On March 17, 2021, Parliament passed Bill C-7, which removed various safeguards and dramatically expanded access to assisted suicide to those who are not dying. In the law, assisted suicide is euphemistically referred to as medical assistance in dying (MAiD). Unless Parliament amends the law, starting March 17, 2023, people with mental illness as their only medical condition will be eligible to access physician-assisted suicide. Following the passage of Bill C-7, Parliament commissioned an Expert Panel consisting of experts in clinical psychiatry, MAiD assessment and provision, law, ethics, health regulation, and mental health care to study the issue of MAiD for those with mental illness. The Panel’s mandate consisted of two components:

1. Make recommendations with respect to protocols and guidance for the assessment and provision of MAiD for those with mental illness, and
2. Make recommendations surrounding additional safeguards that could be included in law around the issue of MAiD for mental illness.

The Panel’s official report was released earlier this month. The report begins by noting that the term ‘mental illness,’ as used by Parliament, is a vague term. Instead, the experts use the term ‘mental disorder,’ which is a standard clinical term that provides more clarity. The Panel notes that, while their focus was on mental disorders, the recommendations within the report could be applied to other cases as well.

The Panel primarily works through four issues in the report. First, they go through the legal and policy background of the issue of MAiD. Next, they provide a scope and summary of issues specific to mental disorders and MAiD. They then provide 19 recommendations and finally discuss further issues for consideration. We want to highlight a few key details from each of these sections.

Legal and Policy Background

The Panel sets the stage with some very telling lines in the first section of their report. They note that some people will argue no evidence currently exists to indicate that the benefits of providing MAiD for mental disorders outweigh the harms. However, the Panel does not see the possibility of future recovery as a reason to withhold MAiD. They state: “In permitting MAiD, society no longer requires everyone to accept that life is a benefit in all circumstances. When it is, and when it is not, is a question for the individual requester according to their values and in those circumstances permitted by law” (p. 20, emphasis added). This is a sad statement of our society’s perspective on the gift of life. “Those circumstances permitted by law” technically still prohibit suicide, but when physician-assisted suicide is permitted, the line becomes blurred. Suicide, if help is requested from a medical practitioner, has been completely reframed as a rational and respectable choice for autonomous “individual requesters” to make.

Another issue worth noting is that the Panel fails to address the question of whether MAiD for mental illness should be permitted at all. The federal government instructed the Panel to simply provide recommendations for safeguards, not to discuss whether it should be permitted, even though there is still significant concern among medical professionals as to whether it should be permitted at all. In the preamble to Bill C-7, the government noted that “further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness.” However, the mandate to the Expert Panel shows that the government was actually uninterested in “whether it is appropriate” at all.

Scope and Summary of Issues Specific to Mental Disorders and MAiD

The Panel discusses four major concerns in providing MAiD to those with mental disorders. The first issue is incurability and irreversibility. Many medical professionals argue that there is no evidence that mental illness is incurable or irreversible. It is difficult to predict the future of a mental illness or to prove that a patient will be unable to recover even with the help of various treatments. However, the Panel concludes that responsiveness to treatments can be predicted based on how the patient has responded to past treatments. They state that this is done in other areas as well. For example, psychiatrists fill out long-term disability forms for patients even though they do not know the actual long-term outcome of that patient’s mental disorder. However, this comparison fails to differentiate between a simple insurance form and a serious, life-ending procedure.

Another issue is that of capacity, and whether people with mental disorders can make an informed decision to consent to MAiD. The Panel admits that it can be difficult to determine capacity. If capacity cannot be determined, medical professionals should not provide MAiD without further information. However, they state MAiD must be provided on a case-by-case basis and cannot be denied simply because of difficulty in assessing capacity.

The next issue is that of suicidality. The Panel notes that there is a strong association between suicide and mental disorders. Specifically, mood disorders, personality disorders, and substance use disorders are most commonly associated with completed suicide. In Belgium and the Netherlands, mood disorders and personality disorders are among the most common mental disorders for which patients request euthanasia. One end-of-life clinic in the Netherlands states that their assessment process for patients with mental disorders takes an average of ten months. However, in Canada, the Panel argues that the 90-day waiting period currently required by law will be sufficient to ensure that a patient is not suicidal by the time MAiD is provided. This discussion is, in many respects, absurd. Any patient requesting assisted suicide is, in fact, suicidal because they are expressing a wish to die; this is the definition of being suicidal. To deliberate and debate over whether a patient is “suicidal” or not, when the end result of determining that the patient is not suicidal results in that patient ending their life, is absurd and a bizarre contradiction.

The Panel argues that medical professionals already have to deal with patients who withdraw or reject lifesaving treatment and compares this to the question of euthanasia. They note that suicide assessments are already part of the MAiD process and, if someone has a history of suicide attempts or mental disorder, medical professionals typically initiate suicide prevention procedures. However, the Panel also states that “[i]n allowing MAiD [for mental disorders], 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” (p. 66). In other words, they recognize and accept that MAiD may be suicide, but are willing to forego suicide prevention on a case-by-case basis.

Finally, the Panel raises concerns about people seeking access to MAiD because they are vulnerable in other ways, such as racialized groups, people with disabilities, or the poor. On the one hand, vulnerable patients are concerned that MAiD will be seen as a solution to their other unmet needs. On the other hand, they are concerned that their MAiD requests will not be taken as seriously as they deserve. The Panel suggests that there must be equal access to resources, as well as respect for autonomous decisions. One recommendation states that medical professionals should make sure patients are presented with any additional means available to relieve suffering and that patients should have access to social supports such as housing and income supports as means to relieve suffering. However, they argue that the vulnerable should not be systematically excluded from MAiD.

Panel’s Recommendations Regarding Mental Disorders and MAiD

In light of their various conclusions, the panel made a list of 19 recommendations for the government. Although the report is focused on mental disorders, they state that the recommendations can apply to any situation where the issues listed above might be present. They do note some concerns with the lack of clarity in the current guidelines in the Criminal Code, but conclude that the “recommendations can be fulfilled without adding new legislative safeguards to the Criminal Code.” The recommendations include:

• Recommendations that physician and nurse regulatory bodies develop Standards of Practice for difficult situations where MAiD is involved (Recommendation #1).
• Recommendations around interpreting the phrase “grievous and irremediable medical condition,” including issues of incurability, irreversibility, and intolerable suffering. (Recommendations #2-4).
• Recommendations around vulnerabilities, including how to determine capacity, whether means are available to relieve suffering, whether the patient has considered other options, whether a MAiD request is consistent with the patient’s beliefs and rationally considered, and whether the request for MAiD is voluntary (Recommendations #5-9).
• Recommendations around how to assess a patient, determine the expertise of a medical professional, involve other professionals and the patient’s treating team, and address the interpersonal dynamics of the assessor (Recommendations #10-13).
• Recommendations covering implementation of the MAiD process, including consulting with Indigenous communities, training MAiD providers, overseeing MAiD, improving the quality of MAiD, improving data collection, and carrying out further research (Recommendations #14-19).

Without going into detail on each of these recommendations, it is important to note a few specifics. Some of the recommendations within this report could be helpful if implemented. For example, Recommendation #16 suggests an oversight committee ensure that MAiD requests satisfy the legal requirements. Additionally, Recommendation #18 states that data collection should be improved. Currently, the data around MAiD is minimal and should be much more specific to help find ways to protect the vulnerable. Additionally, various recommendations consider the opportunity for further research and training to identify gaps in the legislation.

Further Considerations from the Panel 

The Panel concludes by noting three issues for further consideration. The first has to do with elderly people who also have mental disorders. Under the current law, those whose death is reasonably foreseeable are placed on Track 1 for MAiD, meaning it can be administered sooner and has fewer safeguards. Those whose death is not reasonably foreseeable will be placed on Track 2, with a 90-day waiting period for MAiD and other safeguards. An elderly person with a mental disorder could be placed on either track, and the Panel wants further consideration given to how much flexibility should be given to MAiD assessors to place patients on Track 1 versus Track 2.

Second, the Panel considers people with intellectual disabilities. The Panel states that they lack expertise on this topic, so further research is required.

Finally, the Panel considers people who request MAiD and are incarcerated. This raises a whole new set of concerns as prisons often have higher rates of suicide than the general population and various other factors are involved. Additionally, data about prisoners accessing MAiD is limited and again, further research is required.

ARPA Analysis: Three Main Problems

Despite some recommendations in the report that may have good components, the first problem is that the recommendations have no teeth. Essentially, the recommendations are useless because they suggest no legislative change to protect the vulnerable. One problem with the current legislation is its use of vague terms and lack of safeguards. The recommendations in this report entirely fail to address the lack of safeguards. While the Panel seeks to provide guidance on terms, it will ultimately fall on individual regulatory bodies to develop their own standards of assessment and implementation, which will allow them to do as they wish, and will differ from province to province.

Second, the recommendations of the Panel do not provide needed clarity on how to prevent abuse. For cases that are difficult to discern, they recommend better interpretations of wording, oversight, and training. However, it is still left to an individual, case-by-case basis where medical professionals determine who can and cannot die. There remains no effective oversight to ensure that medical professionals are interpreting guidelines appropriately and providing proper treatment and suicide prevention initiatives.

Finally, the Panel notes concerns determining whether patients are capable of informed consent and whether they are being pressured into “choosing” MAiD. They suggest further research and training in various areas but then entirely disregard these concerns. If further research is required, that should happen before MAiD is expanded, not after the fact when harm is already done. The federal government already pushed off further study about whether those with mental disorders should be eligible for MAiD at all and have failed to even discuss the issue. The Panel concludes their study by stating, “This report is the beginning of a process, not the end” (p. 84). However, the government continues to expand MAiD without considering the negative effects or possible safeguards to mitigate those effects.

Conclusion

The Panel argues that MAiD should continue to be provided on a case-by-case basis in difficult situations, including cases of mental disorder, and we ought to simply trust that safeguards are being followed and patients are making free, informed choices to access MAiD. However, the Panel failed to address the instances of abuse that have already been seen across Canada. There are no further recommendations to fix gaps in the law and no adequate protection for Canadians with mental disorders. The recommendation the Panel ought to have made, but didn’t, is to stop the expansion of MAiD to those with mental disorders.

Where the panel has failed, we need to step up. Join our carenotkill.ca campaign to advocate for the protection of the lives of your loved ones and neighbours who struggle with mental illness or suicidal thoughts. You can make a difference by contributing to this campaign, to raise awareness, and tp recruit others to join the cry for Parliament to fix this law. May God have mercy and use us in this effort.