Medical Assistance in Dying Committee on Nov. 28th, 2023

[The Joint Chair, Hon. Yonah Martin]

Welcome to all of our witnesses this evening, and to those joining us online.

My name is Yonah Martin, and I am the Senate's joint chair of this committee. I am joined by Shelby Kramp-Neuman, the House of Commons vice-chair of the committee.

Today, we continue our examination of the degree of preparedness attained for a safe and adequate application of medical assistance in dying where mental disorder is the sole underlying medical condition, in accordance with recommendation 13 of the committee's second report.

Before I introduce our witnesses, I want to advise our House colleagues that, potentially, there could be votes in the Senate in the second hour, so we'll be called away, at which point we will suspend the committee meeting. We don't know just yet what will happen, but it would be in the second hour.

For our first panel this evening, we have H. Archibald Kaiser, professor at the Schulich School of Law and department of psychiatry at Dalhousie University's faculty of medicine, as an individual, by video conference; Dr. Tarek Rajji, chair of the medical advisory committee at the Centre for Addiction and Mental Health; Dr. Mauril Gaudreault, president of Collège des médecins du Québec; and Dr. André Luyet, psychiatrist, both by video conference.

Welcome to our witnesses for this first panel. You will each have five minutes for your opening remarks. We trust that you will be within the five minutes.

We will begin with Professor Kaiser, followed by Dr. Rajji and Dr. Gaudreault. I'm not sure if Dr. Luyet is sharing the five minutes, or whether it will just be Dr. Gaudreault.

We'll begin with Professor Kaiser. You have five minutes.

[H. Archibald Kaiser, Professor, Schulich School of Law and Department of Psychiatry, Faculty of Medicine (Cross-Appointment), Dalhousie University, As an Individual]

Good evening, and thank you for this opportunity of contributing to your reflections.

I'm opposed to this change in Canadian criminal law. I don't think Canada will ever be ready, from a public policy perspective, for MAID for persons with mental illness. Adoption would alienate and harm people with disabilities in Canada, contrary to our charter and to our international human rights law obligations, and it will diminish our well-earned UN reputation.

First, medical assistance in dying is a misnomer for persons with mental illness who die from other vulnerabilities: stigma, discrimination, social exclusion, impoverishment, violence by others and poor physical health.

Next, the intersectional realities of mental illness, intellectual disability and substance use disorders amplify my concerns. There are higher rates of dying by suicide not only for persons with mental illness but also for others experiencing health inequities, including indigenous peoples, trans people, trauma survivors and the increasing number of persons facing psychosocial and economic stressors.

As noted by CAMH, different suicide prevention strategies will be needed for different populations, but everyone deserves those efforts, not the legal normalization of dying by suicide.

The Supreme Court concluded in 1991 that people with mental illness have historically been the subjects of abuse, neglect and discrimination. In 2020, they said that stigmatizing attitudes persist, and they provide support for legislative solutions and justifications for social inequities and injustices.

This would be a vast extension of existing MAID justifications, which would enable departure from the regular criminal law, which must protect our most vulnerable. Those who participate in MAID in good faith are not individually culpable, but society will clearly be demonstrating, as the Law Reform Commission of Canada feared 40 years ago, its ignoble motives if it extends MAID.

This stretching of MAID is not a benefit advancing equality. It's quite the contrary. It aggravates discrimination, marginalization and inequality. As the Supreme Court cautioned in 2020, laws like this give discrimination “the force of law” because it “reinforces, perpetuates or exacerbates [a group's] disadvantage” and “violates the equality guarantee”.

The principles of the Convention on the Rights of Persons with Disabilities are obligatory. Article 4 requires the abolition of “laws...that constitute discrimination”. Article 10 demands the “effective enjoyment” of the “inherent right to life”. Article 25 is “the right to the enjoyment of the highest attainable standard of health”, including the right to an adequate standard of living.

The extension of MAID to persons with mental illness would amount to a terrible setback under the CRPD. It is morally disconcerting and violative of democratic values that the protests of persons with disabilities have been dismissed, but it's also contrary to the CRPD, article 4, which requires us to “closely consult with and actively involve persons with disabilities” to, in article 29, “ensure that persons with disabilities can effectively and fully participate in political and public life”.

There is strident opposition, for example, by the Council of Canadians with Disabilities, which speaks for 170 NGOs. They say, “MPs...have stubbornly ignored the concerns expressed by the disability community.... This is a fight for our lives.”

Organizations like People First Canada, for which I am currently a provincial adviser, have repudiated this initiative as well. They say, “it makes it easier than ever to cancel us out.” It's “dangerous and discriminatory”. It “could be deadly to Canadians with disabilities”. As the president said forcefully, please vote to “kill the bill”, not us.

Canada has sullied its reputation with the United Nations. The Special Rapporteur on the Rights of Persons with Disabilities said, in 2019, Canada must “ensure that persons with disabilities do not request assisted dying” simply because there are no “community-based alternatives”.

In 2021, three UN special envoys were unusually worried that “a social assumption might follow (or be subtly reinforced) that it is better to be dead than to live with a disability”, that the extension would “result in a two-tiered system in which some would get suicide prevention and others suicide assistance, based on their disability status and specific vulnerabilities.”

Canada is at a crossroads. Either protect the rights of persons with disabilities, specifically with mental illness, or extend state-authorized death to make those with disabilities feel more silenced, devalued, betrayed and abandoned.

Thanks so much for this opportunity.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much, Professor Kaiser.

Next, we will have Dr. Rajji for five minutes.

You have the floor.

[Dr. Tarek Rajji, Chair, Medical Advisory Committee, Centre for Addiction and Mental Health]

Thank you for this opportunity to present on behalf of the Centre for Addiction and Mental Health, or CAMH.

CAMH is Canada's largest mental health teaching hospital and one of the world's leading research centres in its field. CAMH conducts groundbreaking research, provides expert training to health care professionals and scientists, develops innovative health promotion and prevention strategies, and advocates on public policy issues.

Most importantly, we provide evidence-informed and recovery-focused treatment and care to hundreds of patients every day with acute and chronic mental illnesses and substance use disorders.

Over the past several years, CAMH has made several submissions to government committees related to medical assistance in dying and mental illness. Our position has been, and remains, that we are concerned about the expansion of MAID to people whose sole underlying medical condition is mental illness at this time.

We want to be clear that this position is not based on the belief that suffering caused by mental illness is not comparable to suffering caused by physical illness. There is no doubt that mental illness can be grievous and cause people physical and psychological suffering. We are not here to debate that.

CAMH's concern is that the health care system is not ready for March 2024. The clinical guidelines, resources and processes are not in place to assess, determine eligibility for and support or deliver MAID when eligibility is confirmed to people whose sole underlying medical condition is mental illness. This includes differentiating between suicidal plans and the request for MAID. More time is needed.

The federal model practice standards are a good first step in highlighting the benchmarks that health professional regulators can expect from their members who choose to offer MAID, but it is not enough. Health professional regulators also rely on their members having access to the best available evidence through clinical practice guidelines.

Guidelines for MAID cases where mental illness is the sole underlying condition do not currently exist. That is why CAMH is hearing loud and clear from physicians, nurse practitioners and other clinicians that they need more clarity and directions on how to determine whether a person has an irremediable mental illness and is eligible for MAID, including how to separate a request for MAID from a suicidal attempt or plan.

To address this gap, CAMH experts have been working hard with partners for the past year to develop practice guidelines, based on the limited evidence available at this time, that will allow for standardized assessments and more reliable decisions regarding that determination of MAID cases where mental illness is the sole underlying condition.

Importantly, given the lack of evidence in the field at this time, CAMH and others have been clear that these guidelines must be consensus-based. This has not been an easy task. We have been working toward it, but have not been able to reach consensus on what information needs to be collected and how a determination of irremediableness should be made.

We're making progress, but more time and funding for interprofessional and interorganizational collaboration are needed. Getting to consensus within health care and community organizations, and nationally, will take longer. Given the life-or-death consequences of these decisions, we want to get it right, and we know the government does too.

It is also important for the government to understand that the health care system is not equipped to handle the increase in MAID requests that are expected to come in March 2024. In Ontario, there is already a lack of resources to handle MAID track two cases, and the existing infrastructure will not be able to support additional demand.

CAMH and our partner hospitals, through the Toronto Academic Health Science Network, have submitted a proposal to the provincial government to enhance the existing MAID coordination service and create a track two consultation table to address the increase in inquiries and applications for MAID where mental illness is the only underlying medical condition. We're awaiting a response.

Central to our proposal is the recognition that there are already a limited number of MAID assessors and providers who take care of track two cases. Those who have expertise in mental illness and conducting mental health assessments are even more limited. It is crucial that we have more time to build this community of practice.

Without time to ensure that the guidelines, resources and experts are in place, access to MAID for people whose sole underlying medical condition is mental illness would be limited and inconsistent, and may exacerbate existing inequities within the health care system. It may also lead to confusion, distress and frustration for patients, their families and health care providers.

Therefore, CAMH is urging further delay in extending MAID eligibility to people whose sole underlying condition is mental illness at this time, until the health care system is ready and health care providers have the resources they need to provide high-quality, standardized and equitable services.

Finally, it is important to re-emphasize what was mentioned at the beginning. Mental illness can be severe and cause suffering that can be comparable to physical illness, but the health care available for mental illness is not comparable to the health care available for physical illness. Mental health care has been significantly underfunded compared to physical health care.

There are also inconsistencies in treatment covered by different provincial health plans. This means that many people across Canada do not have ready access to the full range of evidence-informed treatments that can assist in their recovery.

For that reason, a delay in MAID expansion would also allow governments and health care experts to work together to determine the best way to integrate MAID into a broader mental health care system.

Thank you for your consideration.

[The Joint Chair, Hon. Yonah Martin]

Thank you, Dr. Rajji.

Lastly, we'll have Dr. Mauril Gaudreault, for five minutes.

[Dr. Mauril Gaudreault, President, Collège des médecins du Québec]

Madam Chair, members of the committee, we appeared before you nearly a year ago today. Thank you for giving us another opportunity to express our views, this time in relation to mental disorders.

By way of reminder, the mission of the Collège des médecins du Québec, or CMQ, is to protect the public by providing quality medicine. Quality medicine to us means bringing relief to people who are suffering, regardless of their disorder or illness.

The CMQ is of the view that the medical parameters to circumscribe medical assistance in dying, or MAID, are clear. What is not clear are the legal parameters. The Criminal Code and Quebec's Act Respecting End-of-Life Care need to be aligned to ensure that the delivery of this care is consistent right across the country.

In the meantime, the situation is causing confusion among patients and doctors alike.

Further to an inclusive, non-discriminatory, view, one that is based on an individual's diagnosis and takes into account the person as a whole, mental illness is now a designated mental disorder in the International Classification of Diseases, the same as any other disease.

It is now well established in epidemiology that mental disorders are prevalent. In fact, it is estimated that one in five people will experience a mental disorder during their lifetime.

The CMQ is not claiming that MAID is an appropriate response for all individuals with mental disorders. For most, specific treatment options are available, scientifically sound options that offer a more promising outlook through biopsychosocial, recovery and rehabilitation therapies.

The CMQ does, however, believe that access to MAID should not be withheld from patients with mental disorders. That medical view is based on a number of factors. First, it is important to recognize that certain mental health problems can cause suffering just as intense as physical health problems. Second, it is not acceptable to discriminate against patients when it comes to MAID on the basis of their mental health. Everyone is entitled to universal access to care and that right must be upheld. Third it is important to not only protect vulnerable individuals, but also to support their potential and autonomy. Lastly, it is important to consider the mistaken association between a mental disorder and the capacity to consent.

However, stringent clear conditions are essential to avoid any lapses. We have set five such conditions.

First, the decision to grant MAID to someone with a mental disorder should not be viewed solely as an episode of care. Rather, the decision should be made following a fair and comprehensive assessment of the patient's situation.

Second, the patient must not exhibit suicidal ideation, as with major depressive disorders.

Third, the patient must experience intense and prolonged psychological suffering, as confirmed by severe symptoms and overall functional impairment, over a long period of time, leaving them with no hope that the weight of their situation will ease. This prevents them from being fulfilled and causes them to see their existence as devoid of meaning.

Fourth, the patient must have been receiving care and appropriate follow-up over an extensive period of time, have tried multiple available therapies that are recognized to be effective, and have received ongoing and proven psychosocial support.

Fifth, requests must undergo a multidisciplinary assessment, including by the physician or specialized nurse practitioner in the field of mental health who has treated the individual as well as by a consulting psychiatrist in the specific case of the MAID request.

Under these conditions, it would be possible, in the CMQ's view, to provide individuals suffering from a grievous and irreversible mental disorder with access to MAID.

It is important to prevent situations where individuals opt for MAID out of desperation, because they do not have access to proper care or do not consider the care available to be acceptable, such as an extended stay in a facility without the prospect of gaining more autonomy.

The CMQ believes that, regardless of the patient's illness, they still have the right to access all available medical care, in accordance with their condition, without discrimination.

We are confident that the conditions we have identified will ensure that MAID is adequately circumscribed, while guiding clinicians and educating patients and their loved ones.

We understand what an extremely sensitive issue this is. From a medical standpoint, however, the primary consideration is the person's suffering. We have a duty to alleviate that suffering, in accordance with the patient's wishes, when all other means have failed to do so.

Thank you.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much, Dr. Gaudreault.

We will begin our first round of questions, starting with Mr. Fast.

Mr. Fast, you have five minutes.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

My first question is for you, Dr. Rajji. In your presentation to committee on November 5, 2020, you supported a delay in implementing MAID for mental illness due to the issue of irremediability not having been resolved. You stated that irremediability is “an objective determination that must be based on the best medical evidence available”. Then you shared your concern that there were “no established criteria that define if and when a mental illness should be considered irremediable”. You also suggested that without any agreed-upon objective criteria, “any determination that a person has an irremediable mental illness would be inherently subjective and therefore arbitrary”.

Has any of that changed in the intervening three and a half years?

[Dr. Tarek Rajji]

Thank you for the question.

That's still the case in the way that 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 because of the trajectory of the illness. This is why I mentioned in the statement today that any criteria about the irremediable nature of the illness need to be based on consensus guidelines. That work needs to happen. Those discussions need to happen among the expert panel to determine, for condition A, what criteria would determine, based on consensus, that this illness is irremediable, so that doctor X and doctor Y reach the same conclusion.

Those criteria may be different for another condition. The criteria for irremediable—again, I would emphasize that this needs to be consensus-based—would be different for depression, maybe, than for schizophrenia or another illness.

[Ed Fast, Conservative, Abbotsford, BC]

Professor Kaiser, you have in the past stated that the voices of indigenous Canadians have been ignored as the discussion of Bill C-7 has moved forward. Can you comment a little further on the degree to which indigenous communities have or have not been consulted on the expansion of MAID to the mentally ill?

[H. Archibald Kaiser]

Obviously, this question is best put to representatives of indigenous persons, so I have looked to them for the content of my answer.

In February 2021, for example, many distinguished indigenous signatories wrote to Parliament that the consultation here has not been adequate and “has not taken into account the existing health disparities and social inequalities we face compared to non-Indigenous people”. They said, “our population is vulnerable to discrimination and coercion...and should be protected against unsolicited counsel”.

Another witness before the Senate in February 2021 was Dr. Rod McCormick, himself an indigenous person, who said, “our people die of complex and higher rates of disease than the general population”. When they are “already overrepresented at every stage of our health system, it seems ironic to provide...another path to death”.

Finally, Dr. Richardson, who was before the Senate on February 3, 2021, said, “In an environment where both systemic and interpersonal racism exists, I don’t trust that Indigenous people will be safe.” She said, “a bill that does not actually take into account how social [inequalities] disproportionately affect Indigenous [persons] is highly problematic”.

The sum and substance of all of that is this: How much consultation could there be that would remove those deep, abiding, permanent concerns of indigenous Canadians with respect to the mental health care system in Canada in relation to the psychosocial stressors they face? I don't believe there could be adequate consultation, but I believe those are representative voices from indigenous persons.

[The Joint Chair, Hon. Yonah Martin]

You have one minute remaining.

[Ed Fast, Conservative, Abbotsford, BC]

On the issue of irremediability, do you believe there is a consensus within the mental health community on that issue, or is that still outstanding?

[H. Archibald Kaiser]

There is emphatically not a consensus. First of all, I think you should listen to Canadians with disabilities, who say.... For example, the CMHA states that “cases of severe and persistent mental illness that are initially resistant to treatment can, in fact, show significant recovery over time."

But today in Impact Ethics, a group of mental health professionals says that “MAID is for irremediable medical conditions, ones that can be predicted to not improve.” Their overall conclusion was that combined with there being a half-level of success only, and the inadequacy of measuring devices, they say—

[Ed Fast, Conservative, Abbotsford, BC]

Let me just interrupt you for a second. I just have five seconds left.

Are there any criteria established that would allow the mental health profession to determine irremediability?

[H. Archibald Kaiser]

I'm just responding from the point of view of these providers. They said that over half of the time—

[The Joint Chair, Hon. Yonah Martin]

I'm sorry, Professor. Answer yes or no.

[H. Archibald Kaiser]

The answer is that, no, they are not adequate to provide confident predictions, according to medical professionals.

[The Joint Chair, Hon. Yonah Martin]

Thank you very much.

We will now go to Mr. Fisher.

You have the floor for five minutes.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Madam Chair.

Thank you to all of our witnesses today.

I'm going to ask the same question that I've asked other witnesses on this committee due to the narrow scope of what we're here to decide.

Dr. Rajji, do you think that the health system is ready for an expansion of MAID eligibility on March 17, 2024, for individuals whose sole underlying medical condition is a mental disorder?

[Dr. Tarek Rajji]

No, we don't think the system is ready for March 2024.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Dr. Rajji, here are a couple of little scribbles that I threw down when you were giving your testimony: “get it right”, “getting to consensus”, “concerned at this time” and “more time is needed”. If you were to believe that the health care system is ready—if and when—do you support MAID for individuals whose sole underlying medical condition is a mental disorder? I guess I can ask you for the position of CAMH, not your personal opinion.

[Dr. Tarek Rajji]

CAMH is not saying that mental illness cannot be or should be excluded from being a criterion for MAID for mental illness. What we're saying clearly is that there's work that needs to be done to determine what those criteria are that define one condition as irremediable versus remediable. These criteria need to be established based on consensus because there is no clear, objective evidence at the individual level to determine whether individual X has an irremediable illness. That work has not been done yet.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Just to be a little bit nitpicky for a second just to get clarification.... The position of CAMH is that it doesn't necessarily support MAID expansion.

[Dr. Tarek Rajji]

At this time, we urge the government not to expand it, yes.