Senator says debate on mentally ill accessing MAID is 'over' citing 'respect' for Charter Rights

Senator Stan Kutcher, who practiced as a psychiatrist before joining the Senate, urged Canadians not to think mentally ill patients lack agency when debating access to MAID.

  • Rebel News
  • March 18, 2023
  • News Analysis
Senator says debate on mentally ill accessing MAID is 'over' citing 'respect' for Charter Rights
Rebel News
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The independent senator who advocated for mentally ill people to access Canada's assisted dying regime said the debate about the policy is over.

"The expansion issue has already been decided upon," according to Independent Senator Stan Kutcher, who claims Canadians determined it two years ago when he convinced Ottawa to move forward with an expansion of eligibility.

According to a recent poll by Angus Reid, most Canadians support Ottawa's first two iterations of MAID legislation. However, many expressed concerns about expanding it to mental illness as the sole condition.

Nearly three-fifths (56%) of Canadians supported the first MAID law in 2016, while 16% opposed it. Approximately two-fifths of respondents praised people's ability to control their end-of-life decisions, but one-quarter disagreed.

Ultimately, support fell to 31% for offering MAID for irredeemable mental illness. It said half oppose this idea, with 18% unsure. 

In March, Parliament hastily passed a bill to delay the expansion of assisted dying eligibility to people whose sole condition is a mental disorder until March 17, 2024, to ensure sufficient training and practice standards for provincial regulatory bodies and practitioners.

Meanwhile, BC MP Ed Fast proposed a private member's bill condemning the federal government for extending medical assistance in dying (MAID) to vulnerable people suffering solely from mental illness.

"Those suffering from mental disorders, including depression, deserve mental health, social support, and counselling. They need to find joy and meaning in life," said Fast, who disapproved of Ottawa's "deeply concerning" move to embrace a "culture of death."

He said Ottawa should offer them help, not death.

"They need to find some joy and some meaning in life."

But Kutcher, who practiced as a psychiatrist before joining the Senate, urged Canadians not to think mentally ill patients lack agency.

"Just because an individual might belong to a group that is considered vulnerable, doesn't mean that individual is vulnerable," he said, inviting his opponents to challenge the law at the Supreme Court of Canada. 

"I don't know why they're not if they have such strong feelings."

Conservative leader Pierre Poilievre proudly supported Fast's bill and said some people suffer from poor mental health due to the federal government's policies.

"After eight years of Justin Trudeau, everything feels broken, and people feel broken. That's why many are suffering from depression and losing hope," he said.

"Our job is to turn their hurt back into hope. To treat mental illness problems rather than ending people's lives."

Should the bill die on the floor, Poilievre pledged to introduce legislation that repeals MAID for the mentally ill. Still, he confirmed he would not invoke the notwithstanding clause to protect such a law from constitutional challenges as the courts have never deliberated on the mentally ill accessing MAID.

After MAID became legal in 2016, a Quebec court expanded access after judges ruled the "reasonably foreseeable" death clause unconstitutional.

In 2021, Ottawa permitted anyone with "a serious and incurable illness, disease or disability" who is in "an advanced state of irreversible decline" to access MAID — not including the mentally ill.

Since 2016, the number of Canadians accessing the procedure has risen significantly. 

The country recorded 31,664 assisted deaths between 2016 and 2021, with an average year-over-year growth rate of roughly 66%. In the previous data year, Canada recorded 10,064 such deaths.

While two-thirds of respondents in the Angus Reid poll said people dealing with debilitating chronic pain should be able to request MAID, support for those with post-traumatic stress disorder (23%) or severe depression (22%) accessing the procedure is low.

However, the Senate permitted those with "irremediable" mental illness to access the procedure in a controversial amendment that passed later that year.

Justice Minister David Lametti — who faced pushback for commenting that disabled Canadians couldn't "[commit suicide] themselves" — ultimately delayed access until next year.

According to Kutcher, passing the amendments aligns the feds better with the criteria set out in the 2015 Supreme Court decision that had initially challenged the prohibition on assisted death as a counter to the Charter of Rights and Freedoms.

He claimed the government should go further to respect Charter rights truly, though most Canadians expressed concern with MAID replacing improvements in social services.

"If you had Lou Gehrig's disease, or if you had severe Parkinson's, you would be eligible to apply for and be treated humanely and thoughtfully, and critically. You would have an opportunity to apply for relief of your suffering," he said.

"But if you had a mental illness, you would be excluded from such. I thought that that was a flagrant example of stigma and discrimination."

In his arguments, Kutcher convinced senators to amend the bill in the Senate and send it back to the House of Commons, writing an 18-month delay into the law so that practitioners could prepare for a significant change.

The government added another six months to the clock, which became another year with the delay. No further delays to the expansion are expected unless there is a change in government before then.

That's a good thing, said Helen Long, chief executive officer of the advocacy group Dying with Dignity Canada.

Long claimed the expansion is an "equalizer" because some mental disorders are treatment resistant, like some physical illnesses. 

She said the bill would still require people with only a mental disorder to meet all other eligibility criteria.

Long agreed with Kutcher that continued political debate on the policy "continues to stigmatize those individuals."

"Just because you have a mental disorder does not mean you won't have the capacity," she said, adding that had Kutcher not argued in favour of amending MAID legislation, a legal challenge would have likely launched, claiming the current regime discriminated against people whose only condition is a mental disorder.

Long contends that a legal challenge is a sure thing if Ottawa doesn't expand MAID eligibility next year.

University of Waterloo political science professor Emmett Macfarlane conveyed that excluding mentally ill people is "ripe" for a Charter challenge, citing equality rights.

"On its face, the exclusion would be discrimination based on a disability. It's difficult to justify an absolute prohibition of people with a mental illness," he said.

Macfarlane articulated that only medical professionals should determine what counts as an "irremediable condition." 

He said the Supreme Court clarified already that access to MAID is guaranteed in the Charter, and that isn't going to change.

"We are never going back to an absolute prohibition on medical aid in dying," he said. "That debate is closed."

Canada News Analysis
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