AMAD Committee Report

The Legal and Clinical Problems Respecting Medical Assistance in Dying in Cases Where a Mental Disorder Is the Sole Underlying Medical Condition

Special Joint Committee on Medical Assistance in Dying: Dissenting Interim Report

This Dissenting Interim Report reflects the views of the Conservative Members of Parliament who serve on the Special Joint Committee on Medical Assistance in Dying (the “Committee”): Michael Barrett (Co-Vice Chair of the Committee, Leeds – Grenville – Thousand Islands and Rideau Lakes), Michael Cooper (St. Albert – Edmonton), and Dominique Vien (Bellechasse—Les Etchemins—Lévis).

Introduction

We concede that the Interim Report presents the varying opinions that the Committee heard as evidence to a reasonable degree of satisfaction and to a reasonable degree of fairness and accuracy.

Nonetheless, we have written this Dissenting Interim Report primarily because of the concluding paragraph of the Interim Report. While not a formal enumerated recommendation, the conclusion states that: “[The Committee] 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.”

The Interim Report’s effective recommendation that the federal government implement all 19 recommendations of the Expert Panel on MAID and Mental Illness (the “Expert Panel”) is problematic.  It presupposes that MAID should be expanded to include cases where a mental disorder is the sole underlying medical condition (“MAID MD-SUMC”). 

MAID MD-SUMC will likely take effect in March 2023, because of the Liberal government’s irresponsible decision to accept a Senate amendment imposing a sunset clause on the legislative exclusion of MAID MD-SUMC, in a timeframe that does not allow for comprehensive study.  However, the mandate of the Committee includes studying the issue of MAID MD-SUMC.  Nothing precludes the Committee from evaluating whether MAID MD-SUMC should be permitted.  Indeed, fundamental to a full evaluation of issues surrounding MAID MD-SUMC necessitates consideration of the appropriateness of such an expansion.

In endorsing the implementation of the Expert Panel’s recommendations, the Interim Report fails to address this fundamental question.  This is especially concerning considering evidence heard by the Committee regarding MAID MD-SUMC.  For example, the Committee received ample evidence that it is not possible to predict irremediability, a key eligibility criterion, in cases where a mental disorder is the sole underlying medical condition.  Clinical and ethical concerns were also raised.  This Dissenting Interim Report further elaborates on these and other issues, including:

1. The lack of meaningful study and consultation regarding the expansion of MAID to include MAID MD-SUMC;
2. The difficulty in predicting irremediability in cases where a mental disorder is the sole underlying medical condition;
3. Clinical concerns and inherent risks of MAID MD-SUMC to vulnerable persons; and
4. General concerns with the Expert Panel and Expert Panel Report.

The Lack of Meaningful Study and Consultation

We are concerned by the rushed manner that the Liberal government is implementing MAID MD-SUMC absent meaningful study and consultation. 

MAID MD-SUMC represents a significant expansion of MAID.  Canada will be only the fourth jurisdiction in the world, after Belgium, Luxemburg, and the Netherlands, to permit MAID MD-SUMC. 

Issues around mental illness in the context of MAID are incredibly complex and impacts some of the most vulnerable persons in Canadian society.  The Honourable David Lametti, the Minister of Justice and Attorney General of Canada, acknowledged this, stating that there are “inherent complexities and risks with MAID on the basis of mental illness as the sole criterion, such as suicidality being a symptom of some mental illnesses.”[1]

Notwithstanding this, the Liberal government abruptly accepted the Senate amendment to Bill C-7 to expand MAID to include MAID MD-SUMC.  The Liberals did so absent further study and in the face of evidence from multiple expert witnesses who appeared at the Senate Standing Committee on Legal Constitutional Affairs and warned about serious risks associated with MAID MD-SUMC.[2] 

The need for further study of the issues associated with MAID MD-SUMC is supported by the findings of the 2018 Canadian Council of Academies report: The State of Knowledge on Medical Assistance in Dying Where a Mental Disorder Is the Sole Underlying Medical Condition (the “2018 CCA Report”).  That 2018 CCA Report found “many important knowledge gaps concerning mental disorders” and that “continued research and examination” is needed to “address some uncertainties and reduce or remove these knowledge gaps.”[3] 

Given the risks and uncertainties surrounding MAID MD-SUMC, it is noteworthy that the Quebec National Assembly Select Committee tasked with studying Quebec’s MAID regime recommended “that access to medical aid in dying not be extended to persons whose only medical condition is a mental disorder.”[4]  In light of the extent to which the Quebec National Assembly considered these matters, it is important to consider its recommendations.

Yet since adopting the Senate amendment and setting in motion MAID MD-SUMC effective March 2023, the Liberal government has not undertaken any further study to examine the many complex issues.  Nor have the Liberals adequately considered the significant concerns that have been raised about the appropriateness of MAID MD-SUMC, and whether it can be safely implemented. Although the Liberal government appointed the Expert Panel, the mandate of the Panel was to bring forward recommendations on implementing MAID MD-SUMC, not to consider the question of whether such an expansion is appropriate.

In addition to a lack of study, there has been a lack of consultation.  The Liberal government has failed to meaningfully engage with stakeholders, including persons with disabilities and their advocates, Indigenous peoples, mental health professionals and advocates, and other experts.  This lack of consultation was condemned at the Committee by Sarah Jama, Executive Director of the Disability Justice Network of Ontario.[5]  Notably, the mandate of the Expert Panel did not include consultation with affected stakeholders.[6]

Moreover, the Liberal government has ignored feedback from the limited consultation that occurred when Canadians were invited to provide feedback on issues surrounding MAID by completing a survey prepared by the Department of Justice.  The Department of Justice’s report on the results of the consultation concluded: “A majority of those who provided comments were not in favour of extending MAID to people who suffer from mental illness.”[7]

The Difficulty in Predicting Irremediability

Based on evidence the Committee heard, there is significant doubt about whether it is possible to accurately predict the irremediability of a mental disorder that must be thoughtfully considered. 

By law, to be eligible for MAID, a person must have a “grievous and irremediable medical condition” that is “incurable” and in “an advanced state of irreversible decline”.[8]  Another words, to qualify, a MAID assessor must be satisfied that the person’s condition will not get better. The Committee heard from multiple witnesses who said that it is not possible to predict whether a person suffering from a mental health disorder will get better, and therefore not possible to ascertain irremediability.[9] 

For example, Dr. John Maher, a clinical psychiatrist, and medical ethicist, said:

“Psychiatrists don't know and can't know who will get better and live decades of good life. Brain diseases are not liver diseases.”[10]

Dr. Brian Mishara, also a clinical psychiatrist and professor at the Université du Québec à Montréal, said:

“I'm a scientist. The latest Cochrane Review of research on the ability to find some indicator of the future course of a mental illness, either treated or untreated, concluded that we have no specific scientific ways of doing this. We are relying on the clinical hunch of someone who hasn't known the person for 20 or 30 years and who has no scientific data showing that they can determine this.”[11]

Dr. Mishara further noted that “[e]ven the most severe mental illnesses, such as schizophrenia, are unpredictable.”[12]

Dr. Valorie Masuda, a physician and MAID assessor, said:

“When we look at what irremediable means in mental illness, I think it's very difficult to predict and to say that this person has tried a lot of things, but their depression they cannot recover from.”[13]

Even the Expert Panel conceded the difficulty in determining the irremediability of a mental disorder, stating:

“The evolution of many mental disorders, like some other chronic conditions, is difficult to predict for a given individual. 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.”[14]

The degree of uncertainty in predicting irremediability is underscored by the Expert Panel’s finding that “[i]t is not possible to provide fixed rules” and that determining eligibility will be completely subjective and left up to MAID assessors to determine on a “case-by-case basis.”[15]

As such, MAID decisions in the case of a mental disorder will be based on “hunches and guesswork that could be wildly inaccurate.”[16]  As Dr. Mark Sinyor, a professor of psychiatry at the University of Toronto and psychiatrist who specializes in the treatment of adults with complex mood and anxiety disorders, said:

“They could be making an error 2% of the time or 95% of the time. That information should be at the forefront of this discussion, yet it is absent altogether.”[17]

Likewise, Dr. Mishara stated with respect to persons suffering from a mental health disorder:

“But any attempt at identifying who should have access to MAID will make large numbers of mistakes, and people who would have experienced improvements in their symptoms and no longer wish to die will die by MAID.”[18]

Moreover, there is a paucity of scientific evidence to evaluate the safety of MAID MD-SUMC, and the possibility of predicting irremediability.  According to Dr. Sinyor there “is absolutely no research on the reliability of physician predictions of the irremediability of illness or suffering in psychiatric conditions.”[19]  Consistent with this, Dr. Mona Gupta, the Chair of the Expert Panel, testified that she is unaware of any such studies.[20]

Having regard for the above and given the uncertainty around determining irremediability, it is irresponsible and appears to be legally incoherent to move forward with implementing MAID MD-SUMC at this time. It is first necessary for the Liberal government to thoroughly study whether irremediability in the context of a mental disorder is determinable so that, as noted by Dr. Mark Sinyor, “the necessary scientific information is in hand before making such a consequential decision.”^[21]

Clinical Problems Respecting MAID MD-SUMC

Several witnesses testified that MAID MD-SUMC blurs the line between suicide prevention and suicide assistance.[22]  Dr. Mishara, and Dr. Georgia Vrakas, a psychologist, testified that 90% of those who commit suicide have a diagnosable mental disorder.[23]  Consistent with this testimony, the 2018 CCA Report cites studies finding, as determined by retrospective psychological autopsy, up to 90% of people who die by suicide may have had a diagnosable psychiatric disorder.[24] One cannot easily distinguish between a person with an underlying mental disorder motivated to request MAID due to suicidality and someone making a rational request.[25] 

Moreover, MAID MD-SUMC may have the perverse effect of discouraging persons suffering from a mental disorder from seeking treatment and instead turning to MAID as a means of ending their suffering.  Dr. Maher testified that some of his patients who suffer from a mental disorder are already refusing treatment, hoping instead to access MAID.[26]

Several witnesses told the Committee that if MAID MD-SUMC is permitted, it will result in the premature deaths of patients who would have otherwise gotten better[27].  Dr. Vrakas is of the opinion that no safeguards will make MAID MD-SUMC safe.[28]

There are further clinical concerns regarding structural vulnerability and social determinants of health. There are clear gaps across Canada respecting access to adequate care. Dr. Gupta told the Committee that there are already cases where patients are approved for MAID when suicidality and structural vulnerability may be at play.[29]  This is unacceptable and must be addressed by seeing that vulnerable persons have access to adequate treatment and support.  As Dr. Maher stated: “[d]eath is not an acceptable substitute for good treatment, food, housing, and compassion.”

General Concerns with the Expert Panel and Expert Panel Report

The Expert Panel and the Expert Panel Report have multiple shortcomings, both substantive and process-related, including but not limited to:

1. There is an inherent contradiction baked into the Expert Panel Report.  It contends that the current legal framework can be applied to MAID MD-SUMC while offering no guidelines to determine irremediability, nor any evidence that predicting the same is possible.  
2. The Expert Panel Report fails to recommend safeguards for MAID MD-SUMC.  Making recommendations around safeguards was the central mandate of the Expert Panel.  Instead, the Expert Panel Report recommends that eligibility for MAID MD-SUMC be decided on a “case-by-case basis”.  The failure to recommend safeguards and practice standards supports our contention, based on the evidence that we heard, that MAID MD-SUMC cannot be implemented and carried out safely and objectively at this time.
3. The Expert Panel Report fails to adequately address issues of suicidality and structural vulnerability, even though Dr. Gupta at the Committee admitted that there are MAID cases where these factors are at play.
4. The Expert Panel did not engage in consultation with stakeholders, including notably with historically marginalized groups such as Indigenous peoples, and persons living with disabilities.  This diminishes the weight that can be attached to the recommendations of the Expert Panel Report.  It is further reason why we do not agree with the effective recommendation of the Interim Report for the federal government to implement the recommendations of the Expert Panel.
5. Two of the original members of the Expert Panel resigned before its Report was tabled. We have not yet offered them an opportunity to provide the Committee with their explanations.  Dr. Jeff Kirby, one of the two members who resigned from the Expert Panel, is quoted in an article in The Hill Times that he “personally support[s] the implementation of MAID in MD-SUMC circumstances” but “was unable to sign-off on the final report’s content in good conscience, including its recommendations.”[30]  It is important that the Committee hear from these former members as part of its deliberations regarding its response to the recommendations of the Expert Panel Report.

Conclusion

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. It is unreasonable to expect the Committee to resolve these issues by the October 17, 2022, deadline it has to table its report.

Legislation of this nature needs to be guided by science, and not ideology. We have been warned by several experts that if MAID MD-SUMC is implemented as planned, it will facilitate the deaths of Canadians who could have gotten better, robbing them of the opportunity they may have had to live a fulfilling life. Such an outcome is completely unacceptable, and preventable, but only if the Liberal government halts and reconsiders the expansion of MAID MD-SUMC.

Respectfully submitted,

Michael Barrett, M.P. Leeds – Grenville – Thousand Islands and Rideau Lakes

Michael Cooper, M.P. St. Albert – Edmonton

Dominique Vien, M.P. Bellechasse—Les Etchemins—Lévis