The Trudeau government has supported an amendment to Bill C-7 that Canadians suffering solely from grievous and irremediable mental illnesses should be entitled to receive medical assistance in dying (MAID) — but not for another two years.
It is one of several changes to Bill C-7 the Senate proposed and is now supported by the Liberals. The two-year wait was six months longer than what the Senate wanted.
The government wants to use the two-year wait to plan out safeguards and research the best ways to implement this bill amendment.
The Senate has been seeking to increase MAID to access to persons intolerably suffering and are not towards the end of their lives in order to bring the law into compliance with a 2019 Quebec Superior Court ruling.
As it was initially drafted, people whose sole suffering is mental illness will not be eligible for MAID. The Senate deemed this unconstitutional and violated the right to equal treatment regardless of physical or mental disability as guaranteed in the Charter of Rights and Freedoms.
“I think a court would undoubtedly find that their [people with a mental illness seeking MAID] charter rights are limited, but where the question would come is the other part of the charter,” said Lorian Hardcastle, an associate professor of health law and policy at the University of Calgary.
The government can justify banning people with mental illness from getting access to MAID on the basis that they can’t put safeguards in place even if it “violates” their rights.
“Those charter rights aren’t absolute; the government has an opportunity to justify its rules. And so, there would be a whole discussion in the courts around whether they can have adequate safeguards in place for people with mental illness.”
An example of a safeguard is a person’s ability with mental illness to give informed consent for MAID. The government can justify a ban on MAID access if they find it is difficult to determine whether a person with mental illness can provide informed consent.
“It becomes difficult when there are mental health issues at play because those mental health issues have inherently raised questions about capacity to give consent, whereas if it’s physical, it’s not the same.”
Besides the legality of the amendment, this bill raises questions about a person’s ability to self-determine their life versus the government’s job to protect its citizens.
The Canadian Mental Health Association (CMHA) was “deeply disappointed” by the government’s position on the bill.
“Until the health care system adequately responds to the mental health needs of Canadians, assisted dying should not be an option—not now and not two years from now,” said the association in a statement.
The CMHA’s position is based on three arguments: it is impossible to determine if a person’s mental illness represents a state of decline, mental illness is very often episodic, and those mental illness symptoms will resolve over time.
“If this bill passes with a 24-months sunset clause, the government must, at minimum, commit to a substantial increase in its investment in mental health care.”
Darcy Burtis, the creator of the Facebook group Calgary Mental Health & Anxiety in honour of her son, who passed away, is not entirely against the bill.
“I think that it is definitely a personal choice, and if someone feels that this is an option for them, I wouldn’t ever say no. I think everyone has the right to choose whether they want to continue to live or not because I know that mental health is a very, very tough road,” said Burtis.
She also believes that the government must provide adequate mental health support to people applying for MAID.
“I think that they should really do try everything they can to help the person [applying for MAID], and if that isn’t possible, then again, I think it is a personal choice.”
The government believes that having this amendment will reduce suicides and suicidal thoughts, and allow a person to maintain peace in their day-to-day lives since they have MAID as an option. A position that Burtis believes to be individualized.
“If they [people who are applying for MAID] thought they have a different alternative. They stop that thought. It may give them peace as well, but it’s such a hard thing to say for sure.”
Burtis also agrees with some of the points of CMHA, especially in regards to increasing investment in mental health care.
“I think there just needs to be a whole revamp on the current mental health system and access to it. It has to be more readily available and not on a pay basis.”
Burtis has been using the Facebook group to create a community of support and hopes that people will take mental health seriously.
“It’s never an easy journey. And I think the most important [thing] is not to suffer in silence. And I think it’s just important for people to speak out and not be afraid of what others may think or they may say.”
It becomes difficult when there are mental health issues at play because those mental health issues have inherently raised questions about capacity to give consent, whereas if it’s physical, it’s not the same – Lorian Hardcastle
While the Trudeau government has sided with the Senate, the competing parties have not.
The Conservative party refused to support the initial bill entirely, and the NDP objects to the Senate making legislative changes. Trudeau has the Bloc Québécois support and only needs one party to back the bill for it to pass.
The Liberals hoped to vote on the bill by late February, but the Conservatives have dragged out the debate for one more month – until March 26.