On heels of latest report, advocacy group for disabled people wants Ottawa to scrap MAiD Track 2

“We’ve made a decision by the virtue of Track 2 as a society about whose lives are worth living and whose are worth saving, and we have clearly, by the law, said that the lives of persons with disabilities are not as valuable as other lives, and that is a huge problem,” said Krista Carr of Inclusion Canada.

An advocacy group for Canadians with intellectual disabilities says a new parliamentary report should encourage Ottawa to walk back the most recent expansion of medical assistance in dying.

The highly anticipated joint House and Senate committee study released on Wednesday called on the federal government to indefinitely pause a planned expansion of MAiD to people with mental illnesses.

Krista Carr, the CEO of Inclusion Canada, said the report’s findings could also be used to justify repealing Track 2, which allows people with disabilities to access MAiD.

She noted that it raised concerns about the lack of supports or services available for people with mental illnesses, which could also apply to Canadians living with disabilities.

“There’s lots of things about the lack of services and supports, the lack of access to things that people really need to thrive, and that those just aren’t there, Well, that’s all the same stuff, right?”

A Supreme Court ruling in 2015 struck down Canada’s criminalization of euthanasia and gave Parliament a deadline to pass legislation granting access to MAiD.

That first law restricted MAiD to people whose deaths were reasonably foreseeable. The Quebec Superior Court in 2019 stuck down the law as overly restrictive, prompting Ottawa to expand access to those with a grievous and irremediable medical condition.

Under the current eligibility rules, a patient requesting MAiD must have a serious illness, be in an advanced, irreversible state of decline, experience unbearable physical or mental suffering, and have exhausted all treatment options.

The 2021 law that created the new requirements also provided a pathway for people to request MAiD whose only underlying condition was a mental illness. This was originally set to go into effect in 2023, but the government intervened twice to delay the introduction to 2027.

Carr said she hopes Ottawa uses this opportunity to scale back MAiD access to disabled people, calling the existing rules “discriminatory” and harmful.

She said her organization receives frequent calls from disabled people approved for MAiD that want to back out and find meaningful help, as well as those not even considering it as an option but having it suggested by doctors and other medical professionals.

“In situation after situation after situation where people are not wanting to die, the suffering that they’re experiencing is not caused by their disability. It’s caused by the lack of services, healthcare support, poverty support, inadequate housing, or homelessness,” she said in an interview.

“People call Track 2 an autonomous choice, and that’s just completely false. We’ve made a decision by the virtue of Track 2 as a society about whose lives are worth living and whose are worth saving, and we have clearly, by the law, said that the lives of persons with disabilities are not as valuable as other lives, and that is a huge problem.”

Justice Minister Sean Fraser said he wanted to take some time to assess the findings of the report before making a decision on the future of MAiD.

“This isn’t easy work, which is why I’m going to take the time necessary to fully understand the recommendations of the committee and the evidence that underpins those recommendations,” he said on Wednesday before the report’s release.

When asked if Track 2 was under review on Friday, a spokesperson for Fraser wouldn’t directly answer but reiterated that the minister would need some time to review the report’s findings “before determining the path forward.”

“MAID is a deeply personal and complex choice that touches people at different times in their lives, and our government is committed to getting this right. The committee hears from dozens of witnesses and receives briefs from across the country, and that evidence deserves our full consideration,” Jeanne Joannie Fogue Mgamgne said in a statement.

Carr said she’s not hopeful that the government will reconsider.

“I would like to think that removing the sunset clause from the legislation, which would bring in MAiD for mental illness, would be a jumping off point to repealing Track 2, but I don’t know that that will be the case.”

The latest parliamentary committee is the third one struck to assess the eligibility of people with mental illness since 2021. Both of the previous committees recommended more time to study and prepare for the exclusion to end.

Liberal MP and committee co-chair Marcus Powlowski said the recommendation of an indefinite pause does not mean people with mental illness should never become eligible for MAID.

“Certainly I think the government should and ought to be willing at some point in the future to reconsider this,” he said.

Most of the 44 witnesses the committee heard from over the spring were opposed to the expansion of eligibility.

Many of them, including a number of psychiatrists, argued there is no consensus in the medical field on how to determine whether a patient has any prospect of getting better. A key condition for MAID eligibility is that a patient must be suffering from a grievous and irremediable medical condition.

“Moving forward with this expansion is reckless and dangerous,” said Conservative MP Tamara Jansen on Wednesday.

“The two core problems remain unresolved. Clinicians cannot reliably determine when a mental illness is irremediable, and they cannot reliably distinguish a request for MAID from suicidality in this context.”

Four senators on the committee wrote a dissenting report urging the government to disregard its core recommendation, and instead refer the question to the Supreme Court of Canada.

Senators Rosemary Moodie, Pamela Wallin, Kristopher Wells and Flordeliz Osler wrote that the process was “fundamentally flawed, highly irregular, biased, and lacking the evidentiary rigour required to inform policy on such a consequential issue.”

Bloc Québécois MP Luc Thériault wrote a dissenting opinion of his own which also calls for a Supreme Court reference to clarify the 2015 decision that led to the legalization of MAID.

Thériault, who was a member of all three special committees, wrote that this latest version was “undoubtedly the worst exercise I’ve been a part of.”

Dying With Dignity Canada’s CEO Helen Long said in a statement that she’s disappointed by the report and hopes Fraser will seek out other opinions before making a decision.

“We hope he will also consider the expertise of the Canadian Psychiatric Association — who were not asked to testify — and those with lived experience who were largely excluded from the conversation,” Long wrote.

The advocacy group was among those that raised concerns about the committee process, saying it chose not to hear from people with mental disorders who wanted to speak about why they would seek a MAID assessment.

Dying With Dignity has filed a constitutional challenge that argues excluding people with only a mental illness from MAID eligibility — while allowing those who are suffering from a mental illness and a co-occurring physical ailment to be assessed — violates their Charter rights.

Sen. Pierre Dalphond, a former judge and member of the committee, wrote in his own response to the report that he believes it would be unconstitutional to prohibit MAID for everyone suffering from a severe and irreversible mental disorder, but he agreed with the indefinite exclusion while the courts hear the Dying With Dignity case.

Dalphond said the case “will allow for a rigorous assessment of the factual evidence and expert opinions, an exercise that cannot be carried out by a parliamentary committee or in the context of a reference to the Supreme Court of Canada.”

In an interview with iPolitics on Thursday, Dalphond said he was concerned with the lack of uniformity in the existing MAiD regime, pointing to patients that were denied multiple times in their home province, only to receive approval in a different part of the country.

He called for better oversight and suggested changing requirements for who could act as an assessor for patients applying for MAiD.

“I think for mental disorders, I think this should be only psychiatrist or maybe psychologist, but not a nurse, not necessarily a GP [general practitioner]. I think that we have to fine tune the rules to accommodate this particular situation and avoid making it too easy,” he said, pointing to some rare cases in Belgium where people between 18 and 30 struggling with mental illness were approved.

Conservatives on the committee also called for stronger monitoring and public reporting of the existing MAID regime, along with national standards for oversight and training to ensure the current safeguards are effective.