Senator Kutcher: Thank you very much, Senator Martin, and I respect your opinion. I know we differ on this, but I also know that you respect my opinion, and I think our personal friendship and the way we have worked together for many years is a good reflection of how we can differ, but we can respect that. I also thank you for pointing out that “never ready” may be the logical outcome of this bill, and I respect that this is how you feel it should be.

You mentioned consensus. We’ve had this discussion with other questions about consensus. You’re right. Some psychiatrists would continue to try treatment after treatment after treatment, even after decades, and the patient is completely exhausted. It happens in oncology as well until someone says they don’t want any more treatment.

For those here who haven’t read it, there’s a fantastic Substack article that was published last week saying that psychiatry has a futility problem. That’s right, and I would like your opinion on this. Some psychiatrists seem unable to acknowledge futility, but they want to expose patients to more and more treatments, which not only causes harm but also undermines patient autonomy and violates the principles of truth telling and trustworthiness. Do you think we should be in a situation where we allow some physicians to keep doing that to patients?

Senator Kutcher: Thank you very much for that. I do very much appreciate that your perspective is different than mine. That’s fine and that’s okay, but I think we do have to actually look at what the evidence tells us, and we have to look at what causes discrimination for one group against another group of people for the same argument. I would encourage all of us to think about that.

You mentioned Dr. Kim in your speech. Are you aware that the evidence he gave before the Superior Court Of Québec was discounted and that the judge had substantive concerns about the quality of the evidence that he gave? Maybe you weren’t aware. Otherwise, you probably wouldn’t have quoted him here. I think people need to know that some of the information you provided was actually already litigated in court and the courts found not to support it.

[Translation]

Senator Kutcher: In three years, we will be back at the point of hearing, “Nine people say we’re ready, one says we’re not ready; therefore we’re not ready.”

These are the reasons I do not support this bill. I hope you will consider all of the evidence before we move forward with what, in my opinion, is a discriminatory piece of legislation that violates our Charter and ignores provincial legal precedent. Thank you, wela’lioq.

Senator Kutcher: Thank you very much for that answer, Senator Gold. I think it’s pretty clear that 2% and 2% are the same number.

The issue here also is that people who have a mental disorder but have a concurrent physical illness are now eligible, even if it’s the mental disorder that is the primary reason for their request. There doesn’t seem to be a problem currently in providing the kind of comprehensive approach and support and everything else that your government is talking about necessarily having for people who have just a sole mental disorder.

Help us understand why this is not discriminatory. If you have a mental illness and a physical illness, it’s okay, but if you just have a mental illness, it’s not okay.

Senator Kutcher: May I have 50 seconds?

Senator Kutcher: Thank you so much for your contribution to the debate. It’s very appreciated, and I do appreciate the consistency in your position. I don’t agree with it, but I appreciate your consistency.

You talked about necessity for medical consensus before we allowed medical assistance in dying for a sole mental disorder, but we are all aware that there is no medical consistency on MAID itself. In fact, we have heard lots of testimony in our committees that there are lots of physicians in the palliative care community who don’t want MAID and say it’s bad and to forget it. There’s no consensus.

How can we allow MAID for people with a physical illness when there’s no consensus but deny people with a mental illness when there’s no consensus?

[Translation]

Senator Kutcher: Will the senator take a question?

Senator Kutcher: For the purposes of everyone being exhausted and tired tonight, the last thing people want is for me to repeat that question. Thank you.

Hon. Stan Kutcher: Thank you very much, Senator Gold, for that speech, and I think you are absolutely correct in pointing out the challenges of sorting out this very difficult issue, one that is both personally difficult and professionally difficult for me, but also one that is difficult for all Canadians. People in the chamber know that of the nine countries that provide some form of MAID, Canada is the only one that excludes people with a mental disorder.

You mentioned that at this point in time — and you correctly noted that more psychiatrists are being trained — about 2% of psychiatrists have been trained, and that is a very small number. But you neglected to mention to the chamber that only about 2% of Canadian doctors are trained in MAID, and fewer than 1% of all MAID recipients in the Benelux countries are for a sole mental disorder.

We have 2% of psychiatrists that can’t do the work, but 2% of doctors can do the work. This goes to the heart of the discrimination against the people with mental illness. We use one argument that 2% is not good enough, but then 2% is just fine.

Can you help us understand why, if it is okay for 2% of Canadian physicians to be trained, and we can do MAID for physical illnesses, it is not okay for 2% of psychiatrists to be trained?

Hon. Stan Kutcher: Honourable senators, today I rise to speak against this bill. I do not support it. I believe it to be contrary to the Charter and two provincial court decisions that directly address this issue. It is discriminatory toward people with a mental disorder, and not based on best available evidence of readiness.

We must focus on what this bill addresses, and not our personal feelings about medical assistance in dying where a mental disorder is the sole underlying medical condition, or MAID MD-SUMC; MAID Track 2; or MAID in general. This bill is about regulators and providers being ready. It is not about expanding MAID — as has been promoted by those who oppose it — but about ending the legal exclusion of people who have a mental disorder from a type of medical care available to those who have a different kind of illness.

The Alberta Court of Appeal and the Quebec Superior Court have already dealt with this issue. Both decisions have considered the Charter issues. Both decisions clearly discounted arguments that we have been hearing from the anti-MAID MD‑SUMC activists.

We, in this chamber, are not relitigating. Litigation is for the courts. We don’t have the same tools that the courts have to get at the essence of a matter. Our committees are not structured in a way to function like this. We are a political body and subject to those pressures.

We must consider this bill on its merits to determine if its merits justify postponing equal access to medical care for a small number of Canadians — who have met all the established criteria to apply for this end-of-life care — just because of their diagnosis. We must be confident that this bill does not discriminate against people with a mental disorder.

This is a blanket bill premised on the opinion that nowhere in Canada is there readiness. We must be certain that this is indeed the case. This opinion uses the shield of a flawed joint committee majority report that stated, “. . . the medical system in Canada is not prepared . . . .” without studying Canada’s medical system. It ignored the weight of expert testimony, ignored the government’s own readiness criteria and did not propose or study any alternative criteria, and suppressed the voices of those most affected. It should not be used to justify the bill.

It is supported by a letter from some provincial and territorial ministers saying they are not ready, but they provide no readiness criteria. In many cases, they directly contradict what their own providers and regulators have told us. Are they really not ready, or are they playing some kind of political game?

We heard from two ministers that some Canadians are urging delay. This is not surprising. There is a well-organized, persistent lobby that wants to eliminate MAID or eliminate all MAID Track 2. They do not speak for persons who are grievously and irremediably suffering from a mental disorder. They have successfully drowned out those voices. They are using MAID MD-SUMC to attack MAID Track 2. We must not be overwhelmed by their cacophony.

This bill’s blanket clause prevents people from receiving MAID MD-SUMC while living in a jurisdiction that is ready, because some jurisdictions claim that they are not ready. There is no other medical intervention in Canada that is so prohibited. This is discriminatory.

This bill has extended the deadline even though we have solid evidence that many parts of Canada are ready. We have received the signed letter from over 125 providers indicating that they are ready. One provider wrote in The Hill Times that the justice minister is ignoring the evidence and claiming the contrary.

This bill has been pushed through even though we did not hear from the people most affected. It seems that the mantra “nothing about us without us” applies to all Canadians except those suffering from a grievous and irremediable mental disorder — an illness that, if it were a grievous and irremediable physical illness, would be fine. This is discrimination.

Discrimination against those suffering from a mental disorder has a long and dark history. We need to decide this week what side of this dark history we will stand on.

Colleagues, we have been snowed with canards and erroneous, inflammatory language on this issue. These canards have promoted discrimination — for example, no MAID MD-SUMC until we can fix mental health care. Yet, as I can attest from personal experience, our physical health care system is broken. Over 6 million Canadians have no family doctor, yet we allow MAID access for physical illness despite a broken health care system.

We have heard that there should be no MAID MD-SUMC anywhere in Canada until everyone everywhere can have equal access. Indeed, that’s what Senator Gold just told us. Yet, nowhere in Canada does anyone have equal access to any kind of health care, including end-of-life care. It is only when it’s for those with a mental disorder that it is considered okay to legally deny them access to that kind of care. This bill considers some Canadians not as people but as a diagnosis. This, my friends, is discrimination.

We frequently hear that anyone who is feeling depressed or suicidal will receive MAID MD-SUMC; this is not true. We hear that just because there is not enough palliative care, people will instead choose MAID when what they really want is palliative care; this is not true. This cacophony has fed us fear and falsehoods.

Colleagues, I have spoken to many people who have been waiting for three years to apply for MAID. They told me that they know this cacophony is full of that misinformation, yet they now have been put into purgatory again. Some have told me that if this bill passes, they will choose suicide or will travel to another country to receive this care.

Colleagues, I have practised psychiatric medicine for about 30 years, and I have seen much suffering. Yet, I have not encountered anyone with such prolonged and unsuccessful treatment regimens as those whom I spoke with on this issue — decades of every kind of treatment imaginable, and nothing relieving their intolerable suffering. They were clear that they want to speak for themselves. They were clear that none of the organizations and individuals, such as those that Senator Gold quoted, speak for them. Indeed, these organizations and individuals have never even spoken to them. This may be because the issue that some are attacking is actually MAID Track 2. Denying a few people with a grievous and irremediable mental disorder their end-of-life choice seems to be a political strategy.

The joint committee chose not to hear from those affected. The House chose not to hear from them. The ministers chose not to hear from them. Colleagues, we chose not to hear from them.

What would you think if any other group of people were left out of discussions about legislation that directly impacts their health and well-being? There would be a national uproar. This cacophony has subjected us to numerous accounts of unverifiable anecdotes, misinformed data and sensational media coverage. For example, we have the recent poll on Canada’s support for MAID MD-SUMC as reported by the Canadian Press. The headline reads, “Fewer than half of people support assisted dying exclusively for mental illness: poll.”

But, colleagues, that’s not what the poll says: 42% said yes; 28% said no; 30% said they don’t know. The denominator is not 100, colleagues. It is 70, and 42% of 70 is 60% out of 100. That is a clear majority.

The headline could have read, “Only one quarter of Canadians don’t support MAID MD-SUMC.” We see another subtle promotion of misinformation.

Colleagues, we need to look beyond headlines and sound bites. This bill is not based on independently obtained regulator or provider evidence of readiness. It does not assess readiness for these sufferers the way we assess readiness for any other medical intervention. We have heard directly from regulators and providers, and many say they are ready. We must ask ourselves: Would we have ignored regulator and provider evidence for any other kind of illness apart from a mental disorder? I predict the answer is no. So that’s discrimination.

Colleagues, we have not even done this for MAID itself. When MAID began, no federal minister said the system was not ready. Yet nothing was in place. But clinicians and regulators quickly geared up and the system worked. No provincial health minister said Canada wasn’t ready for MAID. They are only saying this without any clear rationale for MAID MD-SUMC. This is discrimination.

We have been told by the Minister of Justice there was unanimity in providers, that Canada was not ready. He said:

. . . the decision . . . has been informed by what we heard unanimously from both the people that lead the health-care systems . . . but also to health care professionals that are . . . delivering MAID.

But we have solid evidence to the contrary. For one, we have the numerous briefs submitted by the providers but suppressed by the joint committee, and, two, a letter we all received signed by over 125 providers saying they and the system are ready.

“Not ready” is a slogan designed to politically avoid this issue. In the Committee of the Whole, the ministers were repeatedly asked what specific parts of the system are not ready. They could not tell us. They just said, “This is what we’ve been told.”

Colleagues, this is not grounds for legislation. This is an excuse for discrimination. Indeed, the weight of evidence that all of us have seen demonstrates that the federal government’s own readiness criteria have been met and that many of the regulatory bodies and MAID providers across Canada are also clinically ready.

Even if a province or territory does not want to go ahead to provide this medical intervention, they don’t need to do so. It’s their choice, but they cannot hold hostage people who live elsewhere in this country. That is what’s happening with the blanket exclusion in this bill. If you live in a province that’s ready — and my home province is ready — but because another province says they are not, you can’t obtain this medical service in your home province.

The ministers told us that CAMH says it is not ready. Well, colleagues, just as Toronto is not the centre of Canada, CAMH does not speak for mental health in Canada. There is a group in CAMH who are opposed to this and who have created their own criteria for readiness. They want Canadian clinical practice guidelines, and they have decided that they are the only people who can create them. By the way, CAMH is part of the network that had written to the joint committee saying that Ontario is ready to go ahead with MAID MD-SUMC.

So, honourable senators, let’s get a better understanding of what clinical practice guidelines, or CPGs, entail. There are international criteria for how CPGs are created and applied. They are only created after an intervention has been in place for some time and require, one, critical review of the literature; two, input from clinicians with substantial experience; and, three, input from patients and families. CPGs are voluntary; they do not direct clinical care.

In the Benelux countries, CPGs already exist. They were created after seven years’ experience with the practice, following international criteria. Colleagues, here’s a perfect Catch-22. Since we can’t create clinical guidelines in Canada until MAID MD-SUMC has been in place for some time, demanding clinical guidelines before it begins is designed to stop it from ever happening.

Colleagues, a major problem with this bill is that there are no criteria on how we will know if Canada is ready in three years. If there are no criteria for readiness, or if the so-called criteria make no sense on close examination, how will we ever know if we are ready? We can predict this discussion in the future: We’re ready. No, we’re not ready. My province is ready. I’m sorry, my province is not ready so we can’t go ahead.

The ministers told us that they did not support a Conservative private member’s bill that would never allow MAID MD-SUMC. They told us they just wanted more time to be ready, but, in reality, because they provided us with no criteria for readiness and they created a blanket exclusion that prevents any jurisdiction from going ahead independently of any other jurisdiction, they did exactly what the defeated legislation attempted to do. They did exactly what they told us they were not going to do. They are indefinitely shutting down equal access to this type of health care.

Colleagues, I will sum up. I reiterate that this bill is not based on evidence of readiness from those responsible for the delivery of the health care, the regulators, the providers on the ground. Indeed, it flies in the face of what they have clearly told us. Many are ready.

Second, none of the voices of people most affected by this bill have been heard. This is untenable and discriminatory. The rushed and problematic work done by the Special Joint Committee on Medical Assistance in Dying as presented in its majority report is so problematic that it cannot be accepted as a valid justification for this bill.

The blanket exclusion in this bill prevents people living in provinces or territories that are ready, or that will be ready before three years to provide that care, from accessing that care. I live in a province that’s ready. You live in a province that’s not ready because your province says, “We don’t know what the criteria are.” They’re not ready, so I can’t receive this care in my province. That’s what this bill actually does.

Clearly defined preparedness criteria for future evaluation of readiness have not been created. The bill doesn’t tell us what criteria will be used, so there is never an ability to determine whether we’re ready or not.