I call the meeting to order.
Good evening, and welcome to the meeting of the Special Joint Committee on Medical Assistance in Dying.
I'd like to begin by welcoming the members of the committee and the witnesses, as well as those watching this meeting online. My name is Yonah Martin, and I am the Senate joint chair of the committee. I'm joined by Honourable Marc Garneau, the House of Commons joint chair.
Today we are continuing our examination of the statutory review of the provisions of the Criminal Code relating to medical assistance in dying and their application.
I'd like to remind members and witnesses to keep their microphones muted unless they are recognized by name by one of the joint chairs. When speaking, please speak slowly and clearly.
Interpretation in this video conference will work like an in-person committee meeting. You'll have the choice at the bottom of your screen of either floor, English, or French.
Again, I'd like to welcome our witnesses for panel one, who are here to discuss MAID when a mental disorder is the sole underlying medical condition.
By video conference, we have three panellists as individuals: Dr. Marie Nicolini; Shakir Rahim, lawyer at Kastner Lam LLP; and Dr. Michael Trew, clinical associate professor, University of Calgary. Thank you to all three of you for joining us.
We'll begin with remarks by Dr. Nicolini, followed by Mr. Rahim, and then Dr. Trew. Each of you will have five minutes, which I will be timing.
Dr. Nicolini, you have five minutes. The floor is yours.
I'm Dr. Marie Nicolini, and I'm pleased to be here today talking to the committee.
I'm a medical doctor and a psychiatrist with a Ph.D. in bioethics. I was trained in Belgium, where the practice of MAID for mental disorders has been permitted for 20 years.
Over the last five years, I've published a wide range of ground-breaking research on MAID for mental disorders in top journals in ethics and psychiatry. I've performed this research at leading bioethics institutions around the world, including the National Institutes of Health and the Kennedy Institute of Ethics at Georgetown University, and I've delivered invited lectures on this topic at top universities, medical centres and conferences around the world, such as King's College London, the University of Pennsylvania, the American Psychiatric Association and the world psychiatry conference.
My research has established foundational facts about how the practice of MAID for mental disorders is actually carried out, based on large sets of data on actual cases of MAID in the Netherlands. In addition, my research has also clarified the ethical questions raised by the practice, particularly with regard to women. I have made it a point to pursue this research from a neutral perspective that sets out to examine how eligibility requirements apply, what the standards are for those requirements and what difficulties they raise. My research has not taken a position for or against the practice of MAID.
Based on these extensive and highly detailed investigations, I have discovered two central challenges for the practice of MAID for mental disorders. I'll say these two and then explain each one in a bit more detail.
First, incurability or irremediability is always a core requirement for MAID, but we do not have a coherent account of what it means for a mental disorder to be incurable. Second, countries that have MAID continue to pursue suicide prevention programs, but at this time there is no principle to guide clinicians in determining whether MAID or suicide prevention is warranted in any given case.
On the first concern, with MAID for cases of physical disease, there is always a requirement that the condition must be incurable or irremediable. In cases of MAID for mental disorder, that requirement carries over, but we do not have an understanding of what it amounts to for a mental disorder to be incurable. We can take an objective approach that lists all of the available evidence-based treatments and their likely prognoses, but my research shows that prognosis cannot be predicted in psychiatry. Alternatively, we could take a subjective approach, as Canada has, whereby patients themselves determine whether their mental disorders can be remedied, but this does not allow us to filter out cases in which MAID has been requested on the basis of social conditions or social maladies like poverty, unemployment, gender-based violence or other inequities.
On the second concern, because countries that have MAID for mental disorder do continue to pursue suicide prevention programs, it is of the utmost importance to establish clear parameters for deciding when we should assist with a wish for death and when we should take steps to prevent it. At this time, there is no practical or conceptual guidance that characterizes the difference between these two kinds of situations.
These two problems pose a serious ethical liability for any government that chooses to legalize the practice of MAID for mental disorder. If we don't have clear standards for what is curable and what is not and for the difference between MAID and suicide prevention, clinicians must proceed on a case-by-case basis in their evaluations around this ultimate decision. The problem with a case-by-case approach is that decision-making is then based on clinicians' personal intuitions and unrecognized biases.
My research has shown that patients with mental illness who also have physical disabilities are more likely to be referred to the End of Life Clinic in the Netherlands, now called the Expertisecentrum Euthanasie. Paradoxically, persons who also had physical disabilities were less likely to be seen by a psychiatrist before death was carried out. I think we can all agree that this is an outcome and a liability that Canada should set out to avoid.
Therefore, based on my research, it is highly problematic to allow MAID for mental disorders before we clarify first what it means for a mental disorder to be incurable, and second, what it is that distinguishes a case of MAID from a case of suicide prevention.
Thank you, and I look forward to your questions.
By way of introduction, I'm a lawyer with a practice that includes human rights cases of provincial and national significance, including those that concern section 15, the equality provision of the charter.
I was intervenor and co-counsel in the case of Ontario v. G, a 2020 Supreme Court decision that applied section 15 in relation to mental disorder.
I am here today to offer my legal perspective, but I also note that I am a person who has lived with a mental illness for 18 years.
I will first explain how section 15 relates to MAID MD-SUMC, or mental disorder as the sole underlying medical condition. Second, I will discuss my view that the expert panel's recommendations comply with the spirit and letter of section 15 of the charter.
Subsection 15(1) confers the right to equal protection and benefit of the law. If a law makes a distinction in a discriminatory manner between persons on enumerated or analogous grounds, that is a subsection 15(1) violation. Mental disability is an enumerated ground.
A distinction is discriminatory if it imposes a burden or denies a benefit in a way that reinforces, perpetuates or exacerbates disadvantage. In the case law, the factors relevant to this determination are myriad and can include psychological or physical harm.
If Parliament passed legislation that created a separate MAID regime for those with a mental disorder and MAID was more difficult to access under that regime, that could violate subsection 15(1). This is because the regime would impose a burden on persons who seek to access MAID under the protected ground of mental disability.
However, section 1 of the charter permits a violation of subsection 15(1) if the state can establish it is within “reasonable limits...[that] can be demonstrably justified in a free and democratic society”. Whether this circumstance exists is assessed using the Oakes test: The state must have a compelling and substantial objective for the rights infringement, and the means chosen must possibly further that objective and interfere with the charter right as little as reasonably possible, and the benefits of the infringement must outweigh its negative effects.
In my view, the recommendation of the expert panel on MAID MD-SUMC conforms to the spirit and letter of the section 15 jurisprudence. I will highlight three reasons why.
First, the expert panel rejects the stereotype that those with mental disorders are the only group affected by concerns like incapacity, suicidality or the impact of structural vulnerabilities. The expert panel recommends that its safeguards, protocols and guidance apply to all clinical situations in which these and related concerns arise. The Supreme Court, in the case of G, emphasized how those with mental disorders lose their rights and freedoms specifically because of stereotyping about their propensities and capabilities. The expert panel's recommendation for a universally applicable approach precludes the application of that stereotype.
Second, flowing from the expert panel's observation about the universality of these concerns, it does not recommend a separate regime under the Criminal Code for MAID MD-SUMC. This approach reduces the risk of a subsection 15(1) violation, because there is no formal distinction made under the law in relation to mental disorder. To be clear, a distinction can also exist through the uneven application of a facially neutral law. However, a formal distinction would explicitly entail differential treatment and increase the risk of a subsection 15(1) violation.
Third, the expert panel endorses individualized forms of assessment. The panel emphasizes that case-by-case evaluations by MAID assessors of incurability, irreversibility and intolerability should be performed. This suggestion conforms to recent subsection 15(1) jurisprudence, which has recognized that an individualized assessment can be a less impairing alternative to a categorical form of treatment based on a prohibited ground of discrimination.
That concludes my opening statement. Thank you.
Thank you for inviting me to speak today.
With regard to a few words about my relevant background, I've been a clinical psychiatrist for 40 years in Calgary, with a special interest in the interplay between mental disorders and physical disorders. I am a clinical associate professor at the University of Calgary. I am the former chief medical officer of addiction and mental health at Alberta Health Services.
I chaired the Alberta Health Services non life-limiting expert panel from 2016 to 2018. I'm a member of the Canadian Psychiatric Association task group on MAID in mental disorders as the sole underlying medical condition. I am also a member of the Canadian Association of MAID Assessors and Providers, and I have provided psychiatric assessment primarily as it regards capacity in community settings.
In general terms, I respect and agree with the overall goals of Bill and Bill , along with the “Final Report of the Expert Panel on MAID and Mental Illness”.
In my view, mental disorders have long been seen as separate and distinct from physical disorders. I believe that any ongoing distinction between mental disorders and physical disorders in MAID-regulated legislation is unlikely to stand up to court review.
From my own clinical experience, I can describe cases that most people would agree represent appropriate use of MAID for people who have a mental disorder as their sole underlying medical condition. I can also report cases that most people would be very uncomfortable with if MAID for mental disorders were provided.
The challenge is to identify a reliable assessment system to make these determinations. Failure to generate such a system invites risks, including substantial variability from jurisdiction to jurisdiction, the risk of providing too much or too little MAID for mental disorders, the attendant ethical distress for providers and survivors, and MAID shopping.
In my view, the courts have judged on the most extreme cases, those with very strong and reasonable plaintiffs. These cases of extreme suffering and disability have established the principles that underlie MAID in general. Looking at them now, they seem relatively black and white, while some of the track two cases—and I anticipate many of the mental disorder as the sole underlying medical condition cases—will be very nuanced and grey in their details.
Not all of our requesters are or will be very reasonable. The level of complexity, combined with the current practice, which has emphasized for good reasons the independence of assessments, calls for some consideration of the processes and the expectations going forward.
The drive for MAID in the first place was largely driven by a person-centred, human rights-based approach. Bill largely focused on the question of not whether a person was going to die soon, but how and when they would die soon. I believe we have seen this taken up largely by individuals who are used to a high degree of personal control in their lives and choose to take this step at the time of their death. It has been very well received, and providers and survivors have attested to the relief and thanks that most would see as signs of success. The completion rate has been high in this group, once the formal request was made.
The anticipated situation for MAID with mental disorders being the sole underlying medical condition is very different. The Benelux experience reports a completion rate in the ranges of 0.5% to 4.5%, while our current overall Canadian completion rate in 2021 was reported to be 81%. This means an entirely different expectation is set for assessors, as well as providers, for those who request MAID for mental disorders.
I anticipate that this will be seen by some as being overly paternalistic. This may invite further court challenges unless the overlying administration is very carefully set and appropriate training is provided in concert across the country.
I appreciate the wording of the expert panel in describing shared decision-making. I believe we also need to build in the appropriate room for discussion between assessors after their first assessment in order to have the full opportunity to discuss these challenging cases. As noted above, while this is not explicitly banned in the legislation, the emphasis on independence of assessment leaves the impression that talking between assessors after their first meeting may not be acceptable.
I also appreciate the expert panel's recommendation for involvement of treatment teams as part of this expanded process.
I would recommend—
Thank you, Madam Joint Chair.
Thank you to the witnesses.
I will direct my questions to Dr. Nicolini.
We have heard from some witnesses in the Netherlands that the number of cases that have been completed involving mental disorders is very small overall, amounting to 1.3% of cases. In expanding MAID in the Canadian context, it has been suggested, having regard for the experience in the Netherlands, that the pool of persons who would seek to access this, and would do so successfully, would be a very small number.
Could you speak to some of the differences between the legal framework in Canada versus the Netherlands with respect to safeguards, and specifically with respect to the irremediability requirement?
Thank you for your question. I'll briefly respond to the numbers.
The number is correct. The number of MAID cases for mental disorders has been fluctuating both in the Netherlands and in Belgium. It's 1% to 2% of the total number of cases. It is important to note that when we talk about MAID for cancer, for example, we're talking about 10% of cancer patients who request MAID, so it's a substantial number.
As to the second part of your question, the differences between the framework in the Netherlands and Canada, I will just say the main difference is the way “irremediability”, one of the key requirements, is being defined. The Netherlands adheres in their official guidelines to an objective account when they say that a clinician is supposed to assess a patient in light of their diagnosis and prognosis. My research has shown we cannot predict prognosis in psychiatry, so that account actually fails to function as a reliable account.
Canada explicitly endorses a subjective account. We have not started to determine what the standards would be for such accounts when we talk about mental disorders.
I'm sorry to interrupt you, but I don't have much speaking time and I'd like to give the others a chance to ask questions.
That was my first question.
You've seen the panel's report that issues recommendations supporting a number of precautionary principles, particularly with respect to suicidality. It clearly states that the assessor could not receive a request for medical assistance in dying from a person in crisis. Individuals with mental disorders who are in a period of crisis would therefore be disqualified.
Here is a quote from the panel's final report:
In any situation where suicidality is a concern, the clinician must adopt three complementary perspectives [when they become clear]: consider a person's capacity to give informed consent or refusal of care, determine whether suicide prevention interventions—including involuntary ones—should be activated, and offer other types of interventions which may be helpful to the person.
In this report, they were undeniably able to distinguish between people struggling with suicidality and recommendation 8.
I found the concept of consistency, which you mentioned, to be meaningful. In fact, I found it in the report.
Recommendation 8 states: “Assessors should ensure that the requester's wish for death is consistent...unambiguous and rationally considered during a period of stability, not during a period of crisis.”
The report also talks about durability over time. Multiple attempts are made.
Witnesses who have testified before the committee told us that, even in the case of so-called Track 2 or physical conditions, it's almost impossible to establish a clear and irremediable prognosis.
To the point about prognosis, my research has shown.... We have actually, my co-authors and I, extensively looked at the question of prognosis prediction in psychiatry, looking at treatment-resistant depression as a paradigm case, looking both at clinicians' predictions and precision medicine. The conclusion is that we cannot predict prognosis. Contrary to what Dr. Trew was saying, the state-of-the-art science says that even when we use precision medicine, the best prognosis prediction in the long term is at the level of chance. That is what the science says. That is what has been published on this topic.
To the point about suicidality and autonomy that you're raising, I want to say this: Even if we agree, and we can, that some cases of persons with mental illness who have a wish to die warrant our compassion and assistance, we need to reckon with the fact that other cases of persons with a mental illness who want to die will warrant suicide prevention. No one believes that MAID should replace suicide prevention. The problem is that we don't have parameters to decide when to accept and when to reject patient autonomy on this.
It's helpful to clarify that when we talk about autonomy and if we want to be serious about autonomy, we talk about informed consent. The trouble is that many cases of patients who today receive suicide prevention meet the requirements for informed consent, so if we want to be serious about patient autonomy and if we want to legalize MAID for mental disorders, we first need to have a major overhaul of the way we do suicide prevention.
Thank you, Madam Co-Chair. Thank you to all of our witnesses for being with us today.
Dr. Nicolini, I'd like to start with you. I was taking notes during your opening statement and your remarks on the difficulties with establishing incurability and irremediability, and also the need for guidelines for suicide prevention, etc. I think no one would disagree with you on that.
With the way our Criminal Code is currently written, if you look at medical assistance in dying and the definition of a grievous and irremediable medical condition, you see that it does mention that it has to be a serious and incurable illness. It also does mention that there has to be an advanced state of irreversible decline. Paragraph 241.2(2)(c) also mentions that the condition has to be intolerable and also that it cannot be relieved under conditions that they consider acceptable.
There might be some potential conflict between those paragraphs because you may, hypothetically, come up with a treatment, but the patient may find that the treatment is not an acceptable one and may not believe that it can relieve their conditions properly. Do you have some thoughts?
I'm probably asking you the same question in a different form, but can you expand on that apparent conflict?
Mr. Rahim, I'd like to bring you into the conversation. I appreciate your opening remarks, particularly on section 15 of the charter, which states that everyone is deserving of equal protection and benefit of the law.
You've heard the conversation so far in this panel. You're well aware of the expert panel report that we have each read. If you look at the job that we as parliamentarians have on this committee and the recommendations we're going to be making to the federal government, is there anything in particular you would like to see included in that report, particularly with this thematic area of mental disorders as the sole underlying medical condition?
I know the expert panel felt that existing guardrails in the Criminal Code were adequate and that it was up to practitioners and the provinces and medical associations to develop these standards, but is there anything the federal government has not yet addressed appropriately in this area that you think this committee should be recommending?
One thing that comes across to me, and it came across in some of the prior panel's proceedings, is the distinction between some terms in the code as being legal language versus medical language, and how that affects the clarity of understanding of what those terms mean and what they entail.
As a court or a lawyer, you're faced with a set of facts and a decision that has been made according to a particular legal standard, and you try to determine whether those facts fit into that standard. What I would take away from this discussion and the panel's deliberations is the importance of this committee recommending that there be, as much as possible, clarity and specificity in whatever is developed, whether at the provincial level or by regulatory bodies. This is with respect to standards on what constitutes something that is incurable, irreversible or what have you.
I think the expert panel's report goes a long way in setting that foundation. In my view, the deliberations here and in other committee meetings have illustrated that it's necessary to go further, if only to ensure that when courts are faced with trying to apply these legal standards to a particular set of facts and a particular approach taken by medical professionals, they also have some tools before them to assess that and aren't left in a situation de novo when they're trying to answer those questions.
My question is for Dr. Nicolini.
Dr. Nicolini, you stated earlier that the prognosis for an irremediable condition is based on probabilities. According to other experts who have appeared before this committee, only a small proportion of the total patient population would qualify. We're talking about people who have been ill for many years and have had many treatments, most of which have not been very effective.
What are your views on this? What do you think, not about the irremediable condition, but rather about the status of those patients?
In your opinion, could they meet the criteria required to receive MAiD?
This goes to my point earlier.
I agree that a number of patients—in fact, many patients—will have a long history of prior psychiatric treatment. The question for individual MAID assessors is knowing whether or not they will truly not recover. That is what it means to meet the irremediability requirement.
When we look at the evidence in the literature and the trials that have looked at [Technical difficulty—Editor] with a set of patients who all meet those requirements of serious disease at the onset, and again, as I said earlier, that correlated in a way with their prognosis: The majority of these cases got better and a significant minority did not, so that is true.
The question is, how can we be sure? What kind of prognosis certainty do we have? As I said earlier, as things stand, we are close to chance level.
I think if the report included some specific consideration of the application of section 15 to the group of people who are seeking medical assistance in dying just on the basis of mental disorder and discussed—for example, drawing from some of the section 15 case law, such as the case in G—why an approach that either categorically excluded those living with mental disorder or applied a significantly more onerous regime upon them would raise equality concerns, that could go some way.
In my view, for the reasons I outlined in my remarks, I think that the expert panel's report has inherently incorporated those considerations in the way it has gone about thinking about the issue.
I know the panel report itself does not go into detail about how its recommendations conform to section 15, but things like the role of individualized assessment and the elaboration as to why the concerns raised are relevant for people with all medical conditions, not just those with mental disorder, are hallmarks of an approach that is ensuring that those with mental disorder are not stereotyped. It's a hallmark of an approach that takes into consideration the fact that categorical treatment that does not account for individual variance and difference in a group can ground, in part, a section 15 violation.
I think emphasizing those points would go some way to addressing that.
Thank you, Chair, and thank you to all our witnesses for helping us with this study. It's very much appreciated.
My first question is for Mr. Rahim.
Thank you for your thoughtful presentation. Also, I appreciated your sharing with us that you are an individual who suffers from a mental disorder. That gives you a perspective that many others may not have.
In the study of logic, there is something called an ecological fallacy, which is defined as the situation in which an individual who is a member of a group can be deduced by the criteria shared by the group they belong to. Thus, decisions made on the basis of group membership are fraught with challenge and problems, so a case-by-case basis is the way to deal with that ecological fallacy.
Do I understand you correctly that in Canadian jurisprudence, the courts have directed us to address MAID on a case-by-case basis?
My question is for Mr. Rahim.
In the G case, the Supreme Court said the case was going too far by a blanket exclusion and required some case-by-case analysis at least, to meet the test of hope, that there would be a safety valve, to a certain extent. The majority stated, and I quote: “Individual assessment does not need to perfectly predict risk — certainty cannot be the standard.”
Does that mean that some unpredictability with mental disorders, as with any other illnesses, does not invalidate, in the court's view, the perspective of case-by-case analysis?
I would like to hear from Dr. Trew and Mr. Rahim in response to a comment by Dr. Nicolini that we really don't have enough clarity on what the end stage of mental illness is, as we would in diabetes or cancer. I'm not 100% sure that I agree with that. I'm thinking that the end stage for far too many people is suicide, but I'd like the comparison to be clear.
If you have a cancer diagnosis and you don't want more treatment, yes, it's possible that a miracle might come along, a miracle cure, but you might choose to say, “No, I don't want that option. I don't want to live like this.”
Why is it not the same, then, if treatment is not acceptable to you, with a mental disability that you've taken treatment for, but you don't want to wait for some miracle cure that might come along? Are those two situations not roughly the same?
Dr. Trew, if you would, please begin, and then we'll hear from Mr. Rahim.
We're ready to resume, colleagues.
I have a few quick comments for the new panellists who have joined us.
Before speaking, please wait until I recognize you by name.
I will remind you that all comments should be addressed through the joint chairs.
When speaking, please speak slowly and clearly.
Interpretation in this video conference will work as it does in an in-person committee meeting. You have the choice, at the bottom of your screen, of either floor, English or French.
When you are not speaking, please kindly keep your microphone on mute.
As witnesses and by video conference, we have, as individuals, Mr. Mark Henick, mental health advocate, and Dr. Eric Kelleher, consultant liaison psychiatrist, Cork University Hospital.
Also by video conference, we have, from l'Ordre des psychologues du Québec, Dr. Christine Grou, president and psychologist, and Dr. Isabelle Marleau, psychologist and director of quality and practice development.
Thank you very much for joining us.
We're going to have our first presenter.
Mr. Mark Henick, you have five minutes. The floor is yours.
Thank you very much for this time to express myself on such a vital matter.
First, I think most importantly what I'd like to say is that I come here as a person with lived expertise of a once treatment-resistant, long-term, major depressive disorder, comorbid with a social anxiety disorder and a history of multiple, escalating suicide attempts and in-patient hospitalizations.
For years I was prescribed cocktails of medications. I was restrained, isolated and written off as hopeless, yet, if not for who I was then, I wouldn't be who I am right now, and at long last I finally actually enjoy the freedom of loving myself for who I am right now.
Since those dark decades, I've pursued an advanced education, worked as a mental health counsellor and participated in some of the biggest mental health initiatives in the country. I've toured every province and territory in Canada to talk with survivors and their families about mental health and mental illness.
It's based on this experience, both professional and personal, that I vigorously oppose the expansion of medical assistance in dying solely for the reason of a mental illness. I can say without reservation that had MAID been available for mental illness and accessible to mature minors at the time, today I'd be dead. That wouldn't have been the only time in my life in which I would have considered it. I struggled with my mental health, at times severely, for more than 20 years, yet today I'm not dead. Today I'm actually better, but I'm not exceptional. Recovery is routine. We're resilient by nature, and it takes active oppression to keep us down. Unfortunately, oppression is pervasive. Recovery ought not to be a privilege afforded to the few who can afford it; recovery is a right. I'm evidence of what's possible when certain freedoms, choices and means are justifiably restricted.
I think this legislation has arisen from a dangerous reductionism. For example, mental illnesses and physical illnesses, which we heard about earlier, are not collapsible into one another. The elimination of this difference has been a misguided attempt to elevate the esteem of mental health through attaching it to the greater perceived esteem of more worthy physical health issues. This, of course, perpetuates stigma.
Mental health is worthy of independent esteem just as it is. The framing of mental illnesses as irremediable brain diseases is both unhelpful and largely untrue. Continually banging the drum of biological determinism, telling people that their brain is broken and irreparable, is not based in scientific consensus. This too perpetuates stigma.
Irremediability of mental illnesses cannot be reliably predicted. Any clinician who tells you otherwise, in my opinion, is simply not a very good clinician. If you've tried four medications without success and then you feel that nothing works and that you've tried everything, you haven't. You've tried one thing. Professional silos exhaust and kill people, and they too perpetuate stigma.
When allowing assessors to decide if someone with a mental illness is a hopeless case, you really need to ask yourself how many times you are willing to be wrong. How many wrongful deaths are acceptable? The absence of evidence for hope is not evidence for absence of hope.
If this legislation were actually about rights, it would more thoughtfully consider the decision pathway or the choice architecture that leads people with mental illnesses to want to die in the first place, whether through MAID or any other means. If you walk that path, you'd see that MAID for mental illness alone is actually indistinguishable from suicide. How can we make a free choice if we think we have no other choices available? This is what it's like inside the mind of somebody who is considering suicide. I would know. Thanks to our natural availability bias, exacerbated by the cognitive rigidity imposed by our mental duress and cultivated by the lack of accessible treatment options, we falsely conclude that we will never get better, that there's no hope, and we have no other choice.
It doesn't have to be this way. Recovery from mental illnesses is not only possible; it's indeed expected and likely, especially when people access care early, but every single province in this country is failing to meet its obligations under the Canada Health Act with respect to the delivery of mental health care. Until access to medically necessary psychotherapy is universal, and as long as wait times for psychiatry and other interventions can exceed a year or more, then mental health care in this country is neither accessible nor comprehensive.
MAID for mental illness alone essentially asserts that if people with a mental illness think they want to kill themselves, we should let them, and even help them to do so. To call this assisted dying is to sanitize the reality. This is assisted suicide, and that is in direct opposition to suicide prevention efforts.
MAID for mental illness alone is the ultimate indignity. It is worse than a violation of the rights of people with mental illnesses; it's robbing them of the opportunity to have their superseding rights restored and defended.
In the spirit of the law of this land and in the moral law of our hearts, mental health care is a right and suicide is not a crime. Suicide is a public health emergency maintained by a failing health care system. Don't pin that on the victims. Don't gaslight us into thinking that this is about our rights, our biological constitution or a romanticized ideal of a good death, one that happens to be conveniently cheaper on the public purse than investing in real care. The expansion of MAID to mental illness disincentivizes the repair of a broken system. Please refocus your energy instead on building a system that helps people to thrive, not to die. Every Canadian with a mental illness has the right to life, liberty and security of the person and the right not to be deprived thereof, whether that's by illness or systemic failings.
To that end, I ask you to fight for our charter right to live and stop the expansion of MAID for mental illness alone.
Thank you for your attention today.
I'll just begin by saying I absolutely echo and support everything my colleague Mr. Henick has just said.
My name is Dr. Eric Kelleher. I'm a consultant liaison psychiatrist working at Cork University Hospital, Ireland, and an honorary clinic senior lecturer at University College Cork. I'm a member of the College of Psychiatrists of Ireland, where I'm a vice-chair of the faculty of liaison psychiatry and a member of the human rights and ethics committee. I'm also co-author of our college's position paper on physician-assisted suicide and euthanasia, in which we oppose legislation to allow physician-assisted suicide and euthanasia in Ireland. One of our greatest concerns about this type of legislation is that such laws will be extended over time to include patients with mental illness, the position many patients with mental illness in Canada are now facing.
I'm speaking to you tonight, though, in a personal capacity. I thank the committee for their kind invitation.
I will summarize my opinion to three points.
My first is that in enacting this legislation, the Canadian government is sending a very clear message to patients with mental illness that not only is it acceptable to end your own life, but that the government will, in fact, help you to do so. This will forever damage not only the relationship that exists between mental health professionals and their patients but also how patients see themselves and their illnesses.
Being suicidal is a core part of diagnostic criteria for depression, some psychotic illnesses and certain personality disorders, all mental disorders that are eminently treatable with multidisciplinary team care.
Proponents of this legislation will tell you that there are distinct differences between a person who has a depressive illness who is suicidal and a person who has a depressive illness who is choosing MAID, when in reality it will be impossible for clinicians or assessors to distinguish between the two.
Mental illness, if any of you have been unlucky enough to experience it, does alter your view of yourself, your world and your future. The illnesses themselves generate hopelessness, lethargy, avoidance and non-compliance with treatment by their very nature. The integral part of what psychiatrists, psychologists and other mental health professions do is to identify and treat mental illness, restore hope and support the patient at some of the most difficult times of their life. How can mental health professionals and Canadian suicide prevention strategists say to patients with mental illness that we encourage you not to end your life when MAID for mental illness would allow you to do so?
This brings me to my second point.
It is the duty of the Canadian government, and the government in Ireland or indeed anywhere in the world, to protect its most vulnerable citizens and ensure that legislation does not cause harm. Those who develop mental illness such as depression and suicidal thoughts are more likely to be poor, uneducated and disenfranchised and to have experienced childhood trauma, including sexual abuse.
In the Netherlands, 60% of patients who received euthanasia were described as lonely and socially isolated. Research shows that women are more likely to experience clinical depression and experience abuse, and are also more likely than men to access MAID for mental illness——
Rather than enabling patients to end their lives through assisted suicide, governments should consider how much funding there is for mental illness, how long the waiting lists are to see a psychiatrist and how government can provide excellent multidisciplinary team care to such patients. Only then can patients truly be said to have a choice about their treatment.
This brings me to my third point. The management of mental illness involves seeing the patient as a whole person and exploring all aspects of their presentation and their care—the psychological, social and biological factors. There is no evidence that mental illness treatment is irremediable. In practice, improving some or indeed all of their biological, social and psychological factors may need to be optimized for a patient to see an improvement.
Do you consider a suicidal patient who is suffering from a clinical depression associated with significant loneliness and poverty to be irremediable? Of course not, but many of these factors, such as poverty and housing, may take months to address adequately, by which time they may have already died from MAID in mental illness if provided.
I was shocked to read how a patient in Canada with multiple chemical sensitivities was provided with MAID because they could not cope living with their illness in housing that did not meet their health care needs, despite official agencies looking for such housing for two years. Surely there was something profoundly wrong about this woman's treatment that she could secure death from government-funded agencies but not housing.
In summary, disclosing difficult and frightening thoughts like suicide needs to be met with not only empathy but also practicality, working with the patient to find solutions. It's not to superficially endorse their dangerous and life-threatening cognitive distortions of mental illness and enable patients with mental illness, some of society's most vulnerable, to end their own lives by providing MAID for mental illness.
I sincerely thank you for your attention. I would be happy to answer any questions.
First of all, I would like to sincerely thank the Special Joint Committee on Medical Assistance in Dying for inviting me to appear before you.
My colleague and I represent the Ordre des psychologues du Québec, of which I am president.
I am a clinical psychologist and neuropsychologist specializing in mental health. I've been treating people for 35 years. I've worked 30 years in a hospital setting and 25 years in the psychiatric setting. I have naturally acquired expertise in neuropsychology with respect to severe mental disorders, and also ethics expertise. So I'm an ethicist, and I chaired the hospital's ethics committee for over 10 years to discuss complex cases.
Dr. Marleau, who specializes in neurodevelopmental disorders, also worked for 15 years in the public health system as a clinical psychologist.
Medical assistance in dying is a subject that has motivated us from the outset at the Ordre des psychologues du Québec. MAiD for people with mental disorders is also of particular concern to us, given our expertise.
First and foremost, I would like to say that the Ordre agrees with all the expert panel's recommendations, but to start with, I must also say that we and the Ordre are strong believers in treatment and recovery.
We have chosen restorative professions. We've chosen to treat people, and the Ordre des psychologues du Québec ensures the quality of psychological services and development of practices, as well as access to services. Therefore, we strongly believe in treating people suffering from psychological distress and mental disorders.
I'd like to reiterate, as does the panel, that we prefer the term “mental disorder” over “mental illness”, which is already used in medical literature. We believe that it's not necessary to add additional criteria or guidelines to make people with mental disorders eligible for MAiD. That said, the guidelines should be very well understood and very well operationalized.
Right now, most people who request MAiD do so because of their physical condition. However, they have the right to do so, not because their physical suffering isn't being alleviated, but because their physical condition is causing them unalleviated psychological suffering. Why apply a different rationale to people who suffer solely from mental disorders? As with physical conditions, we believe that the current assessment process is sufficient to ensure that MAiD requests are made freely, in an informed, consistent and well considered manner. Of course, the challenge lies in confirming that the condition is a mental disorder of an irreversible nature and that the suffering is enduring and intolerable.
In our view, the current criteria will disqualify cases in which suicidality would be related to a spontaneous desire for death brought on by a crisis or by an untreated or inadequately treated disorder. We're confident that the assessment process will respect the autonomy of individuals with a mental disorder while also protecting individuals who are vulnerable due to their condition or because they are having trouble gaining access to services.
With respect to assessing MAiD, we believe that psychologists and neuropsychologists should be brought into the process given their particular expertise, and that they could provide considerable input. We even believe they could be designated as independent expert assessors.
We believe that, based on the nature of the issue and the context, it might be more appropriate to call upon them. I would add that psychologists and neuropsychologists have eight to nine years of academic training. In addition, they are particularly knowledgeable about the narrative space that is conducive to confiding and, most importantly, they are trained to take a neutral position when it comes to the patient's subjectivity. They are also trained to neutralize their own feelings.
In terms of implementation, it stands to reason that professional training should be tailored to include mental disorders. The same thing goes for MAiD guidelines and standards of practice.
So far, the way has been well paved and monitored for MAiD. The established guidelines should help prevent potential abuses.
We also believe that the existing guidelines will ensure that a very small number of people are eligible for MAiD. The guidelines are already in place. Now we need to properly operationalize the safeguards.
In my opinion, the community needs to take this step. It's taken a long time to recognize the rights and autonomy of people with mental disorders. It's also taken a long time to recognize the individual, to not distinguish between the two types of health and to recognize overall health. There's no clear-cut distinction between mental health and physical health.
Now that people recognize the rights and autonomy of people with mental disorders, we shouldn't deny them a right that we give to all other patients. Furthermore, we shouldn't be tempted to pit access to services and quality of services against MAiD. On the contrary, I believe that access to services and quality of services must be guaranteed before considering MAiD.
We'd be happy to answer your questions and take part in the discussion.
It's a really, really good question.
Unfortunately, there isn't a whole lot of information out there. A recent systematic review, one of the highest forms of evidence, was published this year. It said just that: that there isn't a lot of research in this field.
Several studies do report increases in the overall rates of self-initiated death, and in some cases increases in non-assisted suicide in countries that have brought in MAID-type procedures. In particular, women in some of the Benelux countries are increasingly accessing MAID for mental illness. That's a pattern. Typically, women who engage in self-harm choose non-lethal methods to do so. However, there's been a rising number of women with psychiatric illnesses dying from MAID provision for mental illness, which is in contrast to what we see in men.
Certainly some of the trends from Europe are that MAID for mental illness seems to disproportionately affect women, and in some countries it appears to also have a contagion effect in increasing the non-assisted suicide rate. That's something we see in suicide research anyway: There's also a contagion effect when there are suicides locally, and that's why we have very strict media guidelines and reporting about suicide and how it is portrayed in the media.
I will give you a very concrete example.
In 25 years of psychiatry and 30 years in a hospital setting, I've seen two cases where patients could have requested MAiD and might have succeeded in getting it. Given the current guidelines, it's impossible to get it at age 20 or 25. Moreover, a patient cannot get it during an untreated episode of major depression or if they don't have a long history of pain and suffering.
If a patient has been suffering for 10 or 15 years despite treatments that an independent expert considers to be relatively optimal, and if therapeutic trials are conducted and, for any number of reasons, a dark cloud still hangs over the patient's head, MAiD might be an option.
It's important to understand that some people have lived extremely hard lives and it can be extremely complex to treat certain health issues. If I say to you that someone has cancer of the soul and and it's untreatable, would you say we should condemn them to a life of suffering? Should they be deprived of that freedom to choose?
I would tend to say you have to take into account the desire for death in someone who is not capable of living and has tried everything. We're not talking about someone who's been abandoned by the health care system. We can look at the nature of the treatment, the longevity of the treatment, the intensity of the suffering and, most importantly, the duration of the suffering, including all the health conditions the patient suffers from.
You also need to consider agreement from the person and their entourage, their family, who have watched them live for 10, 15 or 20 years. In that context, do you truly risk being wrong about the prognosis? I don't think so.
Thank you for that question and the opportunity to follow up on that.
I am convinced that I would have been an eligible candidate. I had been in and out of hospital involuntarily more than half a dozen times. I had been transferred to different hospitals. I was on locked wards. I was on more than a dozen different medications, and nothing really seemed to work. I talked to plenty of different doctors. It was chronic and persistent for enough years that I absolutely would have been a candidate, and should this legislation have continued to unfold toward allowing so-called mature minors, I would probably have qualified much earlier on.
I am so grateful, so eternally grateful, that MAID for mental illness was not available when I was struggling, because I was convinced that I wouldn't live to see another day, and I have. I think everybody deserves that opportunity too. If you really look at the root causes of why people are struggling for so long, it's not that the treatments don't work. We have lots of evidence to suggest that they do and that the real problem is access and getting connected to those treatments, which was exactly what I experienced.
Suicide prevention is an important area to continue to work on, including providing access to care and continuity of care. There is clearly a ways to go in this regard.
However, suicidal patients shouldn't all be lumped together. For suicidal patients where this is an expression of the moment, an impulsive expression, and who are doing better two weeks later, we should continue to treat them and do prevention work.
The situation is very different in the case of a person who has a physical health problem, who no longer has any quality of life and who becomes suicidal in a thoughtful and reasoned way. In that case, we will consider medical assistance in dying.
Take someone who has a mental health problem that they can't break free of, who can't get better, and who has suffered intolerably for a long time. That person could also, in a thoughtful and rational way, prioritize the quality of their life over the sanctity of life and have a desire for death. This suicidal person, who wants to die, is therefore more like a person who might apply for medical assistance in dying and may be the one to do so. Not all suicidal people are the same, and not all motivations and suicides are the same.
If you're talking about someone who has thought long and hard, who has been offered treatment, and even different treatment options, who has a treatment program that hasn't worked, who wants to stop suffering, and who is contemplating death, there are two choices. I can assure you that there are patients who are going to take their lives anyway in a context like that and in a thoughtful way. Would we rather force them to die alone, in conditions that are sometimes risky, or would we rather allow them this care, which is offered to any other patient, so they can have a more supported, more dignified and safer death?
In both cases, perhaps we should give these patients access to medical assistance in dying. If we don't, isn't that denying them a fundamental right and, again, taking a step backwards in mental health by saying that we're going to respect the autonomy of all patients in their choice of treatment, in their desire to be treated or not, and even in taking responsibility for their treatment? Isn't that saying that we will respect their autonomy for everything, but not for their request for medical assistance in dying, and that we will exclude them once again? This sets mental health and the rights of mental health patients back by half a century.
Thank you very much, Mr. Chair.
I'd also like to thank the witnesses for being with us.
My question is for Dr. Grou.
Dr. Grou, you said that you agreed with the idea of not including new guidelines for people whose mental disorder is the sole reason for requesting MAID. You also said that the same guidelines can be used, but they must be properly managed.
Do you have an example of a shift that might have occurred with respect to the guidelines?
I'll ask you a second question right away because I only have three minutes. This will let you organize your answers accordingly.
What could you suggest from a regulatory perspective to guide MAID assessors in the case of individuals with a mental disorder?
As far as the guidelines are concerned, in fact, the Quebec Commission spéciale sur l’évolution de la Loi concernant les soins de fin de vie believes that the guidelines are adequate, if they are properly interpreted. In terms of operationalization, we have made a series of recommendations because that's where a lot of work needs to be done.
However, there is no doubt that great care must be taken when assessing the patient's personal history, particularly when assessing the likely irreversibility of the mental disorder. It is extremely important to take the time to do this, with the patient and with the family. A history of treatment, outcomes and periods of remission should be taken. For example, it should be determined how long the remissions lasted.
It's necessary to try to establish a kind of pain pathway or pain intensity, even if it's subjective. It's important to be able to estimate the intensity and permanence of the suffering experienced. The other thing that is absolutely fundamental is to ensure, as a society, that there is access to services and that access does not vary from region to region. We must also ensure the quality of services.
The guidelines provide for the services of competent professionals who will inform the person not only of their health problems—because they are often multiple—but also of the treatment options that are available.
The process also includes a reflection period. Consent is a process. In mental health, we have the time to do things properly. We have to look at all the guidelines. Competent professionals must be called upon to provide a proper assessment.
Since ambivalent patients aren't eligible, care must also be taken to ensure that the person's decision is persistent and consistent with their values. A desire for death must not be an expression of the disease or of one of its recurrences.
My question will be for Dr. Grou and perhaps also Dr. Marleau.
Brian Mishara, a professor at the Université du Québec à Montréal and director of the Centre de recherche et d'intervention sur le suicide, enjeux éthiques et pratiques de fin de vie, has studied the practice in the Netherlands. He concluded that the average assessment of a person requesting medical assistance in dying for mental health reasons took 10 months—a fairly lengthy process—and that only 5% of requests were granted.
Dr. Grou, from what I heard earlier, in 30 years you've seen two cases that met the criteria suggested by the special committee that recommended guidelines.
In your experience as a clinical psychologist and president of the Ordre des psychologues du Québec, do you think that the trend observed in the Netherlands would probably be the same here in Canada?
I always have trouble formulating a hypothetical answer when there are no data.
I can speak from my clinical experience, though. I did work in psychiatry for 25 years and chaired the ethics committee.
In general, patients with mental disorders want to live, get better and recover. This is the case for the majority of patients. The majority of health problems are treatable, even those that are complex or unresponsive.
In my life, I have seen two cases, one of which involved a patient who was very determined to end his life and who wanted to die humanely because he was not capable of living.
You know, in psychiatry we sometimes meet people whose lives give the impression that all the misery has been dumped on them. When I talk about misery, I'm talking about human misery, trauma, hardship, fighting, illness, lack of resources, poverty and social isolation.
There are cases where all of these elements are concentrated in one person. This often occurs in cases of severe mental disorder. I haven't often seen people who spontaneously say they have a desire for death or want to die.
Let's take the eligibility criteria. I truly believe that nothing is simple for caregivers who are trained to treat health problems and rehabilitate patients.
You know, in ethics, we find that it's much harder to respect a patient's decision when it offends our values, when it goes against what we want for them. So when we offer a treatment, and we think it's going to work, we establish a therapeutic alliance, and generally the patient wants it, because they want to get better—