In a mere 18 words, the federal government has introduced an amendment to Canada’s medical assistance in dying legislation that is discriminatory, stigmatizing and simultaneously overbroad and impermissibly vague and arbitrary. Furthermore, it is logically incoherent and takes away access to MAiD that is available under the current law.

The current law states that, in order to be eligible for MAiD, a person must have a “grievous and irremediable medical condition,” and it then offers the following criteria for eligibility:

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

(a) they have a serious and incurable illness, disease or disability;

(b) they are in an advanced state of irreversible decline in capability;

(c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

The proposed amendment states, “(2.1) For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability.” 

With this amendment, the government appears to be trying to respond to concerns that have been raised about the potential risks associated with allowing persons with mental illness to seek MAiD. The most common concern is that there can be uncertainties about the prognosis and effective treatment for mental illnesses. Doubts are raised about the incurability of mental illnesses and the irremediability of suffering caused by mental illness.

However, a provision in the law that applies only to persons with mental illness without appropriate justification is discriminatory. There are physical conditions that have similar uncertainties around prognosis and treatment effectiveness. Why is mental illness excluded based on these uncertainties when physical conditions with similar uncertainties are not? There is no justification for treating similar cases differently.

In addition, this amendment is stigmatizing. Relying on the notion that every mental illness is curable feeds the false belief that people with mental illness would get better if they just tried harder. Also, it doesn’t take much imagination to see how the phrase “a mental illness is not considered to be an illness, disease or disability” might perpetuate the harmful idea that a mental illness is not a real illness, disease or disability.

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Furthermore, the amendment is both overbroad and impermissibly vague and arbitrary. If “mental illness” means “all mental disorders,” the provision captures more than is required to address the concerns it is supposedly motivated by. There are mental disorders about which there are no uncertainties about prognosis and treatment effectiveness (such as Huntington’s disease). There are mental disorders for which a clinician can say with confidence that the illness is incurable, the decline in capability is irreversible and the suffering is irremediable (for example, Alzheimer’s disease).

If, instead, “mental illness” means “a subset of mental disorders,” the provision is impermissibly vague and arbitrary. “Mental illness” is not defined in the legislation. If there were a clearly accepted lay or clinical definition, this might not be a problem. But there isn’t. The full set of mental disorders includes cognitive disorders like dementia as well as intellectual and developmental disorders like autism. It also includes anxiety, mood, psychotic, personality and eating disorders. It includes alcoholism, addiction and paraphilia. If “mental illness” is a subset, what’s in the subset and what’s out? And how are clinicians and patients to know? And what is the justification for the delineation of the subset?

The amendment also loses logical coherence by specifying that mental illness should not be included in the definition of “serious and incurable illness, disease or disability,” the criteria set out in section 241.2(2)(a).  But what about the other criteria? Does an “advanced state of irreversible state of decline in capability” (b) or “enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable” (c) include mental illness? The concerns that some have raised apply just as much to irreversibility and unrelievability as they do to incurability. To exclude mental illness from section 241.2(2)(a) but not from section 241.2(2)(b) and (c) makes no sense.

The proposed amendment also makes Canada’s MAiD law as a whole logically incoherent in how it treats mental illness when it is a person’s sole underlying medical condition versus when it is a co-morbidity (that is, when a person has both physical and mental conditions). Picture two people, Charlie and Dylan. Both Charlie and Dylan have severe long-term depression that has caused an advanced state of irreversible decline in capability, is the cause of their enduring, intolerable and irremediable suffering and is the reason they are seeking MAiD. Dylan also has Type 1 diabetes. Dylan’s diabetes is in no way motivating the request for MAiD. Under the proposed amendment, Dylan would have a serious and incurable illness (diabetes) but Charlie would not (because clinicians would not be allowed to consider depression a serious and incurable illness). Under the proposed amendment, therefore, Dylan could get MAiD but Charlie could not. Yet any uncertainty around prognosis and treatment effectiveness for depression applies just as much to Dylan as to Charlie. To give access to Dylan but not Charlie just makes no sense.

Finally, the exclusion for mental illness takes away access to MAiD that is available under the current law. Under the current law, there is no blanket exclusion of people with mental illness as their sole underlying medical condition. Under the proposed amendment there will be.

So those are the problems. What are the solutions?

Of course, there are uncertainties about prognosis and treatment effectiveness for many people with mental illness. Of course, we should be concerned about who is allowed to access MAiD.

But the government should generally look to the evidence, analysis and recommendations made in the IRPP Report MAiD Legislation at a Crossroads: Persons with Mental Disorders as Their Sole Underlying Medical Condition. Then, specifically, instead of passing the blanket exclusion for mental illness contained in this flawed proposed amendment, the federal government should encourage health care professional regulatory bodies to introduce practice standards and training materials to guide clinicians working with individuals who have conditions for which it is particularly difficult to assess the eligibility criteria —whether those conditions be mental or physical.

The federal government should also add an amendment containing a commitment to work on mental health supports (just as it did in the original MAiD legislation for disability supports). Such an approach would avoid discrimination, avoid messaging that is stigmatizing, be neither overbroad nor impermissibly vague and arbitrary, be logically coherent, not take away access that is currently available and support persons with mental illness.

Photo: Shutterstock/By A Plus Vector

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Jocelyn Downie
Jocelyn Downie is a professor emeritus in the Faculties of Law and Medicine at Dalhousie University, member of the Dalhousie University Health Justice Institute, and adjunct professor at the Australian Centre for Health Law Research at Queensland University of Technology.

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