Minister of Justice Sean Fraser listens to questions during a media availability to outline next steps in the federal government’s medical assistance in dying laws, in the Foyer of the House of Commons on Parliament Hill in Ottawa, on Oct. 7.Justin Tang/The Canadian Press
The federal Liberal government has, finally, taken the necessary step of scrapping the planned expansion of medically assisted dying to people whose sole underlying condition is mental illness.
For years, the Liberals have delayed, extending the deadline for when people suffering from mental illness would be allowed access to assisted death. Initially, the Trudeau Liberals pretended that this was simply a matter of logistics, that the provinces needed more time to ready their health care systems.
Justice Minister Sean Fraser was, thankfully, much more forthright on Wednesday as he sketched out Ottawa’s intention to bar assisted death for mental illness. He pointed to a lack of health care for mental illness and, more pointedly, what he called a lack of consensus on whether mental illnesses can be accurately diagnosed as irremediable.
That second point is critical: irremediability is one of the lynchpins of the exemption for medical assistance in dying, or MAID, under the Criminal Code. It must be established that a medical condition is irremediable in order for a person to be eligible.
Given that legal imperative, Mr. Fraser’s decision is the right one. And it echoes the findings of the joint House and Senate committee on MAID, which recommended excluding mental illness.
But the Liberals fall short in two other ways: failing to shore up guardrails in the current system, and proposing a hasty expansion of MAID to allow for advance directives.
Picard: Ten years of MAID, and suffering averted, is cause for celebration
As we have previously argued, Ottawa should restore the mandatory 10-day waiting period for Track 1 requests (where a natural death is reasonably foreseeable).
That delay was intended to ensure that no Canadian would take a hasty decision on an irreversible matter. But Ottawa removed that guardrail in 2021. (There still is a delay built into Track 2 requests, where a natural death is not reasonably foreseeable; there is a 90-day assessment window.)
Those opposing a 10-day reflection period contend that it is unnecessary and simply means that a patient will have to endure days more of suffering.
Balanced against that is the consideration that a decision to end one’s life should be a measured one, not one taken in haste. There are also indications in Health Canada data that the removal of the 10-day reflection period may have had the unintended effect of triggering such hasty decisions.
From November, 2018, through to the end of 2019, there were 5,389 assisted death procedures and 263 withdrawn requests. For 2024, the most recent year for which there is data, there were 16,499 assisted death procedures and 689 withdrawn requests.
There were proportionately fewer withdrawn requests after the 10-day reflection period was scrapped, than in 2018-19. It’s impossible to know for certain why Canadians are now less likely to withdraw MAID requests. But logic, not to mention prudence, points to reinstating the reflection period. Mr. Fraser invoked the precautionary principle in the decision to not expand MAID to mental illness. That same principle should be applied in the case of the 10-day reflection period.
More broadly, the government needs to make it clear that the Criminal Code will be enforced. Individual practitioners do not have the right to roam beyond the legal boundaries laid down by government. If they do, they should be prosecuted.
The government will also propose as part of its planned legislation allowing for advance directives, in cases where a degenerative disease such as Alzheimer’s will eventually deprive a person of the ability to consent to MAID.
Why such a major expansion, now? Mr. Fraser did not really have an answer, but it’s hard to avoid the conclusion that it is a political balancing act aimed at muting criticism of the government’s move to restrict MAID in one area by expanding it in another.
Whatever the motivation, the provisions around advance directives should be severed from those barring MAID for reasons of mental illness. There needs to be full consideration of the implications of such an expansion, and a convincing demonstration that there will be safeguards in place to avoid the obvious peril of elderly Canadians being coerced to, or feeling they must, accede to an advance directive.
The Liberals are to be commended for backing away from one ill-advised expansion of MAID. They should make sure that they are not embarking on another.