Our government is asking parliament to ignore its statutory-based commitment to evidence-informed policy making under the existing MAID law

If the majority of Canadian Senators, some psychiatrists, and our government have it their way, physicians in Canada will soon be asked to offer patients with mental illness the option to end their lives as a therapy for their mental health related suffering. The Canadian Senate removed the clause that excluded mental illness from Bill C7, a bill which extends “medical assistance in dying” [MAID] (the increasingly less accurate Canadian euphemism for euthanasia and assisted suicide) to persons who have a disability or chronic illness but who are not close to their natural death. The government just announced it largely accepts the Senate’s amendment for inclusion of mental illness, which would enter into force with a sunset provision of two years. What is extraordinary is how the government thereby allows an unelected Senate to introduce a sweeping broadening of MAID, and this while the House of Commons itself had no detailed evidence-informed review and debate on this specific issue, since it was not part of the original Bill.

Equally remarkable is that the bill goes further than any of the laws in the less than handful of countries that have some form of MAID outside the end-of-life context, since it uniquely fails to require that physicians have to agree that no other life-respecting options for relief of suffering are left. Patients will be able to refuse all other interventions, in other words, and still insist on having their life ended. Death, in other words, becomes a first-line therapy on demand. What’s more, if some promoters of broad access to MAID have it their way, professional regulations may even require physicians to put it always on the table as a universal health care option, even when patients don’t ask for it.

According to the amendment, MAID will become available to those who have a mental illness that is associated with an irreversible decline of capabilities and causes unbearable suffering. But since ‘irreversible decline of capabilities’ is a vague concept that is already interpreted very flexibly under the current law, and the ‘unbearable nature’ of the suffering is in current Canadian MAID practice already largely determined by the person who invokes it, the mere fact of having mental illness or a cognitive disability will de facto provide a basis for MAID.

Mental illness was explicitly excluded from the original Bill, in part because the existing law imposes a mandatory full Parliamentary review of this and two other challenging issues (advance requests for MAID and MAID for mature minors) in an upcoming evaluation of the legislation, which is expected to take place this summer. The government commissioned detailed reports from a very large expert panel of the Council of Canadian Academies for this very purpose, which is meant to provide the evidentiary basis for parliamentary study.

But some senators insisted that they couldn’t wait for such a review. They thereby ignored explicit pleas from patients, mental health care advocates, health care providers, suicide specialists and mental health organizations, most of whom cautioned for the dire consequences of such a premature move.

Chief promoter of the amendment to include mental health as a basis for access to MAID was psychiatrist senator Stanley Kutcher. Not providing access to MAID for reasons of mental illness, Kutcher admonished his fellow Senators, fits with “centuries of alienism in which people [with] mental disorders were … chained, … put into institutions, … kept out of sight.” Offering access to physician-performed ending of life, in other words, seemed for Senator Kutcher the hallmark of recognizing their full equality.

Before introducing the amendment, Senator Kutcher already distinguished himself during committee hearings for suggestions that appeared to skew the evidence. For example, he claimed that suicide rates in Belgium went down 20% since the 2002 legalization of MAID/euthanasia in that country, and that they stayed the same in the Netherlands, hinting that this showed that there was no negative impact of MAID on suicide. But the report of the Expert Panel on MAID of the Council of Canadian Academies on this topic indicates that no such conclusions can be drawn from the suicide rates in those countries. For one thing, there was no mental health euthanasia practice in Belgium until around 2008. Moreover, Belgium continues to have one of the highest suicide rates in the world, and the suicide rates in the Netherlands have gone up since 2007, contrary to what Senator Kutcher claimed.

Those familiar with the troubling history of the aggressive promotion of pharmaceuticals and the harms caused by over-prescription will notice further the irony that the Senate, and now also the government, seem to trust the evidence-informed nature of Senator Kutcher’s strong urge to expand MAID for mental illness. Senator Kutcher is well-known for his co-authorship of study 329, a widely cited pharmaceutical industry organized ghost-written publication which claimed that prescribing Paxil for depression in children and adolescents was safe and effective. But the publication did not accurately discuss all of the data, to which the many co-authors probably never had access to. A correction of the study, based on access to the full data, has since been published in the British Medical Journal. The original publication was part of an aggressive promotion of off-label prescription of the drug, and was one of the bases for a US$ 3 billion criminal and civil settlement of a US Department of Justice action against GSK, the drug’s producer. Psychiatrist David Healy has recently pointed out, including in letters to Justice Minister Lametti and party leaders that the aggressive promotion of drug prescription through these publication practices, which rely in part on academics lending their name to give credibility to the studies, has resulted in serious problems of addiction and new, severe forms of treatment resistant depression. Some of the victims of these practices, Healy argues, are now among those who have been asking for MAID in the few countries that allow MAID for mental illness. Canada may now soon follow in their questionable footsteps.

Canada would, indeed, not be the only country to offer this option. Currently, Belgium and the Netherlands are the only other countries where people have legally obtained physician-provided euthanasia—as it is called there—for mental illness.

In Belgium and the Netherlands, some 50 and 70 patients respectively, receive euthanasia for mental illness each year, for conditions such as depression, schizophrenia, anorexia nervosa, obsessive compulsive behaviour, post-traumatic stress disorder, profound grief, bipolar disorder, anxiety, and autism. The practice has overall been increasing, even though criminal prosecution against 3 doctors in Belgium for the euthanasia death of 38-year Tine Nys, two months after she was diagnosed with ‘autism’, resulted in a temporary reduction of the mental health euthanasia cases in that country. (The doctors were acquitted in a jury trial, but a new civil trial is currently underway against one of the doctors). Euthanasia for mental illness remains in both Belgium and the Netherlands controversial, many psychiatrists continue to be opposed, and the concrete applications have raised serious concerns.

What makes Canadian Bill C-7 uniquely troubling is that the Bill does not even demand that physicians have to be sure that all other reasonable medical or other support options are exhausted first; and that in some provinces like Ontario, as a result of professional regulations, they may have to make what is called an ‘effective referral’ if their commitment to their patients prevents them from putting the process in motion themselves. In other words: the doctor who faces the man with severe depression, or a cognitive disability, can’t just say: “I’m here to help you regain hope in life: there are several other health care or support options to help you cope with your suffering, so let’s start with that”. If the patient insists that she doesn’t want any further treatment, the physician may have to pick up the phone to make sure that a colleague willing to ‘assist’ with this difficult case will take it on to pursue the life-termination route. Psychiatrists who may have been helping the same patient for decades to cope with, say, schizophrenia, or recurrent depression, may thus have to abandon their patients to health professionals who have no long-standing treatment relation with these patients, so that their lives can be terminated.

Are there no safeguards that will prevent a patient’s premature death? For sure there are some procedural ‘safeguards’. Patients who are not close to their natural death have to be seen by a health care provider knowledgeable about their medical condition or disability; and there is also a 90-day ‘assessment period’. This, the government argues, will enable health care providers to ensure that patients are “informed” of all available health care and support options. Physicians also have to make sure patients have seriously “considered” other reasonable options. But Minister of Justice David Lametti already repeatedly emphasized that the 90-day assessment itself shouldn’t be seen as a ‘safeguard’—that sounds too paternalistic, one has to presume—and the 90 days can already be shortened if the assessment finishes earlier.

While some complain that a 90 days assessment period is too long, JD student Leah Krakowitz-Broker and I argued in a CBC oped that such a period is remarkably short compared to the various barriers people with disabilities face for access to crucial health care and support they need to have a decent quality of life. Think about wait-times for good mental health care, financial disability support, and various specialist treatments; or the huge barriers to obtain decent community living and access to specialized care homes.

Understandably, all major disability rights organizations, various Indigenous groups, and many experts, have mobilized in the last two months to try to block this new bill. They argue, and rightly so, that the essence of the Bill, offering termination of life as therapy for life’s suffering but only for people with disabilities, is fundamentally discriminatory. Indeed, it deprives people with chronic illness and disability from the protection against suicide that all others who are not disabled continue to receive. It completely ignores the complex socio-economic and health care context in which people with disabilities make their decisions, and the pressures and stressors they face, which have been amplified by the pandemic. It also fails to take seriously the concern that the mere offering of such choice in the context of the unique doctor-patient relation may drive people to their death. Finally, disability advocacy organizations and Indigenous groups also complained about the lack of proper consultation of those who the government argues are the ‘beneficiaries’ of the very bill they massively oppose.

Yet, most Canadian Senators remained unmoved by these arguments, even though they were explicitly endorsed in an expression of ‘grave concern’ by two UN Special Rapporteurs and one Independent Expert on human rights. These experts warned in an official communication to Canada how Bill C-7 violates several provisions of various UN Conventions on Human Rights related to the right to equality and the right to life. In their view, the bill conforms to an ableist presumption that a life with disability or chronic illness has less quality or is less worth living. They emphasized how the Bill ignores the impact of ableist prejudices and inequities within the health care and social support system on the ‘architecture of choice’ of people with disabilities. The UN experts also pointed to the procedural violations of human rights norms, by the failure to properly consult  those directly affected by the bill.

While some Senators, including Senators Batters, McPherson, Miville-Deschênes, Pate, and Plett passionately pleaded to listen to so many witnesses who expressed their opposition, and to take the claims of violation of international human rights seriously, the large majority of senators ignored these human rights concerns. Co-promotor of the amendment to include mental health, former Quebec Court of Appeal Justice Senator Dalphond, shrugged the claims of violation of international human rights even off as ‘false’, without feeling any need to respectfully engage with the human rights claims the Special Rapporteurs put forward.

One has to hope that the House of Commons members will show some moral fibre and self-respect as a parliamentary institution, and still reject the amendment to include mental illness, and more appropriate even, the entire Bill. But it is in and of itself deeply disturbing that Canadian academics, professionals, and politicians, including our very own Minister of Justice, are now openly supporting the ending of life as therapy for people with disabilities and mental illness; and this only 5 years after the Canadian Supreme Court ruled that an absolute prohibition of physician-assisted dying was unconstitutional and invited parliament to enact careful legislation that balances some form of access with the need to protect the charter interests of others, within the context of a stringent regulatory regime.

What should be of utmost concern for anyone who believes in the importance of evidence-informed parliamentary law-making is the manner by which an unelected Senate introduced an amendment to an act dealing with life-and death issues, and the government then asks the House to approve the amendment, circumventing its own legislatively required full parliamentary review of the evidence of what this will mean for people with mental illness. In what other self-respecting parliamentary democracy can an unelected body impose such a radical change of the law without elected MPs being given an opportunity to study the issue based on the detailed reports that the government has itself commissioned for that very purpose?

Is nothing out of bounds for the supporters of broad access to MAID for mental illness? One thing might still be, at least for the time being. A discussion paper of the Association des Médecins Psychiatres de Québec [AMPQ], which was heavily relied upon by some Senators in support of MAID for mental illness, admits that the question “whether MAID should be permitted for a person [with mental illness or cognitive disability] whose request is based on the wish to die to avoid serving a [prison] sentence… is a difficult one.” Canada touts itself as a progressive, human rights respecting country. The authors of the discussion paper must have realized how bad it would look like if a long prison sentence becomes de facto transformed into self-selected capital punishment via promotion of state-supported and medical profession organized MAID. How to solve this dilemma, the paper says, will be addressed in a next report.

Meanwhile, if our government now convinces a majority of members of parliament—and it looks likely to be the case--, Canada will soon start to normalize the ending of life of people with a variety of disabilities and mental illness who would have had years or decades of life left. It will make it perhaps easier for the authors of the next AMPQ discussion paper to explain how MAID should be promoted as a humane solution for the mental illness related suffering associated with overcrowded prisons.