "to (h)," the bill has a correction where they added clause (i).

This may be a housekeeping issue, but I had corrected that in my amendment, that it was (a) to (i), but you still have in your amendment (a) to (h) and there is a clause (i). I assume, Senator Batters and Your Honour, that this may be a housekeeping error but there is a clause (i).

The Hon. the Speaker: Senator Batters, your time has expired. Are you asking for more time to answer the question?

Senator Batters: Yes, Your Honour, to be able to answer Senator Plett's question.

Hon. Senators: Agreed.

Senator Batters: Yes, that is a housekeeping matter that was not caught. Thank you for bringing that up. We caught it earlier adding (a).1, but it was a housekeeping thing, so perhaps the legislative drafting people could insert that and it could be considered an acceptable friendly amendment. I'm not sure how that is properly worded but I would definitely be accepting of that. Thank you.

The Hon. the Speaker: Senator Batters, are you asking for more time to answer more questions?

Senator Batters: Yes, if I could have five more minutes.

The Hon. the Speaker: Agreed, colleagues?

Hon. Senators: Agreed.

Hon. Jim Munson: I want to know why you chose 90 clear days, is 90 a magic number? Did you choose that for a reason as opposed to a 100 or 60 days?

Senator Batters: First of all, the wording "clear days" is in the bill currently, where it refers to the regular waiting period of 10 clear days. That's not new, magical language.

Also, the 90-day period was chosen because the Mental Health Commission of Canada requested that period. They're a widely known organization that has done good work for people across the country on this issue. They talked to us in committee about the lengthy waiting periods for psychiatrists in Canada, so they suggested a three-month waiting period. They provided justification for that. That's why I came up with 90 days in my amendment.

Hon. Carolyn Stewart Olsen: Would you accept a question?

Senator Batters: Absolutely.

Senator Stewart Olsen: Some people would think that the bill we're looking at actually covers this amendment by saying that you have to be mentally competent and an adult. In the definition of "mental competency," is it not correct you could be severely depressed but still be mentally competent?

That clarification might make a difference.

Senator Batters: Yes. That is true, that you still can have mental illness and be mentally competent. For someone with mental illness, it is more appropriate that the assessment of mental competency be made by someone with professional mental health experience, a psychologist or psychiatrist, rather than a medical practitioner or a nurse practitioner. It is also to ensure that person is requesting medical aid in dying because they really want to die, not just because they're mentally ill and they have tunnel vision and can't find their way out. They may just need better help and support in their situation.

Hon. Jane Cordy: When I look on page 13 at section 9.1 of the bill, it says there will be an independent review, and it says:

The Minister of Justice and the Minister of Health must, no later than 180 days after the day on which this Act receives royal assent initiate one or more independent reviews of issues relating to request by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition. . ."

And it continues

. . . and to requests where mental illness is the sole underlying medical condition.

I'm not sure I understand all the ramifications of somebody who is mentally ill requesting assisted dying. I would prefer that the minister do the study on the whole issue of mental illness to determine things that we may not even be thinking about today. What do you think about the aspect of the bill that provides for an independent review of mental health and where it stands in relation to assisted dying?

Senator Batters: I have been opposed to that particular issue for some time. I have consistently spoken about it in national media and speeches for the last six months. I do not believe those whose sole underlying condition is mental illness should be eligible for assisted suicide. I understand the government has chosen to do that study.

This aspect is not implicated in that possibility. That study may take two or three years. In the meantime, we want to make sure that people who have mental illness, in addition to a grievous physical condition such as cancer, are seeking assisted suicide for the right reasons. You could have someone with depression and cancer. We want to make sure they are receiving the proper care and help and they have decided they want to access assisted suicide, not simply because they have mental illness and mental illness is making them decide they want to die, but that that has been independently assessed by someone with the qualifications to do so.

The government study will be undertaken at some point for those other particular issues. I want to make sure that the date this law goes into effect we have the proper protections we need to ensure those safeguards are in place for those with mental illness.

Dealing also with mental illness as a sole underlying condition, when I outlined my concerns to Canadians, they were adamantly opposed. I received a flood of emails, calls and letters thanking me for standing up for people who may find themselves without help or resources. They didn't think the proper reaction was to provide them with a devastatingly final choice of suicide and nothing else. Thank you.

Hon. Claude Carignan (Leader of the Opposition): As I was rereading the amendment, I was trying to come up with practical situations where this could happen, and I thought of quite a few. A person close to me has Alzheimer's disease. It seems to me that it would be discrimination to prolong the suffering of a person with a mental illness that affects or may affect judgment for an extra 90 days simply because these mental illness elements were added. I don't see the logic in prolonging the suffering of a person with a mental illness for 90 days if that person was competent when the request for medical assistance in dying was made. I don't understand.

The Hon. the Speaker: Your extended time has expired. Are you asking leave to respond to Senator Carignan's question?

Senator Batters: Yes, please.

The Hon. the Speaker: Granted, colleagues?

Hon. Senators: Yes.

Senator Batters: Senator Carignan, I would never want to in any way someone to consider that I was discriminating against people with mental illness. It is something I have been advocating for strongly for several years, and I'm always very careful about that.

As I indicated in my speech, treating people differently because of different situations they have doesn't necessarily mean that it is discriminatory. We're just trying to provide people with a different decision making capacity while they have mental illness. We received a lot of information about that in evidence at our legal committee. We want to make sure that people who really need help are receiving it, and that they're not seeking suicide as a means out when what they need is proper treatment for mental illness.

Perhaps what they need is to be able to see a doctor, get some proper medication, get some treatment, see a psychologist who can do talk therapy, consult their family and friends, have that time to make sure that they're properly being cared for, For so many of these people what they have lost in their lives when they have mental illness is hope. We want to provide them with help and resources and hope, not just simply the means to kill themselves.