Medical assistance in dying, or MAID, has been legal in Canada since 2016 and has continued to evolve. The current debate is around expanding MAID eligibility to patients experiencing mental health conditions.
OPINION | The views expressed in this article are those of the author.
Medical assistance in dying (MAID) is a process where a medical professional assists an individual, at their request, in intentionally ending their life. In Canada, MAID is a painless process that uses drugs.
The origins of medical assistance in dying
In February 2015, the Supreme Court of Canada in Carter v Canada directed Parliament to change parts of Canada’s Criminal Code to align with section 7 of the Charter. Section 7 protects every Canadian’s right to life, liberty, and security of the person.
The Court decided that laws prohibiting physician-assisted dying interfere with the right to life, liberty and security of an individual. Those with “grievous and irremediable” medical conditions did not have the liberty (freedom) to make decisions about their bodily integrity and medical care. This legislative framework also meant many patients endured intolerable suffering, which violates the individual’s security of person. Further, the Court found the prohibitions deprived some people of life by forcing them to decide to take their own lives prematurely or risk not being able to once their condition worsened.
Depriving the life, liberty, and security of the person does not accord with the principles of fundamental justice. The purpose of the law prohibiting physician-assisted dying was to protect individuals in particularly vulnerable positions. However, the prohibition was overbroad to the extent it applied to individuals who were not vulnerable. In other words, the prohibition denied the rights of some not related to the law’s original purpose.
Finally, the Court decided section 1 of the Charter could not save the prohibition. Despite furthering a pressing and substantial objective, a MAID regime with properly designed and administered safeguards could protect vulnerable individuals without infringing on the rights of non-vulnerable people.
And so, in June 2016, Parliament passed Bill C-14 to amend the Criminal Code. These amendments exempt medical professionals from criminal liability if they provide MAID.
The legislative evolution
Since 2016, MAID has continued to develop.
In 2019, the Superior Court of Québec held that the “reasonable foreseeability of natural death” eligibility requirement was unconstitutional.
One of the applicants, Jean Truchon, had lived with spastic cerebral palsy since birth. He was completely paralyzed except for his left arm. Mr. Truchon’s physical condition did not stop him from living a full and independent life. He graduated from Université Laval in 1992, he swam and played wheelchair ball hockey, and he had an active social life with close friends and family.
Although he had always seen his life as a battle for autonomy, he was satisfied. He described his life as more or less normal.
In 2011, Mr. Truchon began losing the use of his left arm. Doctors diagnosed him with severe spinal stenosis and myelomalacia, a degenerative condition with no treatment. By 2012, Mr. Truchon was fully paralyzed and had no hope of improving. He experienced intense burning sensations and painful spasms. Mr. Truchon could no longer go to the pool or play ball hockey, and he rarely went out. Moving around in his wheelchair, which he had to control with his chin, was difficult and painful.
Mr. Truchon said he died in 2012.
In 2017, he requested MAID. Mr. Truchon’s physician refused his request because his condition did not impact his life expectancy and would not lead to his death in the foreseeable future.
Mr. Truchon successfully challenged the constitutionality of the “reasonable foreseeability of natural death” requirement. The Court found the requirement violated section 7 of the Charter for all the same reasons as in the Carter case. The Court also said the requirement violated section15’s guarantee of equality because it distinguished between people based on their disability. Disabilities where death was reasonably foreseeable were treated differently than disabilities where it was not.
In response, Parliament passed Bill C-7 in 2021, which removed the requirement for death to be reasonably foreseeable. Instead, the condition had to be grievous and irremediable. The Bill also added safeguards for those whose death was not reasonably foreseeable, such as a minimum 90-day assessment period and requiring one of the two assessments be carried out by a medical professional who is an expert on the particular condition causing the person’s suffering. Further, the assessment professional must agree the patient had seriously considered reasonable and available means of easing their suffering.
The current debate
All this context brings us to the current debate surrounding the expansion of MAID.
Bill C-7 temporarily excluded eligibility for two years for those suffering solely from mental illness. During that time, the Ministers of Justice and Health were to conduct an expert review of recommendations, protocols, guidelines, and safeguards for performing MAID on individuals with mental health conditions.
The expert review produced the Final Report of the Expert Panel on MAiD and Mental Illness, tabled to Parliament on May 13, 2022. The report noted that no system of safeguards, protocols and guidance would satisfy everyone because of the severe diverging values at the heart of MAID.
One significant challenge is the requirement that the mental illness in question be “grievous and irremediable.” While the Criminal Code defines this requirement as “incurable, with an advanced state of irreversible decline in capability”, applying the definition has led to much debate.
In his brief to the Senate, Dr. Sonu Gaind argued there is currently no evidence or standards for reliably predicting whether a particular mental health diagnosis is reversible. Dr. Gaind was the president of the Canadian Psychiatric Association in 2016 and the chair of the Canadian Psychological Association task force on MAID in 2016. As he understood Bill C-7, Canada would be the first and only country to rely on the patient’s assessment of whether their condition is irremediable, even if they had not tried reasonable options that are likely to help.
On the other hand, Dr. Mona Gupta argued that in practice, the only patients recommended for MAID are those who have been ill for many years and have tried many interventions and treatments. She argues that a bright line requirement to try treatments would require state-of-the-art interventions for persons with difficult-to-treat psychiatric conditions. There are no corresponding mechanisms to make sure people have access to those treatments. In effect, this would make MAID inaccessible for some. Additionally, Dr. Gupta argued the prohibition on MAID for mental illness does not prevent the difficult cases it was intended to avoid:
[T]he psychiatric and physical conditions of the person’s condition are intertwined such that they are best thought of as a mixed condition rather than two co-existing conditions and it is this intertwined condition that motivates the request [for MAID].
The BC Civil Liberties Association also made submissions to the Senate. In support of MAID for mental illness, it suggested the prohibition is arbitrary since “mental illness” does not have a clinical, medical or legal definition. There are many mental disorders, such as Alzheimer’s disease and Huntington’s disease, which could be deemed mental illnesses. Yet, in practice, a wide variety of medical professionals offer MAID for these diseases.
Still, others like Inclusion Canada, argued for a “duty to assist” that would require governments to make resources available to address causes of suffering like a lack of adequate housing or needed healthcare aids. A mental health MAID regime without a corresponding “duty to assist” would undermine equal respect and dignity of people with disabilities and may infringe equality rights protected by section 15 of the Charter.
Despite these concerns, the expert review report concluded the existing MAID eligibility criteria and safeguards – strengthened by existing laws, standards, and practices in related areas of healthcare – could provide an adequate structure for mental illness-related MAID.
Currently, MAID is set to expand on March 17, 2024. However, the federal government still needs to clarify the legislative details. They have not commented further.
My view on expanding MAID
The debate has largely moved on from whether Canadians have the right to die. As Justice Cory put it in his Rodriguez dissent, “the right to die with dignity should be as well protected as is any other aspect of the right to life.”
The question to be answered is whether proper safeguards can adequately protect the vulnerabilities of those with mental illness from the finality and irreversibility of MAID. Requiring informed consent means the patient must have decision-making capacity. Although assessing capacity can be difficult at times, the same is true for many other serious medical decisions. In those cases, the answer is not refusing intervention for everyone.
Further, there may not be a standardized test for assessing whether a mental disorder is incurable. However, a case by case approach involving several attempts at treatment is a middle ground that protects vulnerabilities while respecting the individual’s right to die. Lastly, to ensure the best possible chance of receiving true informed consent, requesters of MAID should receive access to an wide range of social supports that might reduce their suffering. Where appropriate, these services should include housing and income supports.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.