AMAD Committee Report

The Liberal Government Must Abandon MAID for Mental Disorders

Special Joint Committee on Medical Assistance in Dying: Conservative Supplemental Opinion

This Supplemental Report reflects the views of the Conservatives who serve on the Special Joint Committee on Medical Assistance in Dying (the “Committee”): The Honourable Yonah Martin (Senator, British Columbia), Shelby Kramp-Neuman, M.P. (Hastings—Lennox and Addington), Michael Cooper M.P. (St. Albert—Edmonton), The Honourable Ed Fast, P.C., M.P. (Abbotsford).

Introduction

The evidence is clear. Canada is not ready for the expansion of MAID in cases where a mental disorder is the sole underlying medical condition (MAID MD-SUMC). Accordingly, Conservatives endorse the Committee’s recommendation that the government should not proceed with MAID MD-SUMC. However, for clarity, Conservatives call on the Liberal government to forthwith introduce legislation to put an indefinite pause on MAID MD-SUMC. Based on the balance of evidence, MAID MD-SUMC cannot be safely implemented.

There are serious problems with MAID MD-SUMC, on which we wish to elaborate. Chief among these is the fact that: (1) it is difficult, if not impossible, to determine the irremediability of a mental disorder in individual cases; and (2) it is difficult for a clinician to distinguish between a “rational” request for MAID MD-SUMC and one motivated by suicidal ideation. So long as these issues remain unresolved, it is impossible to safely implement MAID MD-SUMC. There are other problems that demonstrate a lack of preparedness, including inadequate training materials and practice standards, and a lack of consensus amongst medical professionals. These and other issues are discussed in this Supplemental Report.

At the outset, we wish to highlight the incompetent approach that the Liberal government has taken with respect to MAID MD-SUMC. It has been nothing short of shambolic. This is underscored by the recommendation in the main report, supported by all recognized parties in the House of Commons, calling on the Liberal government not to proceed. It should never have come to this. This is a consequence of a government that put blind ideology ahead of evidence-based decision making.

We find ourselves, for the second time, approaching a deadline for the implementation of MAID MD-SUMC unprepared. We are here because former Justice Minister David Lametti accepted a radical, eleventh-hour Senate amendment to set in motion the expansion of MAID to cases where a mental disorder is the sole underlying medical condition. This was done absent sufficient study and consultation on what amounts to a significant expansion of MAID, impacting some of the most vulnerable persons in Canadian society. Had adequate study taken place before this decision was made, no responsible government would have moved ahead with MAID MD-SUMC.

Irremediability

Over the past year, no meaningful progress has been made towards resolving the fundamental issue of accurately determining irremediability in the context of MAID MD-SUMC. While this remains unresolved, it would be reckless and dangerous for the Liberal government to proceed with MAID MD-SUMC for at least two reasons. First, such an expansion will lead to the premature deaths of persons with mental disorders who otherwise could have gotten better. Second, the difficulty in determining irremediability casts doubt on whether MAID MD-SUMC can be implemented in accordance with the law. That is because a prerequisite to qualifying for MAID is that a person must suffer from a “grievous and irremediable” medical condition.

Irremediability is defined in section 241.2(1) of the Criminal Code, as a medical condition that is “incurable” and in “an advanced state of irreversible decline.”[1] In other words, to qualify, a MAID assessor must be satisfied that the person’s condition will not get better.

The May 2022 report of the government’s Expert Panel on MAID and Mental Illness (the “Expert Panel”) acknowledged the difficulty in determining the irremediability of a mental disorder:

“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.”[2] [emphasis added]

The challenges with respect to determining irremediability was among the reasons cited in a December 2022 letter signed by the Association of Chairs of Psychiatry in Canada, which includes the heads of psychiatry departments at all 17 medical schools, calling on the government to delay implementation of MAID MD-SUMC.[3] Following this letter, the Liberals introduced Bill C-39 to delay the implementation of MAID MD-SUMC for one year, from March 2023 to March 2024.

The evidence before the Committee demonstrates that no progress has been made with respect to determining irremediability. When Dr. Mona Gupta, Chair of the Expert Panel, was asked whether anything had changed since the May 2022 Expert Panel report concluded that it is “difficult, if not impossible” to predict irremediability, she answered: “No, that hasn’t changed since May 2022.”[4]

Other psychiatrists who appeared before the Committee also agreed that nothing has changed. For example, when Dr. Jitender Sareen, Chair of the Department of Psychiatry at the University of Manitoba, was asked whether we are any closer to reliably determining irremediability compared to a year ago, he said: “No, we’re not. We haven’t changed from a year ago.”[5] Likewise, Dr. Tarek Rajji, Chair of the Medical Advisory Committee at the Centre for Addiction and Mental Health (CAMH), said: “There’s no scientific evidence on it. We still cannot, at this time, determine at the individual level whether the person has an irremediable illness or not.”[6]  Dr. Sonu Gaind, Chief of the Department of Psychiatry at Sunnybrook Health Sciences Centre in Toronto, noted: “worldwide evidence shows we cannot predict irremediability in cases of mental illness.”[7]

The Committee was warned by several leading psychiatrists that this difficulty means that MAID MD-SUMC cannot be implemented safely. MAID decisions in the case of a mental disorder will be based on “hunches and guesswork that could be wildly inaccurate.”[8] According to Dr. Gaind, evidence shows “predictions [on irremediability] are wrong over half the time.”[9] [emphasis added] As such, Dr. Gaind asserted that this “means that [MAID providers] would be providing death under false pretenses.”[10]

The inappropriateness of moving forward with MAID MD-SUMC, having regard for this level of uncertainty, is underscored by evidence that persons suffering with a mental disorder often can recover “with appropriate evidence-based treatments.”[11] According to Dr. Sareen:

“Unlike physical conditions that drive MAID requests, we do not understand the biological basis of mental disorders and addictions, but we know that they can resolve over time.”[12]

Mental disorders are different than diseases such as terminal cancer for which Canadians can access MAID. Unlike cancer, it is difficult, if not impossible to be certain of the prospective course of any individual case involving a sole underlying mental disorder.[13]

While the Expert Panel report acknowledged the difficulty of determining irremediability, it recommended that assessments could be appropriately done on a “case-by-case basis,” absent objective criteria. The Expert Panel recommended that “the requester and assessors must come to a shared understanding that the person has a serious and incurable illness,” including having regard for past treatment attempts.[14]

We submit that this approach is cavalier, inadequate, and will result in the premature deaths of persons who could get better. It faultily assumes that because a person has not yet found relief from a mental disorder, that he or she cannot find relief. Relying on an agreement of an assessor and a requestor on a “case-by-case basis” is especially reckless in the face of a paucity of evidence that the person suffering will not get better.

Dr. Sareen, speaking on behalf of eight chairs of psychiatry at medical schools across Canada, “strongly recommend[ed] an extended pause on expanding MAID to include mental disorders as the sole underlying medical condition in Canada.” As Dr. Sareen succinctly put it: “We’re simply not ready.” This assessment was shared by other leading psychiatrists who appeared before the Committee.[15]

Conservatives agree. Considering that Canada’s MAID provisions are intended to be reserved for those who cannot get better, MAID MD-SUMC cannot appropriately move forward before the fundamental issue of irremediability is resolved. Moreover, it would be legally incoherent, having regard for the prerequisite of suffering from a disease or illness that is irremediable to qualify for MAID.

Suicidality

The balance of evidence demonstrates difficulty on the part of clinicians in distinguishing a “rational” MAID MD-SUMC request from one motivated by suicidal ideation. This is underscored by the fact that approximately 90% of those who commit suicide have a diagnosable mental disorder. [16] This difficulty is clinically and socially problematic. So long as this difficulty is present, the line between suicide prevention and suicide assistance will be blurred.[17] 

Dr. Gaind explained:

“Scientific evidence shows we cannot distinguish suicidality caused by mental illness from motivations leading to psychiatric MAID requests, with overlapping characteristics suggesting there may be no distinction to make.”[18]

Dr. Sareen, when asked how psychiatrists are trained to separate suicidal ideation from psychiatric MAID requests, said:

“[T]here is no clear operational definition differentiating between when someone is asking for MAID and when someone is asking for suicide when they're not dying. Internationally, this is the differentiation. If somebody is dying, then it can be considered MAID. When they're not dying, it is considered suicide. It's very difficult, and there's no operational definition on it.”[19]

In a similar vein, Dr. Rajji noted:

“There is no clear way to separate suicidal ideation or a suicide plan from requests for MAID. Therefore, there needs to be some discussion to see a consensus and agreement, as professionals, on what part of an individual's history with a particular illness would constitute that separation. It's not simple.”[20]

Dr. Sareen cautioned that MAID MD-SUMC will facilitate unnecessary deaths and undermine suicide prevention efforts.[21]  He also highlighted the phenomenon of MAID-related suicide contagion saying:

“When a society makes MAID available, the population believes it is a way to end suffering. In other jurisdictions that have had MAID available for mental disorders, not only are there deaths due to MAID, but there are also deaths related to non-MAID suicides. I just want to emphasize that it's not a suicide prevention mechanism... We're actually going to make not only suicide deaths go up, but also MAID deaths go up.”[22]

Having regard for the foregoing, Conservatives abhor the inevitability that MAID MD-SUMC will lead to state-facilitated suicide. The Expert Panel flippantly dismissed this serious concern, stating:

“In allowing MAiD in [MD-SUMC] cases, society is making an ethical choice to enable certain people to receive MAiD on a case-by-case basis regardless of whether MAiD and suicide are considered to be distinct or not.”[23]

Without more, this reasoning is morally perverse and out of step with the ethical mores of most Canadians. Most Canadians do not wish to see suicide made easier or facilitated by the state as a solution to psychological suffering.[24] Conservatives believe that persons who are suffering from mental health issues deserve help and hope, not state-facilitated suicide. MAID MD-SUMC will inhibit the former while guaranteeing the latter. In the face of this, we submit that moving ahead with MAID MD-SUMC is wrong-headed and profoundly unwise.

Inadequate Practice Standards and Training Resources

Proponents of implementing MAID MD-SUMC point to the development of training resources and practice standards as demonstrating readiness. More specifically, they point to a curriculum developed by the Canadian Association of MAID Assessors and Providers (CAMAP), as well as the Model Practice Standard (MPS) developed by the Liberal-government-appointed Task Group. Conservatives disagree. Neither the development of the CAMAP curriculum nor the MPS are satisfactory. They both fail to address the fundamental issues of irremediability and suicidality, which for the reasons explained above, are a prerequisite to readiness.

Committee witnesses Julie Campbell, who appeared on behalf of CAMAP, and Dr. Gordon Gubitz, who appeared on behalf of Nova Scotia Health, were unable to identify any specific criteria in the CAMAP curriculum to aid clinicians in determining irremediability.[25] Without more, the absence of criteria on a question as significant as irremediability represents a complete failure on the part of CAMAP to properly prepare clinicians for MAID MD-SUMC.

Consistent with this, Dr. Gaind characterized the curriculum as “wholly inadequate.”[26] Specific to suicidality, Dr. Gaind expressed shock, stating that the curriculum “consists of 10 pages of which 5 slides have content and a four-and-a-half-minute audio clip.”[27] He described the training as “dangerous,” because it would lead assessors to believe they can separate suicidality from a psychiatric MAID request absent evidence to support that.[28]

Similar problems exist with the MPS. The MPS offers no guidelines on determining irremediability nor on distinguishing suicidality from a psychiatric MAID request.

We are also alarmed by the expansive definition of “mental disorder” provided for in the MPS. It states that anything listed in the DSM5-TR could be considered a mental disorder for the purposes of accessing MAID.[29] The DSM5-TR lists a wide range of disorders and conditions, including depression, anxiety, schizophrenia, and personality disorders, among others.[30] Though the Liberal government’s Legislative Backgrounder on Bill C-7 states that “mental illness” for the purpose of MAID generally refers “to those conditions which are primarily within the domain of psychiatry,”[31] there are no legislative safeguards to guarantee protections for those who suffer from mental disorders that are typically treated by specialties outside of psychiatry, such as autism spectrum disorders. Multiple witnesses confirmed that this expansive definition could even render persons suffering from a substance abuse disorder eligible for MAID MD-SUMC.[32]

This radically expansive eligibility illustrates how far Canada is falling down a forewarned, but too often ignored, “slippery slope.” If implemented, the scope of MAID would fundamentally change to something resembling state-sanctioned, state-facilitated suicide, undermining human dignity and the sanctity of life.

Putting aside our substantive concerns with the CAMAP curriculum and the MPS, there are other issues with the rollout of these materials that speak to a lack of readiness. There has been an uneven adoption of the MPS across the provinces and territories. We note that Quebec has amended its MAID law to expressly prohibit MAID MD-SUMC. The CAMAP curriculum has seen a limited uptake on the part of medical professionals. A miniscule two percent of psychiatrists across Canada have registered for the CAMAP curriculum[33] – a curriculum that was not unveiled until the fall of 2023.

Committee testimony also highlighted that clinical practice guidelines do not yet exist. Dr. Rajji, appearing at the Committee on behalf of CMAH, said that CAMH is “hearing loud and clear” from medical professionals that “more clarity and directions” are needed.[34] All of these practical and logistical shortcomings demonstrate that, regardless of whether there are merits to MAID MD-SUMC, Canada is not ready for MAID MD-SUMC to come into effect in March 2024. 

A Lack of Consensus Amongst Medical Professionals

Our position that MAID MD-SUMC should not be implemented is underscored by a lack of consensus, and in fact general opposition, on the part of medical professionals. This lack of consensus, and general opposition, goes beyond the question of readiness effective March 2024. It also applies to whether MAID MD-SUMC is at all appropriate.

When asked about consensus among psychiatrists, Dr. Alison Freeland, representing the Canadian Psychiatric Association (CPA), was unable to confirm that a consensus exists.[35] Dr. Sareen noted that “[t]he majority of surveys have shown that the majority of psychiatrists are against MAID for mental illness.”[36]

An October 2023 survey of Manitoba psychiatrists found that 49% of psychiatrists in that province oppose the legislation legalizing MAID MD-SUMC compared to just 33% who support it.[37] The survey also found that an overwhelming 80% of Manitoba psychiatrists believe that Canada is not ready to implement MAID MD-SUMC.[38] An October 2021 survey of the Ontario Medical Association found that 56% of respondents disagree or strongly disagree that MAID MD-SUMC should be available, compared to only 28% of respondents who agree or strongly agree.[39]

These survey results reflect the balance of testimony from non-activist expert witnesses who appeared before the Committee. We observe that much of the testimony the Committee heard in favour of implementing MAID MD-SUMC came from individuals with a history of MAID activism, as well as involvement in developing the MPS and CAMAP curriculum, who unsurprisingly “graded their own homework” favourably.

This lack of consensus and general opposition should give the government significant pause. We submit that there must be something approaching a professional consensus before MAID MD-SUMC can be implemented. After all, MAID MD-SUMC involves life-and-death decisions and will impact some of the most vulnerable persons in Canadian society. Anything less than overwhelming support from medical professionals casts serious doubt on the appropriateness of the concept of MAID MD-SUMC, let alone a question of readiness.

Additional Considerations

MAID MD-SUMC is not Constitutionally Required, it is a Political Decision

The implementation of MAID MD-SUMC is a political decision on the part of the Liberal government.

Some proponents of MAID MD-SUMC have attempted to “muddy the waters” by claiming that MAID MD-SUMC is constitutionally required. For instance, prominent MAID activist, Professor Jocelyn Downie, at Committee, cited the Supreme Court of Canada’s Carter decision, as well as the Alberta Court of Appeal’s EF decision, as supporting this assertion.[40] Former Justice Minister David Lametti claimed to be compelled by the courts as he attempted to justify this expansion.

Respectfully, this assertion is without merit. Our view is supported by the analysis of 28 law professors who signed a letter stating that MAID MD-SUMC is not constitutionally required.[41]

The law professors noted that in Carter, the Supreme Court explicitly stated that MAID in cases of psychiatric disorders would “not fall within the parameters” of the decision.[42] The parameters of Carter are limited to the narrow facts of that case. Accordingly, as the professors observe: “Our Supreme Court has never confirmed that there is a broad constitutional right to obtain help with suicide via health-care provider ending-of-life.”

In EF, the Alberta Court of Appeal interpreted Carter as not excluding mental illness. However, EF was decided before the passage of Bill C-14, the effect of which was to prohibit MAID MD-SUMC. Moreover, the Alberta Court of Appeal qualified its ruling by stating: “Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.”[43] The decision was not appealed to the Supreme Court, and no other court has pronounced on the matter.

In short, there is no binding precedent with respect to MAID MD-SUMC. Any future court precedent is purely speculative. We do not believe it is prudent to implement MAID MD-SUMC based on such speculative opinion, especially in the face of significant clinical and ethical challenges surrounding MAID MD-SUMC.

Unsupported Claims of Likely Limited Uptake for MAID MD-SUMC

Several witnesses attempted to minimize concerns regarding the impact of MAID MD-SUMC on vulnerable Canadians, claiming, without evidence, that only a minute segment of the population would qualify.[44] MAID practitioner, Dr. Stephanie Green, boldly claimed that the annual uptake could be as little as “in the teens.”[45]

We have no confidence that this expansion would be so limited. It was noted that the uptake has been relatively small in the Benelux countries.[46] In fact, in the Netherlands, only approximately 5% to 10% of MAID MD-SUMC requests are granted.[47]

We submit that the Benelux countries are a poor comparator, because in those countries, patients by law must exhaust all treatment options to qualify for MAID MD-SUMC. There is no such safeguard in Canada, and shockingly, the Expert Panel recommended against any additional legislative safeguards. Absent Benelux-style safeguards, there is every reason to expect that the uptake will be considerably higher in Canada.

We further note that Canada arguably already has the most permissive MAID regime in the world. Consistent with that, even without this expansion, there has been a significant increase in MAID cases in Canada since Bill C-14 became law in 2016. The latest data show that there were 13,241 MAID deaths in Canada in 2022, which amounts to 4.1% of all deaths. [48] This represents a sizable 31% increase from 2021 and a staggering 1,216% increase from the first year MAID was available.[49] By contrast, in California, which requires the self-administration of the drugs used to end a person’s life, there were only 853 MAID deaths in 2022.[50] We cite California as a comparator because it is a jurisdiction with a similar population to Canada and one which legalized MAID at around the same time (2016). These numbers are in themselves concerning and lend no confidence to the claim that there will be limited uptake of MAID MD-SUMC.

Inadequate Consultation with Indigenous Peoples

The political decision by the Liberal government to expand MAID MD-SUMC was made without any meaningful consultation with Indigenous peoples. Based on the testimony of Jocelyne Voisin of Health Canada, it is apparent that consultation has only commenced recently. According to Ms. Voisin, the results of this consultation will be published in a “What We Heard” report in 2025 – one year after the scheduled expansion of MAID MD-SUMC.[51]

This lack of consultation is unacceptable, especially in the face of unique vulnerabilities and health needs faced by Indigenous communities.[52] It underscores the lack of readiness for the implementation of MAID MD-SUMC.

Hundreds of Briefs Overlooked

There was a high level of public engagement on this study. Close to 900 briefs were submitted to the Clerk of the Committee. Constrained resources did not allow these briefs to be translated in sufficient time to be considered as evidence for the Committee’s report. This is a profoundly disappointing failure and unacceptable for a G7 Parliament.

As a result, important voices, including from vulnerable Canadians who might be impacted by MAID MD-SUMC, were denied their voice. We anticipate that the balance of evidence in the briefs would have further supported our position that the government should not proceed with MAID MD-SUMC.

Conclusion

The fundamental problems around accurately determining irremediability and suicidality in the context of MAID MD-SUMC are as present today as they were a year ago. Until these issues are resolved, MAID MD-SUMC cannot be safely implemented. Accordingly, it would be reckless and dangerous for the Liberal government to allow MAID MD-SUMC to go forward in March 2024.

There is no reason to believe that these fundamental problems will be resolved in the foreseeable future. As such, another arbitrary deadline extending the sunset clause, while better than proceeding as planned, is not the path forward.

Rather, the Liberal government must immediately introduce legislation to amend the Criminal Code to provide that a mental disorder is not a medical condition for which a person could receive MAID. In other words, the Liberal government must permanently abandon this expansion of MAID. Failing to do so will inevitably lead to the premature deaths of vulnerable Canadians who could have gotten better. Such an outcome is unacceptable, and preventable, but only if the Liberal government acts. We urge them to do so, before it is too late.

Respectfully submitted,

The Honourable Yonah Martin, Senator British Columbia

Shelby Kramp-Neuman, M.P. Hastings—Lennox and Addington

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

The Honorable Ed Fast, P.C., M.P. Abbotsford