Medical Assistance in Dying Committee on Oct. 4th, 2022

[Shakir Rahim]

This underscores that what is incurable, or grievous and irremediable, is going to be subject to different interpretations.

When we think of incurability—and I'm thinking about the application of that as some kind of standard with respect to cancer—and we look at what has been proposed by the panel, this is precisely the type of clarity that the committee can bring in terms of what has to be developed to ensure that practitioners have the necessary information to make those conclusions.

[Pamela Wallin]

Thank you.

[The Joint Chair, Liberal, Marc Garneau]

Thank you, Mr. Rahim.

We'll finish off with Senator Martin for three minutes.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Mr. Joint Chair.

My first questions are for Dr. Nicolini.

We've been talking about the differences between someone in track two with a physical illness or a mental disorder. The expert panel on MAID and mental illness concluded that its recommendations can be fulfilled without adding any new legislative safeguards to the Criminal Code.

Dr. Nicolini, do you agree that no additional Criminal Code safeguards are required in the case of MAID when the sole underlying condition is a mental disorder? Why, or why not?

[Dr. Marie Nicolini]

I disagree for the reason that I've said before. We need to recognize that we need different standards. We need standards in the case of mental disorders. We all agree that mental health is a distinct discipline. That's how we treat it in practice.

The distinction is important, because when we simply report the standards or the requirements for MAID for mental illness or mental disorders, we end up with a patchwork of safeguards, as we have in Belgium and the Netherlands. They do not truly capture the goals of MAID for mental disorders, or the safeguards that we all think are important.

The point is that the discussion about adequate safeguards can only start when we are clear about the adequate standards.

[The Joint Chair, Hon. Yonah Martin]

Are there specific safeguards we should be looking at? Are there any safeguards you want to mention at this time?

If not, with time, I have one quick question for Mr. Rahim.

[Dr. Marie Nicolini]

The safeguards are no substitute for a standard, so we first need to be clear on what the standards are before we can discuss the adequate safeguards.

[The Joint Chair, Hon. Yonah Martin]

Thank you for that.

Mr. Rahim, would it be a section 15 violation if the law prohibits MAID MD-SUMC because irremediability can't be determined based on scientific evidence, and not based on stereotyping or discrimination?

[Shakir Rahim]

Stereotyping is not a necessary component of the section 15 violation. Discrimination is defined as any imposition of a burden or denial of the benefit that reinforces, perpetuates, or exacerbates disadvantage. That is the test.

Deciding whether that prima facie violation of section 15(1) is then justifiable because there is some type of rationale—for example, the protection of people with mental disorders—is then done at the section 1 component of the Oakes test.

[The Joint Chair, Hon. Yonah Martin]

Is there specific evidence if that's the basis?

[Shakir Rahim]

Sorry; I didn't get the full question.

[The Joint Chair, Hon. Yonah Martin]

Am I out of time, Mr. Chair?

[The Joint Chair, Liberal, Marc Garneau]

I'm afraid you are, Senator.

Thank you very much, Senator Martin.

It's back to you, Senator Martin.

[The Joint Chair, Hon. Yonah Martin]

Thank you, once again, to our panellists. You have given us much food for thought, and your expertise was very helpful.

We're going to suspend for a few minutes as we get the second panellists ready.

Thank you very much.

[The Joint Chair, Hon. Yonah Martin]

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.

[Mark Henick, Mental Health Advocate, As an Individual]

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.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Next we will have Dr. Eric Kelleher for five minutes.

[Dr. Eric Kelleher, Consultant Liaison Psychiatrist, Cork University Hospital, As an Individual]

Thank you.

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——

[The Joint Chair, Hon. Yonah Martin]

I'm sorry, Dr. Kelleher. I'm sorry for the interruption.

Would you slow down the rest of your presentation? We have translation in both languages. Thank you very much.

[Dr. Eric Kelleher]

No problem.

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.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Dr. Grou and Dr. Marleau, are you both speaking, or...?

Okay. I assume that Dr. Grou will be speaking. Thank you very much.

Dr. Grou, you have the floor for five minutes.

[Dr. Christine Grou, President and Psychologist, Ordre des psychologues du Québec]

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.

[The Joint Chair, Hon. Yonah Martin]

Thank you to all of our panellists for your testimony today.

We're going to go to our first questioners. Madame Vien and Mr. Cooper will share their five minutes.

We'll begin with Madame Vien.

[Dominique Vien, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you very much, Madam Chair.

My questions are primarily for Dr. Grou.

Dr. Grou, I read your brief and I found it fascinating. Recommendation 7 states: Refusing a medication or refusing any other treatment should never disqualify someone who wishes to receive MAiD.

What would you say about someone who refuses treatment or has not gone through all available treatments when mental disorder is the sole reason for a MAiD request?

[Dr. Christine Grou]

Actually, what we need to assess and what we need to avoid is therapeutic overkill, on the one hand. On the other, when we offer mental health care, we want free and informed consent, just as we would for any treatment. For consent to be free and informed, the person must be advised of the nature of the proposed treatment. The person must be informed of the benefits, potential consequences and possible harms that come with the treatment, and alternative treatments must be offered. The person's informed choice should be respected.

In other words, as long as the person has the cognitive autonomy to make a decision, fully understand the information and make a judgment, we will respect their choice. For example, a person may refuse—