CBA Submission to Special Joint Committee on Medical Aid in Dying

Via email: AMAD@parl.gc.ca

The Honourable Yonah Martin, Senator and Marcus Powlowski, M.P.
Joint Chairs, Special Joint Committee on Medical Assistance in Dying

Dear Senator Martin and Mr. Powlowski.:

Re: Medical Assistance in Dying (MAID)

The Canadian Bar Association (CBA) offers the following comments to assist the Special Joint Committee on Medical Assistance in Dying in its study of MAID as it applies to cases where mental illness is the sole underlying medical condition. MAID in this context raises complex legal, ethical, and clinical considerations, engages differing perspectives, and requires careful balancing of individual autonomy and the protection of potentially vulnerable persons. The following comments draw on a broad range of expertise.

The CBA is a national association of over 40,000 members, including lawyers, law students, notaries, and academics. Our mandate includes promoting the rule of law, improving access to justice, and advocating for effective law reform. The following sections contributed to this submission: Health Law, Constitutional and Human Rights Law, Criminal Law, Ethics and Professional Responsibility, Elder Law, Wills, Estates & Trusts, Dispute Resolution, Women Lawyers Forum, and the Sexual and Gender Diversity Alliance (CBA Sections).

The CBA Sections take no position on whether Parliament should amend the Criminal Code to permit MAID where mental illness is the sole underlying condition. We are committed to advancing clarity in the law governing end-of-life decision-making.¹ Set out below are considerations that may assist the Committee in its review. As Parliament considers the expansion of MAID eligibility, the importance of the rule of law, robust procedural safeguards, and the feasibility of implementing these legal mechanisms should be considered.

• Consideration should be given to ensuring that any amendments to the Criminal Code relating to MAID align with the constitutional framework articulated by the Supreme Court of Canada in Carter v Canada, including respect for autonomy, dignity, and the requirement for carefully designed and monitored safeguards.
• Consideration may also be given to whether eligibility criteria appropriately reflect the complexity of cases involving mental illness as the sole underlying condition, including whether they may create barriers to access, while recognizing the need for a cautious and evidence-based approach.
• Ongoing engagement with relevant professional communities is critical to informing the feasibility and assessment of standards and safeguards, particularly in relation to the application of consent and capacity requirements.

A. Constitutionality

The Supreme Court of Canada in Carter did not define “medical condition” in the context of MAID.² The Alberta Court of Appeal in Canada (Attorney General) v E.F.³ interpreted Carter as including persons with a psychiatric condition, provided they otherwise meet the eligibility criteria for MAID.

The question of whether a blanket exclusion of persons with a mental illness as the sole underlying condition is consistent with the Canadian Charter of Rights and Freedoms remains unsettled. Such an exclusion engages complex considerations under sections 7 and 15 of the Charter, including the protection of individual autonomy and equality. The suffering experienced by individuals living with mental illness is significant and warrants consideration alongside that associated with physical illness. Conversely, the state’s interest must be considered in protecting vulnerable persons and maintaining the integrity of the MAID regime.  While Charter litigation has been initiated in Ontario regarding the exclusion of mental illness, concerns have also been raised that Charter issues may arise where individuals with mental illness are unable to access timely and adequate psychiatric care.

Recent and ongoing developments at the provincial level further illustrate the evolving and non-uniform nature of the legal landscape across jurisdictions.

B. Safeguards

The Criminal Code establishes a set of procedural safeguards applicable to MAID, including additional requirements in Track 2 cases where natural death is not reasonably foreseeable. These provisions form the legislative framework within which the issues discussed below arise.

In Carter, the Court accepted evidence that vulnerability can be assessed on an individual basis by physicians and is addressed through established practices (informed consent and decisional capacity). The sufficiency of the safeguards was critical to the decision in Carter, but the Court relied heavily on evidence dealing with foreign legal systems to conclude that safeguards would likely be sufficiently protective of vulnerable groups.

In Truchon c Procureur général du Canada, the Quebec Superior Court found that physicians can distinguish between suicidal ideation produced as a symptom of mental illness and autonomous requests for MAID that are not a symptom of mental illness. As this decision did not involve mental illness as the sole underlying condition, it does not resolve how such distinctions are to be applied in that context. ⁴

Safeguards are generally grounded in requirements for informed consent, the assessment of capacity, professional standards of care, and a legal framework intended to support their application. At the same time, questions persist about the application of these safeguards in this context, including their consistency and reliability.

The CBA Sections recommend ongoing, rigorous, and systemic investigation of the effectiveness of Canadian safeguards, supported by public reporting and transparency.

These concerns underscore that the application of current principles in the context of mental illness as the sole underlying condition raises distinct considerations and remains the subject of ongoing clinical and legal discussion.

C. Safeguard Considerations in the Setting of MAID and Mental Illness

In the context of mental illness, careful consideration should be given to the particular vulnerability of this population. Individuals living with mental illness experience increased and intersecting levels of vulnerability in health care settings, and, accordingly, require appropriate safeguards in place with respect to the availability of MAID.

Set out below are some key considerations related to safeguards for MAID where mental illness is the sole underlying condition. The design and application of these safeguards should be carefully calibrated to ensure they are effective, proportionate, and capable of consistent implementation within the existing legal and health care framework.

Assessment of Capacity

The assessment of decision-making capacity in this setting raises distinct considerations. Questions have been raised regarding how such assessments should be conducted in cases where mental illness is the sole underlying condition, including in situations where issues relating to suicidality may arise.

In Truchon, the Quebec Superior Court held that physicians can distinguish between suicidal ideation and MAID; however, as the decision did not involve mental illness as the sole underlying condition, uncertainty remains as to how such distinctions can be made consistently in this context. Consideration may also be given to whether existing assessment frameworks are sufficient for this context.

Parliament may wish to consider whether additional guidance is required regarding the timing and scope of assessments, including how they can be applied consistently across jurisdictions governed by provincial and territorial health and consent legislation.

Informed Consent

The informed consent framework requires that individuals be informed of available means to relieve their suffering and that they give serious consideration to those means. While the Criminal Code sets out these requirements (s. 241.2(3.1)(h)), their application may vary across jurisdictions and practice settings. In this context, Parliament may wish to consider whether additional guidance is required to support consistent interpretation and application of informed consent requirements.

Timing

It has been suggested that, following a diagnosis of mental illness, an initial period of time could be specified before a request for MAID may be made. This raises questions regarding the role and function of temporal safeguards within the MAID framework. A specified period may be viewed as a mechanism to structure assessment. On the other hand, it may introduce challenges, if applied without regard to individual circumstances.

Any such requirements would operate alongside existing safeguards, including the requirement that, where natural death is not reasonably foreseeable, at least 90 days elapse between the initial MAID assessment and provision. Consideration may also be given to whether additional temporal measures can be applied in a manner that is both consistent and responsive to individual cases. Currently, no minimum period is required for MAID eligibility for physical illnesses, which may be a relevant contextual factor.

Expertise of MAID Assessor

Section 241.2(3.1)(e.1) of the Criminal Code states that one of the MAID assessors should have “expertise in the condition that is causing the person’s suffering” or consult with someone with that expertise. Parliament may wish to consider whether additional clarity is needed regarding the expertise required for assessments in this context and how access to that expertise can be supported. Recent Canadian policy work has also referred to multidisciplinary input (panels) and prospective oversight as possible mechanisms in complex cases.

Irremediable Medical Condition

The views of medical experts on what constitutes an “irremediable” condition may vary depending on the illness and individual circumstances. These questions may arise across both mental and physical health contexts but may take on particular significance where a mental disorder is the sole underlying condition.

In Carter, the Court indicated that “irremediable” does not require individuals to undertake treatments that are not acceptable to them. This approach reflects a strong emphasis on patient autonomy within the Canadian framework. At the same time, this feature distinguishes the Canadian regime from some other jurisdictions and raises questions about how irremediability is to be assessed where available treatment options have not been pursued. In this context, Parliament may wish to consider how this principle is to be applied consistently, particularly in cases involving mental illness as the sole underlying condition.

Clinical Standards

Professional standards and guidance form part of the existing safeguard framework. Consideration of these materials, together with ongoing engagement with relevant professional bodies in light of evolving evidence since the Committee’s last review, may assist in understanding how safeguards are applied and, where appropriate, the need for further development.

Recommendations:

• The CBA Sections support ongoing, vigilant empirical evaluation and public reporting into the sufficiency of the legislative and regulatory safeguards to protect the autonomy of vulnerable groups.
• The CBA Sections underscore the importance of rule of law considerations, including the transparency and fairness of any oversight mechanisms.
• We recommend consultation with the relevant affinity groups and individuals who self‑identify as members of marginalized or adversely affected communities.
• We recommend clarity of the language employed, including a clear definition of “mental illness” given the varying legal definitions of mental illness and mental disorder across Canada, should Parliament expand MAID in mental illness.
• We recommend ongoing collaboration with health care professionals to inform legal framework that supports consistent and safe MAID practice across Canada.

Respectfully submitted,

(Signed by Yasmin Khaliq, Advocacy Lawyer on behalf of the CBA Chairs)