Third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)—Amendment by Senator Kutcher

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: I will build on what Senator Carignan was saying, because I completely agree with him.

As you all know by now, Bill C-7 proposes to deny access to MAID to those with enduring and intolerable suffering because of mental illness, even if their condition is grievous and irremediable. The government justifies this automatic exclusion as necessary to protect those suffering from a mental illness because capacity assessments are more difficult to conduct when a mental illness is present and a desire to die is a symptom of some mental illnesses. That’s the rationale of the government.

There are many problems with this general exclusion, as the excellent brief of Senator Joyal shows. I had the honour of distributing it to all of you on Sunday.

At committee, we heard numerous experts explain how mental and physical conditions often merge together, how conditions of the mind can affect the body and vice versa.

We have also heard that it does not make sense to exclude Canadians suffering solely from mental illness while allowing access for those who may suffer both from a mental and physical illness. In these cases, capacity assessments must also be performed, and it seems it can be done without much difficulty in practice.

In reality, as many witnesses have said, the proposed exclusion reinforces, perpetuates or exacerbates myths and biases about mental illness, including that the suffering of those with mental illnesses is somewhat less legitimate than that of physical conditions and that people with mental illnesses lack the agency or capacity to make decisions about their own suffering.

Recently, in Attorney General of Ontario v. G., the Supreme Court found that the automatic exclusion of all individuals with mental illnesses to be discriminatory and explained:

Though the early 19th century’s most abhorrent treatment of those with mental illnesses has been left behind, stigmatizing attitudes persist in Canadian society to this day . . . . While discriminatory attitudes and impacts against those with mental illnesses relatively persist, they must not be given the force of law.

The Supreme Court also stated that to be valid, the exclusion should include the process that provides for individual assessments. In other words, a broad automatic exclusion doesn’t work; you need to provide for the possibility of case-by-case assessments.

In committee, we heard from experts that MAID assessment for individuals suffering from mental illness can be — and, in fact, has been — done safely on a case-by-case basis. Thus, a blanket exclusion overreaches what is necessary to protect those suffering from mental illness.

I would rather remove the exclusion clause altogether. However, I understand that it will take time for the medical profession to implement standards across the country in response to the requirements set out in Bill C-7. I therefore support the idea of inserting a sunset clause, as proposed by Senator Kutcher.

I want to point out that this sunset clause isn’t designed to give psychiatrists time to receive training on assessing a patient’s capacity to provide consent or on suicidality. As the Association des médecins psychiatres du Québec has pointed out, psychiatrists are already experts on these matters, which are part of their basic training.

The Association des médecins psychiatres du Québec, one of the most progressive organizations in Canada on this issue, says that the system could be up and running within 12 months in Quebec. I understand that this may not be the case all across Canada, so I think an 18-month period would be reasonable.

We must not rule out the possibility that the government might choose to adjust the safeguard measures before the end of the exclusion period. If the government and Parliament were to do that, especially in the current context, it could require more than 12 months.

In conclusion, I thank Senator Kutcher for bringing this amendment forward, and I invite all senators to join me in supporting it. Thank you.

 

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