Ottawa's Approach to MAID Is in Pieces – Time to Face the Issue It's Worked So Hard to Avoid

Last Friday, Justice Minister David Lametti asked the Court for a fourth and final extension on revising the law on Medical Assistance in Dying (MAID). The Senate's amendments on Bill C-7 appear to have hit a nerve and, presumably, the government feels it must respond. But will it do the right thing? Will it now recognize MAID for what it is – a fundamental shift in our values on death and dying?For many people, assisted dying is a journey that started with the “easier” cases, such as terminal cancer. Since the Supreme Court's Carter Decision in 2015, other, more controversial illnesses have entered the picture, including Alzheimer's, Parkinson's, and Huntington's. Many of us now feel comfortable bringing these under the new law.But the journey is far from over and the really hard questions on MAID have barely been raised. Indeed, the government is shielding us from them. The 2016 law effectively limits MAID to terminal physical illnesses, despite a compelling case that Carter is much broader.We shouldn't be surprised. The issues here get frighteningly complex very quickly and the government was uneasy from the start. Perhaps it felt the Court went too far too fast on assisted dying and then handed Cabinet the politically risky job of bringing Canadians along on the approach.[caption id="attachment_542173" align="aligncenter" width="650"] Is Justice Minister David Lametti working on a more inclusive approach to MAID? It's a grave responsibility, but it needs to be done.[/caption]Whatever the reasons, the government opted for a safer, more cautious path. Predictably, key sections of the new law were found to be unconstitutional and struck down by the Quebec Superior Court.Bill C-7 is the government's response to that ruling and it brings some parts of the law closer to Carter. However, in a surprising move, it then doubles down on the cautious approach by introducing a new distinction between mental and physical illnesses and declaring that mental illnesses don't qualify for MAID.The rule is confusing, at best. Those of us who've watched someone's faculties whither from Alzheimer's probably aren't sure where their physical suffering ends and their mental suffering begins – or why it matters. Even experts disagree.In fact, the real target here is not Alzheimer's or dementia, but a different class of mental illnesses, such as severe depression, bipolar disorder, and schizophrenia. Apparently, the government's goal is to prevent any such illnesses from qualifying for MAID under any circumstances.Its unease is understandable. Mental illnesses are often fraught with uncertainty. Experts may disagree on what causes them, whether they can be cured or how, or if they impair someone's ability to make a competent choice on assisted dying.Moreover, Canadians are poorly informed on mental illnesses and often emotional about the subject. Providing criteria for when someone qualifies for MAID is the political equivalent of a hornet's nest and the government seems determined not to step on it.Ironically, it seems to have done just that. As a steady stream of experts, the Quebec court, and now the Senate have made clear, Carter points in the opposite direction. Rules like the one on mental illness are not just cautious, but arbitrary and very likely unconstitutional.Further, by excluding mental illnesses the government is dividing the community. Many MAID advocates now feel forced to speak out against the ban, which, in turn, pits them against advocates who are working to defend vulnerable people that might be harmed by MAID.Polarizing the community this way is as unhelpful as it is unnecessary. Common ground can be found. Advocates for mental illness recognize that many people are vulnerable and want them to be protected. No sensible person opposes safe-guards. C-7's critics just want a law that fairly allows doctors to decide when assisted dying is acceptable for mental illnesses and when it is not.That won't be easy. There is no single, scientific formula, and reasonable people will disagree. On the other hand, there surely are better and worse solutions, and it is possible to bring advocates from the two sides closer together on them.Bill C-7 is a misguided missile – a failed effort to salvage the government's cautious approach to Carter. That strategy is now in pieces and, hopefully, Lametti is working on a new, more inclusive approach. If so, he deserves our support. It's a grave responsibility and the way forward won't be easy, but it needs to be done – and Canadians have already come a long way.We've changed our view of terminal illnesses, and we are thinking hard about the anguish and suffering that accompany Alzheimer's or Parkinson's. It's time to start finding our way on mental illnesses.The Senate voted 66 – 19 in favour of imposing an 18-month time-limit on C-7's exclusion of mental illnesses. It's an attractive idea. It might provide a much-needed opportunity for a more searching discussion about the right balance between choice and protection.Dr. Don Lenihan is Senior Associate at the Institute on Governance and an internationally recognized expert on public engagement, governance, and policy development. For more, visit his website at: www.middlegroundengagement.comAndrew Balfour is Managing Partner at Rubicon Strategy in Ottawa.