44th Parl. 1st Sess.
February 13, 2024 10:00AM
- Feb/13/24 11:43:25 a.m.
- Watch
- Re: Bill C-7
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.
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- Feb/13/24 12:38:04 p.m.
- Watch
- Re: Bill C-7
Madam Speaker, I think it is my assistant calling me, telling me it is time to speak. She is very efficient.
As I was saying, the bill proposes to extend the temporary mental illness exclusion, so that the provision of medical assistance in dying, or MAID, on the basis of mental illness alone would remain prohibited until March 17, 2027. In my remarks today, I will be addressing some of the concerns that have been expressed about allowing MAID for mental illness and the importance of ensuring that our health care system is ready before legalizing this practice.
As members know, Bill C-7 temporarily excluded MAID for mental illness until March 2023. Parliament extended the exclusion for an additional year after organizations such as the Association of Chairs of Psychiatry in Canada and the Centre for Addiction and Mental Health expressed a need for additional time. The Special Joint Committee on Medical Assistance in Dying, or AMAD, also supported the extension.
At the outset of my remarks, I want to emphasize that the government recognizes that mental suffering may be as severe as physical suffering. We know that not all individuals with a mental illness lack decision-making capacity. The extension of the temporary exclusion of eligibility for MAID is not based on these stigmatizing stereotypes.
I also want to announce my profound sympathy for anyone in Canada who is intolerably suffering because of a health disorder. My thoughts are with them.
While the federal government believes that MAID eligibility should be expanded to those whose sole condition is a mental illness, this process cannot be rushed. Over the past year, important progress has been made to prepare for the expansion, but provinces and territories are at varying stages of readiness. The federal government has listened to its partners and introduced this bill as a direct response to their concerns.
A cautious, deliberate and rigorous framework is essential to ensure the safe provision of MAID where a mental illness grounds a request for MAID. Debate about the parameters of the MAID regime has been taking place since before the Supreme Court of Canada's 2015 decision in Carter, in which it held that the absolute prohibition on physician-assisted dying was unconstitutional. This is a sign of a healthy democracy.
Most recently, the Special Joint Committee on MAID witnessed the diversity of views and expertise first-hand. Some witnesses who testified, such as Dr. Trudo Lemmens, chair in health law and policy at the University of Toronto, expressed concerns about permitting MAID where the sole underlying condition is a mental illness. Others, including the members of the Canadian Association of MAID Assessors and Providers, thought the country was ready for the current March 17, 2024 deadline.
Still others supported expanding MAID for mental illness, or accepted that it would become legal but recommended a delay. This recommendation came from Dr. Jitender Sareen of the University of Manitoba on behalf of eight chairs of psychiatry departments in Canada. The chairs of psychiatry outlined several reasons, including concerns about a need for further safeguards and accepted definitions of irremediability in mental disorders, before moving forward.
I would like to acknowledge the important contributions that have been made on this topic. While not everyone agrees, it is clear that we all care deeply about the well-being of those seeking MAID and the protection of the vulnerable.
Let me now get into some of the specific concerns that have been raised. Members will recall that certain eligibility criteria need to be met to qualify for MAID. This includes having a grievous and irremediable medical condition, which requires that a person be in an advanced state of irreversible decline.
Some doctors, such as Dr. Sonu Gaind, chief of psychiatry at Sunnybrook Health Sciences Centre, have said it is impossible to predict which patients with a mental illness will get better; in other words, we cannot determine whether their illness is irremediable. However, other experts, including members of the expert panel on MAID and mental illness, suggest that the evolution of the illness and the response to past interventions can be used to assess irremediability, as is done with some physical conditions such as chronic pain.
Concerns have also been raised, by Dr. Sareen and others, that it is too difficult to distinguish between suicidality and a rational request for MAID when the request is based on a mental illness alone, because suicidality may be a symptom of the mental illness itself. Dr. Stefanie Green acknowledged that this can be complicated, but testified before the MAID committee that clinicians have a duty to assess every patient for suicidality. It is something that doctors do regularly in clinical practice. In addition, MAID assessments may involve suicide prevention efforts where warranted.
Another concern expressed by Dr. Tarek Rajji, the chair of the medical advisory committee at the Centre for Addiction and Mental Health, is that there was no consensus within the medical community about whether MAID should be available for persons whose sole underlying medical condition is a mental illness. However, others, including Dr. Green, note that the lack of consensus in the medical community is not unique to MAID.
A last concern that I want to address is that individuals are requesting MAID due to a structural and systemic vulnerability, such as lack of income and social supports. I want to be clear that the law requires that the suffering be due to illness, disease or disability, not poverty or unmet needs.
Our government is confident that the existing safeguards will ensure that only those who meet the eligibility criteria receive MAID. We are also determined to invest in social programs that can alleviate non-medical suffering and bolster social supports. Our MAID framework contains two sets of safeguards, one for requests where natural death is reasonably foreseeable and the other, more robust set for requests where natural death is not reasonably foreseeable.
The second set of safeguards would apply to cases where a mental illness is the basis of a MAID request. These include a requirement for a doctor or nurse practitioner with expertise in the condition to be involved in the assessment, a longer assessment period of 90 days, a requirement that the patient has been informed of the means available to relieve their suffering and has been offered consultations with relevant professionals, and a requirement that both assessors and patient agree that the patient has given serious consideration to the reasonable and available means of relieving their suffering.
In addition to these stringent safeguards, there is other guidance for doctors, nurse practitioners and regulators, including a model practice standard. Implementation of robust regulatory guidance and additional resources is ongoing, as is uptake of the nationally accredited bilingual MAID curriculum.
We are confident that, with more time, we can achieve readiness to ensure the safe provision of MAID in circumstances in which a mental illness grounds the request for MAID. We have made important strides, but work remains to be done to prepare health care systems and for more doctors and nurse practitioners to benefit from the available training and supports.
Our government thinks that three years is enough time to complete this work, so that our health care system is prepared when MAID for mental illness is permitted. In addition, we are proposing to add a requirement for a parliamentary review by a joint committee of both Houses of Parliament, to start within two years of this bill's receiving royal assent.
The committee will have six months to submit a report, including a statement of any recommended Criminal Code changes. This review will inform government action and ensure that they move forward only once the Canadian health care systems are ready.
With the March 17, 2024 deadline fast approaching, I urge everyone to work together to see that this bill is adopted before that date.
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- Feb/13/24 1:06:44 p.m.
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Madam Speaker, I believe access to care really is a key issue. I agree that having a continuum of suffering is unacceptable.
I am not against MAID eligibility for people who are suffering due to a disease and who have shown that their suffering is real. We must act. However, we do not have to act immediately, on March 17.
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Mr. Speaker, I appreciate being recognized to speak to a very sensitive and emotional issue.
Today, I am pleased to be speaking to Bill C-62. This bill proposes extending the temporary exclusion from MAID for people whose sole underlying medical condition is mental illness.
We are proposing that the exclusion be extended by three years. To understand why an extension of this exclusion is so important right now, we need to look at how we got to this point in the legislative process.
As members know, former Bill C-7 was enacted in response to the Quebec Superior Court Truchon ruling. The ruling found that the original MAID legislation, which required a person's natural death to be reasonably foreseeable, contravened the Charter of Rights and Freedoms.
The former Bill C-7 received royal assent and became law on March 17, 2021. This law included a temporary two-year exclusion of eligibility for individuals suffering solely from mental illness, which meant that such persons would become eligible to receive MAID starting March 17, 2023, if they met all other eligibility criteria. The intent of this two-year delay was to allow an expert panel to undertake an independent review and to provide recommendations respecting any protocols, guidance and safeguards that should apply to requests for MAID by persons with a mental illness.
I will be sharing my time with the member for Richmond Hill.
On May 13, 2022, the “Final Report of the Expert Panel on MAiD and Mental Illness” was tabled in Parliament and released publicly. The expert panel noted that MAID clinicians are already assessing very complex cases and concluded that certain assessment challenges, such as determining incurability or assessing decision-making capacity, are not unique to MAID requests from persons with a mental disorder, nor are they applicable to every requester who has a mental disorder. The expert panel also concluded that the existing MAID eligibility criteria and safeguards in the legislation provide an adequate structure for MAID where a mental disorder is the sole underlying medical condition, as long as they are interpreted and applied appropriately.
The expert panel's recommendations provide guidance to support complex MAID assessments. In its final report, the expert panel made 19 recommendations, laying out a broad set of principles that could structure the practice of MAID not only for persons with a mental disorder but also for those with other conditions where concerns may arise related to incurability, irreversibility, decision-making capacity, suicidality and/or the impact of structural vulnerability, regardless of the person's diagnosis.
The government supports the insights and general advice emerging from the panel's work. Let me take a few minutes to highlight some of the key achievements.
The expert panel report recommended the development of national practice standards on MAID for mental disorders and other complex cases. Practice standards help regulatory bodies evaluate the appropriateness of the clinical decisions of health professionals who assess and provide MAID. They also provide clarity to MAID clinicians regarding their professional obligations. In March 2023, a model practice standard for MAID was released along with a companion document of advice to the profession, which provides a series of questions and answers that elaborate upon specific clinical questions raised by the model standard.
That is not all we have done to help prepare a safe approach to providing medical assistance in dying across Canada.
We are providing $4.9 million to the Canadian Association of MAiD Assessors and Providers to develop and deliver an accredited, Canadian-made curriculum to support practitioners. This consists of seven training modules that address various topics related to the assessment and provision of MAID, including guidance in how to assess capacity and vulnerability, how to navigate more complex cases and how to assess MAID requests with mental illness as the sole underlying condition. The MAID curriculum was launched in August 2023. Over 1,100 clinicians have registered for it.
From when MAID legislation was enacted in 2016 to the end of 2022, over 44,000 Canadians received MAID. The vast majority of these individuals were at the end of their life. In fact, numbers from 2022 show that 96.5% of individuals accessing MAID were terminally ill, and two-thirds had a cancer diagnosis. Many more requested MAID but were ruled ineligible based on the strict eligibility criteria and safeguards, withdrew their requests or died before receiving MAID. This is not unexpected.
The government recognizes that public reporting is critical to ensuring transparency and public trust in the legislation. Both the original MAID legislation of 2016 and the amended law passed in 2021 set out obligations for the collection of data and public reporting on important aspects of MAID. As of January 1, 2023, we have expanded our collection of information on MAID.
I would like to take this opportunity to highlight the achievements of the provinces and territories, as well as key partners in the system, such as health care professionals, who are working to safely implement MAID within their health care systems.
We have come a long way, but we have heard clearly that there is more work to be done. More preparations are required within the provincial and territorial health care systems to support the wraparound activities that may be necessary for the management and assessment of MAID requests where mental illness is the driver.
We also know that some Canadians and members of the medical community are concerned about expanding eligibility for MAID to people suffering solely from mental disorders.
We will continue the work with the provinces, territories and key health system partners to support the safe implementation and delivery of Canada's framework for MAID, while protecting those who may be vulnerable. The expert panel also recommended consultations with first nations, Inuit and Métis people. We recognize the importance of meaningful engagement and ongoing dialogue with indigenous peoples to support the culturally safe implementation of MAID.
Working in partnership with indigenous communities, we have developed an extensive plan for indigenous engagement. Our approach involves both indigenous-led community engagement and federally supported activities, such as an online tool, which has already been launched, and knowledge-exchange round tables, which will be taking place this February to April. We are working closely with indigenous partners to design a process with them at their pace.
I recognize that there is a lot of hard work being done in order to show that MAID is accessible to people who need it, with appropriate safeguards in place. However, we need to make sure that we do not rush into that decision. This is why it is really important that we extend the application of this particular bill, as it relates to people with mental disorders, by at least three years; as a result, all provinces and territories can have the appropriate training and assessment tools ready.
A year ago, we extended the exclusion period for one year, until this March. As we approach that date, we have heard unanimously from all provinces and territories that their health care systems are at various stages of readiness, and there is more to be done.
The decisions we are making about MAID are not easy to make, nor should they be.
These are life-and-death decisions and we must get this right.
In Bill C‑62, the government has put forward a three-year extension of the exclusion from eligibility for MAID for people suffering solely from mental illness.
I urge all members of this House to support Bill C-62.
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