Justice Minister Sean Fraser's proposed changes to Canada's medical assistance in dying laws have raised concerns about access and patients' rights.Justin Tang/The Canadian Press
Justice Minister Sean Fraser announced last week that the federal government plans to bar medical assistance in dying (MAID) for patients whose sole underlying condition is mental illness.
There are two reasons this is necessary, he said: One, there is inadequate access to mental health services in some communities; and two, there is a lack of consensus on whether mental health conditions can be irremediable.
The first excuse is easily enough rectified by investing appropriately in mental health care. No one would object to making access to mental health services more accessible and equitable, least of all patients whose suffering has been enduring and intolerable.
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Yet, more readily available care is not magically going to make a grave, irremediable condition any less so.
Even the Canadian Psychiatric Association (CPA) acknowledges that conditions like depression can, in a small minority of patients, be untreatable. They have good guidelines for determining if that is the case.
The CPA has warned that having a mental illness should never be used “as a proxy for incapacity or vulnerability,” which is exactly what the government is doing.
Why does Ottawa feel access to services must be a condition of access to MAID-SUMC? Many communities have poor access to cancer care. Should we be denying people who live there access to MAID, too?
And does making better care a pre-condition of MAID-SUMC mean they must also avail themselves to treatment? Because forced treatment isn’t obligatory for people with any other medical condition, nor should it be.
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Creating additional barriers to MAID for people with mental illness is discrimination, pure and simple.
Mr. Fraser received bad advice from a parliamentary committee and unfortunately embraced it.
The Justice Minister unveiled his vague promise of legislation in response to a private member’s bill from Conservative MP Tamara Jansen, which calls for the Criminal Code to be amended to state that a “mental disorder is not a grievous, irremediable condition.”
That is a ridiculous proposition because, in addition to being untrue, it ignores the fact that medical diagnoses need to be done on an individual basis. The categorical exclusion of a large group of people with a specific diagnosis would be a disturbing precedent.
The second part of Mr. Fraser’s recent announcement was that the federal government, in its promised legislation, would “open the door” for people to make advanced requests for MAID.
For example, someone in the early stages of dementia could decide that when they reach a certain stage of incapacity, they receive MAID, even if they are incapable of consent at that time.
The catch here is that Ottawa would amend the Criminal Code and it would still be up to the provinces to determine if they would allow advance consent.
Currently, Quebec is the only province that does, while Alberta has explicitly said it is not allowed. Mr. Fraser’s approach only guarantees that there will be inequity across the country.
Advanced consent is a challenging issue. Many members of the greying population desperately want the right to end their lives, especially if they have dementia. Anti-choice activists make outrageous claims about the culling of the elderly.
But one thing MAID proponents and opponents agree on is that combining advanced consent and MAID-SUMC in a single piece of legislation is problematic.
The upshot will likely be more study and indecision.
On the issue of MAID-SUMC, the Trudeau-Carney government has dragged out the decision-making process for five years, saying they needed more time to prepare.
Meanwhile, clinicians and the health system prepared as politicians twisted themselves into knots to find excuses to not prepare.
As Dr. Jean Marmoreo wrote in a recent commentary piece, “discomfort is not unreadiness.”
The fact that MAID, in all its variations, makes some people uncomfortable is at the heart of the problem.
There are fundamental rights at play here and the fact that some people, including politicians, don’t like those rights does not mean they cannot and should not be exercised.
The battle for access to MAID, for death with dignity, has been fought in the courts for decades and has invariably ended with the same conclusion from learned jurists: An individual’s right to bodily autonomy trumps other concerns.
Agency matters, especially at end-of-life. My body, my choice, if you will.
But time and time again, politicians have tried to limit people’s choice in how they live and how they die. Mr. Fraser’s promise of more half-baked legislation is yet another example of this troubling trend.