Shelve expansion of MAID for mental illness, special committee urges Carney government

The majority of the committee officially advised Ottawa to “amend the Criminal Code to indefinitely exclude persons whose sole underlying medical condition is a mental illness from eligibility for medical assistance in dying.”

It now falls to Prime Minister Mark Carney’s Liberals to decide whether to accept the committee’s verdict and how to act if they do.

“We’re going to take the time to digest the report. At minimum, over the next few weeks, it’ll largely be understanding the recommendations that the committee made and the reasons that they landed on those recommendations. From there, we’ll have to determine as a government the right path forward,” Justice Minister Sean Fraser told reporters before the report was released.

Sources have signalled to the Star, on the condition they not be named, that the Carney government will likely abide by Wednesday’s recommendation.

But three senators involved in the study — Rosemary Moodie, Pamela Wallin, and Kristopher Wells — objected to the report’s conclusion and instead asked the federal government to “make a direct reference to the Supreme Court of Canada to clarify the law” regarding the expansion of the practice.

“This dissenting opinion results from the highly irregular and flawed process by which the (committee) conducted its business and on the poor quality of empirical medical, scientific, and research data that was presented at the committee,” the senators wrote.

Wells told the Star the committee’s work became too political, which overshadowed sensitive debates about Canadians’ lives.

“This is exactly why we’re calling for a reference to the Supreme Court. Let’s solve and get a ruling on these constitutional issues once and for all,” Wells said.

The divide comes as the current committee — which has existed in various iterations over the years — faces accusations that its study is biased in favour of amplifying those who oppose the practice.

The committee at the centre of the deeply divisive debate was formed earlier this year.

Its study comes after a 2021 Trudeau-era law — spurred by a Quebec Superior Court ruling — expanded access to MAID to those whose deaths were not reasonably foreseeable. That law included a clause that temporarily barred access to the practice for those suffering solely from a mental disorder.

Committee members considered several options when arriving at their final conclusion, including allowing the clause regarding the future expansion to expire, or recommending that Ottawa punt the decision down the line yet again.

Those who oppose to expansion assert that opening up MAID to those with mental illnesses alone would lead to preventable deaths, undermine recovery efforts, and encourage those with poor access to health, housing and social supports to seek death as a means to end their suffering. 

Wednesday’s report highlighted that there is still a lack of consensus around eligibility criteria and clinical readiness concerning MAID for mental illness, including whether the underlying condition is truly irremediable and whether MAID requests differ from suicidality. Some witnesses also cast doubt on how prepared Canada’s mental health system would be to onboard such a major change.

“I would say (in the) Thunder Bay emergency room on any given day, you might see five to 20 people who either attempted suicide or have considered or are considering attempting suicide,” said committee co-chair and Liberal MP Marcus Powlowski, a physician who has previously opposed the expansion of the practice.

“I have to say that for the vast majority of people, it is unsuccessful, and (they) go on at some point later on to find happiness. The number of people who do not get better is very small,” he told reporters.

But those in favour of MAID for mental illness argue that the practice would only to apply to those experiencing chronic and intolerable suffering that has not responded to treatment.

The report noted that some witnesses believe it is a violation of the Canadian charter to treat mental illnesses separately from physical illnesses, and that there is now better guidance to assess irremediability. 

Claire Elyse Brosseau, whose experience suffering from mental health conditions for decades was referenced in Wednesday’s report, questioned whether the committee was balanced.

“I’d like to ask the committee members if they think they’ve left people like me better off? Consider what it does to people when society repeatedly tells us we aren’t qualified to speak about our own suffering. We are people who already struggle with worthlessness, hopelessness, stigma, shame, and self-doubt,” her statement read.

Brosseau, who suffers from severe bipolar and post traumatic stress disorders, applied in May to the Ontario Superior Court of Justice to receive medically assisted death for mental illness as a sole underlying condition. She is also part of a Charter challenge alongside advocacy group Dying With Dignity.

That group said Wednesday it was “disappointed” by the committee’s recommendation, while the final report was welcomed by other groups like Inclusion Canada, which opposes the expansion.

In a supplementary opinion, the Conservatives said they supported the committee’s ultimate recommendation, while the Bloc Québécois issued a dissenting opinion arguing against the indefinite suspension of the expansion.

With files from Omar Mosleh