On 22 June 2022, the AMAD Committee, Parliament’s Special Joint Committee on Medical Assistance in Dying (MAID), released its interim report[1] on medical assistance in dying where a mental disorder is the sole underlying medical condition (MAID MD-SUMC). This article summarizes the report and its potential legislative implications.
Christian Legal Fellowship (CLF) submitted a brief[2] to the AMAD Committee on 9 May 2022, which was accompanied by a more detailed background paper.[3] In its submissions, CLF outlined concerns regarding compliance with existing safeguards around MAID, as well as the ongoing socioeconomic barriers and inadequate access to healthcare and supports. CLF highlighted the risks associated with expanding Canada’s MAID regime without first prioritizing medical assistance in living. In particular, CLF explained:
By offering death as a “solution” for more conditions and forms of suffering, and by expanding eligibility in more circumstances, MAID is undergoing a radical transformation in Canada. It is evolving from an exceptional procedure to hasten an already-foreseeable death, to a widely-available option to terminate a person’s life because they have lost their sense of hope and meaning.[4]
Background
Bill C-7 [5] – Parliament’s plan to expand MAID access to those whose death is not “reasonably foreseeable” – initially included a clause clarifying that this expansion would not apply to cases where mental illness is the sole underlying condition. As the Department of Justice explained at the time, this provision was “not based on the assumption that individuals who suffer from mental illness lack decision-making capacity”, nor was it based on “a failure to appreciate the severity of the suffering that mental illness can produce.” Rather, it was based on “the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness”.[6] As the Department’s Charter Statement explained:
First, evidence suggests that screening for decision-making capacity is particularly difficult, and subject to a high degree of error, in relation to persons who suffer from a mental illness serious enough to ground a request for MAID. Second, mental illness is generally less predictable than physical illness in terms of the course the illness will take over time. Finally, recent experience in the few countries that permit MAID for people whose sole medical condition is a mental illness (Belgium, Netherlands and Luxembourg) has raised concerns. The concerns relate to both the increasing numbers of these cases and the wide range of mental illnesses in respect of which MAID has been provided. As the practice of MAID in Canada is relatively new, the body of evidence and research on current and potential future practice, including in relation to mental illness, is still developing.[7]
However, the Senate subsequently proposed an amendment to the Bill to include an 18-month expiration date on this MAID MD-SUMC exclusion: this is known as the “sunset clause”. The House of Commons accepted this proposal, but extended the sunset clause to 24-months. As a result, at the end of that time frame, in March 2023, MAID MD-SUMC may be available in Canada. Before that takes place, however, Bill C-7 required two further studies:
First, it required “an independent review to be carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness”. That study has been conducted by the Expert Panel on MAID and Mental Illness (discussed below).
Second, it required that a Special Joint Committee undertake a “comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities.” That was the impetus for the AMAD Committee.
The Expert Panel on MAID and Mental Illness
The Expert Panel consisted of twelve members appointed by the Ministers of Justice and Health, reflecting a range of disciplines, including “clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness”.[8] The Expert Panel’s report, tabled on 13 May 2022, concluded that:
the existing MAiD eligibility criteria and safeguards buttressed by existing laws, standards, and practices in related areas of healthcare can provide an adequate structure for MAiD MD-SUMC so long as those are interpreted appropriately to take into consideration the specificity of mental disorders.[9]
Based on this conclusion, none of the Expert Panel’s 19 recommendations involved amending the Criminal Code to add any new safeguards in that statute for MAID MD-SUMC.[10] However, two of the Expert Panel’s twelve members resigned before the report was issued; one of those members publicly expressed concern that the Panel’s recommendations were inadequate and that more safeguards are needed.[11]
AMAD Committee
While the AMAD Committee first began its hearings on 13 April 2022, it postponed testimony regarding MAID MD-SUMC until after the Expert Panel on MAID and Mental Illness presented its report.[12]
June 2022 was originally the AMAD Committee’s final report deadline; however, Parliament extended the date to 17 October 2022 and instead required the AMAD Committee to file an interim report by 23 June 2022.[13] This report was not unanimous and was filed alongside a dissenting interim report.
The AMAD Committee opened its report by recognizing the complexity of this matter:
The evolution of Canada’s laws relating to MAID has involved balancing many factors, including individual autonomy, respect for life, equality rights and protecting vulnerable people. MAID encompasses moral and ethical concerns as well as legal issues and engages questions regarding adequate access to health care and social supports.[14]
Regarding its witness hearings, the AMAD Committee acknowledged a “range of views”, including concerns over balancing autonomy interests and the interests of the vulnerable; ensuring informed consent and capacity; establishing irremediability for mental disorders and “how much uncertainty is acceptable”; differentiating MAID and suicidality; addressing MAID requests informed by inadequate healthcare and social supports; and “questioning whether someone suffering solely from a mental disorder is eligible for MAID.”[15]
The AMAD report surveyed evidence from the Netherlands, Belgium, and Switzerland, which all allow some form of MAID MD-SUMC. Although it has been suggested that these jurisdictions have no additional safeguards that are specific to MD-SUMC situations, Dr. Brian Mishara emphasized that MAID MD-SUMC evaluations in the Netherlands take approximately 10 months, and only 5% of such requests are granted.[16] The report also noted that the Netherlands and Belgium both require patients to try all available alternative forms of treatment, whereas Canada requires only that patients requesting MAID be informed of other treatment options.[17]
Another major discussion in the report focused on the requirement of irremediability in the context of mental disorders.[18] To be eligible for MAID, a patient must have a “grievous and irremediable medical condition.” That is, the illness must be “incurable,” and the patient requesting MAID must be “in an advanced state of irreversible decline and intolerable suffering.”[19] The report noted a sharp disagreement between witnesses in terms of how – and whether – irremediability can be assessed in the context of mental disorders. [20] Some witnesses took the position that irremediability can be established where a patient “[refuses] additional treatment”[21] or “if there is a five-year wait to access specialist services and the patient is unwilling to wait.”[22]
However, other witnesses found irremediability for mental disorders impossible to accurately establish at this time.[23] For example, Dr. Maher cited directly from testimony in the Expert Panel’s report, which says, “There is limited knowledge about the long-term prognosis for many conditions, and it is difficult, if not impossible, for clinicians to make accurate predictions about the future for an individual patient,” ascribing it to an “ethical choice.”[24]
Dr. Sinyor emphasized the lack of data on MAID MD-SUMC, noting:
Numbers are crucial in helping patients make informed decisions. In physician-assisted death for sole mental illness, we have no numbers at all. Neither we nor our patients would have any idea how often our judgments of irremediability are simply wrong. […].
In the context of physician-assisted death for sole mental illness, life or death decisions will be made based on hunches and guesswork that could be wildly inaccurate. The uncertainties and potential for mistakes in mental illness are enormous and, therefore, the ethical imperative to study harms in advance of legislation is accordingly immense. [25]
A number of witnesses called for better data and cautioned that it is unlikely for findings of irremediability to be evidence-based in MAID MD-SUMC situations at this time.[26] The testimony on differentiating between MAID requests and suicidality was similarly divided.[27]
The report also canvassed structural vulnerability, social determinants of health, and access to healthcare services. Here, some witnesses warned that MAID MD-SUMC would disproportionately impact marginalized populations.[28] According to Dr. Gaind:
Evidence shows that when death is foreseeable, people seek MAID to preserve dignity and autonomy to avoid a painful death. Those seeking MAID in these situations tend to be, in researchers’ words, white, more educated and more privileged. That’s been used to suggest that MAID is safe to expand to other situations.
However, when expanded to the non-dying disabled for mental illness, that association completely flips. A different group gets MAID. These are the group of non-dying marginalized, who have never had autonomy to live a life with dignity. Rather [than] death with dignity, they are seeking an escape from life’s suffering.[29]
Witnesses also expressed concern that Indigenous communities had not yet been consulted on this issue. The Expert Panel’s report noted the importance of Indigenous peoples’ “unique perspectives on death which need to be considered in the context of the emergence of MAiD including MAiD MD-SUMC”, but such engagement “has yet to occur.”[30]
While the Committee does not explicitly take a position on MAID MD-SUMC in its interim report, it seems to accept the current trajectory of permitting the practice, noting that, “if the Expert Panel’s recommendations are to be implemented, the work must proceed quickly.”[31] The AMAD Committee also “urge[s] the federal government to work with the Provinces and Territories and others to ensure that the recommendations of the Expert Panel are implemented in a timely manner.”[32] While this is not necessarily a statement in support of allowing MAID MD-SUMC, it can be taken to reflect acceptance of the Expert Panel’s recommendations, which focus on how to incorporate MAID MD-SUMC into Canada’s MAID regime, not whether to do so. This led Conservative Members of Parliament on the Committee to issue a dissenting report.[33]
Dissenting interim report
While recognizing the overall accuracy of the interim report, the dissenting AMAD members wrote that the report’s “effective recommendation that the federal government implement all 19 recommendations of the Expert Panel on MAID and Mental Illness […] is problematic” in that it “presupposes that MAID should be expanded to include” MAID MD-SUMC.[34]
The dissenting members expressed concern that this conclusion was made without “evaluating whether MAID MD-SUMC should be permitted” and maintained that “a full evaluation of issues surrounding MAID MD-SUMC necessitates consideration of the appropriateness of such an expansion.”[35]
The dissenting interim report focused on four points: the lack of study and consultation on MAID MD-SUMC prior to expansion; the current inability to predict irremediability in cases of mental disorder; the “inherent risks of MAID MD-SUMC to vulnerable persons”; and other concerns with the Expert Panel and its report.[36]
The dissenting members conclude by writing:
The Committee has heard considerable evidence that permitting MAID MD-SUMC presents considerable legal, clinical, and ethical challenges. Given the uncertainties around determining irremediability, there is not sufficient evidence that demonstrates how MAID MD-SUMC can satisfy the eligibility criteria. Further, it is difficult to see under what conditions it would be clinically acceptable.
There are far too many unanswered questions respecting MAID MD-SUMC. With the March 2023 deadline fast approaching, we urge the Liberal government postpone the expiration of the sunset clause respecting MAID MD-SUMC, allowing more time for these questions to be sufficiently studied, and for the legal, clinical, and ethical concerns to be rectified.[37]
Next steps
CLF has expressed profound concerns about the expansion of Canada’s MAID regime to include Canadians struggling with mental illness, concerns which remain in light of the various questions and issues identified in the AMAD Committee’s interim report. CLF expressed these concerns directly to the AMAD Committee, highlighting some of the legal and practical complexities surrounding MAID MD-SUMC. (You can read CLF’s Brief here and CLF’s Background Paper here).
CLF will continue to monitor this issue and will closely review the Committee’s final report, expected later this Fall. CLF remains committed to advocate for the interests of marginalized and vulnerable Canadians. You can read more about CLF’s work here.
Contributions from Garifalia Milousis, Vivian Clemence, and Derek Ross.
references
[1] House of Commons, Special Joint Committee on Medical Assistance in Dying, “Medical Assistance in Dying and Mental Disorder as the Sole Underlying Condition: An Interim Report”, 1st Sess, 44th Parl (June 2022), online: ≤https://parl.ca/Content/Committee/441/AMAD/Reports/RP11896958/amadrp01/amadrp01-e.pdf≥ [AMAD Committee Interim Report].
[2] Christian Legal Fellowship, “Brief of the Christian Legal Fellowship to The Special Joint Committee on Medical Assistance in Dying regarding A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their implementation, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities” (9 May 2022), online: ≤https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/62796875c67afb653d0db906/1652123765948/CLF+brief+to+Special+Joint+Committee+on+Medical+Assistance+in+Dying+2022.05.09.pdf≥ [AMAD CLF Brief].
[3] Christian Legal Fellowship, “Background paper of the Christian Legal Fellowship (CLF) in connection with CLF’s brief to The Special Joint Committee on Medical Assistance in Dying regarding A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities” (9 May 2022), online: ≤https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/627968a0df465a6bf47c230a/1652123808769/CLF+background+paper+re+submissions+to+Special+Joint+Committee+on+Medical+Assistance+in+Dying+2022.05.09.pdf≥ [AMAD CLF Background Paper].
[4] AMAD CLF Brief, supra note 2, Executive Summary.
[5] Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021 (assented to 17 March 2021) (Bill C-7), online: ≤https://www.parl.ca/DocumentViewer/en/43-2/bill/C-7/royal-assent≥.
[6] Canada, Minister of Justice, Charter Statement: An Act to Amend the Criminal Code (Medical assistance in dying) (C-7), 2nd Sess, 43rd Parl (21 October 2020), online: ≤https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c7.html≥.
[7] Ibid.
[8] Government of Canada, “Expert Panel on MAID and Mental Illness”, online: ≤https://www.canada.ca/en/health-canada/corporate/about-health-canada/public-engagement/external-advisory-bodies/expert-panel-maid-mental-illness.html≥.
[9] AMAD Committee Interim Report, supra note 1, citing The Expert Panel on MAID and Mental Illness, “Final Report of the Expert Panel on MAID and Mental Illness”, Health Canada (May 2022), online: ≤https://www.canada.ca/content/dam/hc-sc/documents/corporate/about-health-canada/public-engagement/external-advisory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.pdf≥ [Expert Panel Final Report]. Among other things, the Expert Panel recommended that “The federal, provincial and territorial governments should facilitate the collaboration of physician and nurse regulatory bodies in the development of Standards of Practice for physicians and nurse practitioners for the assessment of MAiD requests in situations that raise questions about incurability, irreversibility, capacity, suicidality, and the impact of structural vulnerabilities.”
[10] Expert Panel Final Report, ibid.
[11] Jacques Gallant, “Expert quits panel on medically assisted deaths, says proposals don’t adequately protect Canadians with mental illnesses”, Toronto Star (22 June 2022), online: ≤https://www.thestar.com/politics/federal/2022/06/22/expert-quits-panel-on-medically-assisted-deaths-says-proposals-dont-adequately-protect-canadians-with-mental-illnesses.html≥.
[12] AMAD Committee Interim Report, supra note 1 at 2.
[13] AMAD Committee Interim Report, supra note 1 at 1.
[14] Ibid.
[15] Ibid at 6.
[16] Ibid.
[17] Ibid at 6–7.
[18] Ibid at 7–11.
[19] Ibid at 7–8.
[20] Ibid at 7–8.
[21] Ibid at 8–9 (Dr. Smith).
[22] Ibid at 9 (Dr. Wiebe).
[23] Ibid at 9–10.
[24] Ibid at 10.
[25] Ibid [emphasis added].
[26] Ibid.
[27] Ibid at 11–12.
[28] Ibid at 12–15.
[29] Ibid at 13 [emphasis added].
[30] Ibid, citing The Expert Panel on MAID and Mental Illness, “Final Report of the Expert Panel on MAID and Mental Illness”, Health Canada (May 2022) at 35, online: ≤https://www.canada.ca/content/dam/hc-sc/documents/corporate/about-health-canada/public-engagement/external-advisory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.pdf≥.
[31] Ibid at 19–20.
[32] Ibid at 20.
[33] Ibid at 35–42.
[34] Ibid at 35.
[35] Ibid [emphasis added].
[36] Ibid at 36.
[37] Ibid at 41 [emphasis added].