Medical Assistance in Dying Committee on Nov. 21st, 2023

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It was, but I'm thinking maybe the government put that in, and the Senate just carved out the prohibition. The Senate sent it back without any kind of safeguard process in their amendment. That's interesting.

I'd like to talk about the issue of irremediability. That's central, because it defines, in a way—as I understand it—why MAID is allowed. It's because something is “grievous and irremediable”. When it comes to severe mental illness, there seems to be a lot of uncertainty around whether one can determine if a condition is irremediable. I'm sure you read the Globe and Mail editorial last month. It said, “One prominent study found that trained and experienced clinicians correctly predicted a patient's chance of long-term recovery in just 47 per cent of cases, fewer than if they had simply flipped a coin.”

Could the lack of certainty around irremediability become a justifiable section 1 defence?

[Dr. Jocelyn Downie]

No, I don't believe so.

One thing we have to pay close attention to is the fact that “grievous and irremediable” is in the law—it's not a clinical term—and “serious and incurable illness, disease or disability” is in the law. It is, in fact, part of the definition of “irremediability”. When people talk about not having a clinical definition, that's inappropriate, because we're not looking for a clinical definition of a legal term. Legal terms from the statutes should be defined in the statutes—and they are. What happens is that clinicians have to determine whether that definition is met. That's where you develop practice standards, and that's what we have. In the model practice standard, there's a clear statement about “serious and incurable illness” and so on, so you wouldn't be able to show it was missing.

The other thing I'd add is this. Of course, “natural death” becoming “reasonably foreseeable” is in the Criminal Code. There isn't consensus among clinicians—there certainly wasn't when it first came out—about what this means.

It's not a justification for violating the rights.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

They made the argument here in the editorial that when it comes to an illness like cancer, it's true that foreseeability is not 100% certain, but it's much more so than in the case of mental illness.

Going back to the point you raised about the definition of “irremediability” in law, could you explain the difference between that definition and the notion of irremediability in the clinician's opinion?

[Dr. Jocelyn Downie]

One thing clinicians will tell you is that the term “irremediable” is foreign to them. It's not even a clinical term. They recognize “incurable”. When you have certain kinds of conditions—not just mental disorders—the conventional understanding of “incurable”—there is no cure—is not available. The lack of consensus around what “incurable” means is not specific to mental disorders. Again, it doesn't work as a justification for singling out mental disorders.

The other thing I would say, in relation to that Globe editorial, is that a group of psychiatrists published a response to it, because it was full of misinformation. I invite the committee to review that response.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's interesting.

[The Joint Chair, Hon. Yonah Martin]

You have 15 seconds remaining.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I don't think I have time to weave an argument or any kind of question, so I'll let it go.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Next we'll go to Monsieur Thériault for five minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Madam Chair.

It is difficult for me to follow the interpretation when my colleagues are commenting out loud. So I call for calm and serenity while we are talking about medical assistance in dying.

Ms. Downie, you sent us a short text where you said that the Carter decision and the Baudouin ruling did not exclude mental disorders.

Can you tell us more about that and explain why that is the case? Earlier, we were told that the Carter decision did not allow using a mental disorder as the sole medical condition for obtaining medical assistance in dying. You also said that the Baudouin ruling, among others, rejected the general exclusion based on membership in a group, such as vulnerable persons. I don't know if you remember.

Can you explain to us how the Carter decision would be unconstitutional if it was decided to give people with mental disorders access to medical assistance in dying?

[Dr. Jocelyn Downie]

The key is to look back at Carter and recognize that the declaration was that if you create a barrier to access for people who have a grievous and irremediable medical condition causing enduring and intolerable suffering, that is unconstitutional. They did not say that mental disorders are not a part of grievous and irremediable medical conditions. They did not exclude them. They could have. They would have, had they wanted to.

That's the analysis. Mental disorders are grievous and irremediable medical conditions. Therefore, it would be against the Carter declaration if you had a barrier to access for people with mental disorders.

The other thing is that it is worth looking at the decision. I knew this issue would come up today, because it always does. The EF decision is very clear. As it 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 an express exclusion as part of its carefully crafted criteria. You had a circle, and it didn't carve it out.

The other thing I would add is that we also had the G decision, which is important for us to remember now, from the Supreme Court of Canada. It helps us here because it shows that you can't do a group-based exclusion. You must do a case-by-case assessment. There's nobody saying that there aren't some complex cases, but we have to do them case by case.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

Mr. Scarpaleggia brought up the clinical differences between cancer and the predictability of a mental disorder. Earlier, you talked about the expert panel report. Does that report not provide additional safeguards that further frame the expansion of access to medical assistance in dying to persons with a mental disorder? I am thinking, for example, of the obligation to provide prospective oversight, which is currently not found anywhere in Canada in the implementation of medical assistance in dying. It's retrospective. I am also thinking of the obligation to obtain the opinion of a second psychiatrist, who must be independent of the care team.

Are there no safeguards within that? I would like you to tell me about those safeguards. We are prepared to go all the way to the Supreme Court, if necessary, and the Supreme Court will have to determine whether this expansion is reasonable or not and say what safeguards are necessary to ensure the safe use of medical assistance in dying, if we do not want to go down the so‑called slippery slope.

What additional arguments or safeguards do you think this expert report provides in order to expand access to medical assistance in dying to persons with a mental disorder?

[The Joint Chair, Hon. Yonah Martin]

You have about 40 seconds.

[Dr. Jocelyn Downie]

I'd actually answer with a structural point, which is that we have the Criminal Code and then we have the colleges of physicians and surgeons and the colleges of nurses. We have practice standards. You should not get into the weeds of the kinds of things like which specialist you need to see as your third person. That's not how the Criminal Code works. It should be in practice standards, and that's what's in those practice standards. It's advice about how you bring up MAID, when you should have to see a consultant and whether the consultant should have to be a psychiatrist. We actually took the position that they shouldn't have to be, because in fact they might be a specialist in something else that's more relevant.

It's a structural response, which is that the safeguards are appropriate in the Criminal Code now. As we build out the protections, they are in the practice standards and then they become clinical protocols.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

Next, we'll go to Mr. MacGregor for five minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Madam Chair.

Thank you to all of our witnesses for helping to guide our committee through this. It's not an easy subject, and I say that with experience, having been on this committee from the get-go, both in the last Parliament and in this one.

Dr. Downie, I'd like to start with you.

I'll freely admit that, personally, I do have a level of discomfort when we talk about mental disorders and access to MAID. I also appreciate that our committee's mandate is quite narrow. We're not tasked with relitigating the law. In fact, the House of Commons just had a vote on that, so we have to respect that process. We're being tasked as a committee with verifying the degree of preparedness, and I did listen to your opening remarks. I'll tell you why I have a level of discomfort.

I represent the riding of Cowichan—Malahat—Langford on Vancouver Island. I walk around my communities, and it is quite obvious that there is a mental health crisis going on. You can see people in obvious need of help who are not getting the services they require. It's tearing parts of my community apart.

As a parliamentarian—not only as a member of this committee, but also as someone who is trying to do right by his constituents—how do I verify the degree of preparedness? How do I satisfy that when I have that reality at home?

[Dr. Jocelyn Downie]

I think one of the things you could do is to ensure that the lack of supports and services is not driving requests for MAID—and it is not. We have good, solid evidence from the other permissive jurisdictions over the years, and we now have good data from Canada as well that it is not what's driving requests for MAID.

Then, what you do is say that, okay, both of those things are incredibly important. We need to protect the rights the Supreme Court of Canada acknowledged, and it set out the parameters in Carter. We need, in parallel, to promote supports and services for people with mental disorders, all the various things that bring about socio-economic vulnerability.

Parliament has an obligation to do those two things at the same time. Don't hold individuals' rights hostage to Parliament's failure to promote mental health supports and services, and disability supports and services. Do both of them. I think it's your responsibility to do both at the same time. When you're answering your constituents, you need to be able to tell them those are not the drivers of MAID.

People getting MAID are actually very privileged. They're white. They're well off. They're highly educated. They're not in institutions. They have families. The picture is one of privilege. That doesn't mean we don't want to look after the people who are vulnerable.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

I have only a couple of minutes left. Ms. Voisin, I'd like to turn to you.

My riding has a large indigenous population. Many of the elders are living with their past experiences at residential schools. Again, the level of support in that community leaves a lot to be desired.

I know Health Canada has been engaging with indigenous peoples on MAID. Has the subject of mental disorders been part of that, and is there anything you can report to this committee based on that process?

[Jocelyne Voisin]

In terms of our indigenous engagement on MAID, we have been engaging specifically with those communities on a distinction-based approach. We have an online survey, and we have also provided funding to some organizations to engage with their communities directly.

What we've heard so far is that it's really important to take the cultural context into play when talking about MAID, that they—

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I'm sorry to interrupt, but on the specifics of a mental disorder and accessing MAID, has that been part of the...? That's what I want to focus on.

[Jocelyne Voisin]

I don't think we have any.... A few people have raised the issue of mental illness in the context of MAID, but it hasn't.... The consultation has been broader than that. It hasn't been focused on that issue specifically. We don't have a large amount of data to provide on how indigenous people feel about that particular issue.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Very quickly, because I'm running out of time, do you foresee any special requirements that you're going to have to put in place for the tracking of the data? Will mental disorders need a special type of analysis of the data apart from what we already have?

[The Joint Chair, Hon. Yonah Martin]

Be very brief.

[Jocelyne Voisin]

We are collecting more data now, including for indigenous populations, in terms of MAID. Our next annual report should have more available data, which will give us a better disaggregated view of how MAID is being provisioned across the country.

[The Joint Chair, Liberal, René Arseneault]

Thank you, Ms. Voisin.

The next questions will be from the senators.

We will start with Senator Mégie.

Senator Mégie, you have three minutes.

[Marie-Françoise Mégie]

Thank you, Mr. Chair.

My question is for Ms. Downie and Ms. Voisin.

Generally speaking, people are uneasy, even those around the table. There seems to be a sense that making MAID available to people with mental health issues is like having an open bar that everyone can take advantage of.

However, one of the witnesses we heard from was a psychiatrist who said that she had seen only three patients in her 35‑year career who would be eligible for MAID, given the serious criteria for assessing chronicity, long-term medications and so forth.

That means that a person in crisis could not receive MAID, and two other witnesses confirmed that.

You said that there weren't enough clinicians to do the assessments. Is that going to be a problem? If it takes a clinician 35 years to identify three eligible patients, does that mean we would need 100 psychiatrists?

The floor is yours.