Mr. Speaker, I joined the latest edition of the Special Joint Committee on Medical Assistance in Dying, which was mandated to deal specifically with the question of the health system's readiness for an extension of MAID to cases of severe mental illness, out of a sense of duty as this is a deeply serious matter for Canadian society, one on which I received correspondence from a great many concerned constituents.
At first, I humbly questioned my qualifications to sit on the committee. I am not a psychiatrist. I am not a medical doctor. I do not have expertise or experience in this area. However, in a democracy, not all is left to the experts. The people, through their elected representatives, set legal parameters in areas of public interest by way of legislation and regulations. In fact, that is what has been happening since 2016 on the issue of MAID.
That said, it is important to carefully listen to and consult the experts out of respect for the authority of knowledge and experience. This is the opposite, I might add, of the new populism.
I agree with the committee's recommendation that we should indefinitely postpone MAID where the sole underlying condition is mental illness, also known as MD-SUMC. The central issue in MD-SUMC is irremediability; that is the question of whether there is the possibility that a person with severe mental illness can be cured of their terrible suffering, a suffering not different from physical suffering.
Under the law, for a person to be deemed eligible for MAID, the illness must be irremediable; grievous and irremediable. The problem when we move from somatic, that is physical, illness to psychiatric illness is that irremediability becomes more difficult to establish. In the case of psychiatric illness, an accurate prognosis is infinitely more difficult to produce.
Because of the difficulty, in cases of mental illness, of offering a reasonably certain prognosis, the determination of irremediability will necessarily have to be based on a retrospective view; that is on an assessment of the extent of a patient's past treatments and whether the patient exhausted all treatment possibilities in a quest to be relieved of their suffering. The problem is that the MAID assessors will most likely not have been involved in past treatments, which makes it difficult to ascertain the quality of those treatments. When it comes to establishing irremediability in cases of mental illness, evidence has shown accuracy is poor. It is less than 50%, a coin toss.
To quote Dr. Sonu Gaind, one of the experts who appeared before the committee, “Worldwide evidence shows we cannot predict irremediability in cases of mental illness, meaning that the primary safeguard underpinning MAID is already being bypassed, with evidence showing such predictions are wrong over half the time.”
It should be pointed out that under our MAID law, clinical certainty about irremediability is not actually required. Here it is important to highlight the distinction between legal irremediability and irremediability in clinical medicine.
In the MAID law, “grievous and irremediable” has a different meaning than in medicine. It is defined as incurability, “be in an advanced state of irreversible decline” and “enduring...physical or psychological suffering” that is intolerable to the person and cannot be relieved “under conditions the person considers acceptable.”
In law, therefore, it is not necessary to establish irremediability with a degree of clinical certainty. Rather, both patient and assessor must come to the shared understanding based, among other things, on the assessor's analysis of the history of past treatments. There is an element of subjectivity on the part of both patient and assessor. Naturally, the assessor will bring their own philosophical biases, values and ethics to this subjective equation.
As Dr. Gaind suggested to committee members, “Try those mental gymnastics on your constituents. Convince them it was okay that their loved ones with mental illness got MAID, not because of a clinical assessment based in medicine or science, but because of the ethics of the particular assessor.”
An important issue in determining eligibility for MD-SUMC is being able to separate suicidal ideation from a considered request for MAID. It bears keeping in mind that suicide attempts are not always rash and impulsive, the product of a panicked state. This, in some ways, is a stereotype. Psychiatrists will say that some suicides are not frenetic but carefully planned in advance.
Dr. Tarek Rajji, chair of the medical advisory committee at the Centre for Addiction and Mental Health, told the committee, “There is no clear way to separate suicidal ideation or a suicide plan from requests for MAID.”
To again quote, Dr. Gaind:
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.
In the Netherlands, an assessment by an independent physician is required for MAID, and in the case of psychiatric suffering, a third assessment by an independent psychiatrist, preferably one with specific expertise regarding the patient's disorder.
The problem with Canada's law, as it stands, is that there is no requirement for one of the assessors of MAID eligibility to be a psychiatrist, yet psychiatric issues are exceedingly complex. Often a patient has more than one illness. It is said that 71% to 79% of psychiatric patients who died through MAID in the Netherlands had more than one psychiatric disorder.
We humans are not self-directed, rational atoms exercising unencumbered clear-eyed autonomy. We are not as free as we think. We are born into families and communities, and influenced by the opportunities they offer, and alternatively, by the constraints they impose on us.
I sometimes wonder if we are not in the process of turning personal autonomy into ideology. I say “wonder” because as a liberal, I have not been bestowed the gift of absolutism that has blessed ideologues.
Requests for MAID can be influenced by, even driven by, extraneous factors like poverty and isolation, that is by psychosocial factors. According to Dr. Gaind, “those with mental illness...have higher rates of psychosocial suffering.”
This all means that MAID assessors will be wrong over half the time when predicting irremediability, will wrongly believe they are filtering out suicidality and still, instead, provide death to marginalized suicidal Canadians who could have improved.
Archibald Kaiser, Professor at the Schulich School of Law and Department of Psychiatry, Faculty of Medicine at Dalhousie University added that “The Supreme Court concluded in 1991 that people with mental illness have historically been the subjects of abuse, neglect and discrimination.”
Dr. Gaind further underscored that “Suffering is cumulative, and life suffering unfortunately fuels much of the suffering of those with mental illness, even more so for marginalized populations.”
There is, in fact, the possibility that gender-based marginalization can influence requests for MD-SUMC. We know that in countries that allow MAID for severe mental illness, the ratio of women to men who seek MD-SUMC is two to one.
For their part, indigenous representatives have expressed serious reservations about expanding MAID to include mental illness. According to Professor Kaiser:
In February 2021...many distinguished indigenous signatories wrote to Parliament that the consultation ... has not been adequate and “has not taken into account the existing health disparities...we face compared to non-Indigenous people.” They said, “our population is vulnerable to discrimination and coercion...and should be protected against unsolicited counsel.”
We know there is systemic racism in the health care system. Ask the family of Joyce Echaquan. How would systemic racism influence the rate of acceptance of MAID requests of indigenous and other racialized peoples? That is a pertinent question.
As Dr. Lisa Richardson, Strategic Lead, Centre for Wise Practices in Indigenous Health, Women's College Hospital, told a Senate committee on February 3, 2021:
In an environment where both systemic and interpersonal racism exists, I don’t trust that Indigenous people will be safe. I don’t trust that anti-Indigenous prejudice and bias will not affect the decision making and counselling about MAID for Indigenous people, no matter how much education is given.
Indigenous communities, many of which have felt the scourge of high suicide rates, especially among youth, may have concerns about possible contagion effects of MD-SUMC on suicidality.
Then, there is the basic question of the ability of the health care system in Canada, already stretched to the limit, to handle an expansion of MAID.
According to Dr. Eleanor Gittens of the Canadian Psychological Association, as a country we have not yet established parity between available physical and mental care. To quote her, “Care and treatment of mental illness are not covered by medicare, nor is it readily accessible.”
We do not really know how many people would request MD-SUMC, and thus whether we have enough qualified assessors. By some estimates, we would have well over 2,000 patients a year getting MD-SUMC with countless more requesting eligibility assessments. I know there is dispute around that number.
Just because there is a published Health Canada standard for MD-SUMC and a training module does not mean the system is ready. A building built on a soft foundation is not ready for occupancy, no matter the level of completion of its structure. There are today no safeguards preventing poverty, housing insecurity, loneliness, etc., that is psychosocial factors, from significantly fuelling MAID requests of those suffering from mental illness.
I will quote Dr. Rajji: “The standards document itself, the one developed by the expert panel, states that these are not clinical guidelines, and this is what is missing to ensure quality.” According, again, to Dr. Gaind, “it is a legal fiction that determinations of the eligibility of MAID are based on objective clinical judgment. In fact, I regularly witness practitioners' values influencing the interpretation of the current MAID eligibility criteria and safeguards.”
As per an article in the review Impact Ethics, “The few jurisdictions allowing MAiD for [sole] mental illness have safeguards Canada lacks, notably (unlike Canada) requirement of due care and no reasonable alternative, or treatment futility, prior to MAiD eligibility.”
In Canada, a patient would be able to qualify for MD-SUMC even if they refuse treatment. Often a psychiatric patient will refuse additional treatment owing to treatment fatigue. While treatment fatigue has been studied in the context of HIV and type 1 diabetes, with the goal of developing strategies to help overcome it, treatment fatigue has not yet received attention in psychiatry. A better understanding of treatment fatigue could lead to alternatives to MAID, such as palliative or recovery-oriented treatments.
I respect the Senate. I value the Senate. Senators bring more than just sober second thought; they bring expertise in fields crucial to good public policy making, but senators are not elected. They are not the voice of the people. It was never the government's intention to extend MAID to those suffering from mental illness.
The government was running out of runway to meet the court-imposed deadline in the Truchon decision for amending the law to remove the requirement that death be foreseeable to qualify for MAID. It could not afford a back-and-forth game of procedural ping-pong with the Senate over its last-minute amendment to remove the mental illness exclusion from Bill C-7. It had to accept the Senate's amendment to get the bill across the finish line.
In my view, we are not ready for MD-SUMC. We cannot ascertain irremediability with any acceptable degree of certainty and objectivity. We cannot sufficiently distinguish an unfettered request for MAID on the grounds of mental illness from suicidal ideation. We are not able to separate out psychosocial factors that might drive MD-SUMC. We have not properly consulted racialized communities to take account of their views, concerns and fears, notably those of indigenous communities, and we have not built proper safeguards into the law.
We do not require the involvement of a psychiatrist in assessment nor require that a person have reasonably exhausted available treatments before making a request for MD-SUMC. The few other jurisdictions that allow MD-SUMC have this requirement.
We have not studied and understood treatment fatigue such that we can develop strategies that can possibly lead a patient to other non-lethal treatment options, and finally, we have allowed an unelected body, the Senate, to drive this agenda.
