Third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)—Amendment by Senator DalphondPublished on 9 February 2021 Hansard and Statements by Senator Pierre J. Dalphond
Hon. Pierre J. Dalphond: Honourable senators, I am proposing an amendment to prevent consequences not intended by the government that could result from using the exclusion of mental illness as the sole underlying condition as grounds for denying access to medical assistance in dying to people with neurocognitive disorders, such as Alzheimer’s, Parkinson’s, Huntington’s and dementia.
Eligibility for medical assistance in dying is established based on the criteria set out in subsection 241.2(1) of the Criminal Code, which Bill C-7 does not propose to amend. In order to get access to medical assistance in dying, a person must have a grievous and irremediable medical condition, which means that the person must have a serious and incurable illness, disease or disability.
Bill C-7 proposes adding that “mental illness is not considered to be an illness, disease or disability,” and with the amendment that we adopted, this exclusion would continue to apply for 18 months. If the House of Commons accepts our proposal, then the mental illness exclusion would still apply for the next 18 months. The practical effect of this exclusion is to restrict access to medical assistance in dying for people suffering solely from a mental illness for as long as the exclusion is in effect.
In addition to the concerns we discussed a few minutes ago regarding stigma and discrimination, many experts spoke about the uncertainties that even the use of the term “mental illness” raises.
Dr. Mona Gupta, a psychiatrist and chair of the Association des médecins psychiatres du Québec’s advisory committee on medical assistance in dying, which was asked to examine the issue by the College of Physicians, told the Standing Committee on Legal and Constitutional Affairs the following, and I quote:
. . . the expression “mental illness” is not clear. In standard psychiatric terminology, we speak of mental disorders. It’s a very broad area.
Fleur-Ange Lefebvre from the Federation of Medical Regulatory Authorities of Canada added:
First, there is a lack of clarity. “Mental illness” is not a precise medical term. In medical terms, “illness” refers to the patient’s individual experience with a disease.
The lack of precision casts a doubt and may lead to debate, in practice and possibly before the courts, as to whether or not neurocognitive disorders like Parkinson’s and Alzheimer’s constitute a mental illness for the purposes of the exclusion. Dr. Timothy Holland, a MAID physician provider and assessor explained:
Mental illness, and the definition of illness itself, is something that has been in debate within medicine and philosophy. So many people will define mental illness as a specific set of diseases that are housed within the mind and within the DSM5 criteria — anxiety, depression. Other folks might argue it may be Parkinson’s or Alzheimer’s.
The uncertainty is further exacerbated by the fact that all forms of dementia and other neurocognitive disorders can be found, alongside other mental disorders, in the two main classification manuals used in psychiatry, as Professor Donna Stewart from the University of Toronto explained:
The American Psychiatric Association and the World Health Organizations have independently developed a classification of diseases. The American one, which is called the DSM-5 — which stands for Diagnostic and Statistical Manual of Mental Disorders, fifth edition — includes all the dementias in their list along with a number of other neuropsychological conditions. The International Classification of Diseases, the ICD-10, of the World Health Organization also includes the dementias. Both are extremely broad, and both include the whole area of mental disorders under those classifications.
It is important to note that people with neurocognitive disorders, like dementia, can and have met the eligibility criteria set by Bill C-14. As Professor Jocelyn Downie from Dalhousie University explained:
People with dementia can meet the eligibility criteria under Bill C-14. In fact they can meet the fourfold criteria. You can have capacity and still already have met the criteria for reasonably foreseeable, serious and incurable advanced state of irreversible decline and capability, and enduring intolerable suffering. So we have people with dementia getting MAID now under the current system.
An uncertainty in the Criminal Code on the meaning of mental illness may therefore lead to a real regression in the rights of people with neurocognitive disorders. There is a real risk of a chilling effect in practise. To avoid any potential criminal charges, physicians may choose to err on the side of caution and deny MAID requests from patients with neurocognitive disorders who would otherwise qualify for MAID.
Appearing before the committee, the Minister of Justice, David Lametti, tried to alleviate uncertainty by referring to the explanations in the “Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision,” a background document published by the Department of Justice. The document reads as follows:
Despite the absence of a single clear definition of mental illness, in the context of Canadian discussions on MAID, this term has come to be understood as generally referring to those conditions which are primarily within the domain of psychiatry . . . . In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry . . . or specialties outside of medicine . . . .
In his testimony, Minister Lametti added, and I quote:
Let me be clear: The exclusion is not intended to capture neurocognitive disorders that are due to Alzheimer’s or Parkinson’s disease . . . .
Notwithstanding the minister’s comments and the explanations in the background document, that clarification does not appear in the text of the bill. Unfortunately, I am concerned that this could cause problems for practitioners.
There were also questions about what weight the background document might have when courts are called upon to interpret the expression “mental illness.” In response to a question from Senator Carignan, Professor Patrick Taillon of Laval University explained, and I quote:
. . . it is not uncommon for interpretation to be informed by documents other than acts and regulations, but in criminal law, it seems less likely, or at least less frequent, especially for mental health issues.
The issue here is a lack of clarity in Bill C-7. In the absence of a legislated definition, there will likely be uncertainty and debate on whether the mental illness exclusion is meant to include neurocognitive disorders. These individuals may find themselves excluded from the MAID framework even though this is not the government’s intention. That unintended consequence can be avoided by a simple change to the language proposed in Bill C-7.
Before the committee, Fleur-Ange Lefebvre stressed the importance of clarity and the language used, and I would like to quote her again:
. . . I’m sure we will all agree there must be clarity of legislation. The language cannot allow for divergent interpretations or uncertainty. Patients, families, the public, physicians, other health care professionals and law enforcement must all share the same understanding of the legislation.
Honourable senators, it is important, for the sake of clarity in the law, to ensure there is no regression in terms of access to MAID for Canadians with neurocognitive disorders.
Motion in Amendment Adopted
Hon. Pierre J. Dalphond: Therefore, honourable senators, in amendment, I move:
That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 3, by replacing line 6 with the following:
“ness, other than a neurocognitive disorder, is not considered to be an illness, disease, or disabili-”.
The end result would be that the whole clause would now read as follows:
For the purposes of paragraph (2)(a), a mental illness, other than a neurocognitive disorder, is not considered to be an illness, disease or disability.
Hon. Diane Bellemare: Madam Speaker, I have a question for Senator Dalphond.
The Hon. the Speaker pro tempore: Yes, Senator Dalphond has three minutes left. Would Senator Dalphond take a question?
Senator Dalphond: Gladly.
Senator Bellemare: Senator Dalphond, my question is this: Why not wait for a full review of the legislation to be done, either next year or sometime soon, before proposing this kind of amendment?
I understand it and I agree with you, but I’m not sure that Bill C-7 is the best way to make all these changes. What are your thoughts on that?
Senator Dalphond: Thank you for the question, Senator Bellemare.
This amendment doesn’t change the government’s intentions. Rather, it confirms its intentions regarding the mental illness exclusion, which is new and wasn’t included in Bill C-14. It confirms what the minister told the committee and what the government’s explanatory document also says.
If we had to wait a year and a half to revisit the issue, uncertainty would abound and Canadians would be denied access to medical assistance in dying. Unfortunately, their psychiatrists would conclude that they don’t qualify because they have Alzheimer’s or Parkinson’s, which are classified as mental illnesses in psychiatric manuals.
I hope that answers your question.
Hon. Frances Lankin: Senator Dalphond, will you take another question?
Senator Dalphond: Of course.
Senator Lankin: I support the intent of your amendment and what the government’s stated intention is. I want to know from a legislative drafting point of view, when you specifically name certain disorders — neurological disorders in this case — that will not be included in a definition of mental illness, are we at risk of some other types of disorders being read to be included because they were not specifically excluded, and has that been looked at in your drafting of this? I’m just looking for clarity to ensure this is not creating a potential new problem.
Senator Dalphond: Thank you for this excellent question.
I’m not a psychiatrist and I will leave it to Senator Kutcher to explain psychiatry better than I can. But I can tell you for the last few weeks I have been working with the Quebec Association of Psychiatrists, Dr. Gupta, Dr. Green from outside Quebec and many other psychiatrists to find, first, a definition of mental illness. It became impossible to define, but they were clearly in agreement with the exclusion which is being proposed as achieving what is in the practice and what the government is trying to do.