Medical assistance in dying committee vice-chair Tamara Jansen speaks as members Andrew Lawton, Todd Doherty and Michael Cooper look on in the foyer of the House of Commons on Parliament Hill in Ottawa on June 17.Adrian Wyld/The Canadian Press
The 17-member Special Joint Committee on Medical Assistance in Dying has spoken. Its 88-page final report features a single recommendation: “That the Government of Canada amend the Criminal Code to indefinitely exclude persons whose sole underlying medical condition is a mental illness from eligibility for medical assistance in dying.”
The gist of the report is that Canada is not ready to offer MAID MD-SUMC, and likely never will be.
It’s a spectacular example of the “can’t do” spirit of our legislators. Several other countries, like The Netherlands and Switzerland, have figured this out. But we can’t?
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The report focuses on two main questions: Can “irremediability” of mental illness be predicted accurately? Can clinicians distinguish between a rational request for MAID and suicidality?
The committee’s answer to those questions is “no.”
Yet, according to the Canadian Psychiatric Association, “clinicians are already required to conduct rigorous, individualized assessments to determine whether a person has the decisional capacity to make health–care choices,” and there is no reason they could not do so for MAID.
Accurately predicting how a disease will progress, whether it is cancer or bipolar disorder, is not a precise science but, by and large, clinicians can figure out if someone has a reasonable hope of recovery.
If someone’s treatment has failed for three decades – which is the kind of MAID MD-SUMC request we will see – you can pretty safely say their illness is “irremediable.”
Opponents of MAID like to pretend that people with a touch of the blues are going to walk in off the street and get a lethal injection, but the assessment process for Track 2 (not “reasonably foreseeable”) is already rigorous, and will be more so for MAID MD-SUMC. Experience from other countries tells us very few people would be approved.
The parliamentary report discusses at length the need for more and better access to mental health services. Nobody disagrees with that, but it’s not a reason to deny access to MAID.
As the group speaking for Canada’s 3,700 psychiatrists says: “The CPA emphasizes that mental disorders alone must not be used as a proxy for incapacity or vulnerability, and that people with mental illness deserve the same considerations and approach to health-care decision-making as all Canadians.”
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The other problem with the committee’s report is that it leaves the impression that there is consensus, unanimity even.
But, in addition to the central report, which is a long summary of the “on the one hand, but on the other hand” testimony to the committee, there are five other “supplementary reports.”
Senator Pierre Dalphond, a long-time Quebec judge, says denying access to MAID for people with mental illness is unconstitutional. He suggests creating a “Track 3” in the law, where an independent review board determine if a person whose sole underlying condition is a mental disorder is eligible.
There is a dissenting opinion from four independent Senators calling the committee process “fundamentally flawed, highly irregular, biased, and lacking evidentiary rigour.”
The solution, for them, is to refer the proposed law directly to the Supreme Court of Canada to determine if it is constitutional, thus avoiding years of litigation.
There is a supplementary report from the Liberal Party (which seems to be penned solely by committee co-chair Marcus Powlowski) essentially repeating what’s in the main report but adding some eyebrow-raising opinions, including citing the Ten Commandments’ “thow (sic) shall not kill” and arguing that no one is being denied the right to die because they can always kill themselves, using fentanyl no less.
There is a supplementary report from the Conservative Party arguing that expanding the MAID law would be “reckless and dangerous,” but which mostly trashes the Liberals for going too far. It also urges the government to support Bill C-218, a private member’s bill that would prevent MAID for mental illness.
Finally, there is a dissenting report from Luc Thériault of the Bloc Québécois decrying the committee for being partisan and dysfunctional. He trashes the lone recommendation as “discriminatory and unconstitutional” and the committee’s majority for lacking the courage to refer the issue to the Supreme Court.
In short, it’s a dog’s breakfast.
What is Justice Minister Sean Fraser to do with this advice?
There is no question that, like every other MAID-related issue, the fate of the law will eventually be determined by the courts.
So, Mr. Fraser should get it over with and refer the issue directly to the Supreme Court.
Justices, after all, actually make reasoned decisions. Something our politicians seem to struggle with mightily.