The government should end the domino effect that will almost certainly see the extension of MAID to mature minors become the next frontier
I appear to have reached the stage in life where I am prepared to write outraged epistles to publishers and threaten to cancel my subscription after reading something with which I vehemently disagree.
That was the initial reaction when I read an opinion article on the National Newswatch website on the subject of the expansion of medically assistance in dying (MAID) to people suffering mental disorders.
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Since it turns out I don’t have a National Newswatch subscription to threaten to cancel, I am forced to ventilate in public.
The article in question by Jocelyn Downie offended on multiple levels.
Downie, the James S. Palmer Chair of Public Policy and Law at Dalhousie University’s Schulich School of Law, argued that “the courts have spoken” on the issue of cases where mental disorders are the sole underlying medical condition (MAID MD-SUMC), effectively denying Parliament any agency in the matter.
In effect, she said, the government should get out of the way and allow those with mental issues access to MAID from this March a move that was initially scheduled for March 2023, but which was postponed, the government said, to ensure it could “move forward on this sensitive and complex issue in a prudent and measured way.”
The fact that a parliamentary special committee is set to report on that very issue by the end of this month, is apparently neither here nor there to Downie. She claims that all the necessary steps are in place, from data collection to a national curriculum for assessors. There is “strong evidence” that the bodies that regulate psychiatrists and nurses are ready, she said.
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This, even though the chair of the Canadian Psychological Association (CPA), Alison Freeland, acknowledged at parliamentary committee hearings in November: “I don’t think I can say from a CPA perspective that all the readiness is there” (and she supports expansion).
Safe implementation appears in Downie and Freeland’s opinions to be a secondary consideration to the belief that people with mental disorders have a constitutional right to access state assisted death.
To recap: when the Supreme Court ruled that prohibition of medically assisted dying violated the Charter in the Carter decision in 2015, it forced the new Liberal government to come up with legislation.
That response, which restricted MAID to people whose death was “reasonably foreseeable,” was challenged by a Quebec Superior Court judge in the Truchon case, who said that this interpretation was too narrow, and that access should be opened up to people who were suffering but were not at the end of life.
The Liberals decided not to appeal the Truchon decision (an announcement Justin Trudeau made on a Quebec talk show in the midst of an election) and the government was forced to respond with new legislation, Bill C-7, that broadened access but explicitly excluded mental illness. It did so based on the belief that screening for mental illness is prone to a high degree of error.
At committee, MPs heard expert testimony from mental health professionals who said that while some people were destined for a lifetime of anguish, others had conditions that were treatable. The problem is, it is extremely difficult to distinguish between the two.
That is where it would have ended had the Senate not added an amendment to expand access to those with mental disorders, at the behest of Senator Stan Kutcher, a former head of psychiatry at Dalhousie, who claimed the legislation was discriminatory. The amendment was adopted, after minimal debate in the House, and the government punted the problem down the road by introducing a sunset clause that would not come into effect until March, 2023 — a date that was further extended to this March.
This is the basis for Professor Downie’s confidence that “the courts have spoken and the government knows it.”
But the courts have not spoken with any finality. “It should be absurd to anyone that a lower court decision in Quebec determines what Parliament should be doing. It is absurd that anyone argues Parliament should legislate based on ‘here’s how the Supreme Court of Canada might rule’,” argues Trudo Lemmens, Professor of the School Chair in Health Law and Policy in the Faculty of Law at the University of Toronto.
He and 24 other law professors from across the country wrote to the prime minister arguing that the constitutionality, or lack of constitutionality, of an exclusion clause for MAID MD-SUMC has not been tested in the courts. Lemmens and his colleagues argued there is no legal requirement for the government to expand MAID because the Supreme Court has not reviewed the evidence on whether mental illness can reliably be diagnosed as irremediable.
The previous justice minister, David Lametti, was on record as opposing the expansion but he is gone and his successor, Arif Virani, has only said the government is weighing up its options over whether to seek a deferral.
It is yet another example of this government’s obsession with short-term headlines. It appears it did not appeal the Truchon decision because it was popular in Quebec on the eve of an election. It is inexplicable why it allowed Kutcher’s amendment to stand and make it into legislation without a broader public airing.
A private member’s bill by Conservative MP Ed Fast that would have killed the expansion revealed how contentious the move remains. It was defeated by 17 votes, but only because the Bloc supported the government. The NDP voted with the Conservatives and several Liberals.
The government has every reason to be concerned about being pushed into a decision. An Angus Reid Institute survey from last February reveals strong support (61 per cent) for the existing MAID legislation. Most Canadians, including this one, agree that consenting adults facing intolerable pain should have the right to a compassionate end to their lives; that there should be an enlightened balance between access and protection.
But that support drops in half (31 per cent) when respondents are asked about extending MAID to those whose sole medical condition is mental illness.
The latest statistics we have are that 44,958 people died by MAID between 2016 and the end of 2022, more than the number of Canadian military deaths in the Second World War.
The trend lines are worrying: 31.2-per-cent more cases in 2022 over the previous year.
The fear is that those numbers will really blast off if access becomes too open. There are plenty of signs that Canada has gone too far already, without lifting more restrictions.
In these circumstances, the federal government should show some mettle, refuse to accept Parliament’s role of rubber-stamp that some activists would bestow upon it, and put an end to a domino effect that will almost certainly see the extension of MAID to mature minors become the next frontier.
National Post
jivison@criffel.ca
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