Federal Conservative Leader Pierre Poilievre has said that, if elected, he will cancel the planned extension of Medical Assistance in Dying (MAiD) to people suffering a mental illness.
In February the federal government postponed the expansion until 2027 after several provinces warned they were not ready. It’s entirely uncertain whether that will change in the coming three years.
As things stand, people who want MAiD must meet several criteria. They must be 18 or older, suffer a grievous and irremediable medical condition that cannot be reversed, and experience unbearable physical or mental suffering.
People with a mental illness can qualify if they also have a physical condition that meets those criteria, but they cannot today qualify if their only ailment is mental. Ottawa has said this limitation will be removed in three years, even if the provinces are still struggling to catch up.
Poilievre believes such an expansion would be “reckless,” and would blur the line “between suicide prevention and suicide assistance.”
That sounds more like an appeal to emotion than logic. Yet there are reasons for caution.
Are people able to make such a critical decision if they’re burdened with a grievous mental condition? No doubt some are. But equally, perhaps not all.
The chief of Sunnybrook Health Sciences Centre’s psychiatry department told the parliamentary committee studying expansion: “There remain no meaningful safeguards to prevent vulnerable and marginalized individuals, who could get better, from getting MAiD during periods of despair and suicidality fuelled by mental illness.”
This was the essence of the concern raised by the provinces. And there remain both formidable legal and clinical issues to resolve.
In 1993 Victoria’s Sue Rodriguez, who had amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease) asked the Supreme Court of Canada to rule that Section 241 of the Criminal Code, which prohibits assistance in dying, should be ruled unconstitutional.
The court disagreed.
But in 2015, the court reversed that ruling, citing Section 7 of the Charter, which guarantees the right to life, liberty and security of the person.
That might seem to settle the question of whether MAiD is legally permissible. However Poilievre has already said, on several occasions, that he will invoke the Notwithstanding clause of the Charter to overturn court decisions he disagrees with.
Hence the legal question is not yet settled.
There is also the clinical issue to resolve. There are reasons to believe the science of psychiatry may not be sufficiently developed to afford doctors the certainty they require when offering MAiD to someone with a severe mental illness.
The uncertain state of psychiatry is illustrated by the fact that almost invariably, when someone charged with a serious crime pleads not guilty by reason of insanity, psychiatrists will testify for both sides of the case.
That does seem to suggest that mental states are open to interpretation. But how then are physicians called on by a mentally ill person who wants MAiD, to determine that the procedure is professionally (and legally) permissible?
One option might be to narrow the scope of physicians who can deliver MAiD. At present any doctor or nurse practitioner is permitted to carry out the procedure.
If only psychiatrists were considered qualified, that might resolve some of the uncertainties.
However a better solution would be to set up an independent panel of experts and ask them to draw up clinical guidelines. If satisfactory guidelines can in fact be settled, that would give physicians the professional guidance they need to undertake such a momentous procedure.
In any event, this would be a safer route than sticking to a politically imposed deadline timed to occur after the next election is safely over.
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