My daughter was diagnosed with cancer at the beginning of the pandemic. As her parent, I was devastated. Four harrowing years of chemotherapy and fertility treatments later, she is cancer-free and the parent of a beautiful, healthy baby.
Not all cancer stories have such a happy ending. The same is true of mental illness.
Sure, there are marvellous recoveries, but the internet is full of tales about people such as Adam Maier-Clayton. He desperately tried many therapies and begged for medical assistance in dying. He locked himself in a motel room and died from a drug overdose seven years ago. Agata Gawron, who has depression and anorexia nervosa, told the CBC last year that many people who get eating disorders “get over it,” but not so in her case: she’s been suffering for more than 30 years, “going from doctor to doctor, trying to cure me.” She wants access to MAID, too. And then there is John Scully, a former war correspondent who suffers from post-traumatic stress disorder. The 83-year-old has made two suicide attempts, and in the absence of MAID, he’s talking about a third. “And this time,” he tells me in an interview, “it will work.”
Independent senator Stan Kutcher believes it’s discriminatory that people whose sole underlying condition is mental illness cannot even apply for MAID. A psychiatrist and academic specializing in adolescent mental health, Kutcher was appointed to the Senate in 2018. Two years later, he says, he was “triggered” when he read the preamble to Bill C-7, the federal government’s first attempt to revamp its flawed 2016 MAID legislation. The bill proposed to expand MAID access to people whose deaths were not reasonably foreseeable, but it excluded those suffering solely from mental illness. That meant patients such as Gawron and Scully could not even be assessed to see whether they qualified for MAID — all under the guise of “protecting the vulnerable.”
Kutcher was offended: not as a psychiatrist, but as a citizen. “My expectation both as a Canadian and a senator is that the government of the day will uphold the Charter rights of all Canadians,” he said in an interview, “because if they don’t apply to people with mental illness, they don’t apply to anybody else.”
He proposed an amendment that would expand MAID eligibility. The legislation was eventually accepted with a two-year sunset clause, then postponed twice. But last week, a special joint parliamentary committee concluded that the federal government was not ready to implement MAID for mental disorders (MD-SUMC) after all, and the government has stated that the provinces and territories are not ready either. Consequently, it has introduced Bill C-62, which will delay MD-SUMC until 2027 at the earliest. That will be more than a decade after MAID was legalized in Canada.
Should pain that is psychological rather than physical be downplayed because it doesn’t include the sort of deterioration that we can see with an MRI or ECG? Our elected representatives appear to think so: by granting yet another delay in recognizing intractable mental disorders as a legitimate reason to apply for MAID, the federal government has made a mockery not only of its own legislation, but also of the Charter of Rights and Freedoms.
Sue Rodriguez is supported by MP Svend Robinson as he helps her out of a car on the way to a press conference in Victoria, British Columbia, on September 30, 1993. (Ward Perrin/CP)
MAID would not exist without the Charter of Rights and Freedoms. It was in its infancy 30 years ago when Sue Rodriguez, who was suffering from ALS, narrowly lost her right-to-die challenge at the Supreme Court, largely because the court argued it was up to Parliament to change the law. Her friend, former MP Svend Robinson, observed at the time that the people are always ahead of the politicians. Now we know — as if we needed reminding — that the courts are ahead of the politicians, too.
Two decades after Rodriguez died by sipping a lethal solution, a group of plaintiffs used the Charter to challenge the blanket Criminal Code prohibition against assisting a suicide. In its 2015 ruling, which came to be known as the Carter decision, the Supreme Court defined the conditions under which suffering patients could ask for help in ending their lives, limiting assisted dying to competent adults who could clearly and voluntarily consent to the termination of life and had a “grievous and irremediable” medical condition (such as an illness or disability) that caused enduring and intolerable suffering.
The court gave the federal government a year to table and enact MAID legislation. It even granted an additional four-month legislative extension, during which individuals were able to appeal to a provincial or territorial Superior Court justice for permission under the Carter decision to have an assisted death.
Agenda segment, December 7, 2022: Should Canada allow assisted death for the mentally ill?
One of them, an Alberta woman known only as E.F., was suffering from a severe conversion disorder, a psychogenic illness with painful and debilitating physical manifestations. In her 2016 deposition to the Alberta Court of Queen’s Bench, E.F. said that she was not depressed or suicidal. Since her diagnosis nearly a decade earlier, she had undergone many failed traditional and experimental treatments and therapies and was “simply exhausted after years of suffering indescribable pain.”
The court granted her application because she was suffering grievously and because there was nothing in the Carter ruling that excluded mental disorders. Canada’s attorney general challenged the decision at the Alberta Court of Appeal and lost. Still, the federal government went ahead with Bill C-14 — which, in addition to the criteria set out in Carter, demanded that patients have a reasonably foreseeable natural death, thereby excluding mental disorders and conditions such as chronic pain.
Yet there is nothing in Carter that mentions dying. The Supreme Court based its decision on the idea of intolerable suffering, but the government’s stated focus was on “protecting the vulnerable,” as though competent people suffering intolerably don’t have agency or the capacity to make decisions in their own best interests.
Former justice minister David Lametti, who was a Liberal backbencher in 2016, voted against the legislation because he knew it was unconstitutional. Nevertheless, it took a court challenge in Quebec three years later by Jean Truchon and Nicole Gladu to strike down the “reasonably foreseeable natural death” stipulation. Truchon was suffering from progressive cerebral palsy; Gladu had post-polio syndrome. Neither was terminally ill, but both were afflicted with chronic conditions and wanted the legal right to apply for MAID if their suffering became unbearable.
Judge Christine Baudoin of the Quebec Superior Court agreed that Bill C-14 violated their Charter rights under sections 7 and 15 and granted each an exemption to apply for MAID. The federal government chose not to appeal for the simple reason that it would lose: as Lametti explained at the time, the “reasoning of the Quebec Superior Court was compelling, and it will ultimately be upheld.“
Le combat pour l'aide à mourir de Nicole Gladu
In February 2020, the federal government tabled Bill C-7, featuring a two-track system: patients with a reasonably foreseeable natural death would be entitled to sign a waiver of final consent; patients suffering from chronic rather than terminal illnesses would have to undergo a minimum 90-day assessment period and a second eligibility assessment by a practitioner with expertise in the patient’s condition.
The proposed legislation created the possibility of MAID for patients with severe physical disabilities, chronic pain, and irremediable mental disorders. But the idea of permitting MAID for patients suffering from mental rather than physical illness was so fraught that the government excluded it from the bill. That’s what “triggered” Kutcher.
After much parliamentary wrangling, Bill C-7 passed in March 2021. By then, Truchon had exercised his exemption and died via MAID in a long-term-care facility in Montreal. Gladu died of natural causes a month after Bill C-7 became law. A journalist and trade unionist, Gladu was known for her campaigns on behalf of fairness and justice. She had won her final battle — and that allowed her to live in peace until her natural death occurred.
Kutcher is a member of the parliamentary special joint committee that released its findings last week. He believes the committee’s non-independent members “veered off course and, instead of following its mandate, went in directions that have already been litigated and found to be unacceptable.” In doing so, he says, the committee was “discriminating against a group suffering from a particular illness.” He can think of no other explanation than “some political calculation that I don’t understand.”
Senator Stan Kutcher speaks at a press conference in Ottawa on February 1, 2024. (Patrick Doyle/CP)
Yet that “political calculation” seems obvious to me. So let me state my personal view: the bar should be high to permit grievously suffering patients — no matter the nature of their “illness, disease, or disability” — access to MAID, but it shouldn’t be impossible. Justice delayed is justice denied.
We now have nearly eight years of experience in training clinicians in MAID provisions, eight years of developing protocols and collecting statistics (however complicated by the fact that health care is delivered by the provinces and territories, rather than by the federal government), and eight years of clinicians and patients grappling with end-of-life wishes. That makes for a much more informed medical profession and general population.
The committee’s report, which ricochets from one expert to another and is little more than a summary of witness statements, does not read like an argument leading to a conclusion. Indeed, it declines to reach a conclusion except to recommend putting off MAID eligibility for mental disorders yet again.
On February 1, Health Minister Mark Holland and newly appointed justice minister Arif Virani tabled Bill C-62, postponing the possibility of MAID for mental illness at least until 2027. The two men said they had consulted with their provincial counterparts, a majority of whom had expressed a lack of readiness to proceed with MAID MD-SUMC. “They really do feel that they need more time,” Holland said in a press conference — without explaining precisely what that meant or what it had to do with federal preparedness.
Jocelyn Downie, a public-policy and MAID legal expert at Dalhousie University, tells TVO Today via email that the committee’s mandate “was appropriately narrowly focused on readiness … and restricted to actions within federal jurisdiction. To now point to provincial/territorial concerns as justification for a further delay is inappropriate. Both because it is wrong to allow some provinces to prevent Canadians in other provinces from having access and because it is inappropriate to prevent access based on political expediencies.”
As for Lametti, the architect of Bill C-14, he was dropped from cabinet this past summer and has resigned his seat to return to his career as a constitutional lawyer. Before leaving the House, where he had served as an MP for nearly a decade, he said in an interview with the Canadian Press that MAID MD-SUMC “would only apply to a very, very small number of people, and so I wouldn’t be afraid personally of moving forward with it.” He added the “people who have tried everything and are suffering and are capable of making that decision ought to be able to make that decision.”
John Scully on expanding MAID access to people with mental illness
No other branch of medicine has been subject to such scrutiny and trepidation about granting a patient’s wish to have MAID, and yet most requests — by far — come from patients suffering from cancer and cardiovascular or neurodegenerative diseases. Even in permissive countries such as the Netherlands, requests from patients with mental disorders are rare, and most of them are rejected. Many approved patients postpone or change their minds about assisted death. Knowing they have been granted the right to have a doctor end an unbearable existence allows many of them to quell the worst effects of their illness. That enables them to carry on living at least for another day or month — or perhaps indefinitely.
Will we ever be ready to accept that suffering from a mental disorder is real? The answer appears to be a loud and declarative no, unless some brave soul is willing to become the plaintiff in a legal challenge specifically on mental disorders. John Scully, for one, says he’d be willing to put his name forward as a plaintiff if somebody else organized the legal case. “I have no reservations about talking about mental health and my own suicide attempts,” he says. “We have been working for centuries to have people with mental illness treated equitably in the health-care system.”
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