AMAD Committee Report

DISSENTING OPINION OF SENATOR DALPHOND

INTRODUCTION

• 1. A large majority of Canadians want the possibility of accessing medical assistance in dying (MAID), in well-defined circumstances, including for a severe, treatment-resistant mental illness for which individuals experience intolerable suffering, according to a January 2023 poll.[1] For most Canadians, it is a question of dignity and autonomy.

BACKGROUND ON EXCLUSION OF MENTAL ILLNESS FROM MAID ACCESS

• 2. In Carter v. Canada (Attorney General) (2015),  the Supreme Court of Canada ruled on a constitutional challenge to the criminal prohibition on MAID initiated four years earlier, with the trial having proceeded on an expedited basis. The Court stated that section 7 of the Canadian Charter of Rights and Freedoms protects Canadians’ right to decide about end-of-life issues and that provisions of the Criminal Code preventing MAID were unconstitutional, granting Parliament one year to legislate accordingly. The Court also said that MAID for persons with psychiatric disorders as a sole condition did not fall within the parameters of its reasons despite arguments presented by the Attorney General of Canada on that issue.
• 3. In June 2016, Parliament adopted Government Bill C-14, which amended the Criminal Code to allow access to MAID for people suffering from an irremediable illness and whose death is reasonably foreseeable.
• 4. In Truchon c. Procureur général du Canada (2019), in the context of another constitutional challenge, the Quebec Superior Court concluded that access to MAID could not be restricted to those whose death is reasonably foreseeable.
• 5. In response, the Government tabled Bill C-7 which extended access to people who are not terminally ill, but who suffer from an irremediable condition that has become unbearable for them. However, this bill specifically excluded all individuals suffering solely from an irremediable mental illness.
• 6. As stated in the Charter Statement tabled in the House of Commons on October 21, 2020, the exclusion was not based on the assumption that these individuals lack decision-making capacity and thus would not disqualify them from eligibility for MAID if they have another medical condition that was considered to be a serious and incurable illness, disease or disability. Rather, it was based on assumptions of complexity and inherent risks of access to MAID for these individuals, such as difficulty in assessing decision-making capacity, lesser predictability over time of the course of mental illness than physical illness, and certain recent cases in the few countries that permitted MAID for people whose sole medical condition was a mental illness.
• 7. These assumptions were then widely accepted by the political parties in the House of Commons.
• 8. For its part, after reviewing the question, the Senate adopted an amendment to subject the exclusion to a sunset clause of 18 months, a period to provide for proper guidelines and training.
• 9. In moving the amendment, Senator Kutcher stated: “[T]he exclusion [clause] is stigmatizing, discriminatory, and thus likely unconstitutional.”
• 10.  In support of that amendment, I said:

We have also heard that it does not make sense to exclude Canadians suffering solely from mental illness while allowing access for those who may suffer both from a mental and physical illness. In these cases, capacity assessments must also be performed, and it seems it can be done without much difficulty in practice.

In reality, as many witnesses have said, the proposed exclusion reinforces, perpetuates or exacerbates myths and biases about mental illness, including that the suffering of those with mental illnesses is somewhat less legitimate than that of physical conditions and that people with mental illnesses lack the agency or capacity to make decisions about their own suffering.

• 11.  As proposed by the Government, a majority of the House of Commons accepted the Senate’s amendment, but extended the sunset clause to 24 months.   
• 12.  The House of Commons also added an obligation for the Minister of Health and the Minister of Justice to initiate an independent expert panel “respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.”
• 13.  On May 13, 2022, the Panel’s final report was published. The Panel concluded that existing MAID eligibility criteria and safeguards, buttressed by the existing laws, standards, and practices in related areas of healthcare, can provide an adequate structure for MAID where the sole underlying condition is mental illness. However, it recommended that specialized training be made available to providers and assessors before allowing access.  
• 14.  In March 2023, through Bill C-39, Parliament extended the sunset clause by one year, ending on March 17, 2024. In bringing forward Bill C-39, the Government indicated that such extension would help ensure health care system readiness by, among other things, allowing more time for the dissemination and uptake of key resources by the medical and nursing communities, including MAID assessors and providers. 
• 15.  In the Charter Statement tabled in the House of Commons on February 15, 2023, the Minister of Justice acknowledged that Bill C-39, by temporarily prohibiting access to MAID where the sole condition identified is a mental illness, had the potential to engage liberty and security of these individuals protected by section 7 of the Charter. It also had the potential to engage the right to equality under section 15 because the exclusion applies only to individuals who suffer from a mental illness.
• 16.  As a Quebec senator, I cannot ignore that in its December 2021 report, the National Assembly's Select Committee on the Evolution of the Act respecting end-of-life care recommended against extending access to MAID to people whose only medical problem is a mental illness. The committee made this recommendation in keeping with the precautionary principle that Quebec has favoured since the beginning of its work on MAID, considering the lack of medical and social consensus. In June 2023, the National Assembly adopted Bill 11, amending the Act respecting end-of-life care, to exclude MAID solely for a mental illness.
• 17.  Finally recent debates in the House of Commons on failed private Member’s Bill C-314 highlighted the fact that many MPs still want to permanently exclude MAID access to people suffering solely from a mental illness, for the same reasons that were invoked to justify the exclusion initially found in Bill C-7.

THIS COMMITTEE'S LIMITED MANDATE

• 18.  As suggested at recommendation 13 of the previous report of this Special Joint Committee, the Committee was re-established in October 2023 to verify the degree of preparedness attained for a safe and adequate application of MAID where mental disorder is the sole underlying medical condition.
• 19.  This limited mandate precludes any consideration of access to MAID via advance requests, applicable in well-defined circumstances, such as a diagnosis of an irreversible disease like Alzheimer's.  According to a 2022 poll, 85 percent of Canadians support advance requests for those with a grievous and irremediable medical condition. Hopefully such a task will be mandated to the Special Joint Committee in the near future.

THIS COMMITTEE UNFORTUNATELY VEERED OFF COURSE

• 20.  To respect its limited mandate of verification of the degree of preparedness attained for a safe and adequate application of MAID where mental disorder is the sole underlying medical condition, the Special Joint Committee had to focus on testimony from representatives of associations of doctors, nurses and others involved in the provision of MAID (who said they were ready), of provincial oversight bodies (who said that appropriate measures were in place to ensure proper application of the provisions of the Criminal Code), and of organizations involved in training the people providing MAID (who described the special training provided).
• 21.  For details on this evidence, I refer to the detailed analysis included in the attached dissenting report of some of my Senate colleagues, essentially a group of experts in the provision of health care.
• 22.  Despite that, the majority report concludes that the medical system in Canada is not prepared for MAID where mental disorder is the sole underlying condition. It comes to that conclusion by giving substantial weight, maybe too much, to the testimony of individuals who have long opposed any broadening of access to MAID.
• 23.  Based on that disputable conclusion, the report recommends a blanket exclusion until the Minister of Health and the Minister of Justice are satisfied, based on recommendations from their respective departments and in consultation with their provincial and territorial counterparts and with Indigenous peoples, that MAID can be safely and adequately provided.
• 24.  Furthermore, the report recommends that one year prior to the date on which it is anticipated that the law will permit MAID to such a group of individuals, the House of Commons and the Senate re-establish the Special Joint Committee on MAID to verify the degree of preparedness attained for safe and adequate application of MAID where mental illness is the sole underlying medical condition.
• 25.  In other words, the majority is proposing a blanket indeterminate exclusion of access to MAID for all individuals who meet all the stringent requirements of paragraph 241.2 of the Criminal Code where mental illness is the sole underlying medical condition.
• 26.  In my view, this recommendation stems largely from a belief that there is a lack of sufficient medical and social consensus in Canada for access to MAID on the sole ground of a mental illness, rather than the standalone evidence on preparedness.  
• 27.  Furthermore, this alleged lack of social acceptability is questionable. Indeed, a January 2023 poll indicated that 82 percent of Canadians agree that with the appropriate safeguards in place, an adult with the capacity to provide informed consent should be able to seek an assessment for medical assistance in dying for a severe, treatment-resistant mental illness for which they experience intolerable suffering. This support comprises 34% who strongly support and 48% who somewhat support such access.
• 28.  In short, the Special Joint Committee’s report moved away, consciously or unconsciously, from its mandate of verifying the preparedness of regulators and those involved in the assessment and provision of MAID. Rather, the focus of the majority was on a lack of medical and social consensus on ending the exclusion.

A CONSTITUTIONAL RECOMMENDATION?

• 29.  In the Charter Statement on Bill -39 referred to above, the Justice Minister acknowledged that adding one year to the sunset clause to extend for that period the prohibition on access to MAID, where the sole condition identified is a mental illness, had the potential to engage the liberty and security right of these individuals protected by section 7 of the Charter, as well as the right not to be discriminated against, protected at section 15, because the exclusion applies only to individuals who suffer from a mental illness.
• 30.  To now recommend a blanket and indeterminate exclusion for the same group of persons engages the protected rights of these individuals to an even greater degree and, in my opinion, is likely to be declared unconstitutional.
• 31.  In Carter (2015), the Supreme Court of Canada stated unanimously:

[115]  […] Based on the evidence regarding assessment processes in comparable end-of-life medical decision-making in Canada, the trial judge concluded that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally.  Concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making.  Logically speaking, there is no reason to think that the injured, ill, and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying. […]

[116]  As the trial judge noted, the individual assessment of vulnerability (whatever its source) is implicitly condoned for life-and-death decision-making in Canada.  In some cases, these decisions are governed by advance directives, or made by a substitute decision-maker.  Canada does not argue that the risk in those circumstances requires an absolute prohibition (indeed, there is currently no federal regulation of such practices).  In A.C., Abella J. adverted to the potential vulnerability of adolescents who are faced with life-and-death decisions about medical treatment (paras. 72-78).  Yet, this Court implicitly accepted the viability of an individual assessment of decisional capacity in the context of that case.  We accept the trial judge’s conclusion that it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity. [emphasis added]

• 32.  In 2016, after the Carter judgment and before the adoption of C-14, the Court of Appeal of Alberta granted access to MAID to a person suffering solely from a mental illness. In Canada (Attorney General) v. E.F., that Court stated:

[59] As can be seen, in Carter 2015 the issue of whether psychiatric conditions should be excluded from the declaration of invalidity was squarely before the court; nevertheless the court declined to make such an express exclusion as part of its carefully crafted criteria. Our task, and that of the motions judge, is not to re-litigate those issues, but to apply the criteria set out by the Supreme Court to the individual circumstances of the applicant. The criteria in paragraph 127 and the safeguards built into them are the result of the court’s careful balancing of important societal interests with a view to the Charter protections we all enjoy. Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.

• 33.  In Truchon (2019), the Quebec Superior Court stated:

[466] From the evidence as a whole, the Court concludes as follows:

• 1. Medical assistance in dying as practised in Canada is a strict and rigorous process that, in itself, displays no obvious weakness;
• 2. The physicians involved are able to assess the patients’ capacity to consent and identify signs of ambivalence, mental disorders affecting or likely to affect the decision-making process, or cases of coercion or abuse;
• 3. The vulnerability of a person requesting medical assistance in dying must be assessed exclusively on a case-by-case basis, according to the characteristics of the person and not based on a reference group of so-called “vulnerable persons”. Beyond the various factors of vulnerability that physicians are able to objectify or identify, the patient’s ability to understand and to consent is ultimately the decisive factor, in addition to the other legal criteria;
• 4. The physicians involved are able to distinguish a suicidal patient from a patient seeking medical assistance in dying. Moreover, there are important distinctions between suicide and medical assistance in dying with respect to both the characteristics of the people involved and the reasons that motivate them;
• 5. Neither the national data in Canada or Quebec nor the foreign data indicate any abuse, slippery slope, or even heightened risks for vulnerable people when imminent end of life is not an eligibility criterion for medical assistance in dying.

• 34.  In Ontario (Attorney General) v. G (2020), the Supreme Court of Canada dealt with a law that provided a person convicted of a sexual offence with the possibility of being removed from the sex offender registry, while denying any similar option to all individuals found not criminally responsible on account of mental disorder (NCRMD). The Court found that section 15 of the Charter, the equality guarantee, requires that these individuals must also have access to an exclusion mechanism, based on individualized assessments. The Court concluded that a blanket denial of potential exclusion for that group was unconstitutional. For the majority, Justice Karakatsanis wrote:

[74] I agree with the Court of Appeal that Christopher’s Law is not minimally impairing of the s. 15(1) rights of those who were found NCRMD of a sexual offence and discharged. Christopher’s Law itself includes mechanisms by which, after some form of individualized assessment of their circumstances, offenders who were not found NCRMD can be removed from the registry (free pardon), relieved of the obligation to report (free pardon and record suspension), or exempted from reporting in the first place (discharge under s. 730 of the Criminal Code). The inclusion of any method of exempting and removing those found NCRMD from the registry based on individualized assessment would be less impairing of their s. 15(1) rights and could actually increase the registry’s effectiveness by narrowing its application to individuals who pose a greater risk to the community. [emphasis added]

• 35.  With respect for those who hold a different opinion on the state of the law, I prefer the one expressed by the British Columbia Civil Liberties Association in a brief on Bill C-7 filed with the Senate Standing Committee on Legal and Constitutional Affairs on December 1, 2020, when stating:

Mental illness should not be excluded from the definition of “serious and incurable illness, disease or disability” … [in the Criminal Code].

This absolute prohibition does not comply with the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 […], and is therefore unconstitutional. Excluding all “mentally ill” people from choosing assistance in dying, no matter how extreme their suffering, no matter how grievous and irremediable their condition, and irrespective of the competence and voluntariness of their decision, takes away a human right that was granted by the Supreme Court of Canada. In sum, the government should support human rights in mental health care – not stigmatize and abandon those suffering from mental health issues.

• 36.  In conclusion, the majority recommendation to exclude eligibility for MAID for an indeterminate but assuredly long period for all individuals suffering solely from an irremediable mental illness, irrespective of their competence and voluntariness, the uncurable nature of their mental illness and no matter how extreme their suffering, contravenes section 7 of the Charter because it is excessive, and thus overbroad. In addition, this group exclusion contravenes section 15 by disallowing access that must rest in all other cases on individualized assessment of compliance with all requirements of the Criminal Code.

RECOMMENDATION: A REFERENCE TO THE SUPREME COURT OF CANADA

• 37.  Parliament is constitutionally entitled to require certain processes, such as the requirement for two or more doctors’ opinions and other safeguards, to determine MAID access for individuals to protect them, if reasonable in the circumstances.
• 38.  However, it is likely unconstitutional for Parliament to exclude all members of a group, including those meeting all the applicable requirements, including valid free consent, rather than to provide for a process to conduct individual assessment of a person’s eligibility to access MAID.
• 39.  If Parliament nevertheless decides to implement the majority recommendation, the message sent to those affected by the new and indeterminate – but assuredly long –  exclusion will be to resort to a constitutional challenge before the courts, forums where evidence can be objectively assessed in light of sections 7 and 15 of the Charter.
• 40.  But unfortunately, such a constitutional challenge is a long, complex, and expensive process. The Carter challenge lasted for four years even if the trial was held on an expedited basis.
• 41.  In the meantime, the recommended exclusion will cause some capable individuals meeting all the applicable stringent requirements to endure extreme suffering or to commit suicide.
• 42.  Thus, should Parliament decide to extend the exclusion from MAID access for persons with a mental illness as a sole underlying condition, I recommend that the Government submit a reference question to the Supreme Court of Canada to rule on the constitutionality of such an extension as soon as possible.