The joint announcement by Health Minister Mark Holland and Justice Minister Arif Virani Jan. 29, 2024 followed the tabling in the Commons that day of the 3rd report of a special joint Senate-Commons committee on MAID, which was directed to study the degree of preparedness in Canada to safely and adequately provide MAID to those whose mental disorder is their sole underlying condition.
People whose sole “irremediable” underlying health condition is a mental disorder were subject to a “temporary” exclusion from MAID eligibility under Bill C-7 — which exclusion was to sunset by March 17, 2023 — but which expiry was further postponed to March 17, 2024 by Bill C-39. The Trudeau government argued last year that the extra one year of delay was needed to ensure MAID assessors and providers (i.e. doctors and nurse practitioners) are ready to assess, in line with guidelines and protocols and “in a safe and consistent manner across Canada,” requests for MAID by persons suffering solely from a mental illness.
In its much anticipated Jan. 29, 2024 report, the special Parliamentary joint committee on MAID concluded, by a majority comprising MPs and a minority of participating senators, that in light of “conflicting testimony” it heard in examining the issue, Canada has not achieved the necessary preparedness “for a safe and adequate application of MAID, where mental disorder is the sole underlying medical condition.”
Health Minister Mark Holland
Holland said the government would introduce a bill “in a couple of days” to delay access to MAID for people whose only underlying condition is a mental disorder. He declined to disclose how much longer the government proposes to deny access, citing Parliamentary privilege.
“We’ll be in a position to talk exactly about timelines” once the government unveils the bill “imminently,” Holland said. He confirmed that the Trudeau government remains committed to moving ahead with access to MAID for mentally ill individuals. When it comes to MAID access, “I don’t think there’s any question that there is equivalency” between mental and physical suffering, Holland said.
“The question here is one of readiness,” the health minister emphasized. “Although the [MAID] curriculum is present, although the guidelines are set, there has not been enough time for people to be trained on them. Provinces and territories are saying their systems are not ready and need more time.”
In its report, MAID and Mental Disorders: The Road Ahead, the Parliamentary committee on MAID, by a majority, made just two recommendations:
- that MAID where mental disorder is the sole underlying medical condition “should not be made available in Canada until the Minister of Health and Minister of Justice are satisfied, based on recommendations from their respective departments and in consultation with their provincial and territorial counterparts and with Indigenous Peoples, that it can be safely and adequately provided;” and
- that “one year prior to the date on which it is anticipated that the law will permit MAID,” pursuant to the preceding paragraph, the House of Commons and Senate re-establish their special joint committee on MAID “in order to verify the degree of preparedness attained for a safe and adequate application of MAID” where a person’s sole underlying medical condition is a mental disorder.
Senator Pierre Dalphond
He added that a permanent exclusion, or a lengthy and indeterminate delay, could cause some — who otherwise meet the MAID eligibility requirements — to launch a constitutional challenge in court, “a long and costly process, and to endure extreme suffering in the meantime.”
And if Parliament decides “to extend the exclusion for the proposed indeterminate period” recommended by the special committee’s majority, Dalphond “invited” the government to send a reference question to the Supreme Court of Canada “to rule on the constitutionality of such an extension as soon as possible.”
Dalphond’s dissenting recommendation of a reference to the Supreme Court if the government seeks to extend the exclusion was supported in a separate dissenting opinion co-authored by two physicians, Independent Senators Stan Kutcher and Marie-Françoise Mégie, and ex-journalist Pamela Wallin of the Canadian Senators Group, whose opinion was also endorsed by Senators Flordeliz Osler and Mohamed-Iqbal Ravalia (the latter both physicians).
The dissenting senators argued that the committee failed to protect Canadians’ Charter rights and ignored key evidence. They contended that the recommendation of the majority is invalid because the MAID committee did not do its work in an objective and unbiased way, including failing to: allow enough time to hear from knowledgeable witnesses regarding the achievement of the preparedness criteria; invite medical regulators and MAID providers from all the provinces and territories to speak about health system preparedness in their jurisdictions; and “consider essential evidence made available in briefs related to provincial preparedness.”
“When MAID was first made available in Canada, there was no discussion of ‘preparedness,’” the five dissenters remarked. “Physicians, health systems administrators and regulators worked quickly and effectively to learn the necessary procedures, create standards of care, and establish critical pathways,” they said. The demand for preparedness for MAID for those whose sole underlying condition is mental illness “stands in sharp contrast to that historical reality and can perhaps be best understood as discrimination and stigma against those who live with and suffer from a mental disorder.”
The majority of the special joint committee on MAID, led by the co-chairs, Liberal MP René Arseneault and Conservative Senator Yonah Martin, said the evidence heard by the committee “clearly demonstrates that governments, regulators, professional associations and practitioners have worked very hard to prepare for MAID” for persons whose sole underlying condition is mental illness “and have made significant progress.”
“The federal government has responded to the call to support the development of both model practice standards and an accredited training program for MAID assessors and providers,” the majority wrote. “Data collection requirements are in place at the federal level. At the provincial level, the model practice standards are being adopted or adapted, and work on clinical practice guidelines, research, professional development opportunities, and oversight mechanisms is ongoing.”
“Nevertheless,” the majority said, “the committee also heard significant testimony that some stakeholders perceive a lack of readiness to proceed . . . at this time.”
The majority said that “many health care practitioners remain concerned,” particularly regarding the challenges of: assessing whether the underlying mental disorder rises to the requisite “grievous and irremediable medical condition”; distinguishing requests for MAID from suicidality; and “protecting the most vulnerable in our society.”
The majority also cited a “lack of professional consensus.”
“The committee heard that many psychiatrists do not support the practice of MAID” for those whose sole underlying condition is a mental disorder, the majority said, noting, however, that some witnesses also pointed out that there is no consensus on many existing medical practices, “and that this is not generally considered a justification for prohibition.”
With respect to Charter considerations, the committee’s majority said “legal experts’ opinions differed regarding the constitutional issues raised.”
“According to some, the ongoing exclusion from MAID of people suffering solely from a mental disorder risks violating the rights to equality, liberty and security of the person protected by the” Charter, the majority said. “Others believed that the failure to afford Criminal Code protections against death to the most vulnerable, including people with disabilities and mental disorders, is itself discriminatory and unconstitutional.”
The committee referred to evidence from Myriam Wills, counsel with the criminal law policy section of the federal Department of Justice, “that there are Charter considerations supporting the constitutionality of both prohibiting and permitting” MAID for persons whose sole underlying condition is mental illness.
A supplemental opinion reflecting the views of the Conservative MPs and senators on the committee called on the Liberal government to “abandon MAID for mental disorders.”
For its part, the Bloc Québécois raised questions, in a “complementary” opinion to the report of the majority, about the wording of the committee’s final recommendation and expressed reservations about the methodology and organization of the committee’s work in fulfilling its task.
The report says the committee heard testimony from 21 witnesses including legal and medical experts, practitioners, representatives of professional associations, mental health organizations and regulators, as well as from Health Canada and the Department of Justice. The committee also received hundreds of written submissions.
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