Liberals introduce bill to bar MAID for mental illness and decriminalize advance requests

OTTAWA — The Carney government has introduced planned changes to Canada’s medical assistance in dying regime to decriminalize advance requests and exclude people with mental illness from accessing MAID.

But proposed the law goes further, clarifying that mental illness should not be considered as part of the eligibility criteria.

Under the existing laws, a person must be suffering from a serious and incurable disease that is causing them intolerable physical or psychological suffering to be eligible for MAID.

Federal officials said Tuesday there have been creative interpretations of the law, to essentially allow a person suffering from a mental illness access to MAID, so long as they have a physical condition as well.

The bill introduced on Tuesday states that a person cannot meet the eligibility criteria on the basis of a mental illness.

“We believe that we’ve closed a gap that exists on this issue,” said Justice Minister Sean Fraser.

The minister said having a mental illness “should not get in the way” of accessing MAID, but there’s no consensus among medical professionals about what makes a mental illness irremediable.

That’s why the legislation will bar people with mental illness from becoming eligible for MAID next March, Fraser said.

The exclusion was recommended by a parliamentary committee last June.

Fraser called on opposition parties to avoid political games with the bill, saying missing the March 17 deadline would carry extremely serious consequences.

The government has chosen to pair that deadline-driven change with another significant change to the law, which will allow people to receive a lethal injection after they’ve lost the capacity to consent under certain conditions.

Advocates have long argued that people diagnosed with conditions like dementia and Alzheimer’s disease are forced to choose to end their lives early for fear that they will lose the capacity to provide final consent.

The bill introduced on Tuesday will allow advance requests to be made in provinces that have a legislative regime of their own. Fraser told reporters the federal government will not force provinces to allow advance requests, even though that will create a patchwork of availability across the country.

“We’ll leave to (the provinces) to determine the extent to which they wish to embrace the next frontier on medical assistance in dying,” Fraser said.

The bill states that two separate medical practitioners must confirm the person meets the criteria, including that they are suffering and in a state of irreversible decline. That means a person who appears happy and content will not be forced into the procedure, Fraser said.

The law would also prohibit carrying out an advance request in cases where the person “demonstrates, by words, sounds or gestures, refusal or resistance” or if a medical practitioner or nurse practitioner doubts whether the person is trying to refuse. That does not include involuntary sounds or gestures that are a response to contact.

If that happens, another attempt cannot be made for at least 30 days.

The proposed safeguards demonstrate just how sensitive and difficult it is to legislate advance requests, said Heather Campbell Pope, founder of Dementia Justice Canada.

“The safeguards don’t go far enough,” Campbell Pope said. “Our question is, when the doctors, the nurses, the social worker and the family members are around the table discussing whether to carry out MAID, who is in the seat representing the patient?”

The group is calling for an independent, publicly funded lawyer advocating for the patient’s rights before death is administered.

Advocacy group Dying With Dignity Canada said it takes issue with the idea that a patient’s written wishes could be ignored under the safeguards.

“Individuals should be allowed to define what they consider to be physical and psychological intolerable suffering, as part of the advance request, and medical practitioners should base their decision on that objective standard,” said the group’s CEO, Helen Long, in a statement.

Trudo Lemmens, a professor of health law and policy at the University of Toronto, said ensuring that a person is capable of saying yes at the moment MAID is administered is a key safeguard of the current regime.

“A law that allows MAID on the basis of advance requests clearly crosses further the line between voluntary and involuntary euthanasia,” Lemmens said in an email to National Post.

The provision that doctors can interpret sounds or words as “involuntary” undermines “the strict provision that no one should receive MAID if there is any sign of resistance,” he added.

Doctors and nurse practitioners who knowingly fail to comply with the safeguards for advance requests and are found guilty of an offence could be subject to up to five years in prison.

So far, only Quebec has laws that permit advance requests. Alberta’s government has passed legislation that would prohibit advance requests.

Dying With Dignity Canada is spearheading a Charter challenge of the mental illness exclusion, and said it is committed to continuing the case. It’s arguing that preventing people from accessing MAID on the basis of their diagnosis violates their rights.

National Post

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