Policymakers must focus on actual risks of expanding MAID for mental illness, not legal speculation

  • National Newswatch

By Trudo Lemmens, Mary Shariff, and Derek Ross

Even before the parliamentary committee report on Canada’s readiness for MAiD for sole reason of mental illness is released, advocates supporting expansion are pressuring the government by claiming that Canadian courts have ruled that this expansion is required. This includes some mental health professionals who insist - while admitting Canada’s mental health system may not be ready - that the government has no other choice because it would be discriminatory not to do so. Others have gone as far as to argue that it was an established right that Parliament somehow took away.

However, no Canadian court has recognized a Charter right to MAiD for sole reasons of mental illness. More than 20 law professors have said so in a letter to Cabinet, and we detail this further in a recent law review article. The Parliamentary Committee also received several submissions to that effect. They all emphasize it is highly speculative to claim that the Supreme Court will definitively declare unconstitutional any law excluding MAiD for mental illness.

Instead of allowing such speculation to direct complex policy, experts and lawmakers must responsibly engage with the law and evidence – including evidence of what psychiatric MAID would entail, and its implications for disability inclusion, human rights, mental healthcare, and medical ethics.

Advocates cannot rely on the Carter decision as mandating expansion, since the Supreme Court explicitly stated that “euthanasia for minors or persons with psychiatric disorders” would “not fall within the parameters suggested in [the] reasons” of its decision. It also restricted its ruling to the “factual circumstances in [the] case”: it involved a person with a physical, degenerative condition approaching her natural death.

Nor does the Quebec Truchon decision mandate Parliament to introduce psychiatric MAID. In this case, the Superior Court only ruled that the eligibility criterion of a ‘reasonably foreseeable natural death’ was overbroad and violated the equality and right to life, liberty and security of two persons with physical disabilities. The government decided to remove this end-of-life safeguard without appealing the decision. It remains even an open question whether higher courts would have agreed with the ruling. In fact, legal scholars have advanced compelling arguments that Parliament’s removal of the end-of-life requirement violates the right to equal protection against premature death of disabled persons.

And while the Truchon judge heard evidence about whether expanding MAID could place persons with mental illness at risk, she never stated that Parliament had to expand eligibility to include psychiatric disorders; nor could she because that issue was not before the court. Importantly, when assessing the evidence of the plaintiffs’ medical circumstances, mental illness was expressly ruled out as the reason for their request.

Finally, the Alberta Court of Appeal decision in E.F., which dealt with a patient diagnosed with conversion disorder, was decided in an interim period following Carter, when the Supreme Court gave courts temporary authority, pending the federal legislation, to decide on a case-by-case basis whether someone should have access to MAiD. While the Alberta court opined that Carter’s ‘parameters’ did not exclude medically administered termination of life for mental illness, it emphasized that issues regarding the “constitutionality of eventual legislation should obviously wait until the legislation”. Moreover, the case has been pointed to as highlighting the dangers of too readily offering death as a solution to a complex, often misdiagnosed condition, without adequate expert review.

As the Supreme Court has repeatedly stated, including in Carter, complex regulatory regimes are best made by Parliament, not the courts, and deference is owed. In fact, the constitutional dialogue theory entails a cautious and respectful interaction between the courts and parliament, with due regard to their respective roles and expertise. The late eminent constitutional law scholar Peter Hogg cited precisely the first MAiD law as an example of such dialogue. While court rulings must help guide and inform proper public and parliamentary debate on the implications and potential risks of policy decisions, skewed presentations of such rulings should should not be invoked to stifle such debate.

Instead, parliamentarians and decision-makers -- and those called on to advise them -- should focus on the key issues, including two that the courts would also evaluate in any constitutional analysis: First, can specialists determine with reasonable confidence in individual cases that a psychiatric condition is irremediable? If not, an explicit exclusion of mental illness appropriately matches clinical evidence and helps to avoid placing patients at risk of idiosyncratic medical judgments. Second, are there unique reasons to be concerned about introducing MAiD for mental illness? Decision makers must weigh how offering death as therapy to persons with mental illness risks undermining their equal protection against premature death—which is, without question, a constitutional right—and how expansion will interfere with suicide prevention within our Canadian mental health care system.

The Canadian Constitution protects reasoned and informed debate in complex areas of policy making. Insisting that the Charter unequivocally dictates a particular policy outcome – particularly in the context of different rights’ claims that have not yet been tested in our courts – helps no one. Scrutinous examination of the evidence and potential health care implications does.